'It defies logic' that teenage girl raped by father failed to notice his implants, appeal hears
It "defies logic" that a teenage girl who was orally raped by her father failed to notice his penis implants, his lawyers told the Court of Appeal today.
The man's legal team also submitted that it could have helped the defence at the trial if investigating gardaí had asked the complainant for a description of her father's penis.
Lawyers for the man today argued that the prosecution had created "a fundamental gap" in the evidence by providing no rational explanation as to how the sexual abuse had occurred without the complainant having noticed three plastic implants, which had been previously surgically inserted underneath her father's penis.
The 51-year-old man, whose details cannot be published to protect the victim’s identity, had denied 22 counts of sexual abuse, oral rape, child sexual exploitation and attempted rape in the family's Dublin home on dates between October 2009 and July 2011, when the girl was aged between 13 and 15.
He was found guilty by a Central Criminal Court jury and sentenced to 12 years imprisonment with the final six months suspended by Ms Justice Tara Burns on January 14, 2019.
Opening an appeal against conviction today, the man's barrister Mr Giollaíosa Ó Lideadha SC said it was introduced during the trial that the appellant previously had implants inserted under the foreskin of his penis and these plastic objects were present at the time of the alleged offending.
Mr Ó Lideadha said the complainant gave categoric evidence that the plastic objects were not present when she was sexually abused by her father. The defence had made the case at trial that it was impossible that the offences could have occurred without the complainant being aware of the said objects, he said.
The barrister submitted that the prosecution had made no effort to address how the offence could have occurred without the complainant noticing these hard objects nor did they provide any rational explanation for the contradiction, which created a fundamental gap in the evidence.
"These offences were alleged to have taken place over a very long period of time and were not isolated incidences and it defies logic to contend that she just did not notice the lumps," submitted Mr O'Lideadha.
He went on to say that it could have helped the defence at trial if investigating gardaí had asked the complainant for a description of her father's penis.
Mr O'Lideadha said the prosecution in its closing speech had put forward a suggested explanation for the contradiction and relied on prejudicial material to support the State's case which was fundamentally unfair.
"The case was not made that she must not have noticed the lumps but that she may not have known they were foreign objects or man-made," he added.
An application was made to the trial judge to direct the jury in her charge that there was no evidence to support a suggestion by counsel for the prosecution that the complainant had noticed the lumps but did not realise they were foreign objects, he said, adding that this application was subsequently refused.
Other grounds of appeal included that the trial judge had erred in refusing to charge the jury sufficiently as to the presumption of innocence as well as not giving a sufficiently clear and emphatic warning about the dangers of convicting on uncorroborated evidence, he said.
In reply, counsel for the Director of Public Prosecutions (DPP), Dominic McGinn SC, said the discrepancy in the evidence was a matter for the jury to assess. Mr McGinn explained that photographs of the man's penis had gone to the jury to show them what the implants looked like.
In relation to the judge's charge, Mr McGinn said the judge had adequately charged the jury in relation to the presumption of innocence and all legal principles. He denied that there were any matters referred to in the prosecution's closing speech that were prejudicial with no probative value.
The remote appeal hearing saw lawyers, the appellant and three judges of the Court of Appeal joined by video-link.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Una Ni Raifeartaigh, said the court would reserve its judgement.
Passing sentence after the trial, Ms Justice Burns said the man had abused his daughter “for his own sexual gratification in the atmosphere of fear and power he exercised in the house”.
In a victim impact statement, the then 22-year-old woman told the Central Criminal Court that she felt like her father killed her inside. “I see his face and smile every time I look in the mirror. I look at myself and my body like I'm ashamed,” she said.
“I see my father's face and feel his breath when I get intimate with a man,” she continued.
The woman said she was not scared of her father anymore and turned to face her father in court and told him: “you made me feel I was worthless and you made me feel like it was my fault.
You killed me inside and I will never forgive you for that.
“You didn't feel guilty and you didn't feel any remorse to me or the woman you abused for 20 years. I am no longer the powerless girl I once was, I got the justice I finally deserved.” The court heard that the man physically abused the girl's mother for a number of years.
The man was arrested and interviewed in July 2014 but denied all the allegations.
He claimed the girl had fabricated the story because of his physical abuse of her mother. He did not accept the jury's verdict and has not expressed any remorse.
In a letter, his lawyers said their client will never apologise for the sexual assaults as, if he did, it would mean admitting all the allegations laid against him.
