By Ruaidhrí Giblin
A man who sought to undermine the credibility of a school girl he abused through text messages she was exchanging with a 13-year-old boy has lost an appeal against his conviction.
The 54-year-old Tipperary man, whose details cannot be published to protect the victim’s identity, had denied two counts of sexual assault and two counts of defilement of a child on dates in 2009 and 2010.
He was found guilty by a jury and sentenced to six years imprisonment by Judge Thomas Teehan on June 27, 2014.
The issue at trial was the extent to which the defence would be free to explore the schoolgirl’s prior sexual history. He lost an appeal against his conviction today on the sole ground that his lawyers ought to have been allowed to introduce text messages between the then 14-year-old girl and a 13-year-old boy.
Giving judgment in the three-judge court, President of the Court of Appeal Mr Justice George Birmingham said the man lived in a quiet, rural area of the country with his wife and family. The victim moved to the area with her family when she was aged 11 and they lived across the road from each other.
When the victim was aged 13, she would walk his family’s dog. It was alleged the man began hugging her, progressing to inappropriate touching. It was not in dispute that the middle-aged man and the schoolgirl were texting each other on a daily basis.
Among the offences was an incident in March 2010 when the then 14-year-old girl was sexually assaulted with a purple vibrator. Later that year, he had sexual intercourse with her. A medical examination around this time noted an abnormal tear to the vagina which was supporting evidence of penetration.
The man was arrested in September 2010 and denied sexual intercourse but admitted the phone contact, saying this was instigated by her. It was suggested she was making it all up and the defence contended that the victim had found the vibrator herself while babysitting.
As part of the disclosure process, a "huge number" of text messages were disclosed. The prosecution was interested in the "obviously inappropriate sexualised text messages" from a middle-aged man to a young teenager. The defence was keen on text messages between the victim and a 13-year-old boy.
The man’s lawyer applied to introduce into evidence some of those messages and to cross-examine the victim which, they said, had the potential to undermine her credibility.
Having refused to admit the text messages, the trial judge permitted the issue to be explored in a limited way. The victim was asked about the nature of her relationship with the 13-year-old boy and whether it was a sexual one, which she firmly denied.
The trial judge’s refusal to allow the text messages into evidence became the man’s sole ground of appeal.
Mr Justice Birmingham said it was understandable that the defence went looking for an alternative narrative, in circumstances where the complainant had alleged she'd been penetrated by the accused, and there was supporting medical evidence.
The difficulty for the defence was they couldn't point to any other evidence of penetration. Mr Justice Birmingham said the sexual chat between the two teenagers did not go "anywhere near" providing a basis for concluding she was sexually active with a peer to the extent of penetrative intercourse.
He said the Court of Appeal asked the man’s lawyers to clarify which text messages they wished to lay emphasis on. It was clarified that their interest related to text messages exchanged in the middle of August 2010.
Those dates were important, Mr Justice Birmingham said, because it meant those texts were exchanged at a time after penetrative trauma had occurred.
Having read the text messages, he said "nobody reading the exchanges in full" would conclude that they might have affected the jury's verdict.
"The court is clearly of the view that the statutory threshold had not been met, and indeed, that this application does not come anywhere close to meeting the statutory threshold. No doubt has been raised in our minds about the fairness of the trial or the safety of the verdict."
Mr Justice Birmingham, who sat with Mr Justice John Edwards and Ms Justice Isobel Kennedy, dismissed the appeal.
Restrictions on evidence and cross-examination at trials for rape offences, were introduced by the Criminal Law Rape Act 1981 and subsequently widened.
The courts have held that applications to cross-examine complainant's on past sexual history are justifiably refused in more cases than not. The younger the complainant, the less desirable it was to ever allow it. Where they are allowed, it should be confined only to what is strictly necessary and "should never be utilised as a form of character assassination," according to a well-known 2007 Court of Criminal Appeal judgment.