The Court of Appeal has confirmed the acquittal of a man accused of raping his underage sister after noting that the girl had later admitted making up the story, describing the witness evidence as "inconsistent and incoherent."

Judge Edwina Grima had heard how the man's siblings, who came from a problematic home background, had initially told the police that the accused - the elder brother - had had sex with one of his sisters, aged under 12.

The man had been accused of the rape of his underage sister in 2006, who was under the age of 12 at the time, holding her against her will, corrupting a minor who had been entrusted to his care and facilitating the corruption of both his sisters, aged 12 and 17.

A gynaecologist had testified that there had been no penetration.

The courts observed that the girls had given several wildly different versions, the children eventually saying that they had made everything up.

The court of Magistrates was unable to achieve the moral certainty upon which guilt is based because the two sisters had first testified about penetrative sex, later telling a social worker that there was no penetration and only heavy petting and later still that they had made everything up after seeing a similar story on the news.

The Attorney General had appealed the acquittal.

Judge Grima, presiding the Court of Criminal Appeal, observed that the girls' other brother had also told police that he had been in the bedroom at the time of the alleged rape but had later denied everything in court.

The court said it was satisfied that the appellant had been watching a pornographic DVD when one of his sisters had gone next to him to watch it of her own volition.

The judge observed that medical examinations had concluded that there was no sexual abuse and that the girl's hymen was still intact, despite the claim that he had had full sex and raped the child.

A court-appointed psychologist reported that the child had only attended three sessions and did not want to disclose any information. She was not interested in therapy and had told the psychologist that she didn't need any.

The evidence was so conflicting that the court said it would be "dangerous for it to find guilt on the basis of evidence so inconsistent and incoherent, with witnesses first saying one thing and then affirming the opposite." More so when there is no other evidence that could strengthen one version over another. 

The judge ruled that the discretion of the first court should not be disturbed and upheld the acquittal.

Lawyer Mark Busuttil was defence counsel.