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David Hurley, 21 Jul
A PENSIONER from Limerick who was sentenced to seven years'
imprisonment for indecently assaulting his two nieces in the 1980s has
had his conviction overturned by the Court of Appeal.
In June of last year the now 73-year-old man, who cannot be named in
order to protect the identities of the two complainants, was convicted
by a jury at Limerick Circuit Court of three indecent assaults against
his nieces.
He was subsequently sentenced to seven years' imprisonment by Judge
Patrick Meghan.
The offences were alleged to have taken place on dates during the 1980s
in the accused's family home which he shared with his parents, who were
the grandparents of the two complainants. The man had pleaded not
guilty to all three charges.
The trial heard the first alleged assault happened while a niece was in
the appellant's vehicle and that, when she was sitting on his lap under
the guise of teaching her how to drive, he allegedly rubbed her breasts
in a circular motion outside of her clothes.
The second charge alleged that the man was alone in the house with
another niece, a sister of the first complainant, who described the man
laying her on a bed in her grandparents' room before allegedly
inserting his fingers into her vagina.
The third charge related to an incident which allegedly occurred when
the second niece was hoovering and the accused allegedly came up behind
her, put his hand down her pants and put his fingers into her vagina.
[ILIM_14-07-23_apple_iphone_25493607-1689789955974_1689790017.jpg--conv
icted_limerick_rapist_applies_for_return_of_iphone_he_used_to__lure__hi
s_victim.jpg?1689790017685]
Convicted Limerick rapist applies for return of iPhone he used to
‘lure’ his victim
The conviction was appealed on the sole ground that the rebuttal
evidence of the first complainant's husband should not have been put
before the trial jury.
The first complainant was cross-examined about her memory of the
incident and told counsel for the defence that although she had
"blocked out" the trauma of the incident, it was not that it had
"disappeared".
Counsel for the defence, Anthony Sammon SC, had asked the complainant
if she had "recovered" a memory, which, counsel said, went towards the
consistency of her recollection.
The complainant had replied that "some of the details are sketchy but
only some of them".
On foot of that exchange, the prosecution called the husband of the
complainant on the basis that the complainant's evidence was challenged
as being a "recent fabrication".
The prosecution contended that the evidence of the complainant's
husband regarding a disclosure she had made to him in 2004 was now
admissible to rebut the imputation made of the complaint evidence being
"recently fabricated".
However, the defence had rejected the assertion that the
cross-examination amounted to an imputation of a "recently fabricated"
complaint which would allow the rebuttal evidence of the complainant's
husband.
The complainant's husband told the court he remembered that his wife
had told him in the early 2000s that "it happened when she was young"
and had named her uncle.
Counsel for the appellant said it was "right, proper and legitimate
that she be cross-examined on the issue and moreover that it would have
been remiss not to have raised the issue with her, when the reliability
and credibility of the complainant were central for the defence of the
accused".
In delivering judgement this Friday, the Court of Appeal ruled that
"the law permits rebuttal evidence to rebut a suggestion of fabrication
where, during cross-examination, a witness is alleged to have
fabricated evidence".
Ms Justice Isobel Kennedy said the appellant submitted that the
complaint was made 32 years after the incident and that this "posed
concerns of an alleged flawed recollection and alleged recovered
memory".
However, Ms Justice Kennedy said the appellant's lawyers argued there
was no suggestion that the complainant had "recently invented" the
allegation and, therefore, the rebuttal evidence of the complainant's
husband should not have been admitted.
The judge said that the "starting point of the attack must constitute
one of recent invention; this simply was not the case here.
Accordingly, we are persuaded that the judge erred in the exercise of
his discretion".
"The evidence adduced [from the complainant's husband] was such as to
bolster the complainant's credibility in circumstances where there was
no proper basis to adduce the evidence. It can only have operated to
reinforce her credibility and cannot be excised from the trial at this
point," said Ms Justice Kennedy.
The first count of indecent assault was alleged to have occurred
between May 1, 1986 and October 31, 1987 when the older niece was aged
between 10 and 12 years old and the appellant was 36 to 37 years old.
The second and third assaults were alleged to have occurred between May
25, 1987 and May 25, 1989 on the second niece when she was between 10
and 12 years old and the man was between 37 and 39 years of age.
The man had lodged an appeal against his conviction for the first
offence only.
However, Ms Justice Kennedy said it could not be the case that only the
first count of alleged indecent assault was under appeal as "all counts
were heard together" and that "the jury were entitled to rely on the
similarity of the complaints in that the evidence on each was
cross-admissible".
In allowing the appeal, Ms Justice Kennedy concluded that "therefore,
having found an error regarding the conviction on count one, the entire
conviction must be quashed".