Man's conviction for sex assault on granddaughters quashed

A pensioner’s conviction for sexually assaulting his two young granddaughters was quashed by the Court of Criminal Appeal today.

Delivering judgement, the three-appeal judge court held it could "not conclude that the verdicts" in the case were "safe".

The man, who cannot be named for legal reasons, was convicted by majority verdict in March 2008 of sexually assaulting one granddaughter on a date unknown in 1998, and of sexually assaulting her young sister on September 18, 2004.

The CCA of Mrs Justice Fidelma Macken presiding, sitting with Mr Justice Declan Budd and Mr Justice Daniel Herbert ordered that the man’s conviction "be set aside", and directed a retrial take place.

In June 2008, he was jailed for 18 months with the final six months suspended in respect of the 1998 sex attack, and sentenced to nine months in prison with the final six months of that term also suspended, for the assault in 2004.

In evidence during her grandfather’s trial, one of the girls claimed there was genital and chest manipulation over her clothes and that he had said “what’s down there”, and then touched her.

Her young sister said she was sexually assaulted while playing video games at her grandfather’s house.

Twelve grounds of appeal were argued before the court by lawyers representing the man. He was granted bail pending the outcome of the appeal.

Today, the court overturned the man’s conviction on the basis of only one ground, that the trial judge "erred in fact and law" in refusing to discharge the jury after counsel for the prosecution "wrongfully commented twice" on the applicant’s failure to give evidence on his own behalf.

Lawyers for the man further argued that the trial judge, having refused an application to have the jury discharged, then failed to charge it appropriately.

The CCA said, although the trial judge informed the jury in her charge and recharge that no adverse inferences could be drawn from the fact the man himself did not give evidence, “these were not directed sufficiently” so as to “cure the infringement”.

The CCA said it was “inappropriate” to comment on or “consider” the other grounds of appeal as set out by lawyers for the pensioner, having regard to the possibility of a retrial.