A man convicted of a campaign of violence and rape against his younger brother was ‘induced’ by gardaí into confessing, the Court of Appeal has been told.
The man, now aged 37, had pleaded not guilty to 10 sample counts of oral rape, contrary to Section 4 of Criminal Law (Rape) Act, at the family home in Dublin between March 28th, 2001 and March 27th, 2006.
He had also pleaded not guilty to seven counts of assault causing harm and one count of production of an article to unlawfully intimidate at the same address during the same period.
Following a trial at the Central Criminal Court last April, a jury returned a unanimous guilty verdict on all counts of assault causing harm and on two sample counts of oral rape of an 11-year-old boy.
The trial judge Mr Justice Michael White had previously directed the jury to return verdicts of not guilty on the remaining eight sample counts of oral rape.
The accused was sentenced to nine years’ imprisonment for the rapes and five years for the assaults by Mr Justice White, who ordered that both sentences were to run concurrently.
The man later launched an appeal against his conviction on the grounds that Mr Justice White had erred when he failed to direct the jury to acquit him on all charges after the prosecution had presented its case.
It was further claimed that the trial judge had erred “in law and fact” in failing to accede to the jury’s request to re-hear the defence’s closing speech and by admitting into evidence the memorandum of his interview with gardaí on January 22nd, 2018.
The trial jury heard that when the accused was interviewed by gardaí following his arrest, he was asked what he did to his brother and what his brother did to him sexually. The accused replied his younger brother “probably gave me a bit of head”.
Asked if this happened many times, the accused replied that it happened “once or twice”.
Kathleen Leader SC, for the appellant, told the court that her client had been informed by arresting officers during a two-hour interview that he could be waiting on remand for “two to three years” before any trial commenced.
“My client was anxious to get out of the Garda station. That is very clear when you look at the transcript of the interview,” counsel said.
Ms Leader explained that her case was “essentially” that her client was told by gardaí that if he “didn’t start talking” and make admissions to the allegations of sexual assault he “would be in custody for a significant period of time”.
“There was an inducement given to my client before the interview took place,” she continued, adding that “he went into the interview knowing he would be released if he co-operated with gardaí. He never thought these matters would end up in court. He never thought there would be a conviction.”
Ms Leader added that her client had admitted to gardaí he had been “a bastard of a brother but was not a rapist”.
Paul Carroll SC, for the Director of Public Prosecutions, told the court the trial judge was correct to allow the appellant's Garda interview to go before the jury after evidence was given to the court via a voir dire – a trial within a trial during which testimony is heard in the absence of the jury.
“It is clear that in assessing the evidence, the judge decided not to believe [the accused],” Mr Carroll said.
The appellant’s claim he had been “induced” into confession “doesn’t stack up”, Mr Carroll continued, given that there had been no break in his Garda interview.
On hearing submissions, Mr Justice John Edwards, presiding, who was sitting with Ms Justice Aileen Donnelly and Ms Justice Úna Ní Raifeartaigh, noted that the current legislation prevented juries hearing closing speeches for a second time.
If Mr Justice White had agreed to the jury’s request regarding the closing submission it would have amounted to a “second bite at the cherry” for the defence and created a “lack of balance”, the judge said.
Ms Justice Ní Raifeartaigh added that the pattern for inducements was that they tended to be offered following a break in an interview rather than before one had begun.
Judgement was reserved.