Munster abuse trial: Children's uncles bid to overturn convictions on basis of letter sent to trial judge

TWO men who were jailed as part of the Munster abuse trial for the rape, abuse and exploitation of their child relatives have appealed their convictions over a letter sent to the trial judge by the jury foreman after the panel had delivered their verdict.

The 2021 trial heard harrowing evidence that the child victims were small and thin for their age and suffered a range of issues while in the care of their parents including chronic tooth decay, dietary problems and low weight, recurring head lice and scabies, third degree sunburn and marks and scarring to their bodies.

They had a wide range of behavioural issues including hyper-vigilance, over-compliance and anxiety.

The court heard that after they were placed in care, the eldest three children started to make disclosures in relation to sexual abuse at the hands of their parents and other relatives, leading to their arrests in 2018.

In January 2022 at the Central Criminal Court, the children's two uncles were jailed for 15 years each by Mr Justice Paul McDermott for abusing the three children – a niece and two nephews. The two men cannot be named in order to protect the identity of the children.

Both men had pleaded not guilty to all charges.

Altogether, the five family members were found guilty by the jury on all but one of the 78 counts against them following a 10-week trial held at Croke Park in summer 2021.

They were all found guilty of sexually abusing the children on dates between August 2014 and April 2016, while the parents were found guilty of wilfully neglecting five of the children, who were aged between one and nine during this period.

After the verdicts were returned, it emerged that the jury foreman had written a letter to Mr Justice McDermott, who imposed reporting restrictions preventing publication of its contents.

Conor Devally SC, defending the children's now 29-year-old maternal uncle, unsuccessfully sought leave to apply to have the verdicts set aside in the wake of the letter.

Counsel had submitted that as a result of this letter from the juror, his client faced the possibility that “the achievement of the verdicts in his case was unfair or tainted”.

“It has left both my client and any objective observer to see that justice has not been seen to be done here,” Mr Devally said. Andrew Sexton SC, defending the children's now 51-year-old uncle, had supported Mr Devally's submissions.

Bernard Condon SC said the position of the Director of Public Prosecutions was that the trial judge had no jurisdiction to set aside verdicts in the case and no authority to contact and question jurors.

Mr Condon had said what happens in the jury room is “absolutely privileged”. “There is absolute secrecy”, he said.

In his ruling on the application, Mr Justice McDermott said he was satisfied that, as trial judge, he had no jurisdiction to set aside the verdict of a jury once it had been delivered in court and the jury had been discharged.

He said he was satisfied the letter from the juror did not contain evidence to suggest any impropriety had taken place and could not be used by him, as trial judge, as a basis for any inquiry.

At the Court of Appeal on Tuesday, Mr Sexton said his client was appealing his conviction on the basis of the contents of the letter that was sent to the trial judge.

In further submissions, Mr Sexton said that upon requisition, the judge in his charge to the jury addressed the fact that his client was entitled not to give evidence but did not address that he was also entitled not to call any witnesses in his defence.

Counsel further submitted that his client should have been tried separately from his co-accused because of separate “prejudicial” evidence affecting his client. However, he said the trial judge had refused an application to sever the cases.

"Were we on the back foot dealing with issues we didn't have to deal with by removing prejudice and putting out fires from other accused," counsel asked. He submitted that the application for a separate trial ought to have been granted.

Appeal court judge Mr Justice John Edwards noted that this was "just one hazard of going to trial" and said the fact that defence counsel had to deal with issues was not a reason to separate the trials. "The trial judge in this case was assiduous on that issue. He was rigorous and at end of the day it was a matter for the trial judge’s discretion,” Mr Justice Edwards said.

Mr Devally, defending the younger uncle, argued that notes made by the children and read out and recorded at their specialist interviews with gardaí should not have been allowed to go before the jury and led to an “unfairness” against his client.

Mr Devally said that once the children were capable of speaking of the abuse, all three initially named the children’s parents, an aunt and an uncle “but in none of them was my client, even though they had named their own mother and father”.

Counsel said there had been an “animus” from the children in their initial interviews towards his client “but had it rested thus my client would not be here”.

Mr Devally said that between the children’s first and second interviews, they made notes and read sections about the abuse to their interviewers who questioned them and filmed the interviews on DVD, two of which were played to the court.

It is in the second interview of two children that “the appellant comes into the children’s account of events for the first time”, said counsel.

Mr Devally said the trial judge had disallowed one of the children’s interviews from being played as the boy read uninterrupted from his notes. However, counsel said that when the child gave his live evidence to the court by video-link, his memory was different from what he had written in his notes which named the defendant.

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“The actual live memory [given by the boy] was that it was someone else. If you contrast him and the two other [victims] it highlights what the risks can be,” said Mr Devally.

Mr Devally said that when he cross-examined the two other children on not naming his client in their early interviews, the youngest said “I don’t know” while the girl said “it must have slipped my mind”.

Ms Justice Isobel Kennedy said it was within the trial judge’s discretion to allow the DVDs of the children reading from their notes, which acted as an “aide memoir”.

Mr Devally said he would not argue the notes were inadmissible “as a matter of law” but submitted that there had been an error by the judge in exercising his discretion and that there was “a real risk of injustice” for his client.

The appeal of both men against their convictions continues today at the three-judge court.