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23 Jan 2022

Man fails to have conviction overturned for sexually abusing girlfriend's nephews

Man fails to have conviction overturned for sexually abusing girlfriend's nephews

Man fails to have conviction overturned for sexually abusing girlfriend's nephews

A man who acted like a “big uncle” to his then girlfriend’s young nephews while sexually abusing them at their grandparents’ home over a four-year period has failed in his bid to have the conviction overturned. 

The man, who cannot be named for legal reasons, was convicted of seven counts of indecent assault at Cork Circuit Criminal Court in February 2020 following a trial. 

The abuse took place on various dates between 1985 and 1989 and victims, who are brothers, were aged between four and nine at the time of the offending.  

Their abuser was in his late teens when he first targeted the youngsters. 

He had denied all charges against him. 

During the trial, the victims’ father recalled in evidence how the man would regularly “go off playing with the lads because he was like, kind of a big uncle”, during visits to the boys’ grandparents’ home. 

He also said the man and the boys would often gather in the children’s bedroom where they would “mess around” and play games of table football. 

A jury found him guilty and Judge Seán Ó Donnabháin sentenced him to three years’ imprisonment with 18 months of the custodial term suspended. 

The judge also noted that the boys were “just out of infancy” when the attacks began.  

Lawyers for the defendant later sought to have the conviction quashed on grounds that the trial judge had erred when he allowed alternative counts relating to the same alleged offence to go before the jury. 

It was further claimed that “substantial and repeated amendments” to the indictment over the course of the trial had breached their client’s right to a fair trial. 

In a written judgement delivered by Mr Justice Patrick McCarthy, it was conceded that several “procedural errors” had occurred during the trial. 

The judge stated that the errors, however, had not undermined “the overall fairness” of proceedings. 

He also dismissed claims from the appellant’s lawyers that the trial judge erred by stating in his charge to the jury that there had been “plenty of emotion” in the case. 

“The suggestion seems to be that the judge was expressing sympathy for the complainants in what he said which would influence the jury to accept their evidence and reject that of the appellant,” Mr Justice McCarthy observed. 

“We cannot see any basis for that suggestion,” the judge continued. 

“A jury would have to be regarded as a very weak instrument indeed for deciding on allegations of criminality of the utmost seriousness if something of that kind, i.e., the expression of such sympathy, could impact upon their deliberation. However, juries are not a weak instrument.” 

Mr Justice McCarthy also noted the “most striking feature of this case” had been “the relative coherence of the basic elements of the evidence of both boys”. 

The judge said the appeal was being dismissed on “all grounds”, apart from the man's first ground of appeal concerning the alternative counts relating to the same alleged offences, which the court would allow in part. 

 

Mr Justice McCarthy said the court had decided to quash the convictions recorded against these "alternative" verdict counts – numbered three, six and 15 on the final indictment – as it was an error to allow them to go before the jury. 

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