The Court of Appeal allowed Anthony Kelleher’s appeal against his conviction for assault causing harm, finding that he had not received a fair trial. The judgment, delivered on 10 October 2016, addressed the conviction appeal only; Kelleher’s appeal against sentence was not before the court in this judgment.
Kelleher had been convicted after a six-day trial at Cork Circuit Criminal Court and sentenced to eight years in prison. The charge arose from an alleged assault on his wife, Siobhan Kelleher, at their family home in Macroom, Co Cork, on 12 June 2014.
The prosecution relied in part on two statements Siobhan Kelleher made to gardaí while in hospital. She refused to give evidence at trial, and the statements were admitted under section 16 of the Criminal Justice Act 2006. In them, she said Kelleher pulled her from bed by her hair and threw her down the stairs; her later statement also described being kicked. Kelleher told paramedics and gardaí that his wife had fallen down the stairs. The prosecution also presented evidence about hair found in the bedroom and medical evidence of her injuries.
The defence argued that the statements should not have been admitted without proper consideration of a different account Siobhan Kelleher had reportedly given under oath in family law proceedings. A solicitor who said she had been present testified that Kelleher’s wife had said she remembered collapsing at a clothes line and had been drinking. The Court of Appeal held that the trial judge had not sufficiently engaged with this evidence and the resulting fairness concerns before admitting the statements. It found that decision inappropriate and unsafe.
The court also found that the trial judge failed to intervene when the principal witness repeatedly refused to answer questions, including during cross-examination. The judge had declined a defence request to direct her to answer, without giving reasons. The Court of Appeal said the judge had a duty to give appropriate directions, including, if necessary, warning her about the consequences of continuing to refuse.
A further concern was the judge’s summary to the jury of defence medical evidence. The court said the summary included prosecution questions put to Professor Stephen Cusack but omitted his answers, presenting his evidence in an unbalanced way. It found this caused unfairness to Kelleher.
Taken together, the court concluded that the trial was unfair and allowed the conviction appeal. It said it was unnecessary to consider the remaining grounds. The judgment does not state the result of any separate appeal against sentence or make an order about a retrial.