A man who was jailed for repeatedly raping his younger brother has had his conviction quashed, after his lawyers argued he was given an inducement before an interview where he later made admissions to rape.
The Court of Appeal found the trial judge erred in failing to give his reasons as to why he was allowing contested evidence of the man's interviews with gardaí to go before the jury.
The man – who had told gardaí that he was “a b*stard of a brother but was not a rapist” – is to now face a retrial after his conviction for repeatedly raping his younger sibling was overturned.
The 37-year-old, who cannot be identified for legal reasons, was jailed following a trial at the Central Criminal Court last April.
He had pleaded not guilty to 10 sample counts of oral rape, contrary to Section 4 of Criminal Law (Rape) Act, against his younger brother at the family home in Dublin between March 28th, 2001 and March 27th, 2006.
He had also pleaded not guilty to seven counts of assault causing harm and one count of production of an article to unlawfully intimidate at the same address during the same period.
'Induced' into confessing
His lawyers claimed Mr Justice Michael White had erred by allowing the memorandum of the man's interview with gardaí on January 22nd, 2018, to go before the jury after the merits of evidence had been debated in the absence of the jury by counsel.
The trial jury heard that when the accused was interviewed by gardaí following his arrest, he was asked if he ever got his youngest brother to give him “head”. The accused replied that it was “a possibility”.
A garda sergeant asked what he did to his brother and what his brother did to him sexually. The accused replied his younger brother “probably gave me a bit of head”.
Asked if this happened many times, the accused replied that this happened “once or twice”.
A jury, however, returned a unanimous guilty verdict on all counts of assault causing harm and on two sample counts of oral rape of his younger sibling – who was 11 when the alleged offending began – and the man was imprisoned for nine years by Mr Justice Michael White.
He later claimed he had been “induced” into confessing to the gardaí, and launched an appeal against the conviction.
At an appeal hearing on February 24th, Kathleen Leader SC, for the appellant, told the three-judge court that her client had been informed by arresting officers during the two-hour interview that he could be waiting on remand for “two to three years” before any trial commenced.
“My client was anxious to get out of the Garda station. That is very clear when you look at the transcript of the interview,” counsel said.
Ms Leader explained that her case was “essentially” that her client was told by gardaí that if he “didn’t start talking” and make admissions to the allegations of sexual assault he “would be in custody for a significant period of time”.
“There was an inducement given to my client before the interview took place,” she continued, adding that “he went into the interview knowing he would be released if he cooperated with gardaí”.
“He never thought these matters would end up in court. He never thought there would be a conviction.”
In a judgment delivered on Monday, the Court of Appeal said it was granting the appeal.
The written judgment – given by Ms Justice Aileen Donnelly, sitting with Mr Justice John Edwards, presiding, and Ms Justice Úna Ní Raifeartaigh – stated that the trial judge was obliged to give his reasons why he decided to allow the evidence from Garda interview into the trial.
“There is no doubt that the trial judge would have been entitled to reach a view beyond reasonable doubt that no inducement had ever been made to the appellant,” Ms Justice Donnelly noted.
“He was however required to explain his reasons and in doing so engage with the substantive points of the appellant.”
“We view the fact that the appellant raised the issue of the time of his release a number of times during interview and the fact that he alleged in a subsequent interview on a later date that he only made admissions because he wanted to get out of custody were, in the circumstances of his case, matters of substance which required to be addressed in a ruling by the trial judge,” she continued.
Although the court dismissed the appellant’s other grounds of appeal – namely, that Mr Justice White had erred when he failed to direct the jury to acquit the accused on all charges after the prosecution had presented its case, and also erred by failing to accede to the jury’s request to re-hear the defence’s closing speech – Ms Justice Donnelly said the court was quashing the conviction.
After the judgment was delivered, Paul Carroll SC, the Director of Public Prosecutions, told the court the State was seeking a retrial.
During the trial, the complainant gave evidence that he was 11 or 12 years old the first time something “not good” happened.
The complainant said that he got “hidings” from his older brother and he was also hit with weapons, baseball bats, hurleys and sticks. He said he was beaten up “nearly every day” until he left the family home when he was 16 years old.
The complainant said his older brother orally raped him on two occasions when he was 11.
He also testified that one night his brother called him downstairs to the kitchen and put the barrel of a loaded shotgun in his mouth. He said he was “very scared” and could not remember what his brother was saying.
He said his brother once hit him with a baton with nails in it leaving him with holes on his back. He said on another occasion he went to hospital after his brother threw darts at his foot.
The complainant said his brother told him to “rob” houses nearly every day. He said his brother would sell anything he took and give him a “hiding” if he did not take anything.
He said his older brother made him and another of his brothers fight.
Another brother of the accused and the complainant said the accused used his younger brother “for a dartboard”. He said he remembered the complainant's whole foot being black from dried blood because of darts going in many times.
He said he remembered going into a bedroom in the family home and seeing the accused man on the top bunk with a blanket over him. He said he asked where the complainant was and the accused man started laughing.
The man said the complainant popped his head up from under the blanket and he saw the accused pulling his boxers up. He said he knew what the accused was doing then, but that the accused started hitting him and put a pillow over his face under he agreed he would not say anything.
If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800 77 8888, access text service and webchat options at drcc.ie/services/helpline/, or visit Rape Crisis Help.