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 found 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 did not 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. He received a 15-year sentence with the final year suspended.
His partner was convicted of child cruelty but was acquitted of sexual assault.
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 ones 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. 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.
During the trial in 2016, the court heard the boy 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.
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.
A psychologist told the court he was displaying highly sexualised behaviour but this has improved over time.
The appeal continues on Tuesday.