A former care worker at Trudder House residential centre in Co Wicklow was freed by the Court of Criminal Appeal yesterday after it granted his appeal against his conviction for the attempted buggery of two boys who were resident there in the 1980s.
Mr Brendan Kelly (37), a married father of one, of Drumvoughane, Moycullen, Co Galway, was jailed for seven years in March 1998 after he was convicted at Dublin Circuit Criminal Court in December 1997 of the attempted buggery of one boy on a date unknown between January 1st, 1983, and December 31st, 1987. He was also convicted of a second charge against another boy.
The jury failed to reach a verdict on two further charges involving a third boy. Mr Kelly had denied all charges.
During the hearing of Mr Kelly's appeal against conviction and sentence last month, it was submitted by his counsel that the trial judge was wrong to allow the trial proceed in relation to the charges of attempted buggery involving different boys.
There appeared to have been some form of "auction" between the defence and prosecution, overseen by the trial judge, regarding what counts should be heard by the jury, it was argued.
Counsel for Mr Kelly argued that allowing the counts relating to the different boys to be tried together effectively provided corroboration where there was none in law. Counsel for the Director of Public Prosecutions submitted that the counts were properly joined on the same indictment.
Giving the judgment of the Court of Criminal Appeal yesterday, Mr Justice Barron said the trial judge was wrong to join the two counts on which Mr Kelly was convicted (counts eight and nine) with those counts (one and two) relating to the third boy and on which the jury disagreed.
He said the evidence on counts one and two was not sufficiently similar to justify their being heard at the same time as counts eight and nine.
Mr Justice Barron said it was the court's view that the inclusion in the trial of the facts relating to counts one and two - even though the jury disagreed on those counts - created unfair prejudice resulting in an unsatisfactory trial. In the appeal court's view, that ground of appeal succeeded.
The second ground of appeal was that the trial judge should not have allowed either counts eight or nine to go to the jury, since there was insufficient evidence to justify a finding of an attempt to commit buggery.
The court had decided there was sufficient evidence to justify admissions of the evidence on the one count as evidence on the other count also and, that being so, it was for the jury to decide whether Mr Kelly had the same intention in both cases.
The real defence of Mr Kelly was that he did not do anything improper, Mr Justice Barron said. Whether he did or not was a matter for the jury. It was not sufficient for the trial judge to tell them that the onus of proof remained on the prosecution throughout the entire case and that they had to be satisfied of the guilt of the accused beyond reasonable doubt.
Mr Justice Barron said there was no reference whatsoever (by the trial judge) to the jury considering all the evidence, not just the prosecution evidence. The jury might possibly have taken the view that what they had to consider was whether the evidence adduced on behalf of the prosecution showed a case beyond reasonable doubt. They were given no assistance as to the manner in which they were to deal with the accused man's own evidence.
Mr Justice Barron, sitting with Mr Justice O'Higgins and Mr Justice Quirke, said these and other matters had made the trial unsatisfactory, requiring the appeal court to regard the convictions as unsafe. He said it was unfortunate that the trial judge was not informed that the maximum penalty for the offence of which Mr Kelly was convicted was no longer 10 years, but five, of imprisonment.
The appeal court took the view that it should not order a retrial. In doing so, it took into account that Mr Kelly had no previous convictions and that, during the seven-year period between his leaving Trudder House and being charged with the offences, he had married and was a responsible member of society.