Donegal man who raped daughter says her aunt's evidence should have been excluded

A Donegal man who raped and sexually abused his daughter when she was a child has appealed his conviction, with his legal team arguing that a statement by the injured party’s aunt should not have been admitted into evidence.

At the Court of Appeal today, Michael Bowman SC said that a complaint made by the injured party to her aunt was “elicited by question and answer” rather than being a voluntary complaint about the abuse being committed by her father, Michael Carter (56).

Carter, of Kinnego, Ballymagan, Buncrana, was found guilty in June 2023, following a trial at the Central Criminal Court, of one count of rape and 25 sample counts of sexual assault between June 2010 and June 2014, when his daughter, Karen Harkin, was aged between nine and 12 years old.

Ms Harkin's parents were separated and the court heard the abuse occurred when she visited her father's rented home between 2010 and 2014. Ms Harkin waived her anonymity so her father can be named.

The court heard that Carter would watch pornography while the injured party was present and he would touch her vagina. He would also put his hand down her underwear and touch her vagina. The court also heard that Carter would remove her trousers and underwear and rub himself on top of her. She would struggle to breathe during these incidents.

Carter also touched the injured party inappropriately while she was in the bath and would occasionally get into the bath with her, where he would rub his penis against her and touch her inappropriately.

On one occasion, Carter raped the injured party but stopped when she screamed. She then ran into the bathroom and noticed she was bleeding. Carter was sentenced by Ms Justice Karen O'Connor to ten and a half years in prison.

Launching the appeal today, Mr Bowman said that an issue presented itself on the second day of the trial, concerning the statement made by the injured party’s aunt, which was read into the record. The aunt said that the girl disclosed to her she had been sexually assaulted and interfered with by “her daddy”, who was named.

Mr Bowman said that the aunt told gardaí that she felt the girl was hiding something, so she asked if something had happened to her.

“I asked her was there anything wrong and she said no, and for some reason I asked her is there someone interfering with you, and she started crying,” said the aunt.

Mr Bowman went on to say that the woman asked the injured party if it was the appellant who was interfering with her, who she named, and the girl said it was. He said that the trial judge ruled that this reference to the appellant should not have been admitted into evidence.

Mr Bowman said that the defence was raising an issue over the voluntary nature of the interview. He said that the complaint was only admissible if it was voluntary, not induced, adding that the girl was tearful and upset at the time, before a series of questions began.

"The detail is being elicited by question and answer. On foot of suspicion by the aunt, she engages in a line of questioning,” said Mr Bowman, going on to assert that without questioning, the complaint would not have emerged.

He said the aunt continued to probe because of her own suspicions. That the information was further revealed on foot of these questions took it beyond voluntary, said counsel, making it an inducement or exhortation. He said that the trial judge had taken a more benign view, believing that the complainant sought to unburden herself.

In response, counsel for the Director of Public Prosecutions, James B. Dwyer SC said that concerning the voluntariness aspect, the court had to consider the context of how the complaint emerged. He said that the injured party was in a distressed state, tearful and anxious, and there had been something on the television at the time that was relevant.

"It isn’t dragged out of the complainant,” he said, telling the court that what the injured party said had to be seen in the context of what was on the television at the time.

“It isn’t a question and answer. Taking the statement as a whole, this was the taking off of a lid,” said Mr Dwyer.

Concerning the issue of the aunt asking the girl if it was the appellant who was interfering with her, Mr Dwyer said that "there were no other real candidates”.

“It must have been the father, in the circumstances of what flowed out, the only person it could have been was the father,” he said.

Addressing the issue of consistency in the evidence, Mr Dwyer said there was no identifiable inconsistency.

The DPP contends that the trial court correctly concluded that while the details of the rape were not entirely consistent with the injured party’s evidence, there was a considerable amount of consistency in her statements which she made to her aunt. Ms Justice Isobel Kennedy said the court would reserve judgement in the case.