A man jailed for sexually assaulting his daughter's six-year-old friend has had his conviction quashed by the Court of Appeal (CoA) because her lack of memory of the alleged incident due to the passing of time prevented the defence from effectively cross-examining the child.
The man (50), who cannot be named to protect the identity of the child, was convicted and sentenced to four years' imprisonment by Judge Elma Sheahan for the sexual assault. The judge described the offence as a “significant breach of trust when a child goes to play with a friend and is put in such danger”.
The man had pleaded not guilty of sexually assaulting the girl when she was visiting his daughter at a Dublin address in October 2016, but was unanimously convicted by a Dublin Circuit Criminal Court jury in May 2021.
It was his third trial in the matter after juries had been discharged once due to Covid and once due to an absence of disclosure from the prosecution.
At a previous hearing of the CoA, counsel for the appellant, Dean Kelly SC, said the girl, who was 11 at the time of the third trial, alleged the man put his hand up her skirt and touched her private parts for "seconds or minutes".
Mr Kelly said the girl had "no memory" and "only flashbacks" of the incident when her video interview with gardaí was played back to her to refresh her memory.
Mr Kelly said because the girl said she had no memory of the assault, the cross-examination of her evidence was being denied to the accused.
The girl was "directly asked if she remembered and replied: 'No. I have flashbacks. I don't really remember'," Mr Kelly said.
The barrister said he had put it to the girl in cross-examination that she was wrong and that the incident did not happen, but the girl said that, even though she could not recall it, the man must have been lying because it did occur.
At the CoA on Tuesday, Ms Justice Úna Ní Raifeartaigh said the court would allow the appeal and quash the conviction.
Ms Justice Ní Raifeartagh noted there had been a four-and-a-half year gap from when the video was recorded, when the girl was six, to the trial cross-examination when she was 11-years-old.
"The child in this case frankly conceded in cross-examination during the trial that she had little memory of the incident and was relying upon what she had seen in the video-recording of her interview," Ms Justice Ní Raifeartaigh said, reading the court's judgment.
The judge said the questions in the matter were whether the appellant could exercise his lawful entitlement to cross-examine and whether the trial was fair.
"The appellant submits the right to cross-examine in the particular circumstances of the case was effectively rendered meaningless where the only witness to the alleged offence could answer no questions concerning the events on the day it was alleged to have occurred.
"Although other witnesses could testify to other events on the day, as regards the allegation of sexual assault itself, it amounted to a bare assertion met with a bare denial in circumstances where the child's lack of memory amounted to a denial of the right to cross-examine," the judge said.
Ms Justice Ní Raifeartaigh said the right to cross-examine was a "key right", protected under the Constitution and the European Convention on Human Rights.
"Careful consideration must be given to a claim that an appellant's right to cross-examine has, by reason of the effects of delay upon a child's memory, been limited or impaired to a degree that renders the trial unfair.
"The court is of the view that her memory was substantially impaired if not completely absent. The key question in our view is whether the appellant could exercise his constitutional right to cross-examine. We have concluded that he could not," Ms Justice Ní Raifeartaigh said.
"In all the circumstances, the court has reached the conclusion that the conviction should be quashed on the basis that there was a real risk of an unfair trial," the judge added.
Brendan Condon SC, for the State, had submitted that there was no unfairness in the trial and that the trial judge was in the best position to let the trial continue. He said the judge had also twice given "excellent charges" to the jury on the evidence before them.
Mr Condon said it was not a case of the girl remembering nothing because she was getting flashbacks of the incident. He said the trial judge decided the case was "capable of going before a jury, and it did, which it should".
At the trial, the investigating garda said the man was in the sitting room with the victim and her friend — his daughter — and the children were struggling with the iPad they were looking at. The man’s partner asked him to assist the girls with the device.
The girl later told gardaí that while the man was sitting next to her, he put his hand up her skirt and touched her vagina outside of her underwear. The girl told her mother what happened and the man was arrested and interviewed during which he denied the allegation.
A victim impact statement, which was prepared by the child’s mother, was handed into court but not read out.
The garda agreed with Mr Kelly that his client’s mother died at a young age having suffered mental health issues.
Mr Kelly said the man’s father was an alcoholic and bullied and abused him, which led to his client developing a very serious drink problem and gambling addiction.
At his sentencing, Judge Elma Sheahan noted there had been three trials before the man was ultimately convicted by a jury, and acknowledged that the child had to give evidence twice.
She said the victim-impact statement was “very sad reading”, adding: “What she had to go through when her only fault was to play in a friend’s house.” However, the judge said she was glad to hear that the girl has been resilient throughout the process.
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.