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Ellen Gough, 3 Nov
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 in dismissing 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 his 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.
Graham Daly had appealed his conviction arguing that the trial judge
erred in 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 3 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 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 this Friday, Mr Justice John Edwards said the
Court of Appeal had carefully considered the basis for the Section 3
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 NĂ Raifeartaigh, said cross-examination of a complainant
cannot be used to “to pry unnecessarily into his/her personal life”.
Mr C, whose statement was contained in the Book of Evidence, made
statements to gardaĂ 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 June 4, 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 gardai 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”.
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 gardaà 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.