Court orders retrial in rape case

A man jailed for 7½ years for the rape of his wife's niece, then aged 15, had his conviction overturned at the Court of Criminal Appeal yesterday. A retrial was ordered.

The three-judge court, presided over by the Chief Justice, Mr Justice Keane, quashed the man's conviction after holding the trial was unsatisfactory due to the trial judge's failure, in his charge to the jury, to set out important elements of the defence case, including the absence of corroborative evidence in the case.

The trial judge had also failed to point out to the jury that the complaint of rape was not a recent complaint but was made some years after the alleged offence occurred, the court found.

The man cannot be named for legal reasons. Now in his 40s and with an address in the midlands, he was convicted by a majority jury verdict at the Central Criminal Court in January 2001 of the rape and sexual assault of the girl in 1994. The alleged offences were said to have occurred after the man returned home from a night out and while his wife was asleep upstairs. The man had denied the allegations.

He was jailed for 7½ years on the rape charge and received a four-year sentence for the offence of sexual assault with both sentences to run concurrently.

At the court yesterday, Mr John Phelan SC, for the man, advanced a number of grounds of appeal arising from the trial judge's charge to the jury.

The appeal was opposed by Mr Gerard Clarke SC, for the DPP.

Granting the appeal, Mr Justice Keane said the alleged offences occurred in January 1994 at the man's home. No complaint was made by the girl to the gardaí until October 1997.

Mr Justice Keane said a trial judge must not only draw the attention of the jury to the prosecution case but also explain fully and clearly what matters are being relied upon by the defence. Essentially, the trial judge should have told the jury there was a conflict of evidence over the timing of a complaint and that the defence being relied upon was that there was no recent complaint and no corroboration of the complainant's evidence.

Mr Justice Keane noted the making of a recent complaint was not in itself corroboration of an offence but it could be regarded as being evidence of consistency.

On those grounds, the court found the trial was unsatisfactory, would allow the appeal and order a retrial, he said.