The Criminal Courts of Justice, Dublin
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A CLARE man who twice raped a schoolgirl at his sister's 18th birthday party has failed in an appeal against his conviction, for which he was jailed for 12 years.
Richard O'Mara, aged 32, formerly of Walnut Avenue, Kingswood, Tallaght, Dublin 24, was jailed for twice raping the teenager on October 18, 2015.
He had pleaded not guilty to both counts of rape which related offences which occurred at his family home of Ballymulcashel, Kilmurry, Sixmilebridge, County Clare.
However, he was found guilty on both charges by a Central Criminal Court jury in April 2019 after a two-and-a-half-week trial.
The victim, who was then a 17-year-old schoolgirl, said that she was so afraid of seeing him again that she did not leave her bedroom for two months after the attacks.
Trial judge Ms Justice Tara Burns described what happened as a ‘vicious, horrifying attack’ in which O’Mara had used ‘deceit, violence and force’ in the first rape before subjecting her to an ‘even more vicious rape’ later in his family house, in “a scenario that beggars belief”.
The first rape occurred in a field to the rear of the house where the birthday party was held while the second rape occurred on a couch inside the house after the party had dispersed.
In a victim impact statement, the victim said that this was her first experience of sex and that O’Mara had “robbed” her of her virginity. She said she was bleeding for a week afterwards and that she hurt so much she did not want to use the toilet.
She said O’Mara took away her ability to trust her male friends and gave her panic attacks, nightmares and flashbacks. However, she concluded her statement by saying that O'Mara no longer had power or control over her.
In June 2019, Ms Justice Burns sentenced O’Mara to 14 years’ imprisonment but suspended the final two years on strict conditions. Restrictions were lifted at the time to allow the publication of O’Mara’s name.
This Monday, the three-judge Court of Appeal dismissed O'Mara's conviction appeal, where he had submitted that gardaí had failed to examine the scene on foot of the victim's complaint and that an evidence corroboration warning was not issued to the jury.
This is a warning which highlights the dangers of convicting a defendant on the basis of uncorroborated evidence.
The appellant's barrister, Michael Delaney SC, focused on the refusal of the court to stop the trial in light of the "failure of gardaí to conduct any examination at the scene" when the rape allegation was first made to them eight months after the attacks.
Mr Delaney argued that the complainant’s statement had raised the possibility that she had bled at the scene and that semen had been deposited on a sofa there. However, gardaí had not conducted any technical examination, he said.
Detective Garda David Lang said that such an examination of the couch would not have been beneficial eight months after the event. He confirmed that no advice had been sought from the forensic science laboratory before this decision was taken.
At the appeal hearing, Mr Delaney quoted a report prepared for the defence by forensic scientist Dr Orla Sower after the trial.
“For a quantity of semen soaked into the weave of the sofa fabric or the underlying foam, as long as the enzyme activity is not lost through washing, abrasion due to use of the sofa or heat generated by someone sitting on the sofa, then it is possible that semen could remain detectable for nine months,” she wrote.
“Gardaí could have found out if it was washed or how much it was used,” suggested Mr Delaney. “The bottom line here is that it’s entirely possible that semen could be detected nine months later.”
Mr Delaney also argued that a corroboration of evidence warning should have been given to the jury by the trial judge before their deliberations began.
At the Court of Appeal, Maurice Coffey SC, responded on behalf of the DPP.
Mr Coffey said that the applicable test had not been met by the appellant, in that the "absence of the missing evidence deprived the accused of a realistic opportunity of an obviously useful line of defence".
In a written judgement dismissing the appeal today, Ms Justice Úna Ní Raifeartaigh said the "gardaí did not fail in their duty to investigate; and the test of a real risk of an unfair trial by reason of a failure to investigate something which might have been an obvious line of defence has not been satisfied".
"Even if forensic tests had been carried out when the complaint was made to the gardaí eight months later and detected neither semen nor blood, the absence of evidence of blood or semen was not sufficiently probative to have deprived the appellant of a “real possibility of an obviously useful line of defence”, the closing off of which would have created a real risk of an unfair trial," said Ms Justice Ní Raifeartaigh.
"There are simply too many hypotheticals or ‘ifs’ for the court to find that the relevant legal threshold has been met. It could at most be described as a speculative or hopeful line of inquiry.
"This does not involve the reversal of the burden of proof or an attack on the presumption of innocence. There is a legal threshold for establishing that the absence of some investigation or piece of evidence requires the appellate court to intervene, and we find that the threshold has not been met in this case," the judge said.
Ms Justice Ní Raifeartaigh said the absence of a corroboration warning to the jury was entirely a matter for the discretion of the trial judge.
She said that "it is a judgement call for the trial judge to make and in our view, the judgment call that she made was not clearly wrong or outside the range of her discretion".
"The trial judge carefully considered all of the evidence before deciding not to give a corroboration warning.
"Taking all of the evidence into account, she [the trial judge] considered that the case did not reach the threshold for requiring a warning and we consider that her reasoning, based as it was on the totality of the evidence in the case, was impeccable in this regard," said Ms Justice Ní Raifeartaigh.
She said that "in all of the circumstances, we propose to dismiss the appeal and uphold the conviction".
A hearing in relation to a sentence appeal by O'Mara will be held in due course.
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