Cork man appeals conviction for sexually abusing teenage sister-in-law over prejudice about temper
Counsel for the DPP said the defence argument was that 'an accused person, whom the jury know has beaten his wife to the extent that he has broken her ribs, can’t get a fair trial because the jury know he has a bad temper'. File photo
A 61-year-old Cork man who repeatedly sexually abused his teenage sister-in-law has appealed his conviction, arguing that evidence about his temper had a “catastrophic effect” by creating undue prejudice against him.
The man’s lawyers argued evidence given by witnesses about Barry McDonagh’s temper was “irrelevant” and “highly prejudicial”.
Counsel for the Director of Public Prosecution’s said the case raised by the defence was that McDonagh, who the court had already heard had beaten his wife to the extent that he had broken her ribs, “can’t get a fair trial because the jury know he has a bad temper”.
McDonagh, of Avoncore Bungalows in Midleton, Co Cork, was found guilty by a jury of 17 counts of rape and one count of sexual assault following a Central Criminal Court trial in June last year. He was jailed for seven-and-a-half years by Ms Justice Caroline Biggs in October 2024.
The abuse occurred at the man's home and at his business premises on dates between 1999 and 2000 when she was aged between 15 and 16 and staying with her sister and brother-in-law.
Pamela Mitchell, aged 42, waived her legal right to anonymity to allow McDonagh to be named.
The evidence at McDonagh’s sentencing hearing was that the first incident of rape occurred when McDonagh took his victim away for her 16th birthday. Instead of bringing her to the intended destination, however, he took her to a B&B and raped her.
The court heard she froze during this and the subsequent rapes and that she was in fear of McDonagh because she had frequently seen him lose his temper with other people.
At the time of sentencing, McDonagh continued to maintain his innocence and remained married to his wife — his victim's sister, who was in court to support him.
Launching an appeal against his conviction at the Court of Appeal, McDonagh’s senior counsel Colman Cody argued the evidence about McDonagh’s temper was “irrelevant” and “highly prejudicial”.
He said “temper evidence” had already been given by Ms Mitchell prior to an application by the State to adduce further details from other witnesses.Â
Part of Ms Mitchell’s evidence, he said, related to claims of an assault on her sister — McDonagh’s wife — which resulted in fractures to her ribs.
He said there were inconsistencies in this evidence as the complainant had said she spoke to social services about the incident in 1999 but records showed the phone call was made in 2004.
In relation to the additional evidence introduced, Mr Cody said one of the allegations involved McDonagh throwing a motorcycle helmet which then smashed, another referred to broken glass in a door and a third related to an incident in which it was alleged the 61-year-old had thrown a chair at an oven door leaving a dent in the appliance.
Counsel argued that the introduction of this “extraneous” evidence from others was “wholly irrelevant”.
Mr Cody said the evidence was of such a prejudicial nature that it had a “catastrophic effect” and created extreme prejudice for McDonagh.
He said the court, in its ruling, felt it was relevant and necessary because it related in some way to the complainant’s perception of McDonagh and how he would react if she were to try and stop what he was doing or report the incidents.
“The fact Mr McDonagh may have lost his temper on other occasions, it has nothing to do with her perception,” said counsel.
Another ground of appeal advanced was that the judge had erred in failing to discharge the jury following a question put to Ms Mitchell which referenced a holiday to Tunisia.Â
He said the question was “brief” but “loaded” because it implied that something had occurred in Tunisia.
Mr Cody also submitted the jury’s verdict was unsafe and unsatisfactory in all circumstances. He argued there were a number of discrepancies in the evidence given by the complainant, including the timing of the rib fractures, and inconsistencies in sketches she provided of McDonagh’s bedroom and workshop.
He said the sketch of the workshop contained modifications which were not carried out until years after the incidents were said to have happened. The sketch of the bedroom, counsel said, did not include a cot which would have been present in the room at the time.
In response, Sean Guerin SC, for the DPP, said the defence argument was that “an accused person, whom the jury know has beaten his wife to the extent that he has broken her ribs, can’t get a fair trial because the jury know he has a bad temper”.
“The real difficulty for him is that the other evidence in comparison to what has gone into the case has no prejudice for him at all,” said counsel.
He noted the trial judge had ruled the additional evidence was inextricably linked to the complainant’s state of mind, particularly her fear and lack of resistance.
Mr Guerin said evidence of an assault on McDonagh’s wife had already been admitted with the defence’s consent. What was subsequently admitted was “no worse” and as a result there was “no prejudice”, he said.Â
Counsel said additional testimony from the complainant’s sister, Michelle Mitchell, was important as she suggested a domestic incident may have occurred in 1999, potentially causing the complainant to confuse events over the years.
Mr Guerin said the question referencing Tunisia was “benign” and the judge was “entirely correct” not to discharge the jury.
In relation to the discrepancies in the complainant’s evidence, Mr Guerin said the differences were purely a question of “timing and recollection” 20 years after the event and that this was a matter for the jury to assess.
Mr Justice Peter Charleton said the three-judge court would reserve judgement.
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