A man jailed for the rape and sexual assault of a seven-year-old boy has appealed his conviction on grounds that a VHS tape of his garda interveiws was played at the wrong moment to his jury and seven words “slipped in” which prejudiced him.
Clive Dwyer (32) of Mill Park, Clondalkin Dublin 22, pleaded not guilty at the Central Criminal Court to four counts of sexual assault, three counts of oral rape and one count of anal rape committed against a seven-year-old boy in his Kildare home on dates between January 1st 1999 and December 31st 2002.
He was found guilty by a jury and sentenced to nine years imprisonment by Mr Justice George Birmingam on January 21st 2013.
The Court of Appeal heard on Tuesday that during the trial the prosecution played portions of Dwyer’s garda interviews to the jury on VHS tape.
The court heard the tape was stopped a little prematurely, it was played again and seven words were heard by the jury: “I wasn’t around kids. I haven’t been...”
Counsel for Dwyer, Patrick Gageby SC, said the seven words were prejudicial. They emerged without any context and transgressed what was contained in memorandums of interview presented to the jury, the contents of which were agreed by both sides.
The court heard that the prosecution accepted it was a mistake and there was an error but in the end it didn’t matter.
Mr Gageby said the prosecution could not argue that it did not matter because the video was inconsistent with the previously agreed, and edited, memorandums of interview that were presented to the jury.
It was inconsistent for them to say it wasn’t appropriate material to lay before the jury and then to say ‘so what’ when it had slipped in, Mr Gageby said.
He said VHS tapes were not the best to play right in front of the jury because any difficulties would be “live” and he suggested the use of pre-edited DVDs instead.
Mr Gageby said the prosecution were obliged to marshall the evidence in such a way that was consistent with the memorandums of interviews presented to the jury, the contents of which had been agreed between the parties.
When asked by Mr Justice John Edwards whether he was making too much of this, Mr Gageby said he was not. It was a very serious case in the Central Criminal Court with very serious consequences and the prosecution had aknowledged the material as prejudicial by excluding it from the agreed memorandums of interview.
Counsel for the Director of Public Prosecutions, Eileen O'Leary SC, said no prejudice was caused by the "error" and it couldn't be considered prejudicial in the context of the case given what had been read to the jury already.
She said a question from the foreman of the jury did not refer in any way shape or form to the seven words on the video.
President of the Court of Appeal Mr Justice Seán Ryan, who sat with Mr Justice John Edwards and Mr Justice Garrett Sheehan, said the court would reserve its decision to a date as soon as possible.