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Conviction appealed Man (73) who repeatedly indecently assaulted sister-in-law (6) seeks to quash conviction at Court of Appeal

In July 2019, the male, whose partner was the victim's older sister, was sentenced to three years imprisonment for eight counts of indecent assault on the girl

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A man has appealed against his conviction for indecently assaulting his sister-in-law when she was six years old, arguing that background evidence of "grooming" should have not been allowed at trial.

Today, the 73-year-old male, who cannot be identified to protect the identity of his victim, submitted through lawyers that his conviction should be overturned because background evidence that was not relevant to his indecent assault charges was put before his trial jury.

In July 2019, the male, whose partner was the victim's older sister, was sentenced to three years imprisonment for eight counts of indecent assault on the girl on dates between December 1973 and April 1975. He had pleaded not guilty to the charges but was convicted by a Clonmel Circuit Criminal Court jury.

Kathleen Leader SC, for the appellant, said that at the 2019 trial that the State introduced evidence of an incident that happened two years before the male's offending began.

Ms Leader told the three-judge Court of Appeal on Friday that it was the State's case at trial that the background evidence introduced was to prove that there had been a grooming process in place regarding the male and the girl, who was then four years of age at the time of the outhouse incident.

Ms Leader said that the trial had heard of an incident at a christening when the girl went to use an outside toilet. The victim told the trial that she was having a pee when the male, then in his 20s, came into a shed to watch her before he took out his penis and began "playing with himself".

She told the trial that her elder sister, the partner of the male, came into the shed, told the victim that she was a "dirty girl" and that she should not report the matter.

Ms Leader said that the incident was "not the behaviour of the same species" of the later offences, which involved digital penetration, and that there was a two-year gap between the incident and the first of the offences before the jury at trial.

Counsel said that masturbation incident was "simply not relevant" to the indecent assaults for which the male was later convicted.

Ms Leader said that while the incident in the outdoor bathroom was "misconduct" evidence, it was not a crime at the time.

The State argued at the trial that the evidence was relevant in that it illustrated the background to the relationship between the male and his sister-in-law.

Ms Leader said that that evidence was only helpful to the prosecution and that any background evidence towards grooming was a "mischaracterisation" in that it was not an attempt to get the child to trust him over a period of time.

John O'Kelly SC, for the State, said that the incident at the bathroom was "very much a part of the abuse" and that the complainant's later victim impact statement referenced it on its first page.

"It starts with that. In her mind, this is central to her," said Mr O'Kelly.

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Mr O'Kelly said that the child was "punished" and called a "dirty bitch" by her elder sister, who walked in on the incident, and that "then, a number of years later he is living with her and she is in a vulnerable position".

"The child was being introduced to sexualised behaviour and thought that she was supposed to have done something wrong," said Mr O'Kelly.

Counsel said that the male had an "indecent intent" towards the child, who remembered the masturbation incident "very, very clearly".

"It had a real bearing on the child and it is part of her story," said Mr O'Kelly.

Ms Leader said that putting "a label of grooming on something does not mean it is grooming".

Presiding judge Mr Justice George Birmingham said the court would reserve judgement in the appeal.

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