The Tribune

THE Court of Appeal has dismissed an appeal and reaffirmed the nine-year and three-year sentences a man received for committing incest and indecent assault on his six-year-old niece.

The man, sometime in December 2019, had unlawful sexual intercourse and indecently assaulted the child. Later, on August 31, 2021, after a trial in the Supreme Court, the appellant was found guilty on both counts. He received nine years on the incest charge and three years on the charge of indecent assault minus his time on remand and both sentences were to run concurrently.

It was alleged that the appellant rubbed his penis on his niece’s vagina and on another occasion, indecently assaulted her.

Initially he was charged only with incest, but the indictment was amended at the commencement of his trial to include the indecent assault charge.

The appellant, whose name is being withheld to protect the child, sought to appeal his conviction arguing good character – meaning he had no previous convictions or cautions against him – and that the sentences were unduly unfair.

According to the Court of Appeal’s judgement, the appellant also based his appeal on: “Grounds relative to a good character direction, the judge’s rejection of his no case submission, admission of hearsay evidence, the judge’s failure to give a Turnbull warning, and the judge’s direction on the appellant’s confession,” among other reasons.

The appellant also argued that his sentence was “unduly severe”.

On April 1, he lodged a notice of appeal; but on July 17 he filed an amended notice of appeal outlining the grounds.

“A defendant must distinctly raise his good character either through his own evidence, on oath or affirmation, or by witnesses called on his own behalf; and that evidence must disclose that he has a good character in the ‘legal sense’,” the judgement read.

“The court is satisfied that the appellant was not entitled to a good character direction on both limbs of credibility and propensity even though he went into the witness box and testified during the trial. In relation to the complaint on the Mushtaq direction, in the court’s view, the judge gave an adequate direction on the issue of voluntariness of the record of interview.

“The court is satisfied that the judge did not err when she did not accede to the no case to answer submission made on the appellant’s behalf; nor did she err when she did not remove the first count, incest, from the jury’s consideration because sufficient evidence had been adduced for the jury to consider.

“Regarding the appellant’s claim of admission of hearsay evidence, the court is of the view that Dr Carroll used her report merely as an aide memoire. Relative to the Turnbull warning, there was evidence that the appellant admitted to placing his penis on the virtual complainant’s belly and leg.

“This was sufficient evidence for the jury to conclude that the appellant was the person who had done acts to the virtual complainant. Further, the appellant did not challenge the identification of himself as the ‘uncle’ mentioned by the virtual complainant as being mistakenly made. Considering the appellant’s complaint on sentence, the court is of the view that the judge did not take into consideration anything she ought not to have, nor did she fail to consider anything she should have. It cannot be said that the appellant’s sentences are unduly severe or harsh.”

However, after several considerations, Justices Jon Isaacs, Maureen Crane- Scott and Sir Brian Moree dismissed the appeal and reaffirmed the sentences.