THE CROSS-EXAMINATION of a sexual assault complainant at trial cannot be used to “to pry unnecessarily” into their personal life, the Court of Appeal has found.
The court today dismissed a bid by a teacher to overturn his conviction for the repeated rape and sexual abuse of his younger brother when they were children.
Abuser Graham Daly (39) had suggested that his brother was “lying because he was jealous of his achievements” and that the younger man “wanted to destroy his older brother’s life” because Daly disclosed to his parents that his younger brother is gay.
Graham Daly, of Clonree, Newport, Co Tipperary, was found guilty by a jury of seven counts of raping and sexually abusing his brother on dates between January 1998 and December 2002 following a Central Criminal Court trial in December 2021.
The trial heard that most of the abuse took place in the family home in County Limerick. Daly was jailed for eight and a half years in January 2022.
Sentencing judge Ms Justice Karen O’Connor said he was “a big brother who should have protected his younger brother” but instead the defendant had abused him over a four-year period from when the boy was 10 years old.
The court heard Daly did not accept the verdict of the jury and continues to maintain his innocence. His younger brother Thomas waived his right to anonymity, meaning Daly could be named.
Sexual history
Graham Daly had appealed his conviction arguing that the trial judge erred in restricting the scope of the cross-examination of the complainant with regard to his previous sexual history.
He also submitted that the trial judge erred in permitting into evidence the testimony of a Mr C, a first cousin of the appellant.
On the second day of the trial, counsel on behalf of the appellant made an application to the court under section three of the Criminal Law (Rape) Act 1981 seeking leave to cross-examine the complainant as to his sexual history.
The complainant and the prosecution objected to the application but the trial judge granted leave to question the complainant within certain parameters.
She ruled that the alleged motivation for the making of the complaints against the accused was an important aspect of [the appellant's] defence and said, in the view of the court, it was relevant and admissible.
However, she ruled that other lines of questioning were not relevant to the case.
In dismissing the appeal today, Mr Justice John Edwards said the Court of Appeal had carefully considered the basis for the section three application, the context in which it was made and the trial judge’s ruling in the case.
He said the court was satisfied that the trial judge approached the matter “carefully and conscientiously” and said they agreed with the respondent that her ruling “was one that struck the right balance”.
“While the accused has fair trial rights that must be protected, a complainant also has rights including privacy in matters of his/her sexuality and sexual history which also must be respected, unless to do so would visit an unfairness on the accused,” he said.
Mr Justice Edwards, sitting with Mr Justice Patrick McCarthy and Ms Justice Una Ní Raifeartaigh, said cross-examination of a complainant cannot be used to “to pry unnecessarily into his/her personal life”.
Mr C’s statement
Mr C, whose statement was contained in the book of evidence, made statements to gardaí in which he disclosed details of exchanges by text message between himself and the appellant, as well as phone calls and in-person conversations between them.
This included an assertion that the appellant had told him that there was a dispute within the family and that he was being accused of interfering with the complainant years previously but that the complainant “had no proof”.
He also told gardai that he met the appellant on 4 June 2016 and, in the course of that meeting, Daly had enquired of him: “How much would it cost to hurt [the complainant] or [his father]?” and whether Mr C knew someone who would do it.
The appellant had contended that the trial judge’s decision to admit the evidence of Mr C was “erroneous in law” and fundamentally unfair.
It was submitted that Mr C’s allegations were made five months after the appellant had been arrested and interviewed and thus he was never afforded the opportunity to address the allegations made, either by way of a request by the gardaí to attend at a garda station or by way of rearrest.
Such a request, it was submitted, would have allowed the appellant to address these allegations, to state his position and to “categorically refute same”.
The appellant submitted that the trial judge erred in permitting the prosecution to adduce the evidence of Mr C before the jury and argued that the “probative value of this evidence outweighed its prejudicial effect”.
‘Not unfair’
Dismissing the second ground of appeal, Mr Justice Edwards said the court did not consider that there was “any unfairness to the accused or prejudice to his ability to receive a fair trial”.
“The suggestion that he was unable to defend himself at trial due to the failure of the gardaí to put Mr C’s statement to him for his commentary is untenable in the circumstances of the case,” he said.
The court was satisfied that the evidence of Mr C was “directly relevant”, he added. The judge said it contained what were ostensibly declarations against interest, rendering those declarations admissible as an exception to the hearsay rule.
“In our assessment, the trial judge was right to consider it properly admissible as relevant probative evidence, subject to being also satisfied that its admission would not prejudice the accused’s ability to have a fair trial.”
Trial judge Ms Justice O’Connor had noted that Daly denied the charges “vociferously” at all times and raised a number of motives as to why his brother would accuse him of sexual abuse.
Daly suggested his brother was “lying because he was jealous of his achievements” and that the younger man “wanted to destroy his older brother’s life” because Daly disclosed to his parents that his younger brother is gay.
The men’s parents have sided with Daly against their younger son, the sentencing hearing was told. Ms Justice O’Connor noted the abuse has had a devastating impact on Thomas Daly’s life and on his family life.
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