The prosecution in the case of six men accused of sexually abusing a deaf relative faced a “devastating problem” when she alleged one of her brothers raped her when he was aged four, a jury has been told.
Closing speeches in the trial of the six men, aged between 32 and 55, continued in the Central Criminal Court on Tuesday, with Karl Finnegan SC outlining his client’s case to the jury.
The six men face a combined total of 20 charges – 16 of which pertain to the main complainant, who is deaf. They are her three uncles and her three younger brothers. The abuse is alleged to have occurred over a 19-year period between 1995 and 2014. None of the parties can be named for legal reasons.
Finnegan’s client, referred to as Accused C in reporting the case, is charged with 10 counts relating to the sexual abuse of the main complainant – his older sister – as well as two younger sisters. He was originally charged with 45 counts, but a number of these were withdrawn by the Director of Public Prosecutions (DPP) last week, the jury was told.
Finnegan said the charges against his client are “dramatically different now”. He said of the 10 charges that remained, none of them were the same as those read out at the start of the trial. He said three charges were “completely new offences” only alleged for the first time when the main complainant gave her evidence at trial and that dates had been changed in other counts.
In relation to the allegations pertaining to the main complainant, Finnegan said the alleged acts committed changed, as well as where they took place, the age of those involved, the family circumstances, where they were living and where the complainant was living.
Accused C has pleaded not guilty to three counts of rape, two counts of anal rape and one count of sexual assault, all allegedly committed against the main complainant, between 2003 and 2010. She is his older sister and is deaf and vulnerable, the jury has been told.
Finnegan referred to evidence the main complainant gave at trial that Accused C raped her when she was seven years old, which meant he was four years of age. “When asked if he could have raped her when he was four, she did not resolve that possibility but answered, ‘It’s [his] fault,’” Finnegan said.
“This is a devastating problem for the prosecution – the allegation that a four-year-old boy raped a seven-year-old girl.”
He submitted jurors were being asked to “ignore that” and told “don’t worry about ages, dates and times”.
“That’s an extraordinary proposition and how does one defend that?” he said.
He also referred to evidence from the main complainant that Accused C forced sex with her in their garden when she was 11 and he was eight years old.
“Could forced sex between an 11-year-old girl and an eight-year-old boy, even if possible, occur regularly on a sheet in a garden in an estate in summertime and no one see it?” Finnegan asked.
He said the defence was very careful in how the main complainant was cross-examined, with questions given in advance and topics divided up so there would be no confusion.
“When she says [Accused C’s] age was four or eight at the relevant time, when she says it is his fault, she knows what she’s talking about and how can that make any sense to you whatsoever?” he said, later adding: “You do not convict allegations that are incredible and these are incredible.”
In relation to allegations made by two other sisters, Finnegan said Complainant 2 told the court her memories were “mix and match” and that she “wasn’t sure what was real or created in [her] own mind”.
In relation to this complainant, Accused C has denied one count of sexual assault on a date between 2005 and 2006 when she was a child. He has also pleaded not guilty to two counts of raping her on dates between 2015 and 2018.
Finnegan said Complainant 2 also made an allegation of sexual abuse against another brother (who is not on trial) which she did not proceed with after she said it was actually a nightmare she had.
In relation to the allegations made by Complainant 2, Finnegan told the jury: “Suspicion is not enough, concern is not enough, possibility, probability is not enough – you must be sure.”
In relation to the third sister, Accused C has denied one count of anally raping her on a date between 2010 and 2014 when she was a child. Finnegan said this complainant had told the court she did not know her older brother at all, with the court hearing he lived with relatives.
She told the court she woke in bed one night to find him anally raping her. Defence counsel said her opportunity to observe whoever was there was “momentary”. “Is a fleeting glimpse by a startled child woken from sleep proof of identification?” he said.
He noted Complainant 3 said she was sure it was Accused C “but also didn’t know him at all, didn’t grow up with him, had extremely limited contact with him, scarcely saw him”. He said she couldn’t reliably fix the time of when this happened, didn’t know why he was in the house that night or how he got in.
He said the jury could not safely convict on this or the other allegations against Accused C and he urged the jury to acquit him of all counts.
Closing speeches will continue on Wednesday before Justice Caroline Biggs.
