A trial judge failed to draw the jury’s attention to evidence which would have cleared a father of allegations that he molested his then nine-year-old daughter as she slept in his bed one night, his lawyers have told the Court of Appeal.
The man had pleaded not guilty to sexually assaulting the girl on an occasion between January 1st, 2017, and April 30th, 2017 at their home in Dublin.
The jury, however, found him guilty following a trial last May at the Dublin Circuit Criminal Court and he was sentenced to three years and four months’ imprisonment.
The man has never accepted the jury's verdict and has launched an appeal against the conviction on the grounds that the prosecution’s own evidence indicated he was asleep when “the conduct complained of” took place.
The man also claims a conversation which was supposed to have taken place between himself and his daughter in the middle of the night and immediately after the offending had in actual fact taken place the next morning.
His lawyers have claimed that Judge Elma Sheahan failed to make this information clear to the jury and if she had done so, she would have been forced to direct them to find the accused not guilty.
At the Court of Appeal on Thursday, defence counsel Giollaíosa Ó Lideadha SC described the case as a “nightmare scenario” for his client, whom he said “fervently asserts that he did not knowingly touch his daughter in a sexual way”.
Mr Ó Lideadha also told the three-judge court that his client had maintained throughout his trial that evidence from the victim indicated “he was asleep at the time when the actions are alleged (to have occurred)”.
“That is what the complainant essentially said to gardaí on a number of occasions,” Mr Ó Lideadha continued, adding that this is what the girl also had told her older sister.
Counsel continued that the prosecution’s “back-up position” was to state “there was a conversation during the night [between the man and the victim] and from that the jury can infer that he was actually awake”.
Mr Ó Lideadha said that under cross-examination, the complainant said the conversation had in actual fact occurred “the next morning”.
Kate Egan BL, for the Director of Public Prosecutions (DPP), told the court the trial jury had been presented with evidence which allowed them to find that the accused was awake at the time of the assault.
Responding to the assertion from Mr Ó Lideadha that the act was committed “in the middle of the night”, Ms Egan said the evidence indicated it was “bright outside” when the assault took place and therefore the incident had occurred “closer to morning than nighttime”.
“And that the conversation occurred shortly thereafter,” counsel added.
Judgement has been reserved.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800 77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help. In the case of an emergency, always dial 999/112.