New court date for man convicted of assaulting wife in ‘unfair trial’
A MID Cork man given eight years for seriously assaulting his wife, who refused to give evidence against him in court, faces a retrial following a successful appeal.
Anthony Kelleher (42), with a last address at Raleigh North, Macroom, had pleaded not guilty to assault causing serious harm to his wife, Siobhán, at their home in Macroom on June 12, 2014.
He was unanimously found guilty by a jury at Cork Circuit Criminal Court and jailed for eight years by Judge Seán Ó Donnabháin last May.
However, Mr Kelleher was released from prison in July following a successful appeal against conviction.
In a judgment setting out the reasons for its decision, the Court of Appeal said it was not satisfied Kelleher received a fair trial but was “strongly of the view” that a retrial be directed.
Giving judgment, Mr Justice Garrett Sheehan said the critical prosecution evidence comprised two statements made by Siobhán Kelleher when she was a patient in hospital.
The statements were admitted into evidence pursuant to section 16 of the Criminal Justice Act, “an exceptional provision”, Mr Justice Sheehan said, which allows a jury to receive previous statements from a witness when they refuse to give evidence during a trial.
In two statements, Mrs Kelleher said her husband had pulled her out of bed by the pony tail which resulted in clumps of hair coming out.
She described being thrown across the corridor, thrown down the stairs and kicked a number of times by her husband as he did so.
The defence placed significant reliance on the evidence of Prof. Stephen Cusack, a consultant at Cork University Hospital, who said the injuries suffered by Mrs Kelleher were consistent with a fall down the stairs.
The defence also relied on a solicitor, who recalled Mrs Kelleher giving evidence under oath on a previous occasion that she “would have had a few drinks” on the day and all she could remember was “falling at the clothes line and nothing else”, according to the Court of Appeal’s judgment.
Mr Justice Sheehan said a key aspect of an accused person’s right to a fair trial is the right to be able to effectively cross examine witnesses called to give evidence against them.
In this case the principal prosecution witness, Mrs Kelleher, took the oath and proceeded to say in answer to questions put to her that “I do not wish to give evidence”.
She did so in the course of legal argument as well as in the presence of the jury and no explanation for her refusal to answer or submit to cross examination was offered, Mr Justice Sheehan said.
At no stage did the trial judge intervene and explain to the witness that she was obliged to answer the questions she was being asked, Mr Justice Sheehan said.
When Mr Kelleher’s barrister, Thomas Creed SC, asked the trial judge to intervene and give directions to the witness, the trial judge declined and gave no reasons for his refusal.
Mr Justice Sheehan said the trial judge had a duty to intervene and give appropriate directions to the witness including, if necessary, warning her as to the consequences of a continuing refusal to answer.
The result in this case was that no cross examination could be said to have taken place.
In the Court of Appeal’s view, the trial judge’s failure to intervene “further seriously undermined” Kelleher’s right to a fair trial.
Furthermore, the Court of Appeal considered the trial judge’s presentation of Prof. Cusack’s evidence to the jury “resulted in unfairness” to Kelleher.
The admission of Mrs Kelleher’s statement without any engagement with issues raised, coupled with the trial judge’s failure to intervene when she refused to answer questions, “resulted in substantial unfairness” to Kelleher and the court was not satisfied that he received a fair trial.
Mr Justice Sheehan, who sat with Mr Jutice Alan Mahon, and Mr Justice John Edwards, said the court was strongly of the view that a retrial should be ordered.
Kelleher was remanded on continuing bail to appear before Cork Circuit Criminal Court on October 25 next.