Counsel for the Director of Public Prosecutions, Michael Delaney SC, said the alleged new material raised more questions than it answered
A Kilkenny man who claimed he was in a consensual sexual relationship with his younger cousin must wait to hear the outcome of an appeal against his conviction for rape and sexual assault of the then 14-year-old.
The 49-year-old man, who cannot be named to protect the identity of his now 33-year-old cousin, 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 moved to appeal his conviction on grounds of alleged new material.
His barrister, Aidan Doyle SC, said the age of consent was crucial in the case. It was the defence's case that anything that happened between the parties was consensual and, the court heard, the complainant was legally incapable of consenting before his 15th birthday.
The relatives had been living in a property before moving to another premises. When they moved into this other premises was 'very important', Mr Doyle said.
Mr Doyle said they couldn't have moved into the relevant premises until the very end of 1998 – around the time the complainant turned 15. However, fresh material related to rent supplement allowance tended to show the man and the complainant did not move into the relevant premises until the middle of 1999.
The court heard that the high water mark of the prosecution's case was that the relatives lived at that particular address for the final quarter of the complainant's 14th year because the trial judge directed not guilty verdicts in respect of counts related to the first three-quarters of the complainant's 14th year.
Post conviction, Mr Doyle said the man's solicitor wrote 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.
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 verdict on anything that happened before 1999, it would have put a very different complexion on the case, he submitted.
Counsel for the Director of Public Prosecutions, Michael Delaney SC, said the alleged new material raised more questions than it answered and that the man had not addressed them.
Mr Delaney said there were anomalies in the records. In particular, the man said he subsequently moved address in 2003 but that wasn't recorded 'at all' in the records. It was a serious problem for the man, Mr Delaney said adding that the records were not a reliable reflection of occupation of property at particular times.
Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the court would reserve judgment and deliver it as soon as possible.