Court of Appeal rejects argument based on ‘Cooper test’

The 46-year-old man, who cannot be named to protect the victims’ identities, was found guilty by a Central Criminal Court jury of raping and sexually assaulting two sisters from 1992 to 1997 while he was in a relationship with their mother. He had denied the charges.

All but one count of sexual assault involved the youngest sister from when she was aged 12-14.

Following the majority jury verdict, he was sentenced to nine years imprisonment by Mr Justice Paul Butler on 28 July 2015.

The man unsuccessfully sought to appeal his conviction yesterday on the single ground that the jury verdict was unsafe and unsatisfactory.

His barrister, Roderick O’Hanlon SC, opened the appeal by relying on the UK judgment of R v Cooper 1 QB 267, in which it was held that an English appeal court could overturn a conviction if it had “lurking doubt” or disagreement with a jury’s verdict.

However, Mr Justice John Hedigan said the Supreme Court in Ireland had comprehensively rejected the rational of the Cooper test “in trenchant terms”. He said the concepts of ‘lurking doubt’, ‘feel of the case’, ‘gut feeling’ or ‘back of the mind’ simply did not apply in Ireland.

Mr Justice Hedigan said the two complainants gave evidence in court as to the sexual assault on one and the sexual assault and rape on another.

The first complainant was challenged that she had repudiated her complaint around the age of 13 She said she repudiated her complaint at the time to avoid hurting her mother and sister and this was the main ground on which her credibility was challenged.

Mr Justice Hedigan said she explained herself and the jury clearly believed her and disbelieved the contrary account of the accused.

The challenge to the second complainant was, in essence, a contradiction of her evidence by the accused that sexual activity had been initiated by her.

Furthermore, there was evidence which could have amounted to corroboration.

Mr Justice Hedigan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, said the Court of Appeal “cannot and will not interfere” with the verdicts reached by the jury and the appeal was accordingly dismissed.

Ruaidhrí Giblin, Ireland International News Agency Ltd.