Court of Appeal: Former drama teacher loses appeal against rape conviction

About this case:

• Citation:
  [2018] IECA 285
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Stating that there was “clear, indeed, stark evidence that the offences had occurred”, Mr Justice George Birmingham, president of the Court of Appeal, said that the Court was not persuaded that the trial was unfair or unsatisfactory or the verdict unsafe.

Background

In the late ’90s, while Mr Kevin Carroll was a drama teacher at a primary school in Tullamore, Co. Offaly, he vaginally and anally raped a pupil at the school.

The complainant in Mr Carroll’s case said that when she was between the ages of 6 and 8, Mr Carroll asked her in the school hall if she would like to play a game, and that he proceeded to penetrate her vaginally and anally.

The school caretaker entered the hall and “went for” Mr Carroll, allowing her to leave the hall, where she encountered a cleaning lady and another female member of staff. The cleaning lady brought her to the toilet to “clean her up” and when she left the toilet, the school secretary told her not to tell her mother about the incident because “it would upset her”.

In 2012, the complainant reported this to gardaí and an investigation commenced, resulting in Mr Carroll being arrested in September 2013.

In January 2016, Mr Carroll was convicted of counts of rape and section 4 anal rape, and subsequently sentenced to ten years imprisonment.

Grounds of Appeal

Three Grounds of Appeal were relied upon:

• (i) That the judge erred in failing to discharge the jury, when the former school secretary, in the course of giving evidence, introduced hearsay of a prejudicial nature;
• (ii) that the case should have been withdrawn from the jury and a verdict of not guilty by direction recorded and;
• (iii) that the judge erred on Day 3 of the trial in failing to hold an enquiry into an issue raised by the defence legal team that a juror, upon returning to Court during the course of the jury deliberations, interacted with the injured party and other people in her company.

In relation to the first ground, counsel for Mr Carroll made an application for a discharge of the jury on the basis of something said by the former secretary in the course of giving evidence.

In the course of being questioned by the prosecution, the former secretary described a conversation that she had with the former caretaker about Mr Carroll “looking under the skirts” of the kids on stage, which had not been covered by the former caretaker in the course of him giving evidence during the trial. Seeking the discharge of the jury, counsel for Mr Carroll argued that this was highly prejudicial and of no probative value.

Refusing to discharge the jury, the trial judge said that she would direct the jury to disregard the conversation completely, which she did in the course of summing up. In the Court of Appeal, Mr Justice Birmingham was satisfied that the trial judge was “fully entitled to decline to discharge the jury”, that occasions requiring discharge are “very rare”, and that discharge “should be seen as very much a last resort”.

Furthermore, looking at the background against which these remarks were made, it was the caretaker’s evidence that he “recalled an occasion when he had entered the school hall; the complainant was on the knees of the accused; there was no-one else in the hall at the time; he saw Mr. Carroll pulling up the zip of his trousers; there was a bulge in his trousers and Mr. Carroll had an erection”. It had also been recorded in a meeting with senior members of staff at the school that the caretaker had seen Mr Carroll being inappropriate with a student and that he had punched Mr Carroll, breaking his glasses. Mr Justice Birmingham said that it was therefore not the case that the remarks about Mr Carroll looking up skirts were being attributed to someone who had nothing bad to say about Mr Carroll. Weighing the impact of these remarks against the totality of the evidence, Mr Justice Birmingham said that the secretary’s evidence was not sufficiently prejudicial for the trial court to discharge the jury.

Considering the second ground of appeal, Mr Justice Birmingham explained that much of the emphasis from counsel for Mr Carroll was “laid on the fact that the alleged incidents are said to have occurred in 1997/1998, not in the distant past or in the dark ages”, and that it was “implausible” and “incredible” that none of the witnesses reported it at the time. Stating that there were undoubtedly unusual factors in the case, Mr Justice Birmingham was satisfied that there was “clear, indeed, stark evidence that the offences had occurred” and that it was for the jury to decide whether “the response to the incident described by the complainant was so different to what one would expect as to cause one to doubt whether the incident described had in fact occurred”.

The final ground was in relation to one of the jurors having allegedly “smiled and winked” in the direction of the complainant and two guards seated behind her. Rejecting this ground of appeal, Mr Justice Birmingham said that this did not amount to communication with a juror, and that the judge was entitled to take the view that any engagement was minimal, not interfering with the trial process. Adding that “[t]he humanity that a juror brings to the process is an essential element of the right to trial by a jury of one’s peers”, Mr Justice Birmingham said that if one was “to monitor the facial expressions of jurors throughout a trial”, sympathy would be one of many expressions you would observe.

Rejecting all grounds of appeal, Mr Justice Birmingham said the Court had not been persuaded that the trial was unfair or unsatisfactory or the verdict unsafe.

• by Seosamh Gráinséir for Irish Legal News