Wicklow man who raped his former partner fails in bid to introduce new evidence 

The Court of Appeal has rejected a bid by a man who raped his former partner to introduce new evidence about "incongruous" activity on the victim's phone immediately after the attack, after finding that it was unclear if the entries were generated by the phone's user or if they were background functions.

The Wicklow man (64), who cannot be named to protect the identity of his victim was convicted by a jury of a single count of rape in Co Wicklow on November 5, 2015.

At the Central Criminal Court in February 2019, Ms Justice Carmel Stewart imposed a seven-year sentence with the final 18 months suspended on the man.

At the sentence hearing, the woman read from her victim impact statement and addressed her attacker, telling him: “I have forgiven you, more for my own peace of mind so I won't be bitter”.

Ms Justice Stewart commended the woman on her “heartfelt” victim impact statement and for “bravely” stating she had forgiven the man.

The man had denied the charge and had no previous convictions.

At the Court of Appeal hearing, the male's legal team submitted that their client had dismissed his previous representatives and his new team carried out deeper forensic examinations of the complainant's phone.

A report on her phone's activity on the night was produced which his legal team claimed contained new evidence in the case.

Michael Bowman SC, for the appellant, said two new entries, or digital "artefacts", were discovered on the phone log of the complainant's phone relating to a Google Play app and a Kindle app which had not been previously seen.

Mr Bowman said the activity of the Google Play app occurred at 3.51am, which was immediately after the alleged rape and submitted that this behaviour was inconsistent with someone who had been allegedly raped. He said this behaviour could possibly make his client's conviction unsafe.

Mr Bowman submitted that when his client entered the bedroom of the complainant some time after 3.25am, she was awake and she had the phone in her hand.

The barrister said the use of the phone for Google Play in the immediate aftermath of a rape was "incongruous" behaviour in a trial that had the woman's credibility at its core.

Roisin Lacey SC, for the State, had submitted at the appeal hearing that any new evidence can only be admitted in "exceptional circumstances". Ms Lacey said there was no explanation before the court as to why the defence had not availed of more phone forensic expertise at the trial to investigate phone activity beyond phone calls and texts.

She agreed with Ms Justice Isobel Kennedy that some or all phone applications update themselves in the background, even if not in use by the user.

Mr Justice Patrick McCarthy delivered the court's judgement dismissing the motion.

Mr Justice McCarthy said the proposed fresh evidence had been characterised by the appellant as possibly "user-provoked activity generated by the complainant".

Mr Justice McCarthy said that it was unclear if the digital artefact entries were generated by the phone's user or if they were background functions.

The judge said that these digital artefacts were the height of the man's grounds of appeal in that his legal team claimed this activity would be "inconsistent" with the activity of a woman in the immediate aftermath of an alleged rape.

Mr Justice McCarthy, however, said that there was no reason to suppose these phone records could not be obtained at the trial and said the threshold for introducing new evidence had to be "strongly exceptional".

Mr Justice McCarthy said the three-judge court did not feel the proposed new evidence could give rise to a "decisive influence" or have "material importance on the outcome of the case" and dismissed the man's bid.

The trial heard that the woman had a short relationship with the man that ended in 2015.

She began a new relationship later that year, which provoked some “hostility” from the man. The court heard the man and woman had lived at the same address. He sent her a text on December 4, 2015, about wanting to talk.

The woman went out that night with friends and on her return home, she contacted the man by phone to say there was no need to talk. She went to bed and later woke up to the smell of chips, someone trying to put chips into her mouth and the words “open your legs”.

She said she saw the man naked and having sex with her. She later told gardaí she froze but shook her head from side to side.

The male told gardaí in interviews that he had consensual sex with the woman shortly after he arrived at the address at 3.25am.

At the trial the woman said that one of her biggest fears was to be trapped down an alleyway and violently raped.

She said it happened instead when she was at her most vulnerable, while asleep in bed, and by someone she had cared for.

She said to this day her thoughts are consumed by the rape, that she had never felt hurt and pain like it and that she had been prescribed medication to help her cope. She said she couldn't deal with the fact the man would not acknowledge what he had done.

The woman paid tribute to her partner, friends and family who supported her, though she said her mental health is still suffering.