A man jailed for raping and threatening to kill his wife as their marriage was breaking down has moved to appeal against his conviction.

The 43-year-old man, who cannot be named for legal reasons, was jailed for 10 years after being convicted by a jury in the Central Criminal Court. He was the third person to be convicted for marital rape since rape within a marriage was made illegal in 1990.

The trial court heard that the woman had to stay in contact with her husband after the rape so he could have court-ordered access to their child.

A jury of 11 men and one woman convicted him of raping his wife in their home in May 2014 and of threatening to cut her face

The man, who denied the charges, was also convicted of threatening to kill the woman the next day over the phone. However, the jury failed to reach verdicts on charges that he had head-butted her and threatened to do “serious damage to her” when they met to discuss custody of their son.

Ms Justice Isobel Kennedy sentenced him to 12 years imprisonment, with two years suspended.

The man’s case came before the Court of Criminal Appeal on Tuesday where judgment was reserved.

His barrister, Ronan Munro SC, submitted that the trial judge ought to have given a tailored warning to prospective jurors addressing the potential for racial bias rather than giving them the usual “generic” warning.

Mr Munro said his client, who is of Arabic origin, would have preferred a more racially mixed jury but that wasn’t possible.

He said many people from predominantly Muslim countries weren’t called for jury service due to the electoral roll system and, as such, his client was not faced with a jury of his peers but with a jury of “homogeneous” white Catholics.

Islamophobia

He said academic research and non-governmental reports had shown that Islamophobia was an established reality in Ireland. He submitted that there was potential for unseen prejudice in the minds of jurors.

Mr Munro said the trial judge made no mention of religion in her warning to the jury or that the accused and complainant had been married or that the offence occurred in the context of a deteriorating relationship.

Far from accusing jurors of racial prejudice, Mr Munro said it was simply a request to give them a tailored warning alerting them to the “hot topic” issues in the case. It was something that could have been done and ought to have been done, Mr Munro submitted.

In the mind of an Islamophobe, Mr Munro said, Muslims were perceived to treat women in an inferior fashion. In the course of the trial, it was alleged that the man had told his wife that because they were living together he could have sex with her or rape her whenever he wanted – like she was a “commodity,” counsel stated.

Jurors should have been told that if inter-religious marriages were an issue for them, that was something they could indicate to the court, counsel submitted.

He said the constitutionality of the Juries Act was not accepted but was not being pressed in the Court of Appeal. The proper forum for such a challenge was by way of a plenary summons to the High Court which, the court heard, was being taken in a separate case.

Mr Munro further submitted that there was no proper basis for admitting subsequent counts to the indictment. They were subsequent in time and their prejudicial value outweighed their probative value.

Furthermore, he said his client was “embarrassed” by the admission of “classically misconduct evidence”.

Counsel for the Director of Public Prosecutions, Mary Rose Gearty SC, said the trial judge, with all her experience, “rightly” refused to give a specific warning to the jury.

If a specific warning was to be given to prospective jurors in a case where the accused is a minority, Ms Gearty said it would be unworkable.

She said the logical corollary would be that jurors in a rape case, for instance, would be told to examine their minds for any unconscious bias “that could be called misogyny perhaps”.

In truth, she said it didn’t arise in this case and in fact, nobody asked what religion anybody was including the one non-white member of the jury.

She said the defence unfairly referred to the warning given by the trial judge as the “generic warning” as if it was not effective. In fact, it was a very effective warning because experience had shown that many jurors come forward to say they cannot act.

In relation to the issue of the relationship between the parties and the different counts, Ms Gearty said there couldn’t be a much stronger nexus because the man was accused of assaulting and threatening the same woman.

It wasn’t the prosecution saying he had a propensity towards threatening women; it was the same woman and it was highly relevant.

Furthermore, Ms Gearty said, the assault on the victim’s mother was removed from the factual matrix of the case so the jury wouldn’t think the man had a propensity for violence towards woman.

It wasn’t a similar fact case at all, it was a set of offences that had to be kept and tried together.

She said the trial judge was correct in all her rulings.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.