A childminder who was jailed for five years for repeatedly sexually assaulting a seven-year-old boy has had his conviction quashed, with the Court of Appeal finding the charges should have been withdrawn from the jury after the complainant said in cross examination the abuse did not happen.
Martin Begley had never accepted the verdict of the jury and defence lawyers had applied during his trial for the judge to direct an acquittal. In a judgement on Wednesday, the Court of Appeal overturned Mr Begley's conviction for sexually abusing the child between 2019 and 2020.
Mr Begley, 55, was found guilty by a Dublin Circuit Criminal Court jury last October of nine counts of sexual assault and 12 counts of invitation of sexual touching to a child in two locations in Dublin between December 2019 and April 2020. The verdicts came after a six-day trial in June last year.
Mr Begley, of Larkfield Grove, Kimmage, Dublin, rejected the verdicts of the jury and appealed the convictions. The parents of the child, who cannot be identified for legal reasons, wished for Mr Begley to be named.
The trial hear Mr Begley told the parents he had Garda vetting, although he never showed them evidence of this, and he supplied them with a number of references. He started working with the family in December 2019, minding the seven-year-old boy and his younger sibling in their home.
When the country went into covid lockdown in March 2020, the arrangements changed and Mr Begley minded the children in his own house instead, while the parents worked from home.
In April 2020, the court heard, the boy told his mother about a video Mr Begley had shown him which involved a boy being spanked with a belt. The boy's parents were extremely concerned about this and immediately terminated Mr Begley's employment.
The following month, the boy's mother discovered he was allegedly engaging in sexualised behaviour, and he told her that Mr Begley had shown him how to do it.
The boy's parents contacted gardaí and the boy was interviewed by specialist gardaí shortly afterwards. In the interview, which was played to the jury, the boy outlined how Mr Begley had allegedly sexually abused him.
The child was cross-examined at trial and due to his difficulty in recalling events gave conflicting evidence to what he had given to gardaí in his recorded interview, which was played to the jury.
At the Court of Appeal on Wednesday, Ms Justice Isobel Kennedy said Mr Begley had argued that the trial judge "erred in law" by failing to direct an acquittal on each count on the indictment over the contradictory nature of the evidence arising in cross-examination.
In outlining the evidence in the case , Ms Justice Kennedy said it was alleged Mr Begley would lie down and the complainant would move "backwards and forwards" on top of the appellant, who told him to "go faster or slower".
"The complainant further outlined incidents where the appellant rubbed his penis. He said his 'hand would go up and down then round in a circle then up and down' and that 'when he's done doing it then I do it'.
When asked how often these incidents occurred he said: "It did happen a lot of times I think" and that the appellant had told him it was "private". This type of touching was described as both over and under clothing," said Ms Justice Kennedy.
However, when cross-examined at the trial by Garnet Orange SC, the child was asked if the appellant "ever touched your penis that you can remember?" and he answered "no".
The then nine-year-old was then asked if Mr Begley "ever got you to jump up and down on him or move around or anything like that, that you can remember?" and again answered "no".
At the trial, the defence applied to have the case withdrawn because of the contradictory evidence given by the child but the application was refused by Judge Elma Sheahan.
In quashing the conviction, Ms Justice Kennedy said: "In practical terms, when cross-examining a child, questions asked should be short, simple and without repetition. The judge must carefully guard the interests of the child, ensuring the child understands what is being asked but at all times ensuring a right to a fair trial."
"In the present case, counsel and the trial judge took pains to ensure the rights of the child were met. Procedures were adopted during the trial having regard to the child's age and diagnosis of autism and ADHD, which diagnoses were not known at the time of the complaint," she said.
"It is the appellant's position that the evidence given by the complainant during his cross-examination was that the alleged offending behaviour had not actually occurred.
"Further, it is submitted it is clear from the answers given by the complainant that he did not have a clear recollection of the relevant events and did not actually understand the things which he said during the child-specialist interview," said Ms Justice Kennedy.
Ms Justice Kennedy said while "re-examination" after the video interview had taken place "it did not sufficiently rehabilitate the witness to confirm that the events complained of took place".
"The courts must strike a balance between ensuring a child gives their best evidence whilst ensuring a person's right to a fair trial, not a perfect trial, is honoured," said Ms Justice Kennedy.
"We have carefully considered the transcript and the questions answered from the DVD and it appears to us that his answers related to whether or not the events giving rise to the allegations had in fact occurred at all," she said.
Ms Justice Kennedy said the child's answers about being unsure of certain things on its own would not be sufficient to direct a jury to return a not-guilty verdict.
"However, those responses, together with the responses of 'no' brings the case into the exceptional category," she said.
"We have found that the trial judge erred in refusing the application on foot of the evidence. As we have found an error in principle, we will allow the appeal and quash the conviction," said Ms Justice Kennedy.