A man who was jailed for sexually assaulting his daughter’s six-year-old friend has appealed against his conviction, arguing that the child “had no memory of the abuse” when cross-examined at his trial.
The man (50), who cannot be named to protect the identity of a 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 sexually assaulting the girl when she was visiting his daughter at a Dublin address in October 2016 but was convicted by a Dublin Circuit Criminal Court jury in May of last year.
At the Court of Appeal, counsel for the appellant Dean Kelly SC said the girl, who was 11 at the time of the trial, alleged that the male put his hand up her skirt and touched her private parts for “seconds or minutes”.
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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.
Mr Justice John Edwards, presiding at the Court of Appeal, said that the DVD of the girl’s interview with gardaí was recorded in the early aftermath of the assault and was preserved and used for the girl to refresh her memory.
Mr Kelly said the girl was “directly asked if she remembered and replied: ‘No. I have flashbacks. I don’t really remember’”.
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.
Mr Justice Patrick McCarthy said the girl could remember events around the day such as the man being drunk and there being an iPad on the sofa.
Brendan Condon SC, for the State, said 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”.
Mr Condon repeated that the girl recalled the day and mentioned playing with dolls, sitting on the sofa and playing with an iPad.
Mr Condon said if there was any “frailty” in the evidence of the girl, that its reliability should be decided by the jury.
Mr Justice Edwards said the court would reserve judgment in the case.
At the trial, the investigating garda said the man was in the sittingroom 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 that 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”, “what she had to go through when her only fault was to play in a friend’s house”, but she added she was glad to hear that the girl has been resilient throughout the process.
She sentenced the man to four years in prison after noting that the accused was currently serving a long prison sentence on a more serious matter and is due for release in 2023.