Appeal court rejects 'present perfect continuous tense' defence from Kerry man who raped his brother

Paul Kelly was convicted in 2024 of raping and sexually abusing his younger brother for years

The judge at the Court of Appeal said: 'People making statements may not have the correct grammar uppermost in their minds.' File picture

The Court of Appeal has rejected an argument by a Kerry man who raped and sexually abused his younger brother for years that evidence of the abuse given by the complainant to a witness in “the present perfect continuous tense” should not have been admitted into his trial.

“People making statements may not have the correct grammar upper most in their minds,” said Mr Justice Charles Meenan, dismissing a conviction appeal by Paul Kelly (aged 47).

Barristers for Kelly had submitted that when his brother Anthony as an adult told another family member that “Paul has been raping me for years,” this was inconsistent with the fact that the abuse had ended seven years before. Barristers for the State, however, argued that this was merely an “academic exercise on phraseology”.

Kelly, of Shronedraugh, Headford, Killarney, Co. Kerry, had denied all charges against him, but he was convicted following a trial in November 2024 of 12 sample counts of sexual assault, two counts of oral rape and 12 counts of anal rape of his younger brother Anthony Kelly at their family home on dates between 1995 and 1999. 

He was jailed for seven-and-a-half years by Ms Justice Melanie Greally.

Kelly was 16 years old when he began abusing his brother and 20 when he stopped. His brother was between 10 and 14 years old at the time of the abuse. Anthony Kelly wished to waive his right to anonymity to allow his older brother to be named.

His trial heard that the boys shared a bedroom and when Anthony was about 10 years old, Paul made him lie face down and then simulated sex on him. The complainant said this occurred at least three times a week for about a year and a half.

He said that in 1997, the abuse escalated, and Paul forced him to perform oral sex on him. He said that his brother later began anally raping him once or twice a week between 1997 and 1999. The abuse ended in 1999 when Paul Kelly began a relationship.

The court heard the abuse had a devastating effect on Anthony throughout his life, and he came forward to make a complaint in 2021.

In his victim impact statement, Anthony said his older brother used him for his own sexual gratification. He said it has affected every part of his life, leaving him living with flashbacks, suicidal thoughts and self-harm. He said he used alcohol and drugs to numb the pain.

“You groomed and abused me for your own sick pleasure and groomed everyone around me to make me look crazy,” he told Paul Kelly.

Paul Kelly's appeal

In launching an appeal against conviction in May, counsel for Paul Kelly, James Dwyer SC, said the statement of a family member outlined that when the complainant was 21, he told her: “Paul has been at me, he has been raping me for years.” 

Mr Dwyer said this occurred seven years after the abuse had ended, but the complainant's use of the "present perfect continuous tense” implied that the abuse had continued up to the time he was speaking to the witness.

Counsel also said further evidence from this witness outlined that 10 years earlier, when the complainant was 10 or 11, the woman recalled him crying as he told her: “They were at me.” 

Mr Dwyer said it was inconsistent for a child aged 10 or 11 to say, “they were at me”, and then as an adult say, “he has been raping me”.

Mr Dwyer next referenced the statement of a woman who had shared a house with the complainant, who told her around 2003 that his brother Paul had abused him as a child. Mr Dwyer said this was “utterly devoid of detail”, as it contained no details of the abuse or how long it went on.

Mr Dwyer went on to say that a social worker had given evidence that the complainant made a disclosure of being orally raped, but there was no mention of anything but oral. Counsel submitted that this was an inconsistency. 

Mr Dwyer also referenced a statement by a mental health services official who gave evidence that the complainant had said the abuse was a single occasion when he was 16.

Counsel said that due to the inconsistency with all of these accounts, the judge should have given a corroboration warning to the jury at the conclusion of the trial.

Court of Appeal ruling

In delivering the court’s judgment on Thursday, Mr Justice Meenan said it was clear and not disputed that the trial judge applied correct principles, with the admission of such evidence a matter of discretion for the judge.

He said there was no dispute that the witness statements were made voluntarily. He added that, given the nature of the abuse, the prolonged period over which it occurred, and the fact it happened in the context of a family, it was correct for the learned trial judge to conclude that the statements were made at the first reasonable opportunity.

Mr Justice Meenan said  the court did not accept that as the statement made to one witness was in the present perfect continuous tense, it was inconsistent with the evidence of the complainant that the abuse was not ongoing.

“People making statements may not have the correct grammar uppermost in their minds,” he said. He pointed out that during the trial, the witness had said the complainant told her that Paul Kelly “was raping me for years”, which was entirely consistent with the evidence of the complainant.

Mr Justice Meenan said it is for a judge to decide whether to give a corroboration warning. He pointed out that the judge’s ruling not to give a corroboration warning in this case was accepted by the appellant at his trial and no requisitions were made regarding the absence of this warning.

Mr Justice Meenan also said there were no material inconsistencies in the evidence of the witnesses. He said the complainant’s medical records made it clear that the sexual abuse complained of was not confined to oral rape, nor did it relate to a single event.

Ruling that the decision of the trial judge not to give a corroboration warning was entirely reasonable and the “inconsistencies” relied upon by the appellant fell well short of being “dramatic”, the court dismissed the appeal.