The Court of Appeal has dismissed an appeal by C.D. against his convictions for four counts of sexual assault and four counts of rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. The appeal concerned how a video of his Garda interviews was played to the jury and the trial judge’s refusals to discharge the jury.
The convictions followed a trial in 2012. The trial judge imposed concurrent sentences of nine years on each rape count and three years on each sexual assault count. C.D. challenged the convictions on three grounds: the presentation of the interview video, and the refusals to discharge the jury at the close of the prosecution case and at the close of the whole case.
The offences were alleged to have occurred on three occasions between 1999 and 2002, while C.D. was babysitting for the complainant’s family. The complainant was aged between three and seven during the period, and C.D. between 16 and 20. The judgment says the complainant reported the matters to gardaí in May 2011. C.D. made admissions in two videotaped interviews, but at trial denied the allegations and said he had made the admissions because he felt intimidated by gardaí.
The prosecution sought to play the interview recordings so jurors could assess C.D.’s demeanour, after the defence suggested his admissions were untruthful and influenced by pressure. Parts of the interviews had been removed from the agreed written memorandum. The trial judge directed that the recordings be stopped and resumed to skip material considered inadmissible.
The defence argued that words from an answer had been played by mistake, including a reference to not having been around children. It said this could lead jurors to speculate about excluded material and unfairly damage C.D.’s character. The trial judge twice refused applications to discharge the jury.
The appeal court accepted that seven words from an answer agreed for exclusion were mistakenly played. It concluded, however, that the jury had already heard by agreement that C.D. had told gardaí he stopped babysitting because he did not want access to children. The court said the foreman’s later question about the interview transcript was understandable in light of that agreed material. It held that the mistakenly played words had not further prejudiced C.D. and that the trial judge was justified in refusing to discharge the jury. The appeal was dismissed.