Man who sexually abused daughter and threatened to kill her if she told anyone appeals conviction

A father who was jailed for 14 years for the repeated rape of his nine-year-old daughter has argued that a failure to disclose evidence of a family Whatsapp conversation about the abuse makes his conviction unsafe.

His counsel told the Court of Appeal on Tuesday that the lack of disclosure left the defence team "playing handball against a haystack".

The trial heard that the 58-year-old defendant, who can't be named to protect the identity of his daughter, had told the victim that the bible says a child must do what their father says.

Following a Central Criminal Court trial in November 2022, a jury convicted him of 11 offences, including rape, oral rape, sexual assault, false imprisonment, threatening to kill and forcing a child to watch sexual activity.

The abuse took place in the family home in the Midlands between December 2019 and April 2020, Lorcan Staines SC, prosecuting, told the court. The man was jailed for 14 years.

The girl was nine years old at the time of the abuse. The court heard the family was very religious and the man told his daughter that the bible says a child must do what their father says. He also threatened to kill her and her other family members if she told anyone about the abuse, while showing her a knife.

The man “vehemently” denied the claims and continues to deny any wrong-doing, the court heard. He told gardaí that the child's mother, from whom he is estranged, made up the claims to turn his children against him.

At the Court of Appeal on Tuesday, Garnet Orange SC, for the man, argued that the trial judge erred in refusing to stop the trial at the conclusion of the prosecution case and failed to direct immediate disclosure of WhatsApp or Viber communications between members of the family – excluding the accused – when the existence of the same emerged in the course of the prosecution evidence.

He also submitted that the judge erred in refusing to allow cross-examination regarding the results of a physical examination of the complainant and in refusing to give a corroboration warning, having regard to the circumstances of the case and the evidence relating to the disclosure of the allegation being made against the appellant.

Such a warning can be given by a judge to a jury to highlight the dangers of convicting a defendant on the basis of uncorroborated evidence.

Mr Orange said that the information about the WhatsApp communications between the family, when it emerged at the trial had been “a bolt from the blue” .

Mr Orange said this only came to light during the cross examination of a family member who confirmed that there was a family WhatsApp group in which she and other members of the family were made aware of the allegations being made.

He said this was an unfolding situation and if the defence had been aware of this level of communication they would have sought specific disclosure. He said it was reasonable to say that the trial wouldn’t have commenced until this disclosure was made “so this has to have been relevant”.

“We were playing handball against a haystack, we didn’t know what was coming back at us,” said Mr Orange.

He also submitted that the investigating gardaí failed in their duty to secure relevant evidence.

In relation the medical examination, Mr Orange said the trial judge had prevented the defence from asking any questions regarding the examination of the complainant at a clinic in May 2020.

“The fact of the matter is particular allegations were made and there was no physical evidence to support that,” he said.

Addressing the corroboration warning, Mr Orange said one should have been given because the offending was alleged to have occurred repeatedly in a small house in which the complainant lived with her parents and two other adults but he said no one was aware of “anything untoward happening”. He also submitted that the initial disclosures were prompted by questioning from the victim's sister and that there was an absence of any evidence supporting the complainants allegations.

Lorcan Staines SC, for the State, said the claim that the defence were limited in raising questions on the medical evidence was “simply not the case”.

He said the judge had not made a ruling on anything other than whether the question could be put to the mother of the complainant about the medical exam. The judge had said the medical matter could be dealt with later by other witnesses, counsel said.

“Mr Orange could have called the doctor himself,” he said, adding the ground of appeal that the trial judge erred was “simply an incorrect assertion” .

He also said the appeal ground stating that trial judge failed to direct immediate disclosure of WhatsApp communications was “utterly factually incorrect”.

Mr Staines said the information about the WhatsApp group was “news to everyone”.

“He made what he called a late application for disclosure,” said Mr Staines. “The answer from the prosecution was: ‘Of course’.

This is the first time we’ve heard of this, the first time you’ve heard of this. We’ll go off and take a statement from the civilian witness to ascertain whether this exists.”

He said gardaí took a statement and it was discovered that the WhatsApp messages no longer existed.
Counsel said that statement was disclosed to the defence and the situation was there was “absolutely no need for a disclosure order to be made”.

In relation to an application for a dismissal which followed, he said the judge had ruled she had not been persuaded that the defence had lost a useful line of defence. “The court applied the correct tests to the facts that she had heard,” he said.

Ms Justice Isobel Kennedy said the court would reserve judgement in the case.