Former priest and school principal loses appeal against sex abuse conviction
Tuesday 20th January 2015
A former priest and school principal has had his appeal against conviction for sexually abusing a pupil rejected by the Court of Appeal.
Con Desmond, (79), with an address as Woodlands, Kilrush Road, Ennis, Co Clare, had pleaded not guilty to 13 counts of indecently assaulting a boy at St Stephen’s De La Salle National School in Waterford between 1978 and June 1980.
He was found guilty by a jury at Waterford Circuit Criminal Court and sentenced to two years imprisonment on each count to run concurrently by Judge Donagh McDonagh on February 19 2013.
Desmond’s appeal against conviction, on grounds of delay and conflicting evidence, was rejected by the Court of Appeal yesterday.
Giving background to the case President of the Court of Appeal Mr Justice Seán Ryan said the first incident occurred sometime in January 1978 when the boy who was aged eight at the time had gotten very wet cycling to school.
The evidence was that his teacher, a Brother Aengus, had sent him to the principal’s office possibly with a view to getting him dried off or sending him home because he was soaked, the judge said.
He was sexually abused by Desmond on that occasion and had given extensive details about the precise events that happened, Mr Justice Ryan said. “It undoubtedly constituted serious sexual abuse”.
The next phase concerning the other 12 charges extended from a time when the boy was in third class and fourth class, according to Mr Justice Ryan in his judgment. The victim said he had been a boy among other boys who had been helping out in the school by setting a table, laying the table and cleaning up afterwards.
Every other Saturday or so, Mr Justice Ryan said, the boy described how he had been abused by Desmond in similar fashion to what had happened in the very first instance.
Counsel for Desmond, Colman Cody SC, submitted that there was a long, general delay in bringing the case against his client.
Mr Cody submitted that a witness, Brother Aengus who died some ten or twelve years ago, could have potentially relevant evidence in the case which meant delay had resulted in actual prejudice.
President of the Court of Appeal Mr Justice Seán Ryan said “delay in itself is a feature commonly experienced in cases of this kind; They’re not easy cases.”
Mr Justice Ryan said it was “not uncommon” to have absent or unavailable witnesses and one had to ask whether the evidence was potentially relevant to the liability of the accused.
On any view, he said, taking as much as one could possibly infer or project onto the witness, it was “impossible to see how Brother Aengus could have any significant evidence” that would impact on Desmond’s guilt or culpability.
Mr Cody suggested that Brother Aengus might be able to say he could remember sending the boy to the principal’s office. “Suppose he said he could remember, suppose he said he could not, what on earth difference could it possibly make,” Mr Justice Ryan said.
The court rejected the proposition that absence by reason of the Brother’s death could represent a degree of prejudice.
Mr Justice Ryan said it was clear there were some straight conflicts of evidence established by defence counsel Elaine Morgan BL during the trial.
However, counsel for the Director of Public Prosecutions, Noel Whelan BL, had pointed out the victim in this case was now in his forties and was recollecting abuse he had suffered at the age of eight and nine.
Mr Whelan submitted that the core allegations remained “not precisely consistent but essentially and fundamentally consistent”.
There may be some inaccuracy, Mr Justice Ryan said, but that did not detract form the veracity or reliability of the victim. He said mere inconsistencies in the evidence will not necessarily result in “no case to answer”.
Mr Justice Ryan, who sat with Mr Justice Garrett Sheehan and Mr Justice George Birmingham, said the court rejected Desmond’s appeal against conviction.