A now 34-year-old man sentenced to prison for defiling a 16-year-old girl has argued that the jury in his trial was misdirected when the judge made a comment that appeared to agree with the prosecution’s claim that “a Bart Simpson defence” was being offered.
The man’s trial last year heard that the complainant, who was 16 at the time of the offence, while the appellant was 28, alleged she had been sexually assaulted in the laneway outside a work party, and the next day she went to the man’s house, where they had consensual sex. The appellant denied this and also maintained that he believed she was over the age of 18.
The appellant was found not guilty by unanimous verdict of sexual assault, but guilty of defilement of a child, at a location in Westport.
He was sentenced by Judge Eoin Garavan at Castlebar Courthouse to two years, with the final 12 months suspended. He was subsequently granted bail pending appeal.
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In launching the appeal against conviction on Thursday, counsel for the appellant, Giollaíosa Ó Lideadha, told the Court of Appeal that during the closing speeches in the trial, counsel for the prosecution said: “The defence are running a Bart Simpson defence. They’re saying it never happened, but if you find that it did happen, well then, he thought she was over 17 ... It’s sort of, ‘I didn’t do it, but you can’t prove it anyway’.”
Ó Lideadha said the judge had told the jury that he wasn’t going to say if he agreed or disagreed with the prosecution counsel’s remarks. Ó Lideadha said there was nothing illogical in saying that sex did not occur and the appellant also saying he thought the complainant was over 18.
He said the remark by the prosecution was “offensive”, so when the judge commented that he wasn’t saying whether he agreed or disagreed, that was a misdirection, as it implied the judge may have agreed with the comment.
Judge Alexander Owens pointed out that the defence had been saying sexual intercourse did not happen, but if it did, the appellant claimed he thought the girl was over 17. Owens said that if two defences were being offered, the prosecution was entitled to comment that there was an inconsistency there.
Ó Lideadha replied that the appellant had admitted he had been kissing the girl, but no sex occurred and he also believed she was overage. He said it was inappropriate for the prosecution counsel to use “insulting language” which was “sneering”. Counsel said when the judge told the jury that he was neither agreeing nor disagreeing with what the prosecution had said, that was a misdirection.
A further ground of appeal submitted was that the judge directed the jury that if they found that the appellant did have sex with the girl, this would amount to a finding that he was a liar and his claims that he believed she was over 18 were not credible.
“There’s no logical basis for saying if he lied about having sex, that means he’s lying about believing she was of age,” said Ó Lideadha, adding that the judge was “clearly stepping over the line into advocacy”.
A final ground of appeal submitted was that the judge failed by allowing into evidence a statement by a restaurant manager. In her direct evidence during the trial, this witness said she was not sure whether the appellant had referred to knowing the complainant was aged 16 before the sexual intercourse was alleged to have occurred, as the manager said in her original statement, or a few days after.
Ó Lideadha said that the judge was required to consider the reasons for the differences between the witness’s statement and her direct evidence and whether it would be unfair to the accused for this statement to be introduced.
In response, counsel for the Director of Public Prosecutions, Eilis Brennan, said that concerning the “Bart Simpson” comment, barristers are allowed to be robust in their closing speeches, so the prosecution counsel would have been derelict in his duty not to point out the inconsistency between the two defences put forward.
Brennan said the judge told the jury that if they were satisfied that sexual intercourse did take place, they still had to be satisfied that all the ingredients of an offence were present, including whether or not the appellant held an honest belief about the complainant’s age.
Judge Nuala Butler, presiding over the three-judge court, said that judgment in the case would be reserved to a later date.
