A Carlow pensioner has launched an appeal against his conviction for twice raping his niece and sexually abusing a number of other female relatives when they were children.
The 71-year-old man, who cannot be named for legal reasons, twice raped one of his nieces, once as a child and once when she was in her 20's, after having repeatedly indecently assaulted her in the preceding years.
His sentencing hearing at the Central Criminal Court heard that the man also indecently assaulted three further children during a similar period of time, two of whom were also his nieces.
The man had pleaded not guilty to all of these offences. He has six previous convictions, including convictions for indecent exposure and larceny.
The septuagenarian on Friday launched an appeal against his conviction, arguing that the trial judge erred in law and in principle in refusing the defence application to sever the counts on the indictment so that a separate trial would be held in respect of each of the four complainants.
He also submitted that the trial judge erred in refusing the defence application to withdraw the case from the jury at the conclusion of the State’s evidence.
It was also submitted that the passage of time and the non-availability of potential witnesses prejudiced the appellant.
The appellant argued that in this case, the offences charged occurred in the 1970s and 1980s and the lapse of time was such that one of the complainants could only identify a two-year period in which the alleged offences against her was said to have occurred.
It was submitted that most of the incidents were said to have occurred in the context of family holidays where, in the absence of such a delay a number of relatives and others "would at least have been able to provide evidence of surrounding circumstances".
It was argued that in those circumstances, the trial judge erred in refusing the application to halt the prosecution.
In submissions to the Court of Appeal, it was also stated that counsel for the appellant at trial had argued that there had been extensive communication between some of the complainants in connection with the subject matter of the trial and communication which predated the making of statements of complaint.
It was submitted that these communications gave rise to concern of such an extent that the indictment should be severed.
Counsel for the appellant also outlined the nature of the counts and the different context of the two rape offences against one of the complainants, which took place nine years apart.
Counsel argued there was a “great difference” between the “factual matrix” where a 15-year-old chid was allegedly raped in a field and count two where the appellant, some 10 to 12 years later, was alleged to have raped an adult in a hotel room.
It was submitted that the three other complainants spoke of exposure of the penis, ejaculation and enforced touching of the appellant.
Concern was also expressed with respect to “mutual contamination between the complainants”.
In his refusal of the application to sever the counts, the trial judge stated that “familial support” was not contamination nor an “undermining of independence”.
The judge stated he was not satisfied there was a reasonable possibility of “joint concoction or of contamination” in circumstances where there were exchanges between complainants as to the time or times about when certain events or things may have taken place.
At the Court of Appeal today, Dean Kelly, for the Director of Prosecutions (DPP), said the suggestion that neither of the rapes could be fairly tried together was “wholly unsustainable”.
The DPP submitted that the law is well settled in respect of both legal issues and that the application of the legal principles by Mr Justice McGrath on each issue was entirely in accordance with those principles.
Mr Justice John Edwards, sitting with Mr Justice Patrick McCarthy and Ms Justice Una Ní Raifeartaigh, said the court would reserve judgement in the case.
Following a trial which concluded in June 2021, the man was convicted by a jury of two counts of rape of his niece at locations within the State on unknown dates between July 1st, 1977 and August 31st, 1977, and between April 1st, 1986, June 30th, 1986.
The man was also convicted of seven counts of indecent assault against the same victim on dates between July 1st, 1971 and September 30th, 1974.
He was convicted of three further counts of indecent assault, each of which was committed against a different woman who was a child at the time of the offence, which occurred on dates unknown between March 20th, 1982 and March 20th, 1985, between May 1st, 1985 and September 30th, 1986, and between September 30th, 1972 and September 29th, 1974.
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.
