A former care worker at Trudder House residential centre, Co Wicklow, has appealed his conviction and seven-year jail sentence imposed for the attempted buggery of two boys who were resident there in the 1980s.
The Court of Criminal Appeal yesterday reserved judgment on the appeal by Brendan Kelly (37), of Drumvoughane, Moycullen, Co Galway.
Kelly was convicted at Dublin Circuit Criminal Court in December 1997 of the attempted buggery of one boy on a date unknown between January 1st, 1983 and December 31st, 1987. He was convicted of a second attempted buggery charge against another boy. Both victims are now in their mid-20s.
The attempted buggery offences took place at Glenmalure, in the Wicklow mountains, in a caravan owned by Trudder House.
The jury failed to reach a verdict on two further charges involving a third boy. The prosecution entered a nolle prosequi on those two counts and on others on the indictment. Kelly, who denied the charges, was suspended from his job when the allegations were made against him and did not return.
On March 9th, 1998, Judge Kieran O'Connor jailed Kelly for seven years for the offences for which he was convicted. At the Court of Criminal Appeal yesterday Mr Hugh Hartnett SC, for Kelly, asked the court to overturn conviction and sentence.
He submitted that the trial judge was wrong to let the trial proceed on the charges of attempted buggery involving different boys. There appeared to have been some form of auction between the defence and prosecution, overseen by the trial judge, over what counts should be heard by the jury, counsel said.
It must be prejudicial to an accused to be tried for a number of offences against different persons, he argued. The prosecution argued there was probative value in that approach and seemed to be "riding two horses".
Mr Hartnett also argued there was insufficient evidence to allow the charges of attempted buggery to go to the jury at all. The trial judge was wrong not to withhold those counts, he said. Before the jury could return a verdict of attempted buggery they had to be satisfied there was an attempt to have anal intercourse, and the evidence fell short of that.
Ms Maureen Clark SC, for the DPP, said there was provision for charges to be joined in the same indictment and, in this case, the prosecution had relied on the fact that the offences formed part of a series of offences of the same or similar character. All the offences were sexual offences of a homosexual character.
It was incumbent on an accused to show a trial judge there were special circumstances of prejudice if he wanted an indictment severed, counsel added.
On the submission of insufficient evidence to show attempted buggery, Ms Clark said this could not be right. Common sense should be applied. "We have to get real," she said. How far did one have to go to prove buggery in a situation where a boy had said he felt an erect penis at his anus? she asked.
Mr Justice Barron, presiding and sitting with Mr Justice O'Higgins and Mr Justice Quirke, said the court would reserve its decision.
