Man, 86, who used son as 'sexual plaything' should have conviction set aside, court hears
An octogenarian paedophile who serially abused children in his family and used his son as a "sexual plaything" should have his conviction set aside, the Court of Appeal has heard.
The remote hearing today saw lawyers and the three judges of the criminal side of the Court of Appeal joined by video-link. The appellant did not wish to be present during the hearing.
The 86-year-old man, who cannot be named to protect his victim's identity, was found guilty by a Central Criminal Court jury of three counts of indecent assault of his son at the family home on dates between 1977 and 1979. The convicted paedophile had denied the three charges.
The Clare man received consecutive sentences totalling four years by Ms Justice Deirdre Murphy on May 15, 2017. The maximum sentence for the offence at the time was two years.
Passing sentence, Ms Justice Murphy said the court was “hugely constrained” in terms of sentencing as the maximum penalty available at the time the offences were committed was two years imprisonment. She said the maximum penalty was not “in any way commensurate” with the offending.
In his victim impact statement, the man told his father: “You took my childhood, education and the foundation of my childhood.”
“I have never felt truly safe in my life – and this is your fault. You stole my life," he said.
Opening an appeal against conviction today, the man's barrister, Michael Delaney SC, said the hearing centred on the trial judge's refusal to give a corroboration warning and there was a clear basis on the complainant's evidence for giving the warning.
The complainant gave evidence over three days and there was various inconsistencies between his statements and sworn evidence which established that he could not be a reliable witness, triggering the need for the warning, submitted Mr Delaney.
The barrister argued that there were "numerous respects" in which the complainant had changed his evidence on certain issues in cross-examination and there had been a proper acknowledgement by the prosecution that this gave rise for the warning.
"When we look at the case its almost fair to say in respect of every important feature of the offences that there is a change or development from the complainant of when and where the offences took place, who was present and when it was done," said Mr Delaney.
Mr Delaney said the trial judge's warning was "fairly terse" and she had told the jury: "I tend not to give corroboration warnings but I will say there is no independent evidence and no corroboration."
The lawyer submitted that this was not a legally valid reason and there had been "no engagement whatsoever" by the judge with the evidence. The judge's refusal to give the warning represented a significant departure from what was required under the terms of section 7 in the Criminal Law (Rape) (Amendment) Act 1990, namely that the judge approach the issue with an open mind and engage with the evidence, he said, adding that this simply did not happen in the case.
Mr Delaney explained that the judge's discretion had been exercised on an incorrect legal basis and careful consideration had not been given which "flew in the face" of what section 7 required. The test for corroboration was if there was an evidential basis as to whether a witness could be unreliable, he continued.
In the judge's charge, the jury was instructed to give weight to a delay warning and the absence of independent evidence, he said. "This could in no way be regarded as a reasonable substitute for the corroboration warning, which was manifestly required in this case," he pointed out.
A corroboration warning was given to the jury in the man's first trial in 2016, which ultimately resulted in a disagreement, he concluded. The barrister acknowledged that whilst the giving of corroboration warnings have become less commonplace, there is no reason why exceptional circumstances should be required to trigger a corroboration warning.
In reply, counsel for the Director of Public Prosecutions (DPP), Conor Devally SC, said it was incorrect to characterise the prosecution stance as supporting the corroboration warning and it had no part in urging the judge one way or the other of the warning required.
Mr Devally argued that the fact the trial judge said that she tended not to give a corroboration warning was a stance shared with all the judiciary. He submitted to the three-judge court that section 7 is left to the discretion of the judge, who had given direction in her charge to meet the terms of the case.
In the trial, Mr Devally said the victim was "used as a sexual plaything" by his father. He was subject to oral and anal rape, and was sometimes gagged and restrained, according to Mr Devally.
The man has previous convictions for sexual abuse of other family members. He is currently serving a seven-year sentence for rape and indecent assault of a niece as well as a four and a half year sentence for indecent assault of his daughters.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Ms Justice Isobel Kennedy and Mr Justice Patrick McCarthy, said the court would reserve its judgement.
