A Dublin man jailed for twice raping his 14-year-old niece has lost an appeal against his conviction in which his lawyers sought to cross-examine the victim on aspects of her sexual history.
The 50-year-old married man, who cannot be named to protect the identity of his victim, had pleaded not guilty to two counts of raping his niece between January 1st, 2012 and April 1st, 2013.
He was found guilty by a jury and sentenced to nine years imprisonment with the final year suspended by Mr Justice Paul McDermott on July 31st, 2017.
Upholding his conviction on Tuesday, President of the Court of Appeal Mr Justice George Birmingham said no arguments had been advanced upon which the man could succeed.
The defence at trial was that the victim had not been raped or, if she was raped, then it was not her uncle.
Mr Justice Birmingham said the issue of identification arose because the complainant could not say “I saw the person who was raping me and it was [the uncle]”. But the arguments in relation to identification were not, in the court’s view, “at all grounded in reality”, the judge said.
He said the trial judge was criticised for being content with a situation where the victim believed the accused was responsible for the rapes, as distinct from identifying the accused as being responsible.
Mr Justice Birmingham said it would have been “unthinkable” if the judge had decided to withdraw the case from the jury. He said the phrase “taking plums and leaving duff” comes to mind when discussing this concept but in this case, the application for directed acquittals “amounted to an invitation to ignore the whole plum pudding”.
He said applications to direct verdicts of not guilty had become “commonplace” in trials, and “often one has the sense that what is involved is little more than going through the motions”.
Finally, he said the defence sought leave to cross-examine the complainant in relation to aspects of her sexual history because, they argued, she claimed she could not have a normal relationship with other boys after the rape.
Prior warning was given and, as usual, the complainant had a legal team in court on her behalf for the cross-examination. The trial judge permitted cross-examination on the question of when virginity was lost and in relation to the making of a complaint to a third party, with whom she had been intimate.
Mr Justice Birmingham said it was “contrived and artificial” to suggest that because the victim had indicated a degree of subsequent discomfort with other males, this should “open up the possibility of a wide-ranging, if not unlimited trawl”.
He said there was no reality in the proposition that cross-examination of a complainant’s sexual history could occur in any case where a female complainant says she cannot subsequently feel comfortable with men or engage in a healthy sexual relationship.
Mr Justice Birmingham, who sat with Mr Justice John Edwards and Mr Justice Patrick McCarthy, said no grounds of appeal had been advanced upon which the man could be successful and the appeal was therefore dismissed.