Juror ‘smiled and winked’ at rape complainant, appeal told

Lawyers for a drama teacher jailed for raping a child have told the Court of Appeal that a juror “smiled and winked” at the complainant during his trial.

Kevin Carroll (58), of Hawthorne Drive, in Birr, Co Offaly had pleaded not guilty to rape and anal rape at the Offaly school on a date between 1996 and 1998 when the girl was between six and eight. He was convicted on both counts.

He was found guilty on both counts by a jury at the Central Criminal Court and sentenced to 10 years imprisonment by Ms Justice Margaret Heneghan on February 26th, 2016.

Carroll moved to appeal his conviction on Friday on a number of grounds. The Court of Appeal reserved its judgment.

His barrister, Roderick O’Hanlon SC, submitted that the trial judge ought to have discharged the jury when a witness inadvertently gave hearsay evidence that another witness reported to her that Carroll used to “look up the skirts of girls”.

Mr O’Hanlon said it was “clearly prejudicial” and no judicial direction could have cured it.

Even though the witness who reported the remark gave “much more damning evidence”, in the words of a judge, against Carrolll, Mr O’Hanlon said it suggested his client was prone to adverse behaviour.

Mr O’Hanlon further submitted that the trial judge ought to have examined the jury after one juror apparently “smiled and winked” in the direction of the complainant and two gardaí­.

Mr Justice John Hedigan remarked that the suggestion a juror "smiled and winked" at the complainant was a "gross exaggeration".

‘Neutral to stern’

The court heard that the defence characterised the expression on the juror’s face as a “smile” and a “wink” while the prosecution characterised it as “neutral to stern”.

Ms Justice Marie Baker put it to Mr O'Hanlon that, whatever it was, it was neither an interference or a tampering.

Mr O’Hanlon said prosecution counsel accepted that the appropriate course of action was to enquire into the matter but the judge declined to do so. “The issue ought to have been cleared up,” counsel said.

Mr Justice Hedigan commented that in his experience, jurors tend to look around the court room and are naturally interested in what is going on.

He told Mr O’Hanlon his complaint was the “vaguest possible suggestion” that “something might have occurred” regarding “expressions on people’s faces”.

He said the trial judge clearly “thought nothing of it”. That was the view she took and she was entitled to take that view, he said.

Mr O’Hanlon said the matter could have been clarified within five to 10 minutes by simply enquiring as to what had occurred.

He said the same juror turned up for the sentence hearing one month later, and had been seen talking to gardaí­ that morning. That was not normal and “somewhat troubling,” he said.

Counsel for the Director of Public Prosecutions, Conor Devally SC, said the witness' remark about Carroll "ogling" up the skirts of girls was "diffused very readily" by the trial judge.

Mr Devally said he would not call the juror’s “look” as ‘contact’. If it was communication, it was communication of the most subjective kind and not worthy of enquiry, which was the judge’s view.

If a jury was to be judged on its appearance subjectively by people who had an interest in the matter, then no jury would ever be trusted to try a matter unless they wore masks from start to finish.

The idea that a glance or a look from a juror being subjected to an enquiry was an appalling vista, Mr Devally said.

President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice John Hedigan and Ms Justice Marie Baker, said the court would reserve judgment.