A 59-year old Lisnaskea man who at Fermanagh Magistrates Court had denied a charge of indecently assaulting a three-year old girl on 16th July last year was convicted of the charge after the Court had heard evidence from five young men, one of whom told the Court how he had seen the accused, crouched down, with the girl.
Mark McManus said the little girl was wearing a white dress and the man, whom he knew as Joe Butler, 'seemed to have his hand on her knickers'. I couldn't tell you if there was anything intimate or that going on'.
Francis Joseph Butler, the accused, from Carrowshee Park, Lisnaskea did not give evidence. Defence counsel, Andrew Magee, BL, instructed by Murnaghan & Fee, accepted that the Court could draw its own inference from that.
However, he referred to Butler's interview with Police in which he had stated he had no recollection of the day of the incident because he was heavily intoxicated.
The Magistrate, Liam McNally, remarked that that was Butler's answer for an explanation.
"That is not evidence in Court. He has not allowed himself to be cross-examined as to what he said in the interview was true".
Mr Magee submitted that this was the case his client made in the interview and that it would be wrong for the Court to draw an adverse inference from his client's failure to give evidence. He further submitted that the five witnesses, having allegedly seen something 'that occurred over a brief period of time, seconds', didn't do anything at all for quite some time.
'That could call into question if what they saw was as serious as they made out", he added.
RM - Are you questioning their credibility?
Mr Magee - Yes.
The first witness, Mark McManus, under cross-examination, told the Court that he and his friends didn't know what to do.
They didn't know where the little girl lived and, so, they waited around for an hour to an hour and a half until she had finished playing, and they then followed her home and spoke to her father.
His friend, Niall Maguire, was also cross-examined. He said they were afraid to go over to talk to the little girl, 'in case we got accused of anything'.
Mr Magee - You didn't say anything at the time?
Mr Maguire - No. That's not right. We thought we would get into trouble.
It was put to Barry Carney that what he had seen wasn't as suspicious as he believed it to be. He denied that. They hadn't gone to the Police as they wanted the wee girl's parents to know first: "We were sure what we had seen and we wanted the Police to know. If we had got the Police, we thought it would have scared the child".
Patrick McEneaney said he didn't see the man, whom he knew as Joe Butler, lifting up the little girl's skirt. What he saw was his hand up her skirt. He told the Court he had a side view of the man and, when he was asked by the RM if he knew the man sufficiently well to be able to identify him from the side, the witness replied, 'Yes'.
Barry Ingram, cross-examined, said they hadn't done something about it because, by the time they thought of doing something, the man had moved away.
The RM, Mr McNally said he had no doubt that none of five witnesses got a full view of Butler's face, only a side view. But, it was a sunny and clear day and there was no obstruction of their view.
"The evidence I have is that each of them, individually, are sure it was Mr Butler and all seem to have known him extremely well. I am satisfied of their truthfulness".
He told Butler he was convicting him of the offence and that he would adjourn the case for a pre-sentence report. He advised defence counsel to ensure his client left with the court clerk an up to date address and phone number he could be contacted at.
"The Probation Officer will prepare a report which will assist me in how best to deal with you", he told the accused.
The case was then adjourned to February 19th.
Link to Fermanagh Herald Newspapers.
Publication Fermanagh Herald
Date January 31, 2007
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