Judges at the Court of Appeal have criticised a barrister for cross examining a 12-year-old boy for six days about allegations that he was raped by his father.
Mr Justice Patrick McCarthy said he was "shocked" by the length of time taken for the cross examination while Ms Justice Isobel Kennedy said she finds it "really difficult to see how you can possibly justify the length of cross-examination of a 12-year-old boy."
Mr Justice McCarthy added that Colman Cody SC, who conducted the cross examination, had said before he started questioning the boy that he didn't know how long he would take. The judge said Mr Cody should have been able to make a "reasonably accurate estimate" and added: "That is a particularly acute problem where a child is concerned."
Mr Cody is representing the now 70-year-old man, who is from the UK, in his appeal against his 2016 conviction for nine counts of raping his son from the age of six and one count of child cruelty for locking the boy in a box.
His partner, who is also from the UK, was convicted of child cruelty but was acquitted of sexual assault relating to allegations made by the boy that she had sex or simulated sex with him when he was six or seven years old.
Mr Cody responded to the judges' criticisms saying that it was a "particularly difficult case". He said he dealt with the boy in a "respectful and measured way" but that it was a "unique case" where the allegations against his client were "particularly egregious".
Ms Justice Kennedy said the case was not "unique" and that the three judges of the Court had all dealt with similar cases.
The first day of the two-day appeal focused on the decision of the trial judge to allow a garda to give evidence relating to a video showing the accused, his partner and at least one other person engaging in "raucous" sex acts at their home. This was, Mr Cody said, prejudicial to his client and not relevant because the video was recorded some six years before the alleged rapes.
He added: "Whatever one's moral view, it was depicting consensual sexual activity." The decision to allow a garda to give detailed evidence of what was on the tape had, counsel said, painted his client "in a particularly lurid and grotesque light which had the real risk of creating prejudice."
He said it was an attempt to portray to the jury that the accused was "someone who would be likely to commit this sort of offence" and that it had helped to create a "portrait of the appellant which was entirely unflattering to say the least, utterly disparaging and depicted him in a light that might have tended the jury to view him in a particular way."
Ms Pauline Walley SC, for the Director of Public Prosecutions, pointed out that the tape was consistent with aspects of the victim's accounts of how he was abused. He had, she said, described how his father sometimes video recorded the abuse and that he had, on occasion, used a blue lubricant similar to a lubricant that was used in the video.
She also pointed out that it showed the appellant was lying when he claimed there was never any pornographic material at his home following the birth of the victim. Ms Walley said the evidence showed the recording was made following the birth of the boy and the appellant and others on the video could be seen viewing pornography, and pornographic material was also visible on a table. The evidence of the video was therefore, counsel said, probative and admissible.
Mr Cody further submitted that the allegations made by the boy after he was removed from his parents' home initially only related to physical abuse. He said the allegations "evolved" into sexual abuse and questioned the consistency of those accounts. Ms Justice Kennedy said she could see nothing unusual in allegations coming out in the way they did.
She added: "That is a regular type of situation in cases of this nature where disclosures come out on an incremental basis and increase in severity. That is quite the usual manner." Mr Cody also complained that his client's previous convictions for theft of a jar of mustard and a paddling pool had been put to the jury. Ms Walley responded that the thefts were relevant because there had been an attempt by the defence to paint the accused as being a person "of the utmost probity and honesty" and to portray the boy as dishonest and untrustworthy.
The appeal continues tomorrow (TUE), presided over by President of the Court of Appeal Mr Justice George Birmingham.
Evidence at trial:
Following the trial in 2016 Mr Justice Robert Eagar imposed a 15-year sentence on the father and suspended the final year. He will also be subject to a four-year supervision order on his release.
In a victim impact statement read to the court, 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.
A psychological report stated the child is two years behind in school and has difficulties forming relationships.
He was removed from the family home in 2011 and placed in a foster home where he was sexually abused by another child. This child was never prosecuted because he was below the age of criminal responsibility.
In March 2012 he was moved to another foster home where he was very happy. He began disclosing the sexual abuse by his father to his foster mother who documented it and handed it over to gardaí.
The foster mother “loved the child to bits” the court heard but was forced to give up care of him because he was displaying disturbing behaviour. He was spying on her in the shower, acting inappropriately with other children and was obsessed with faeces.
Tusla, the Child and Family Agency, were forced to put him in specialised residential care in the UK as no suitable place was available in Ireland.
The psychologist said he was displaying highly sexualised behaviour but this has improved over time.
The father was convicted of anally raping the child on nine occasions but acquitted of raping him with a poker. Other charges relating to allegations that the father forced the boy to have sex with his mother were withdrawn from the jury.
The boy described one occasion where his father was assembling a wooden box. He asked his father what it was for and the father replied “it's for you” before pushing him in. The boy was in there for three or four hours before his mother released him.
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