A former soldier who was jailed for 10 years for “a cynical and cold campaign of rape” against a woman he had been dating has appealed his conviction, arguing that the trial judge should have warned the jury about the dangers of convicting a defendant on the basis of the uncorroborated evidence of a complainant.
Niall Kennedy (32), of Standhouse Lawns, Newbridge, Co Kildare, was convicted by a jury in December 2021 of 12 counts of rape on 11 different occasions in August 2017.
He was also convicted of harassment on multiple occasions between February and August 2017 and of making threats to kill or cause serious harm to the woman in June 2017 and twice in August 2017.
Kennedy, who has no previous convictions, denied the charges and did not accept the jury’s verdicts.
At the Court of Appeal on Monday, Kennedy’s lawyers submitted that a warning about the woman’s evidence in the case should have been issued by the judge to the jury before they began their deliberations.
Roderick O’Hanlon SC, for Kennedy, said the woman admitted to lying in the past about her relationship with Kennedy and that the jury should have been told to approach her evidence with caution and “not jump to conclusions”.
Mr O’Hanlon said the trial judge said he was not going to give the jury a “corroboration warning” regarding the woman’s evidence as requested by the defence, which would go to her reliability and credibility as a witness.
A corroboration warning may be given by a judge to a jury to highlight the dangers of convicting a defendant on the basis of uncorroborated evidence.
Mr O’Hanlon said the complainant gave evidence of her dealings with a male friend, whose life she claimed Kennedy had threatened to “destroy”.
“He told me that he knew [the male friend] was a druggy and that he would destroy his career. I did not know that [the friend] was into drugs and I don’t believe that even now,” the woman said during the trial.
Mr O’Hanlon said the complainant had texted another friend to the contrary, saying she asked [the male friend] about using drugs and that “he had been doing coke and weed for a while”.
“It was put to her that she had told lies to the jury about her belief that [the male friend] was using drugs,” counsel said, submitting that the complainant accepted that she had told lies.
Lied to parents
Mr O’Hanlon said the woman also lied to her parents about the relationship and to her employer about being off sick when she was with the accused.
The barrister said that at the time of the alleged harassment, thousands of Watsapp messages had been exchanged between both parties. Between April 2017 to May 2017, 4,716 messages were sent, with the woman sending 2,381 of those.
Mr O’Hanlon said a warning should have also been given to the jury as to the Kennedy’s state of mind at the time as he maintained the sexual intercourse had been consensual.
The barrister said the corroboration warning could have also addressed why in the days after she alleged she was raped the woman went to the gardaí complaining of being harassed but not of being raped.
Mr Justice George Birmingham said the trial judge was “very familiar” with the law on issuing a corroboration warning and there was a “wide margin” afforded to trial judges on whether or not to do so.
Mr Justice Edwards said the woman had said she had forgotten about describing her friend as a drug-user and did not accept she lied in that she “stood over what she said – she did not believe he was into drugs”.
Mr Justice Edwards said the woman accepted that she told something different to the jury regarding the male friend but that “a lie has to be a conscious decision, in that you can’t lie if you forget something – it’s not a lie. She claims she didn’t remember the text exchange”.
‘Trying to protect herself’
Mr O’Hanlon said the lack of the warning “doesn’t properly address the manner in which a jury should address her evidence. The court ought to have issued a caution alerting the jury to those aspects of the complainant’s evidence”.
Vincent Heneghan SC, for the State, said the woman had explained why she told lies about the relationship.
“She was trying to protect herself and her family from the accused, a person who had come back into and out of her life. She was afeared and embarrassed by it. It was not a plan to fool the jury,” Mr Heneghan said.
The barrister said the jury is asked to decide on matters of the truth which “happens in every case anyway”.
“In every case, the trial judge is obliged go about explaining to a jury what their function is – an assessment of the evidence from the witnesses in the box and all judges do that,” Mr Heneghan added.
The barrister said the trial judge gave a lengthy and proper review of the evidence in detail for the jury and to ask for a corroboration warning from the judge in the case would be “asking judge to step into the function of a jury”.
Mr Heneghan said the trial judge did not feel the need to give the warning, had given his reasons for refusing the application and had made no error in principle in making his decision.
Mr Justice Birmingham said the court would reserve its judgement in the matter.
Abuse of trust
At the trial in February of last year, Mr Justice Paul Burns said the case was characterised by a “more than usual degree of degradation and abuse of trust” of the woman and set a headline sentence of 13 years.
He said Kennedy had carried out a “a cynical and cold campaign of rape” against the woman, imposing a sentence of 12 years with the final two years suspended for five years on strict conditions.
The trial heard that the woman was in her early 20s when she met Kennedy in December 2016 on the Tinder dating app and they soon began a relationship.
However, the court heard Kennedy then began turning up outside her place of work, or in a nightclub when the woman was out with friends. He would turn up uninvited, was constantly texting her and demanding that she send him photographs, a Garda witness said.
The woman found the level of communication “unbearable” and wanted to end the relationship.
Kennedy also sent images of an indecent nature to her mother’s phone.
While they continued in an on-off sexual relationship, the court heard that Kennedy continued to harass the woman, including following her when she was on nights out with friends.
On one occasion outside a Dublin nightclub, he showed up and threatened to kill one of her male friends.
In August 2017, Kennedy told the woman to come to his house where he raped her, while calling her “a sl*t and a wh*re” and telling her that “she deserved it”.
He told her that the only way “to make things up with him was to be in a threesome” and that she had to have sex with him 24 times, and also for every time he said she had sex with another man.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help.
In the case of an emergency, always dial 999/112.