Appeal heard for man convicted in Tullamore for abusing patient at residential care home

Justin Kelly

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Justin Kelly

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justin.kelly@iconicnews.ie

The man was convicted at Tullamore Court

The man was convicted at Tullamore Court

A staff member at a residential care centre, who had initially been suspended with pay before being allowed return to work, has had his conviction for abusing a vulnerable male at the centre upheld by the Court of Appeal.

The 58-year-old Mullingar man, whose details cannot be published to protect the victim's identity, had pleaded not guilty at Tullamore Circuit Criminal Court to two counts of indecently assaulting a male at the residential care centre in 1992.

He was found guilty of a single count by a majority jury verdict of 11-1 and was given a wholly suspended 12 month sentence by Judge Petria McDonnell on February 20, 2014.

The man lost an appeal against his conviction today, Friday, July 28, with the Court of Appeal holding that the offence of indecent assault can embrace both the apprehension of uninvited and unwelcome physical contact as well as actual uninvited and unwelcome physical contact.

Giving background, Mr Justice John Edwards said the complainant was a 24-year-old vulnerable person with a mild intellectual disability. He also suffered from a number of physical ailments. He entered a named residential care centre in the 1980s and was resident there for 24 years.

The accused was a carer at the centre.

The complainant told the jury that he normally took a bath at around six or seven o'clock in the evening but on the occasion of the alleged offence, he took his bath at around 8 o'clock, which was unusual.

He told the jury that the accused was “feeling me up in the bath … I was turning from the left to the right, the left to the right, just to get away from that … (He) put his hand into the bath … I had the bath as quick as possible”.

The complainant went on to say that he was afraid to tell anyone because the accused was a staff member.

In December, he made a complaint to a named nurse at the centre who is now deceased. An internal investigation was instigated and the accused was suspended with pay. He was subsequently allowed to resume his work at the centre.

However, the matter was also brought to the attention of the gardaí who commenced a criminal investigation that ultimately culminated in this prosecution.

Lawyers for the man submitted that the prosecution had opened the case to the jury on the basis that there was physical and direct contact perpetrated by the accused.

Although the man's lawyers accepted that evidence of the creation of an apprehension of imminent and unwelcome physical contact of a sexual nature is sufficient to establish an indencent assault, they submitted that the case was presented on the basis that there had bene actual physical contact of a sexual nature.

Mr Justice Edwards said the offence of indecent assault required proof of an assault in circumstances of indecency. The assault component can embrace both the apprehension of uninvited and unwelcome physical contact and actual uninvited and unwelcome physical contact.

He said the Court of Appeal was satisfied that the matter could have been left to the jury by the trial judge on either basis notwithstanding the manner in which the case was opened by the prosecution.

Mr Justice Edwards said the prosecution had not sought to resile at any stage from the suggestion made in their opening that the jury would hear, and did hear, evidence of actual uninvited and unwelcome physical contact of an indecent or sexual nature.

The Court of Appeal agreed, while the complainant did certainly indicate that he had turned to the left and to the right 'just to get away from that', the totality of his evidence was not “contra-indicative of actual molestation, and there was an express rejection of a suggestion to the contrary put in cross-examination”.

Mr Justice Edwards, who sat with Mr Justice George Birmingham and Mr Justice John Hedigan, said the appeal was dismissed “on all grounds”.