A 40-year-old father whose conviction for sexually assaulting his nine-year-old daughter as she slept in his bed was quashed on appeal is to face a retrial.
The man had pleaded not guilty to assaulting the girl between January 1st, 2017, and April 30th, 2017 at their home.
He was convicted by a jury following a trial at Dublin Circuit Criminal Court and sentenced to three years and four months' imprisonment.
His conviction was quashed last week after his lawyers successfully submitted to the Court of Appeal that the intention to assault had not been established at the trial and the jury should have been directed to deliver a ‘not guilty’ verdict after the prosecution had closed its case.
His lawyers had also criticised the trial judge for telling the jury that they could convict solely on the evidence of the complainant and did not require corroboration.
After Court President Mr Justice George Birmingham delivered the judgment, Kate Egan BL, for the Director of Public Prosecutions (DPP), said the State was requesting time "to consider its position".
On Thursday Ms Egan informed Mr Justice Birmingham, who was sitting with Ms Justice Patrick McCarthy and Ms Justice Isobel Kennedy, that the DPP was seeking a retrial “on this matter”.
In response, Giollaíosa Ó Lidheadha SC, defending, said he was asking the court to “exercise its discretion” and refuse the request from the State.
Mr Ó Lidheadha said his client, who was remanded on bail last week on condition he does not contact the complainant, had been convicted of a single count “which had involved touching” and had already served 11 months in custody.
Granting the request for a retrial, Mr Justice Birmingham said the complainant had the right to have the allegations “adjudicated by a jury”.
No memory
Last July, the sentencing court was told that when the man was arrested and questioned about his daughter’s allegation, he said he didn’t remember anything happening.
Judge Elma Sheahan had noted the man “absolutely denied what she said he had done” and had insisted the girl had said the following day that he had only put his hands down the front and back of her pyjamas.
Although he was “deeply regretful for having had his daughter in his bed”, the sentencing judge said the man “doesn’t accept the verdict of the jury”.
Quashing the conviction, Mr Justice Birmingham noted that the trial judge had made clear to the jury that “if they were not satisfied beyond reasonable doubt that the accused was awake and was not asleep, he was entitled to an acquittal”.
Whether the accused was asleep or awake at the time was of “such a central significance in the context of the trial” that the “jury required additional assistance with the evidence on this topic”, the judge continued.
“The fact that this did not happen does leave us in some doubt whether the verdict can be said to be safe,” he added.
“In those circumstances, we feel obliged to quash the conviction.”
Regarding the issue of corroboration, Mr Justice Birmingham said the court was dismissing this ground of appeal.
He noted that although the trial judge “did not give a corroboration warning as such… she did explain what corroboration was, and, in effect, told the jury there was no corroboration”.
“She observed that this was not unusual in cases of this nature, because, by its nature, sexual activity tends to occur in private and not in public,” he continued.
During the trial last May, the court had been told that the girl disclosed the alleged abuse about six months after the incident.
She said she had gone to bed around 1am and woke up to find her father had put his hands down her bottoms, front and back and had touched both her vagina and back passage, “where babies come from”.
After the guilty verdict was delivered, the man’s daughter - who was now 13-years-old - told the court via a victim impact statement that her father had taken part of her childhood which she said she could never get back.
“It is unforgivable and unimaginable,” she said. “He should have been protecting me, caring for me and looking after me but he wasn’t.”
She also said her father had shown “no remorse” for his actions and had even claimed she had been lying.
“Upsetting me more and making everything harder for me, he failed to take responsibility for his actions,” she added.
“Today justice has been served,” she concluded. “I only hope that I close this chapter of my life and move on.
Mr Ó Lidheadha, defending, said his client recognised the extreme hurt he caused his daughter and understands that “things he should have done that he didn’t do and that has contributed to her pain”.
Counsel said his client “maintains that he did not do this intentionally”.
“He is absolutely committed to try and rebuild the relationship with his daughter. That is his number one priority in his life,” Mr Ó Lideadha said.