Whoriskey (28) of Glenabbey Gardens in Derry had been convicted in 2019 of the manslaughter of Kayden McGuinness in September 2017 and an act of cruelty against the child in August that year.
He had originally been charged with the murder of the child but this was dropped to manslaughter and the jury returned an unanimous verdict of guilty after a trial lasting three and a half weeks.
Today the Appeal Court outlined their reasons for rejecting the appeal.
The court stated that ‘there is no merit in the grounds of appeal overall and the convictions are safe’.
Outlining the circumstances of the case Judge Paul Maguire said Kayden McGuinness’ mother had gone out on the evening of September 16, 2017, leaving her two children in the care of Whoriskey.
The child was found dead by Whoriskey at 9.30am the next day and he gave ‘no account how the child could have died.’
The court heard that there had been ‘a considerable amount of medical evidence’ given at the trial and the autopsy showed the child had ‘multiple injuries’ most on the face and scalp.
The cause of death was ‘blunt force trauma to the head’ and the jury had been told that the ‘multiplicity of injuries suggested a non accidental cause.’
Judge Maguire said the injuries could have been caused by punching.
He outlined some of the grounds for appeal in that the jury was allowed to see photographs of the child.
It was argued that these could have created prejudice against the defendant.
The Court of Appeal ruled that it was open to the trial judge whether to admit these photographs and they did ‘not consider the judge acted outside the boundaries of his discretion.’
They ruled that best evidence was served by letting the jury see things for themselves and in this case there had been no ‘prejudice’ against Whoriskey.
Another grounds for appeal was the admissibility of so called bad character evidence of Whoriskey’s previous convictions for assault occasioning actual bodily harm and assault in 2013 and 2015.
The defence had argued that the admission of this evidence had been ‘unjust and unfair’.
This was rejected by the court on the grounds that the previous convictions showed ‘a propensity’ for violence in a domestic setting.
They ruled that the trial judge had acted properly in admitting this evidence and had ‘applied all the tests.’
Accordingly they ruled ‘this court will not interfere in the judge’s judgement. ‘
A further grounds for appeal was that the trial judge had not given sufficient direction as to the circumstantial aspect of the case.
They accepted that the Crown case was ‘inferential and circumstantial’ but said the jury had been cautioned they must not convict unless they were satisfied beyond a reasonable doubt.
Lord Justice Maguire said that it had been made clear to the jury ‘what they had to direct their minds to.’
He said it ‘can’t be said the judge’s charge did not make clear where the burden of proof lay.’
The judge said there was no sense that the verdict was ‘unsafe’ nor was there any ‘significant sense of unease’ about the conviction.
As regards the sentence of 15 years imposed on Whoriskey the court ruled it was ‘not manifestly excessive or wrong in principle.’
The convictions were ruled as safe.