Court rejects rapist's 'new' evidence plea

A man jailed for seven years for the rape of a 14-year-old girl while she was babysitting his sister's children is not entitled to call as "new" evidence in his appeal of expert medical opinions relating to whether an intact hymen indicates that a rape could not have occurred, the Supreme Court has ruled.

Giving the unanimous judgment of the five judge court yesterday, Mr Justice Nicholas Kearns rejected the man's claim that the medical evidence as a whole supported the defence claim that no rape occurred, either as a matter of certainty or probability. He ruled there were no exceptional circumstances justifying leave to the man to call further evidence in his appeal.

Unless it could be shown that a substantial error or omission at trial might have caused a real injustice, "public policy demands that an entire defence be advanced once and for all at trial and not in a piecemeal fashion in the context of ongoing appeals and challenges", he said.

The case arose after the man was convicted in July 2003 by a majority jury verdict of the rape of the 14-year-old girl in his sister's home in 1996.

The girl claimed the man came to the house just before midnight, held a sharp object against her neck, forced her to go to a bedroom upstairs and raped her on the bed and against a wall. He left the house after the girl managed to break free and run downstairs.

The girl said nothing about the incident to the man's sister or to her own parents. She formally complained to gardaí two years later when she was examined by two doctors whose evidence was available for the man's two trials.

The first trial ended with a jury disagreement but he was convicted by a majority jury verdict in July 2003. When the case was adjourned for sentence, new lawyers for him argued that the doctors' reports should have been put in issue at the trial.

The Court of Criminal Appeal rejected the appeal and also refused his claim that an exceptional point of law arose as to the admission of "new" evidence - reports of experts about the findings of two doctors who examined the girl - in the case.

The man appealed against this and the Attorney General asked the Supreme Court to determine a number of issues, including whether the appeal court was correct in refusing to admit the expert opinions.

The Supreme Court yesterday unanimously agreed the appeal court was correct.

Mr Justice Kearns noted the man's then lawyers had chosen at his trial to stay away from medical issues and their decision was not necessarily wrong.

The man's application now was made with a view to raising a different defence from that offered at trial, which was to the effect that the girl had made a malicious complaint, the judge said.

Some error of substance must be shown to have occurred, which could ground a real apprehension of injustice, before the appeal court could allow a point not made at trial to be made on appeal.

There must also be an explanation why the point was not made at the original trial, the judge said, otherwise lawyers could trawl through manuscripts long after a conviction was recorded to see if some new case could be made. A point of substance should not be held back "for tactical reasons".

He noted that the evidence of the two doctors who examined the girl in 1998, two years after the rape, was available before the trial.

Expert opinion could then have been sought on that evidence but it was not. Had it been, there were risks to the defence in cross-examining the experts.