Court orders retrial for man convicted of raping sister-in-law 30 years ago over judge’s comments
A man jailed for raping his sister-in-law more than 30 years ago has had his conviction quashed over a trial judge’s comments to the jury concerning the level of detail in the case.
The 60-year-old man, who cannot be named to protect the woman's identity, had denied raping the then 15-year-old at his home in the east of the country on a date between October 1983 and July 1984.
Prosecuting lawyers told the Central Criminal Court that the teenager had been babysitting at the man's home when he beckoned her into his bedroom, saying he had something to show her.
He was alleged to have produced pornographic magazines and showed her sexually explicit photographs. He was then alleged to have pushed the teenager onto the bed and raped her.
The woman said she was too afraid to tell anybody at the time, but a few years later went to her mother and disclosed the alleged rape. She told two of her siblings in the early 2000s, and a doctor in 2013.
After telling a member of the man’s extended family at a charity function in 2014, the woman received a solicitor’s letter from the man threatening legal action for defamation. She made a statement to gardaí alleging rape that day.
The man was convicted by a Central Criminal Court jury following a trial and was sentenced to nine years imprisonment with the final three-and-a-half years suspended by Ms Justice Deirdre Murphy on July 30, 2018.
However, the Court of Appeal quashed the man’s conviction today and ordered a retrial over the trial judge’s “factually incorrect” comment that there was a “lot of detail” in the case.
Giving judgment in the three-judge court, Ms Justice Isobel Kennedy said the issue of delay was a significant issue in the case given the passage of time between the alleged offence and the formal complaint.
Ms Justice Kennedy said the trial judge gave detailed and lengthy instructions to the jury as to the difficulties which may arise in cases where there is a delay in making sexual abuse allegations.
Having apprised the jury of the difficulties encountered by complainants in reporting cases of historic sexual abuse, the trial judge then highlighted an accused person’s right to a fair trial.
Immediately after giving the jury a standard delay warning, Ms Justice Kennedy said the trial judge then advised the jury that the present case was “not one which was lacking in detail” and that the allegation “isn’t just a bare assertion”.
The trial judge told the jury that although there wasn’t precision on a date, there was a “lot of detail”.
In the Court of Appeal’s view, the trial judge’s comments immediately following the warning, “diluted the effect of the warning”, as had been submitted by the man’s barrister, Kerida Naidoo SC.
Ms Justice Kennedy said the matters referred to as constituting detail and context - such as the accused’s place of work - were “quite limited” and did not elevate the case beyond “bare assertion”, sufficient to lead to a contention that it was a case with detail and context.
She said the offence was alleged to have occurred in the context of a familial relationship, where it was not in dispute that the complainant was in the defendant’s home babysitting children. Given the relationship, the complainant would have been aware of the accused’s place of work and so this and other factors did not lend detail to the alleged offence.
Ms Justice Kennedy, who sat with President of the Court of Appeal Mr Justice George Birmingham and Mr Justice Patrick McCarthy, said the court would quash the conviction and order a retrial.
