A father who repeatedly raped his son and then tried to portray the boy as a liar who had lived in "a home of love, affection and care" has lost an appeal against his conviction.
The Court of Appeal also commented on the nine days of questioning the victim faced in court when he was just 12 years old. Delivering the decision of the three-judge court on Tuesday, President Mr Justice George Birmingham said the trial was "remarkable by reason of its duration, but also by reason of the fact that the complainant gave evidence over nine days, six of those being taken up with cross-examination."
Following a trial at the Central Criminal Court in 2016 the father, now aged 71, was convicted of anally raping the child on nine occasions but acquitted of raping him with a poker. He was also convicted of child cruelty for locking the boy in a box. Other charges relating to allegations that the father forced the boy to have sex with his mother were withdrawn from the jury.
During the trial, the victim gave evidence via video-link from a room in the Old Bailey in London where he had the assistance of an intermediary and several concessions were made for him under EU directives on victims' rights and questioning children in court. Barristers did not wear wigs or gowns and the boy did not have to take an oath. Instead the trial judge Mr Justice Robert Eagar asked him if he knew the difference between telling the truth and telling lies.
Mr Justice Birmingham said there was "reasonable adherence" to ground rules that were set out by the intermediary before the boy gave his evidence but, the judge added: "The duration of the case and in particular the length of period over which the very young complainant, who was 12 years of age at the time of the trial, was required to give evidence has to be a cause of very great concern."
Colman Cody SC, who conducted the cross-examination, argued previously that the six days of questioning were justified by the unusually complex nature of the "egregious" allegations against his client. Mr Justice Birmingham said: "We do not dispute the fact that the case was difficult and complex, but our concerns remain undiminished."
Dealing with the grounds of appeal, Mr Justice Birmingham said the court was not persuaded by any of the arguments made. Mr Cody had argued that the trial judge should not have allowed a garda to tell the jury about a "raucous" video tape of the accused having sex at home with his partner and at least one other person. Mr Cody said the tape proved nothing because it was made six years before the offences, but was highly prejudicial and painted his client as "someone who would be likely to commit this sort of offence."
Mr Justice Birmingham said that "at first sight" the admission of evidence of consensual sexual activity among adults seems "counterintuitive". But, he said: "On further examination, there were powerful factors present in favour of admission of the evidence."
He said the prosecution wanted to counter attempts by the defence to suggest a "normal, happy family" or even an "idyllic household". The tape, the judge said, was made when the victim, then a baby, was in an adjoining room. While this alone would not have made the tape admissible, Mr Justice Birmingham said there were other aspects that made the tape probative and admissible. The boy had said that his father video-taped the abuse, which was significant given that the tape showed this was his father's practice.
The people in the video were viewing pornography, supporting the child's claim that this was something that happened in the house. The significance of the tape was heightened, Justice Birmingham said, because it showed that the father was lying when he claimed there was no pornography in the house following the boy's birth. The tape also provided support for the boy's claims relating to his father's interest in defecation.
The court also dismissed an argument that the trial judge should not have allowed evidence of the accused's previous convictions for stealing a paddling pool and a jar of mustard and for being drunk in charge of a vehicle. Mr Justice Birmingham said the theft conviction supported the child's claims that his father, on occasion, urged him to steal. This was, the judge said, "very far removed from the suggestion of ultra-responsible parents" that was put forward by the defence during cross-examination of other witnesses. The drink driving charge, the judge said, was introduced because the boy said his father abused him while drunk but his father claimed to have given up drinking some years before.
He added: "We think there is a certain unreality in the suggestion that a jury would think the worst of a person, or be prejudiced against a person facing allegations of the gravity that the appellant was facing, because of the fact of having convictions of this nature recorded." He said the convictions raised at trial were "trivial" and would not have impacted on how the accused was regarded by the jury.
The court rejected further arguments including a claim that the trial judge's charge to the jury was "biased, unbalanced and favourable to the prosecution".
Following the trial Mr Justice Robert Eagar said the child had “clearly convinced the jury of the spirit of the truth of the allegations.” He imposed a 15 year sentence on the father and suspended the final year. The man has already been registered as a sex offender and will also be subject to a four year supervision order on his release.
The judge said it was the man's right to fight the trial and to appeal the verdict but took into account the effect the trial had on the child.
He noted the boy became verbally aggressive before the trial and had trouble sleeping. The boy was not allowed to speak to his therapist during his examination at trial because of the rules of evidence. The judge also noted a psychiatrist's report which stated child sexual abuse can led to many physical and mental ailments in the future. These risks are increased when the abuse is carried out by the father, he said.
He noted the boy enjoyed some pleasant times with his father but that these were negated by the ongoing abuse.
The man's then 38-year-old partner was convicted of child cruelty but found not guilty of sexual assault relating to allegations she had sex or simulated sex with her child when he was between six and seven. She was sentenced to 18 months for child cruelty.
The child was taken out of his family home by social workers in 2011, just before his eighth birthday, and when he entered a foster home began to reveal the extent of the abuse he had suffered to his foster mother. She documented what he told her and her evidence formed part of the prosecution case.
In a victim impact statement read to the court following the trial, the then 13-year-old boy wrote that “when I lived with my mam and dad I wanted to dispose myself of this world, I wanted to commit suicide.”
It wasn't until he was taken into foster care that his childhood started, he wrote.
He referred to his father as “Adolf Hitler” and said he wanted to “run him over with a combine harvester”.
“Words have not even been invented yet for what my dad has done to me,” he wrote.
“I want to say au revoir to my memories. I would like my dad never to leave prison. I am happy when he is in prison.”
In a previous victim impact report relating to his mother the child said he doesn't believe she did anything wrong.
The boy called his mother a “kind woman” who he felt sorry for but wished that she had taken him away or placed him in care when the abuse started.
Subscribe or register today to discover more from DonegalLive.ie
Buy the e-paper of the Donegal Democrat, Donegal People's Press, Donegal Post and Inish Times here for instant access to Donegal's premier news titles.
Keep up with the latest news from Donegal with our daily newsletter featuring the most important stories of the day delivered to your inbox every evening at 5pm.