Paedophile (56) fails to have conviction for raping seven-year-old girl quashed

A paedophile who claimed that he did not receive a fair trial after he was found guilty of raping his then girlfriend’s seven-year-old sister has failed in his attempt to have his conviction quashed.

Kenneth McDonald (56), of Wexford town, had pleaded not guilty to the rape and indecent assault of the girl at locations in Co Wexford on dates between January 1987 and November 1994. A jury found him guilty following a trial at the Central Criminal Court and in October 2019 he was sentenced to seven years’ imprisonment by Mr Justice Alex Owens.

McDonald later appealed against his conviction on the grounds that the judge had interrupted the cross-examination of the complainant “more than 200 times”. His lawyers argued that “constant interruptions” by Mr Justice Owens as his barrister questioned the complainant meant he did not receive a fair trial.

It was further claimed that the trial judge had erred in refusing a defence request to provide the jury with a corroboration warning before asking them to consider their verdict. A corroboration warning may be given by a judge to a jury to highlight the dangers of convicting a defendant on the basis of uncorroborated evidence.

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In a judgement issued on Monday, the appeal was dismissed by a three-judge Court of Appeal.

Ms Justice Isobel Kennedy – sitting with Mr Justice John Edwards, presiding, and Mr Justice Patrick McCarthy – said the trial judge had intervened in proceedings “in order to clarify questions, either of the judge’s own volition or where the witness indicated she did not understand the question asked or where counsel asked several questions rolled into a single question, or in order to ensure questions were posed with accuracy”.

But Ms Justice Kennedy said she did not consider “the interventions by the judge in the present case rendered the trial unfair”.

Discretion

Regarding the refusal by the judge to provide a corroboration warning, Ms Justice Kennedy noted that Section 7 of the Criminal Law (Rape) (Amendment) Act 1990 “vests a discretion in the trial judge as to the necessity for a corroboration warning”.

“Where a trial judge has a discretion to exercise, an appellate court will be slow to intervene unless it is apparent that the discretion has been incorrectly exercised,” she said. “It is apparent that the trial judge was very conscious of the fact that he had a discretion and he carefully and conscientiously exercised that discretion.”

At a hearing in March, John Peart SC, for McDonald, said he only became aware of the extent of the judge’s interruptions after he studied the transcript of the trial, which he said “speaks for itself”.

Mr Peart said he did not want to “cast aspersions” on the trial judge, and had wanted to “stay out of the fray”, but he “believed it correct to bring the matter before this court and for this court to decide”.

Michael Delaney SC, for the Director of Public Prosecutions, said no one from the defence had raised any issues regarding the extent of the judge’s interruptions during the trial.

“A number of the interventions were completely innocuous and were simply the trial judge asking the witness to repeat what she said because he hadn’t heard her clearly,” Mr Delaney said.

At the sentence hearing in October 2019, Mr Justice Owens said that it was clear from the evidence that McDonald had “a paedophilic sexual interest” in the victim which had left her terrified.

In a victim impact statement the victim, who had waived her right to anonymity, told the court the abuse destroyed her childhood and has haunted her adulthood.

“I felt terrorised in my childhood bedrooms, in ways I cannot describe, my words would do no justice to the devastation it caused. My family life, my relationships, my education and my career have all suffered immensely as a result,” she said.

First incident

Garda Ian Doyle told the court that the first incident occurred in the summertime shortly after the victim had started primary school.

The man came into the child’s bedroom in the evening time, lay her face down on the bed and put his hand inside her clothes. He molested her, telling the child “you will enjoy it”.

On another occasion at a similar time, the man again entered the child’s room in the evening time and raped her. The court heard the father of two sexually assaulted the girl in her bedroom when she was aged 10. He later molested her in his own home while she was babysitting his baby child.

The final sexual assault occurred when the victim was around 13 or 14. She was cleaning her brother’s car when McDonald came up behind her and put his hand up her shorts.

McDonald had given evidence during the trial that he had never been upstairs in the victim’s house unless accompanied by her sister and that the victim had never babysat for them.