A travelling salesman has appealed his conviction for the rape of a female assistant following a visit to a fair in Co Cork six years ago.
Lawyers for the 56-year-old man, who cannot be named to protect the identity of his victim, claimed text messages of a sexual nature between the man, his victim and another female employee around the time of the offence should not have been admitted in evidence.
The appellant, who maintains his innocence, was sentenced to five years in prison in October 2018 by Mr Justice Paul McDermott after a jury at the Central Criminal Court found him guilty by a majority verdict of raping a 24-year-old mother of one in a camper van at a location in Co Cork on August 2, 2015.
The jury was unable to reach a verdict on a separate charge of rape a few hours earlier on the same date.
The man had been serving a suspended two-year jail sentence imposed at a Circuit Criminal Court at the time of the rape offence for sexually assaulting a 19-year-old woman in August 2011.
Counsel for the appellant, Michael Bowman SC, told a sitting of the Court of Appeal on Monday, that admitting the text message evidence between the three parties left the jury with the impression that the man was “an individual who had sex on his mind the whole time.”
Mr Bowman acknowledged the texts which were sent by the man to the other employee about 26 hours before the offence while he was travelling between fairs amounted to sexual banter but claimed the appellant had stated in one communication that they were only a “wind up”.
The appellant claims texts between the complainant and the other assistant about his texts constitute inadmissible hearsay evidence.
Mr Bowman argued that texts between his client and the other woman were not relevant to the charges.
The barrister also argued the conviction should be quashed on the basis the verdict was perverse given the jury had been unable to reach a verdict against the appellant on the other count of rape which allegedly took place a few hours earlier.
He pointed out both charges arose from the same set of circumstances.
Mr Bowman said the jury should also have been discharged in the case as the trial judge had provided an inadequate charge to the jury which was “imbalanced”.
He said Mr Justice McDermott had not recounted the evidence in the case in a fair and impartial manner and had excessively compared and contrasted the evidence for the prosecution and defence.
Opposing the appeal, counsel for the DPP, Alice Fawsitt SC, said the evidence about the texts was “necessary to complete the picture of what was going on” for the jury.
Ms Fawsitt pointed out that there was other evidence which showed the appellant had repeatedly asked about getting “a shag” from the complainant over the course of a weekend.
On the different findings by the jury, the DPP claims the disparity is explained by the fact that the appellant had under cross-examination during the trial effectively admitted that he had initiated sex while his assistant was asleep.
The DPP also claimed the appellant’s legal team had not identified any specific aspect of the trial judge’s commentary that had been excessive or biased.
The president of the Court of Appeal, Mr Justice George Birmingham, with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, reserved their ruling.