A Kilkenny man who claimed he was in a consensual sexual relationship with his younger cousin has had several counts upon which he was convicted quashed on appeal.
The 49-year-old man, who cannot be named to protect the identity of the now 33-year-old man, was convicted by a Central Criminal Court jury of 15 counts of rape and oral rape and one charge of sexual assault following a trial. He had pleaded not guilty to 35 counts, the balance of which were the subject of directed verdicts of not guilty by the trial judge.
He was sentenced to 10 years imprisonment with the final year suspended by Ms Justice Isobel Kennedy on February 8, 2016.
The man successfully appealed several counts upon which he was convicted on grounds that the trial judge should have directed acquittals on three counts of rape and one count of sexual assault given evidence that tended to show the parties did not live at a particular address prior to 1999. Information from the Department of Social Protection referable to him receiving rent supplement became available after the trial.
Giving judgment in the Court of Appeal, Mr Justice George Birmingham said it was not in dispute that the man and the victim lived together in a rented house for a number of years and that there had been a sexual relationship between them.
While the prosecution contended that the sexual activity commenced before the victim's fifteenth birthday, the effective date of consent, and was non-consensual throughout, the defence contended that the sexual activity commenced only after the victim's fifteenth birthday and that all sexual activity was consensual.
In a situation where it was accepted that sexual activity had occurred but there was a dispute as to when the activity commenced, the dates during which the parties lived together in the rented house, and linked to that, the dates at which sexual activity commenced became issues of major significance at trial. In particular, there was much focus on whether the sexual activity all post-dated or partly pre-dated the victim's age of consent.
The man's barrister, Aidan Doyle SC, said his solicitor had written to the Department of Social Protection. It transpired there was more material with the Department's “small” local office than had been disclosed prior to the trial – a line of enquiry pursued by the gardaí and the man's solicitor ahead of the trial.
Mr Doyle said the Department of Social Protection's material demonstrated that the man started receiving rent supplement in May 1999 or November 1999.
Mr Doyle said the material would have been “very relevant” to the issue of whether offences occurred before 1999 and the whole question of when they moved into the particular address.
If the man did not live in that address in 1998 then the offences could not have happened as alleged, Mr Doyle said. Had the judge directed not guilty verdicts on anything that happened before 1999, it would have put a very different complexion on the case, he submitted.
Mr Justice Birmingham said enquires of the Department of Social Protection “exposed certain frailties with the departmental records” and had to be “treated with a degree of caution”.
It was quite possible that the records were incomplete and that there were payments over a period longer than was now recorded. It was also possible the man did not claim rent supplement when he first moved to rented accomodation either because he didn't know about his entitlement or for some other reason.
However, had the information that had now become available been available at trial, it might have caused the jury to conclude that they could not accept, beyond reasonable doubt, the evidence of the complainant that the move to the rented house occurred before he turned 15.
Being of that view, Mr Justice Birmingham said it was appropriate the court should admit the evidence and quash the convictions in respect of counts relating to periods before January 1, 1999, namely three counts of rape and the remaining count of sexual assault.
The court did not believe the material had the potential to undermine the complainant in general.
In that regard, the court bore in mind the “very grim picture of life in the rented house that was painted, involving significant violence directed at the complainant” as well as “threats of violence directed at him, at his father and other family members”.
Accordingly, the court was satisfied that the impact of the proposed additional evidence was limited to counts relating to the period before January 1999.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the court would quash the counts related to the period before January 1999 and dismiss the appeal in relation to the remaining counts.
The court will address the question of a retrial and sentence at a later date.