A Kerry man who raped and sexually abused his younger brother for years has argued that evidence of the abuse given by the complainant to a witness in “the present perfect continuous tense” should not have been admitted in his trial.
Barristers for Paul Kelly (47) submitted that when his brother Anthony, as an adult, told another family member that “Paul has been raping me for years”, this was inconsistent with the fact the abuse had ended seven years before. Barristers for the State, however, argued this was merely an “academic exercise on phraseology”.
Kelly, of Shronedraugh, Headford, Killarney, Co Kerry, had denied all charges against him. He was convicted following a trial in November 2024 of 12 sample counts of sexual assault, two counts of oral rape and 12 counts of anal rape of his younger brother Anthony Kelly at their family home on dates between 1995 and 1999. He was jailed for 7½ years by Judge Melanie Greally.
Kelly was 16 years old when he began abusing his brother and 20 when he stopped. His brother was between 10 and 14 years old at the time of the abuse. Anthony Kelly wished to waive his right to anonymity to allow his older brother to be named.
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His trial heard the boys shared a bedroom, and when Anthony was about 10 years old Paul made him lie face down and then simulated sex on him. The complainant said this occurred at least three times a week for about a year-and-a-half.
He said in 1997 the abuse escalated, and Paul forced him to perform oral sex on him. He said his brother later began anally raping him once or twice a week between 1997 and 1999.
The abuse ended in 1999 when Paul Kelly began a relationship.
The court heard the abuse had a devastating effect on Anthony throughout his life, and he came forward to make a complaint in 2021.
In his victim impact statement, Anthony said his older brother used him for his own sexual gratification. He said it had affected every part of his life, leaving him living with flashbacks, suicidal thoughts and self-harm. He said he used alcohol and drugs to numb the pain.
“You groomed and abused me for your own sick pleasure and groomed everyone around me to make me look crazy,” he told Paul Kelly.
In launching an appeal against conviction on Thursday, counsel for Paul Kelly, James Dwyer, said the statement of a family member outlined that when the complainant was 21, he told her: “Paul has been at me, he has been raping me for years.” Dwyer said this occurred seven years after the abuse had ended, but the complainant had said this in “the present perfect continuous tense”, which implied the abuse had continued up to the time he was speaking to the witness.
Counsel also said further evidence from this witness outlined that 10 years earlier, when the complainant was 10 or 11, the woman recalled him crying as he told her: “They were at me.” Dwyer said it was inconsistent for a child aged 10 or 11 to say, “they were at me”, and then as adult say, “he has been raping me”.
Counsel said due to the inconsistency of these accounts, the judge should have given a corroboration warning to the jury at the conclusion of the trial.
In response, counsel for the State, Karl Finnegan, said there was no basis identified at trial to suggest there was any unreliability about the complainant’s evidence.
Finnegan contended Dwyer was attempting an “academic exercise on phraseology” concerning the words used by the complainant to the witness when he was 21. He went on to say that during the trial, this witness had given evidence that the complainant said the appellant “was” raping him for years.
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He said it was clear from the witnesses that there had been intrafamilial abuse, with the appellant identified and the complainant a child at the time it occurred.
Finnegan said the trial judge had given an expansive charge to the jury as to what they could do with these statements and how to receive this evidence.
Judge Patrick McCarthy, presiding over the three-judge court, saidjudgment in the appeal would be reserved to a later date.
