Tipperary man fails to overturn kidnap-and-assault conviction

A Tipperary man has failed in an attempt to overturn his conviction for the kidnap and sexual assault of a 14-year-old girl in a remote woodland 10 years ago.

At his Central Criminal Court trial in October last year, Joseph Finnerty (aged 46) denied the false imprisonment, aggravated sexual assault and sexual assault of the now 24-year-old woman in a car he drove to a remote Co Offaly woodland on November 6, 2000.

Finnerty, with a last address of Grove Villas, Roscrea, was jailed for three years by Mr Justice Barry White in November last year, after a jury found him guilty of false imprisonment and sexual assault.

Mr Justice White had directed the jury to find the accused not guilty of aggravated sexual assault after medical evidence in the case concluded the physical injuries the girl sustained were consistent with sexual assault, but not rape.

Counsel for Finnerty, Mr Hugh Harnett SC, told the Court of Criminal Appeal today that his client’s conviction was unsafe because the victim at the original trial had given evidence that she was raped, while both a paediatrician and a gynaecologist testified there was only evidence consistent with sexual assault.

He said that Mr Justice White had also erred in his assertion that it was “quintessentially” a matter for the jury to determine the validity of the medical evidence, and that he should have issued a corroboration warning to the jury highlighting the conflicting testimony.

Mr Hartnett said that in “extraordinary fashion” gardaí had also lost the seat covers of the car where the sexual assault had taken place, evidence which may have been of great significance had proper forensic analysis occurred.

Mr Paul Coffey SC, for the State, told the court that in the absence of any forensic analysis of the seat covers, the court was left to speculate whether evidence gleaned from the covers would have been of any benefit to the accused man.

He said that even if forensic analysis concluded there was no transfer of Finnerty’s DNA to the seat covers, this would not necessarily be detrimental to the evidence given by the girl.

The three-judge court, with Mr Justice Donal O’Donnell, presiding, sitting with Mr Justice Daniel O’Keeffe and Ms Justice Maureen Clark, said it was satisfied that none of the grounds of appeal demonstrated that the verdict delivered was unsafe.

Mr Justice O’Donnell said that a measure of inconsistency between witnesses at a trial was not unusual and that the trial judge had decided it would not be perverse to let the jury return a verdict based on the available evidence having carefully considered the different accounts offered.

He said that the decision to issue a corroboration warning was at a trial judge’s discretion and that the CCA was satisfied that Mr Justice White was not requisitioned to issue a warning and was acting within his discretion by not doing so.

He said that although it was “very unsatisfactory” for forensic samples to go missing, Mr Justice White was clearly cognisant of the limits of the lost evidence and that the CCA did not consider its absence rendered the trial unsafe.