A BARRISTER FOR the DPP said she had “grave concerns” over the cross-examination of a 12-year-old boy who was repeatedly raped by his father.

At a Court of Appeal hearing today, Pauline Walley SC said that during the six-day cross-examination the child “zoned out” and became “fed up”, “exhausted” and “agitated” as he was questioned repeatedly on certain matters and at length on matters that counsel described as mundane.

During the trial, she said she objected at one point after counsel for the defence had spent two hours taking the child through photo albums and a map “where nothing of substance was raised and questions were being repeatedly asked”.

On occasion, she said, questions put to the boy suggested he had previously said things which, in fact, he had not.

Walley said she had “grave concerns”, and while it is acceptable to question an adult in that way, it is not fair or appropriate when cross-examining a child.

Counsel said that the trial judge, Justice Robert Eager, had taken “the classic view that cross-examination is at large,” and therefore he allowed defence counsel to take his time.

President of the Court of Appeal Justice George Birmingham said that when questioning a child, barristers must adapt themselves to the child, “not the other way around”. He added: “It’s not clear that that happened in this case.”

Walley continued that the length of time taken over the cross-examination created an “air of hostility” between the legal parties during the trial. She also said that the trial judge had a copy of a psychiatric report which stated that the child would have communication problems.

She described him as a “bright but difficult” boy who complained about how long the process was taking and said he wanted to go back to school.

“He was quite agitated,” counsel said, adding: “There were times when he zoned out because he clearly was utterly fed up and exhausted by the process.”
Colman Cody SC, who represents the appellant and carried out the cross-examination, responded saying: “I take exception to the criticism levelled at the defence in this regard.”

This was, he said, only the second trial in this jurisdiction where special measures and directives were introduced to protect the child while giving evidence.

During the trial, the victim gave evidence via video-link from a room in the Old Bailey in London and several concessions were made for the child witness under EU directives on victims’ rights.

Barristers did not wear wigs or gowns and the boy did not have to take an oath. Instead, the trial judge asked him if he knew the difference between telling the truth and telling lies. The child also had an intermediary with him who would explain questions and help clarify his answers. This marked the first time such a measure was used in an Irish court.

Cody said he had adhered to the directives “scrupulously” and added that the trial took place, “against a backdrop of extraordinary allegations being made by a young boy against his father of the most egregious forms of criminality that one can imagine”.

He said the defence had boxes of disclosure and “an abundance of material” that had to be gone through in cross-examination. He pointed out that the boy’s direct evidence took two days and while the cross-examination spanned six days, there were frequent breaks.

He added: “I treated him with the utmost respect and courtesy. Every measure was taken to ensure he could give evidence in conducive and comfortable circumstances.”

Saying that he stands over the length of the cross-examination, he added that a “fair and proper defence is required particularly in the face of allegations such as this”.

Cody said he wanted to put on record that it was a “unique case with a unique history” that led to the elongation of the process and added that he is concerned that the criticism of his cross-examination might “colour this court” in relation to the appeal.

When Cody asked the three judges of the court if they would like to say anything more on the matter they did not respond.

Previously Mr Justice Patrick McCarthy had said that he was “shocked” by the length of time taken to question the child while Ms Justice Isobel Kennedy said she finds it “really difficult to see how you can possibly justify the length of cross-examination of a 12-year-old boy.”

In the appeal against the man’s conviction, Cody has objected to the fact that the jury was told about a “raucous” sex tape that was recorded in his client’s home involving his client, his partner and two other people.

He said the tape could have prejudiced the jury against the accused and suggested it was used to suggest that his client was “someone who would be likely to commit this sort of offence”.

He also criticised the fact that no proper investigation was launched after the boy told a social worker that he had made up the allegations against his father.

The “retraction” was met, counsel said, “with the bland shrugging off by social workers without any further delving into it as to what he was saying and why he was saying it”.

He said it should have been “explored, investigated and assessed” and added: “It was not good enough for a social worker deeply involved in the case to simply shrug it off and say, “well, that’s how children are”.

The boy said in his direct evidence that he retracted the allegations because he was afraid of the trial process but insisted that what he had said about abuse at the hands of his father was true.

Mr Justice Birmingham, presiding, reserved judgment on the appeal.