The Court of Appeal has turned down an appeal from a 2016 case involving a man accused of seventeen counts of rape and sexual assault. Justice Mahon read out the statement of the three judge court, dismissing the accused’s case for an appeal.
The man in question, referred to as DMcG in court documents, was previously tried in the Central Criminal Court for seventeen counts of sexual assault and rape, where the complainant was his stepdaughter. The abuse took place when the complainant was between the ages of eleven and fifteen while the family was moving between different addresses in County Cork. The jury in the Central Criminal Court case unanimously convicted DMcG, citing that he had broken the Criminal Law (Rape) (Amendment) Act 1990, the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) (Amendment) Act 1981. He was sentenced to concurrent imprisonment ranging from five to twelve years with five years of post-release supervision.
Following this DMcG appealed the decision. He cited that the court had erred in law on two accounts: 1) admitting into evidence alleged admissions made by DMcG which ought to have been excluded, and 2) admitting into evidence and/or failing to appropriately edit a memorandum of an interview with the accused. DMcG complained that these errors caused the jury to be unfairly prejudiced against him.
Regarding the alleged admissions, these referred to remarks made by DMcG during a confrontation between him and the complainant’s mother. DMcG allegedly said ‘I only did some of the small things, none of the big things’. Counsel for DMcG argued that admitting this went against the hearsay rule as it was entirely based upon the complainant’s secondary account of what had happened before. They further contended that this gave the jury the impression that DMcG had admitted to the charges against him, but at a time when he did not know he was accused. Justice Mahon dismissed this argument referring to DPP v Carney [2011] IECCA 53 which outlined that it was within the discretion of the trial judge to weigh whether evidence was prejudicial and probative, and this had to be careful balance in the context of the case. Justice Mahon then went on to say that he was satisfied the trial judge had acted appropriately in this case.
For the second submission concerning the interview memorandum, the argument from DMcG’s legal counsel asserted that that evidence in particular ostensibly placed an onus on DMcG to give an explanation as to why it was made. The trial judge did say in proceedings that there was no need for the accused to answer the questions put to them by the Garda. Justice Mahon responded that the trial judge had responded appropriately and nothing in the memorandum raised any implication of an onus.
Following the failure of both of these arguments, the court dismissed DMcG’s appeal.
Daniel Forde – Law Editor
