The Court of Appeal has allowed an appeal against an indecent assault conviction, finding that the trial judge did not give the jury a sufficiently specific warning about a newspaper article published shortly before the trial.
The appeal concerned a conviction by a jury in Dublin Circuit Criminal Court on two counts of indecent assault. The appellant, identified in the judgment as S.W., was convicted on 21 October 2010 and sentenced to concurrent three-year prison terms. He appealed against the conviction only.
The prosecution case at trial was that S.W. assaulted the complainant on two occasions in 1988, when she was seven. She was the only witness to the alleged assaults. The appeal court did not review the trial evidence because the grounds of appeal concerned procedure and trial fairness.
S.W. argued, among other grounds, that the trial judge should have recused himself and that publicity before the trial had threatened a fair hearing. The court rejected the bias argument, saying the judge’s prior acquaintance with S.W. through the Prisoners’ Rights Organisation did not establish actual or objective bias. It also rejected claims of prosecutorial misconduct and unfairness over access to trial papers. The court noted that papers had been provided on several occasions and found no error in the trial judge’s handling of those complaints.
The publicity issue was different. On 18 October 2010, S.W. raised reports he had heard about newspaper coverage but could not produce the articles. The trial judge declined to act without the material. Two days later, S.W. produced a copy of a Sunday World article published on 17 October, the day before the trial began. It included a photograph of him and described him as a “convicted pervert”, referring to a previous conviction and prison sentence. A second article from the News of the World was also mentioned, but the appeal court said it would have upheld the conviction if that had been the only article before the trial court.
The trial judge refused S.W.’s request to discharge the jury and delay any retrial to allow publicity to fade. The Court of Appeal said that the Sunday World article posed a serious potential risk of prejudice. The judge’s earlier warning had told jurors to avoid internet searches, but did not address newspaper coverage or how jurors should treat the material if they had encountered it.
The appeal court said the trial judge should have given a renewed, specific warning after receiving the article. Because he did not, the court could not conclude that the trial was satisfactory or the conviction safe. It allowed the appeal on the publicity ground alone. The judgment does not state what further proceedings, if any, followed.