A 53-year-old man has appealed his convictions for indecent assault on his younger sisters in the 1980s, on the basis that the judge allowed his ‘no comment’ answers to Gardaí to go before the jury.
The man, who cannot be named to protect the identities of his sisters, has also appealed his prison sentence.
He had pleaded not guilty to five counts against one sister, aged 11 or 12, when he was 14 or 15. He also denied one count against his other sister, aged 12 or 13, when he was 18 or 19.
He went on trial before the Circuit Criminal Court in Tipperary last June. A jury found him guilty, and Judge Tom Teehan imposed a sentence of five and a half years, with the final two years suspended.
He appealed both convictions and sentence to the Court of Appeal on Thursday, May 28.
His barrister, Colman Cody SC, submitted that the trial judge had erred in law and fact in admitting into evidence ‘no comment’ answers given by the appellant during his Garda detention.
He said that his client was ‘irretrievably prejudiced by the disclosure’ of the full interview to the jury, and that this was ‘a clear violation of his right to silence’.
He said that there was a real likelihood that the ‘no comment’ answers created the inevitable impression that he was being evasive and seeking to conceal his guilt.
Mr Cody also argued that the judge had then erred in sentencing, by giving insufficient weight to his client’s age at the time, and to his good character since.
Anne-Marie Lawlor SC, for the State, noted that, before going to the jury, the appellant’s interviews had been edited by agreement to exclude any ‘no comment’ answers.
However, she submitted that, in cross examining the interviewing Garda, Mr Cody ‘had asserted as a fact that when the Appellant was asked about the allegations he denied them’.
He had also invited agreement with this proposition, she said.
“Counsel further invited confirmation that the appellant had answered the questions asked of him in contradistinction to persons who exercised their right to silence,” she added.
She said that the ‘no comment’ answers were then admitted in circumstances ‘where the assertions made by Counsel for the Appellant amounted to a fundamentally inaccurate account of the true facts’.
She also submitted that the judge had given consideration to the appellant’s age and his good character in the intervening time.
Justice George Birmingham, presiding with Justice Aileen Donnelly and Justice Úna Ni Raifeartaigh reserved judgement in the case.