Court of Appeal
Barry Murphy (41) was convicted of rape, sexual assault, coercive control, assault causing harm and false imprisonment.
A VIOLENT ABUSER who repeatedly raped and controlled his partner while she was “a hostage” in her own home has argued that he was denied a meaningful cross-examination of the victim when she gave evidence of having no memory of what happened.
Barristers for Barry Murphy (41) submitted that cross-examination was “rendered ineffective and illusory” when Lisa O’Meara told his trial that she could not remember events, while video recordings of her interviews with gardaí in which she made her original statements were played to the jury.
Murphy, of Shamrock House, Grogan, Ballycumber, Co Offaly, was convicted by a jury at a Central Criminal Court trial sitting in Tullamore in 2024 of three counts of raping Ms O’Meara on dates between 8 February 2018, and 24 February 2020.
He was also convicted of coercive control of her over an 18-month period between 1 January 2019 and 4 July 2020.
He was further convicted of one count of sexually assaulting her in 2020, three counts of assault causing her harm in 2018, 2019 and 2020, and one count of falsely imprisoning her in 2020. He was acquitted of a further count of false imprisonment.
The offences occurred at locations in Co Offaly, apart from one of the assaults which was committed abroad on a holiday.
The court heard the front door of the couple’s home was “riveted shut” and Ms O’Meara had no means of communication with the outside world before she escaped to the home of an acquaintance.
Ms O’Meara made her escape from the house the night after the final rape and sexual assault. She waited until Murphy fell asleep before managing to exit the house and get away in a taxi.
The jury heard that the offending in relation to rapes, sexual assaults and physical assaults took place over a two-year period between 2018 and February 2020. Ms O’Meara suffered injuries such as a fractured eye socket and broken nose.
Gardaí took a statement from Ms O’Meara after her escape from the house in February 2020, which was videotaped. She subsequently came to the garda station twice and asked for her complaints to be withdrawn. On one of those occasions, she was driven there by Murphy.
In sentencing Murphy to 14 and a half years in prison, Mr Justice Kerida Naidoo said that Ms O’Meara, who waived her anonymity, had been “fighting every day to heal” and she felt that Murphy “ripped away” her identity, “little by little”.
He said that the three rapes and sexual assault happened “for all intents and purposes when Ms O’Meara was a hostage in the house”.
In launching an appeal against his conviction, barristers for Murphy submitted that the trial judge erred in his interpretation and application of section 16 of the Criminal Justice Act in admitting as evidence the video recordings of the complainant’s interviews with gardaí.
They argued that the video interviews amounted to testimony without the constitutional safeguard of meaningful cross-examination.
It was further submitted that availability for cross-examination is not satisfied by the physical presence of the witness in court.
“When a witness professes a complete lack of recollection as to both the making of the statement and the events described in it, cross-examination is rendered ineffective and illusory. The evidence contained in the statement becomes, in substance, unchallengeable,” Murphy’s legal team argued.
It was also submitted that the judge erred in law by permitting the case to go to the jury, in circumstances where the prosecution case depended in substance on statements admitted pursuant to section 16. Murphy’s barristers argued that by reason of the complainant’s refusal and/or failure to engage in any meaningful way with the allegations, those statements could not be meaningfully or effectively tested in cross-examination.
At the Court of Appeal today, counsel for Murphy, Patrick Gageby SC, said that the trial judge ruled there were no reasons on the grounds of fairness to refuse the admission of the video evidence.
“The issue that flows from that is how the admissibility of this evidence is to be squared with the complainant’s lack of recall,” he said, adding that the accused suffered the worst of both worlds, as the video evidence was admitted, but there was no meaningful cross-examination possible.
Mr Gageby said that the complainant was cross-examined but offered no memories of the events.
Appeal judge Mr Justice Patrick McCarthy said that people often refuse to give evidence, perhaps by saying that they don’t remember, but the law allows for these witnesses to be cross-examined, so there was no unfairness in that.
Mr Gageby said that the risk of unfairness arose once the video statements were admitted, but the allegations were not ones the complainant was prepared to answer in direct evidence.
Mr Justice Alexander Owens said questions should have been put directly to the complainant. He said the jury had received the evidence of her video statements, so the witness could have been cross-examined as though she had given evidence of the allegations.
And Mr Justice Charles Meenan said that as the complainant was available for cross-examination, her recollection could have been challenged.
Mr Gageby said that the issue of fairness ought to have been at the forefront of the trial judge’s mind, adding that there was a very substantial argument that Murphy was deprived of his right to have a meaningful cross-examination of the complainant.
“The jury is not concerned about fairness, as the judge decides that. How are the jury to approach the circumstances where there is no meaningful cross-examination?” asked counsel.
To this, Mr Justice McCarthy replied that the jury is still left with the evidence of the case.
Counsel for the Director of Public Prosecutions, Timothy O’Leary SC, told the court that the complainant was cross-examined and said she could not remember, which was actually helpful to the defence case. He added that the option to cross-examine her was there.
Mr O’Leary said that, had he been the defence counsel in the case, he would have thought that the complainant’s direct evidence about not remembering the abuse was “a wonderful answer in the context”.
Counsel said there had also been supporting evidence at the trial that she returned to the garda station to withdraw her complaint, and when she returned the following day for a copy of her withdrawal statement, the gardaí could see Murphy sitting in the car outside.
He concluded by saying that the jury got to hear the context of the woman’s withdrawal of her complaint, and they are the ultimate triers of fact.
Mr Justice McCarthy, presiding over the three-judge court, said that judgment in the case would be reserved to a later date.