The appeal brought by a rapist against his 21-year sentence for the rape of an 86-year-old woman suffering with Alzheimer’s disease has been adjourned for more than a week.
The Court of Criminal Appeal today adjourned the appeal brought by Simon McGinley (aged 37), who was jailed for 21 years by Mr Justice George Birmingham in July 2009 after he was convicted of rape by a Central Criminal Court jury.
McGinley, of Latlorcan Court, Monaghan, had pleaded not guilty to raping the then 86-year-old woman at her Co Monaghan home on June 16, 2008.
He had been previously sentenced to 12 years in prison in 1998 for raping a 13-year-old girl who was at the centre of the Supreme Court action on abortion known as the “C case”.
Mr Justice Liam McKechnie, sitting with Mr Justice Declan Budd and Mr Justice Michael Moriarty, said that it had become “quite clear” during the course of the hearing that the primary grounds for appeal as submitted by the applicant had altered.
He said written submissions before the court intimated that the focus of the appeal would relate purely to the use of a deposition in evidence at the original trial and to any perceived unfairness resulting from this.
Mr Justice McKechnie said that oral submissions before the court, as given by counsel for the applicant, Ms Aileen Donnelly SC, made it clear that the real focus of the appeal was now on the exchanges between McGinley’s lawyers and Mr Justice Birmingham.
He said that the court would adjourn the appeal hearing until May 23 to allow counsel for the State, Mr Tom O’Connell SC, adequate time to consider the extrapolated submissions.
Counsel for the applicant, Ms Aileen Donnelly SC, had told the court that the trial judge had erred in principle by failing to convey the “very essence” of the defence case to the jury and by ignoring a request from lawyers for McGinley to do so.
Ms Donnelly told the court that Mr Justice Birmingham made a “huge error” in failing to accede to a requisition by the defence to highlight inconsistencies between the victim’s deposition and other evidence before the court, particularly concerning the identity of the attacker and the timescale of the attack.
It was disclosed at the original trial that the elderly victim was suffering with Alzheimer’s disease and was unable to give direct evidence in court.
Her evidence was instead put before the court by deposition, in which it was outlined how she believed the rape took place over a number of hours from midnight to approximately 7am on June 16 and that her assailant was a clean-shaven man.
Ms Donnelly said the trial court heard competing evidence that McGinley was “rotten with drink” and “half of Monaghan”, including gardaí and taxi drivers, had recorded sightings of him up to 4am on the morning of June 16.
She submitted that Mr Justice Birmingham should have told the jury that if they felt it possible the victim was accurate in her timing and her description of the attacker, McGinley could not be the rapist and they must acquit him.
Ms Donnelly said that despite his agreement to put this “four square” before the jury, Mr Justice Birmingham never did so “in any substantial way” and thus failed to properly direct the jury.
The original trial heard how McGinley’s DNA was found on the victim’s electric blanket and pyjamas and his thumbprint were found on the inside of her bedroom door.