Appeals court confirms acquittal of man accused of defiling eight-year-old intellectually disabled daughter

The Court of Criminal Appeal has confirmed the acquittal of a man accused of defiling his disabled eight-year-old daughter. 

In April 2016, the man had been accused of participating in sexual activity with the girl, who suffers from Downs Syndrome, of corrupting the minor and recidivism.

The police had arrested the accused after Learning Support Assistants at the child’s school had noticed sexualised behaviour and informed the school authorities, who contacted Appogg, who notified the police.

The child had demonstrated sexualised behaviour according to witnesses, telling teachers at school that a man with the same name as her mother’s partner had inserted a “sword” in her private parts and that she was in pain.

On another occasion, the child had made sexual movements on a traffic cone used as part of a PE exercise, one LSA had testified. 

The court was also told by several experts that the child had Downs Syndrome which could lead to hypersexual behaviour.

In October 2017, the man had been found not guilty by a Court of Magistrates. The girl had been certified as possessing the cognitive ability of a two-year-old and was unable to understand the consequences of not telling the truth, as evidenced by video conferencing, the court had said.

The Attorney General had filed an appeal, however, arguing amongst other things, that the magistrate had accepted the testimony of the child after making her “pinky promise” several times that she was going to tell the truth.

In her 64-page judgement on the case, Madame Justice Consuelo Scerri Herrera also provided a transcript of the girl’s testimony, which could be best described as a jumble of sentence fragments featuring names and rude words. 

The court noted that a social worker had testified that the girl was aware of what the male anatomy looked like and had said that the abuse had taken place in the bathroom while her mother was at work. The social worker had also told the court that children with Down’s Syndrome often had very active imaginations and had difficulty distinguishing the imaginary from reality.

A panel of three psychologists told the court that the child was highly suggestible and would seek to please whoever they were talking to by telling them what they wanted to hear. The traffic cone incident was normal behaviour at her age, they said. “It is sexualised but children of her age can do this type of sexualised behaviour including self stimulation when they were not abused at any level or even exposed to any form of abuse.”

The girl was a happy child and had exhibited none of the telltale signs of distress normally associated with sexually abused minors, they said. Moreover, a medical examination revealed the girl’s hymen to be intact and no physical signs of abuse to be present.

Madame Justice Consuelo Scerri Herrera, presiding the court of Criminal Appeal, examined case law relating to testimony by young children. Competence as a witness depended not on the precise age but upon the intelligence of the witness, she reasoned. The court said that fundamentally, it had to be satisfied that the child understood the difference between right and wrong and the meaning of an oath before accepting its testimony.

She pointed to the child’s testimony, noting the great difficulty encountered in obtaining clear answers from the girl and observing that the same questions would be answered differently at different times. The psychologists’ report said that the girl suffered from severe communications difficulties and was highly suggestible.

The court of appeal said that even if the girl’s testimony had been admissible, the prosecution had failed to prove beyond reasonable doubt that there were sexual acts or corruption of the minor. It agreed with the first court’s assessment that there was too much inconsistency to exclude reasonable doubt about the allegations.

The first court had rightly given weight to the testimony of the psychiatric experts who had explained that the girl had difficulty classifying people and objects and used the same name to indicate several individuals. There was therefore no way of knowing if she had in fact even meant the accused, ruled the court.

Although it was convinced that the girl had been exposed to behaviour and language not fitting for a girl of her age, the court said that the prosecution had in no way proven any form of participation in a sexual activity or corruption of the child by the accused.

The judgment acquitting the man was upheld.

The names of all persons involved are subject to a court-imposed ban on publication.

Lawyers Stephen Tonna Lowell and Giannella De Marco were defence counsel.