The Supreme Court has dismissed an appeal by A.D. against convictions for rape and assault arising from a complaint made by a Russian national in March 2006.
A.D. was convicted in the Central Criminal Court of rape and assault causing harm. A threatening-to-kill charge was withdrawn from the jury, while he was acquitted on another count. His original 12-year sentence was subsequently reduced to nine years by the Court of Criminal Appeal.
The Supreme Court appeal centred on the first of two recorded Garda interviews. During that interview, A.D. asked to see a solicitor. The solicitor arrived before the questioning process had finished, but Gardaí continued by asking a further question, reading the interview back through an interpreter, obtaining a correction and securing A.D.'s signature before giving him access to the solicitor.
The trial judge, Mr Justice White, found that this amounted to a conscious and deliberate breach of A.D.'s constitutional right of access to a solicitor. He excluded everything occurring after the breach, including the signed interview notes, but allowed the earlier portion of the interview to be placed before the jury.
That earlier account became significant because A.D. had denied being present when questioned by Gardaí. Before trial, forensic evidence emerged connecting him sexually with the complainant, and his defence changed to one of consensual sexual activity. Prosecutors therefore relied on his earlier denial when challenging his credibility.
Mr Justice Clarke held that the correct test was whether there was a causal connection between the constitutional breach and the evidence sought to be excluded. An interview can be divided where the earlier portion was lawfully obtained and can be separated without creating unfairness.
On these facts, the court found no link requiring exclusion of the earlier interview. A.D. had also maintained his denial during a later interview conducted after receiving legal advice.
The Supreme Court additionally allowed A.D. to argue that the trial judge used the wrong test on a no-case-to-answer application, but rejected that contention. The appeal was dismissed on both grounds.