Two Limerick brothers who were jailed for 11 years for the “cynical and calculated” rape of a 14-year-old girl have failed bid to overturn their convictions.
The men, now aged 29 and 28, both denied raping the teenager when she was “comatose” with alcohol they bought on the night of April 22nd, 2017, at a location in the west of Ireland.
The younger of the two was also convicted of the additional charge of sexual assault and was sentenced to eight years in prison, to run concurrently.
The pair, who cannot be named in order to protect the anonymity of the complainant, pleaded not guilty but were convicted following a trial at the Central Criminal Court in November 2021.
Lawyers for the appellants claimed a question by an interviewing garda should have been specifically addressed in the judge's re-charge to the jury.
The court heard the interviewing Garda asked the older of the pair in his second interview: "This girl has made a statement stating that you and [the younger brother] had sex with her, and I am after outlining these allegations to you. For a young girl, the statement is very detailed."
Questions
The trial judge had re-charged the jury with examples of what they could consider to be evidence and told them that questions put to the accused could not be considered evidence, only answers could.
After the jury first retired for deliberations, they returned to have the statement of a treating doctor read back to them, which was done from a court transcript.
The jury foreperson inquired as to if anywhere in the statement of the treating doctor there had been the phrase "too much detail for a 14-year-old".
The trial judge said there was no reference to there being "too much detail for a 14-year-old" in the statement.
Counsel for the defence told the judge it was his belief that the foreman was in fact referring to the question asked by the Garda and not the doctor, and asked for the re-charging of the jury to take place, but this did not happen at this time.
However, the trial judge later acceded to a request from the prosecution to re-charge the jury to clarify whether there was any confusion over the statement of the doctor and the garda interview regarding the detailed account the girl gave to Gardaí.
Regarding the jury wanting the statement of the doctor to be repeated, the foreperson said "I believe we just got confused", which the appellants claim is a concern regarding the verdict.
The trial judge then asked the jury how their deliberations were progressing and was told that they had decided a verdict on one charge but had not formalised it on an issue paper.
'Too late and inadequate'
Lawyers for the appellants argued the trial judge's re-charging of the jury was "too late and inadequate in all the circumstances, whereupon the jury had already advised the court that they had reached a verdict on a single count".
It was also submitted that when re-charging the jury, the trial judge only addressed them in "general" terms and not specifically in relation to the status of questions asked of the accused by gardaí which was "not evidence per se".
In rejecting the appeal on Tuesday, Mr Justice John Edwards said the trial judge's main charge to the jury was "impeccable in so far as it went", but "it has to be conceded that it did not specifically cover the issue that has arisen in this case, namely the evidential status of a question, particularly an opinion volunteered in the course of a question by a Garda".
Mr Justice Edwards said the issue was never flagged to the judge by anyone and that the "issue came out of the blue, in a situation where neither judge nor counsel on either side had perceived a potential difficulty".
Mr Justice Edwards said, regarding the re-reading of the doctor's statement: "Significantly, the foreman indicated contentment, stating: 'That's what we wanted to clarify'."
Regarding the submission of the re-charging of the jury being too late because the jury foreman said a verdict had been reached already on one count, Mr Justice Edwards said he did not find it "unrealistic" that the jury would reopen matters previously decided.
"The jury members had taken a solemn oath to well and truly try the issue of whether the accused were guilty or not guilty on the evidence," Mr Justice Edwards said.
"Juries have to be trusted to follow a trial judge's directions," he said, "there is absolutely no reason to believe that the jury failed to take into account the supplemental instructions given to them in the re-charge."
Mr Justice Edwards said no objection had been raised at trial with the memo of interview being read into the record because it contained "the impugned question".
He said had that been the case, the trial judge would have "readily addressed the issue in her main charge".
Regarding the re-charge being too general, as submitted by the appellant, Mr Justice Edwards said that among the instructions received by the jury in the judge's general instruction was to decide the case on the evidence alone, while the trial judge repeated that questions asked do not represent evidence.
Mr Justice Edwards said the jury would have no difficulty in assimilating and applying the supplemental instructions and that there was no reason to believe they acted otherwise than in accordance with their oath, and the judge dismissed the appeal.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/ or visit Rape Crisis Help.
