A man jailed for eight years on charges of statutory and oral rape of a schoolgirl walked free from the Court of Criminal Appeal yesterday after it overturned his conviction. The CCA did not order a retrial in the case of George Kerr because he had been through three trials and two appeals in relation to the case and has spent 3½ years in prison.
The conviction of Mr Kerr (59), Callystown, Clogherhead, Co Louth, a native of Liverpool, was overturned on grounds including the failure of the trial judge to allow cross-examination of the girl on her past sexual history following her disclosure to a psychologist that she became sexually active from the age of 12.
The girl, now aged 25 years, had alleged the offences occurred when she was aged between 10 and 15 years.
Mr Kerr was convicted on eight charges of oral rape, unlawful carnal knowledge and sexual assault of the girl and jailed for eight years at the Central Criminal Court last year.
Mr Kerr was convicted unanimously on two charges of oral rape, and one each of unlawful carnal knowledge of a girl under 15 years and of a girl over 15 and under 17 on February 9th, 1997.
The jury also found him guilty on four counts of sexual assault. It found him not guilty of one charge each of indecent assault and oral rape and disagreed on two further unlawful carnal knowledge counts.
Giving the CCA judgment, Mr Justice Nicholas Kearns noted that defence counsel for Mr Kerr argued that the trial judge had erred when he refused to allow cross-examination of the complainant as to her past sexual history.
A relevant matter only emerged at the sentencing hearing which followed the second trial, Mr Justice Kearns said.
This development was, "to say the least of it, both unexpected and unusual" and related to a Victim Impact Report prepared for the sentencing hearing by a clinical psychologist who had counselled the young girl after she had reported incidents of sexual abuse to gardaí.
The report indicated the girl had, during therapy, disclosed that she became sexually active with boys when she was 12 years old. At the third trial, defence counsel sought leave to cross-examine the girl arising out of the disclosures made by her to the psychologist.
The defence had argued that this disclosure by the girl, taken in conjunction with the medical evidence and the presentation of her to the jury as a young girl with no other sexual experience, resulted in a real unfairness to Mr Kerr.
It could not be denied that the admission of a history of sexual activity with other boys of her own age commencing at the age of 12 and concurrent with the time of alleged sexual abuse by the applicant passes the test of relevance, the judge said.
The decision not to permit cross-examination of the girl, the judge ruled, was unfair to Mr Kerr as the history in question could have materially affected the jury's deliberations whether to find him guilty or not guilty.