Two men who were jailed as part of the Munster abuse trial for the rape and exploitation of their child relatives have failed in a bid to overturn their convictions over a letter sent to the trial judge by a juror.
The court heard that both men now intend to appeal the severity of their 15-year sentences.
The men, one the 30-year-old maternal uncle of the victims and the other the 51-year-old husband of their maternal aunt, had appealed their convictions after a letter was sent from the jury foreman to trial judge Mr Justice Paul McDermott in the wake of the guilty verdicts being returned.
At the Court of Appeal on Thursday, Ms Justice Isobel Kennedy ruled that Mr Justice McDermott had “considered all issues with conspicuous care and attention in line with the law” during the trial of the two men, as she dismissed their appeals.
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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 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 three children. Both men had pleaded not guilty to all charges.
Altogether, 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 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.
Reporting restrictions put in place by the trial judge to neither publish the exact nature of the abuse the children suffered nor report the contents of the letter written by the juror remain in place.
Conor Devally SC, defending the children’s 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 older 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.
Mr Sexton and Mr Devally appealed their clients’ convictions on the basis of the contents of the letter that was sent to the trial judge. The State, represented by Eilis Brennan SC and Mr Condon, said the jury person who wrote the letter raised no issue during the trial and nor did any other member of the jury, who deliberated on their verdicts for 20 hours.
“No communication with a juror after the trial has been permitted in Ireland for good and substantial reason,” submitted Mr Condon. The State submitted that jurors “must be able to deliberate in privacy with confidence that what they say will not be revealed”.
Counsel said the men’s application should be dismissed and that the trial judge dealt with the matter in accordance with law. “No reasonable, objective person could have any doubts about the validity of the jury verdict,” submitted counsel.
Ms Justice Kennedy said that counsel for the appellants had submitted that the judge ought to have launched an investigation into this letter.
She said that the letter from the jury foreman had been received by the judge post-conviction, adding that jury deliberations cannot be subjected to scrutiny. She said there had been careful consideration by the trial judge and high commitment by the jury, who had constantly been taking notes and acting properly and with conspicuous care. Noting that the trial judge directed the jury in his charge, Ms Justice Kennedy said that the court did not find any error in his approach.
Concerning a further ground of appeal about the trial judge refusing a pretrial submission for separate trials of the accused, Ms Justice Kennedy said the judge retained this discretion and the court was reluctant to interfere with the manner in which he exercised that discretion.
“The trial judge did not error in the exercise of his discretion. To order separate trials would not have been in the interest of justice,” she said, adding that the court holds the strong view that juries are robust and take the directions of a trial judge, who in this instance had carefully directed the jury.
She said that on the fifth day of the trial, the judge reminded the jury that each accused should be treated separately, which showed the length the judge went to in ensuring a fair trial for each accused.
The appellants also 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.
Concerning these notes made by the complainants in copy books, Ms Justice Kennedy said that the children’s foster mother gave evidence that she asked the children to keep these books, which were designed to allow the witnesses to give their best evidence. She noted that both children were extremely young and came from a background of neglect. Finding that it was permissible for vulnerable people to use notes, Ms Justice Kennedy said that the children brought the copy books with them to allow them to focus and give their accounts.
“To make an allegation of sexual assault to gardaí is daunting for adults, never mind children,” she said, adding that the court was not persuaded that this caused any unfairness to the appellants as the judge carefully considered all the material.
Ruling that Mr Justice McDermott had considered all issues “with conspicuous care and attention in line with the law,” Ms Justice Kennedy said the court had not found favour with any of the appellants’ grounds and dismissed their appeals.
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