Corkman fails to get conviction overturned for rape and sexual assault of younger sister as boy

The 39-year-old was placed on the sex offender register and sentenced to four years' imprisonment at the Central Criminal Court for the sexual assault while the rape charge was taken into account. File picture: iStock

WARNING: Some readers may find the following report upsetting

A man who raped and sexually assaulted his younger sister as a boy at their Cork home has had his appeal against his conviction dismissed.

The male, who cannot be named to protect the identity of his victim, was convicted of two counts on a six-count indictment in June of last year. The 39-year-old was placed on the sex offender register and sentenced to four years' imprisonment at the Central Criminal Court for the sexual assault while the rape charge was taken into account.

He had denied all charges. The offences related to dates between November 24, 1995, and January 17, 1998, when he was between 12 and 14 years of age.

The male appealed the rape conviction arguing that the trial judge erred in "law and fact" by including details about other counts in his charge to the jury for context, despite those counts having been previously withdrawn from the jury. The defence on the rape conviction was whether or not there was "sufficient evidence to rebut the presumption of incapacity to commit a crime given the appellant's age", referred to in law as 'doli incapax'.

The trial heard that the boy called his younger sister upstairs and pushed her down onto the bed, pulled her legs apart and tried to penetrate her with his penis, hurting her. The girl, now in her 30s, told the trial: "He went to put his penis inside my vagina, and I know it hurt. I remember crying 'stop, please stop', because it was really, really sore."

The court heard that the girl's older sister interrupted the attack and grabbed the victim from the bed, to which the male said: "It's not, it's not."

Today's ruling

At the Court of Appeal on Monday, Ms Justice Isobel Kennedy said there were three strands to consider whether or not the case had the necessary capacity to be tried.

"Those three strands included the complainant's distress in the aftermath of the incidents in the bathroom, which were subject to counts one and two; that the complainant was called to the privacy of the bedroom by the appellant, and so the jury could infer an element of planning on his part and, thirdly, the appellant's reaction to the older sister's arrival during the alleged incident, from which the jury could infer that he knew his conduct was gravely wrong and not simply mischievous," she said.

Ms Justice Kennedy said the Court of Appeal was "not at all persuaded that the judge erred in finding that the jury could, if they accepted the evidence, draw the inference that these events caused great distress to the injured party. The evidence was that she was crying and crying in the house and that her older brother told her to stop".

Ms Justice Kennedy said the jury were entitled to draw certain inferences from that evidence. "The evidence from the injured party was that she was crying during the incident, pleading with him to please stop, and the evidence from the older sister that the injured party had tears coming down her face were relevant factors to consider," said Ms Justice Kennedy.

The Court of Appeal judge said that there was sufficient evidence to justify the trial judge leaving the rape allegation for assessment by the jury to consider if the accused knew his behaviour was "gravely and seriously" wrong.

Ms Justice Kennedy said the judge was correct in including information about the other counts of sexual assault to the jury in his charge, even though they had been withdrawn, because it was "in the context of capacity to commit the crime". She said the court would dismiss the appeal.

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