A man who repeatedly raped his wife and attacked her with a baseball bat and scaffolding pole while she was pregnant has appealed his conviction, arguing that a screen that separated him from his victim at trial could have created a prejudicial opinion that he was "a man to be feared".
The rapist (57), who cannot be named in order to protect the identity of his victim, had pleaded not guilty to 16 sample charges of anal rape of his then-wife between 2003 and 2007 at a location in Co Tipperary.
At the same court he pleaded guilty to eight sample counts of also indecently assaulting his younger sister and three counts of raping her at their family home between 1978 and 1987.
He was found guilty by a jury of the rapes of his wife and sentenced to 13 years' imprisonment in March 2020 by Mr Justice Paul McDermott at the Central Criminal Court.
The judge imposed a sentence of seven years in relation to the offences against his sister and six years in relation to his ex-wife. He ordered them to run consecutively with no portion of either suspended.
Mr Justice McDermott said the defendant displayed “a viciousness towards his wife, the mother of his children” and showed a “callous indifference to her emotional welfare”, taking advantage of her when she was vulnerable.
Victim impact statement
In her victim impact statement, his former wife said: “He sadistically heightened his own sexual pleasure by inflicting on me the most excruciating pain."
Describing physical and emotional abuse during her marriage, she told the court: “What I suffered during those years is beyond my ability to describe.”
At the Court of Appeal on Thursday, Michael Delaney SC, for the appellant, said that portions of the oral evidence by the man's wife should not have been allowed in relation to two claims of assault, and he objected to the use of a screen partitioning the witness from the court.
At the trial, the woman gave her evidence from the witness box next to a screen preventing her from seeing the man. She told the jury that he had attacked her with a scaffolding pole while she was pregnant with their first child in 1995.
The woman also told prosecution lawyers that he further attacked her with a baseball bat while she was pregnant with their second child in 1996 and that on another occasion he held her hand on a hot radiator.
Mr Delaney submitted that her oral evidence of the assaults was "highly prejudicial" as it had not been in her statement of complaint but had been allowed to go before a jury.
"The prosecution led evidence of a highly prejudicial nature concerning allegations of physical and violent threats and abuse other than which he was charged, which had insufficient probative value to warrant being admitted," said Mr Delaney.
Ms Justice Isobel Kennedy said the trial judge had identified the evidence to be more probative than prejudicial and had exercised "considerable rigour" regarding the woman's evidence.
Context
Mr Justice George Birmingham, presiding at the three-judge court, said the offending had to be "put in context" as it was a period of "prolonged violence" for the woman. "The rules of evidence cannot offend common sense," said Mr Justice Birmingham, who added that the marriage was a "dysfunctional and unhappy" one.
"What was allowed in was well beyond that," said Mr Delaney, who submitted that the test of any evidence was "relevance and necessity".
Mr Delaney said that while it was necessary to establish the "true nature" of the relationship for the jury it did not mean "telling the story from beginning to end".
Mr Delaney said the use of the screen could have "bolstered or reinforced an idea that the appellant was a man to be feared" in the eyes of the jury. "It was the optics of it," he said.
Counsel said a Garda who took the woman's statement over nine-and-a-half hours had recommended that a screen be used but submitted that she was not an expert witness offering an opinion.
"It goes beyond the norm," said Mr Delaney, adding that it pointed towards the witness' "capacity" to give any form of evidence at all if the screen was not in place.
Ms Justice Kennedy said the complainant should not be victimised for a second time and that the screen was requested and provided in order for her to give her "best evidence".
Mr Delaney said that it was the trial judge who had concluded that the witness was "not in a position to give evidence at all" without the screen. Counsel said that the decision to provide the screen had to be made on an evidential basis and that the evidence of the garda alone was not sufficient. "Expert evidence was not given," he said.
Corroborative evidence
Mr Delaney said the issue of delay should also have been addressed in the judge's warning to the jury on how to treat corroborative evidence.
Counsel said the corroboration warning was "unduly narrow" and had a "lack of force" regarding the time between the last of the offences and the time of her complaint in 2017. Mr Delaney said this delay could go towards the credibility of the complainant.
John O'Kelly SC, for the State, said the the complainant's accounts of what happened to her in 1995 and 1996 was necessary to "take into account the entire relationship, of consistent violence and anal rapes".
Mr O'Kelly said the trial judge had ruled out the necessity of seeking evidence from the woman's two children and had taken "extreme care" in ruling out a number of other matters as inadmissible.
Regarding delay, counsel said the basis for the eight-year gap between the woman leaving the man in 2009 and her 2017 complaint was her fear of her former partner. During her evidence, she said the man anally raped her two or three times a week, threatened to kill her and regularly strangled her using a pillow.
Mr O'Kelly said it would be "complete speculation" to say a jury would be prejudiced by the use of a screen for the woman to give her evidence.
Counsel said the trial judge accepted the report of the garda, who had been 19 years in their role regarding such offences, and had asked questions of the prosecution as to why the screen was needed.
Mr O'Kelly said the trial judge had been "very, very careful" when asking about the need for the screen and was "very, very clear and made aware that something additional was required". Mr O'Kelly said the trial judge was not "rubber-stamping" the use of the screen and that "it was very much appropriate in this case to permit the use of a screen".
Counsel added that the woman, who had suffered PTSD and alcoholism, had "severe problems when it came to speaking about these things".
Mr Justice Birmingham said the court would reserve its judgement in the case.
