The High Court has refused an application to prohibit the prosecution of an anonymised applicant accused of burglary and sexual assault, finding that the absence of forensic test results did not establish a real or serious risk of an unfair trial.
The judgment, delivered by Mr Justice Max Barrett on 31 July 2015, concerns alleged events at a hotel in October 2008. The applicant admits entering the complainant’s bedroom twice and making physical contact while trying to wake her, but denies committing a sexual offence. The allegations have not been determined at trial.
Samples were taken from the complainant after Gardaí attended and she was examined at a hospital’s sexual assault unit. A doctor found internal bleeding but no conclusive evidence of sexual assault, describing the blood as “consistent with trauma” to the area. The applicant later provided a saliva sample. The samples were sent to the State Forensic Science Laboratory, whose senior member concluded in June 2009 that scientific examination would not further the investigation. No forensic analysis was carried out.
The applicant argued that testing could have helped assess the complainant’s alcohol consumption, the source of the blood and whether his DNA was present. He also argued that proceeding without those results risked an unfair trial. The court accepted that his legal team did not realise until February 2014 that no examination had been conducted, and rejected the Director of Public Prosecutions’ argument that the application had been brought too late.
However, Mr Justice Barrett said there was no evidence beyond assertion that testing would have produced material helpful to the defence. The samples were not evidence that had existed and then been lost; the testing had not generated evidence after the laboratory concluded it would not advance the investigation. The court also noted that the trial would include other evidence, including testimony from the complainant, her sister, hotel staff, Gardaí and the examining doctor, as well as the applicant’s statements and interview memoranda.
The judge held that the applicant had not shown the exceptional circumstances or unavoidable unfairness required to stop a prosecution before trial. He said the defence remained free to make its arguments about the unperformed tests before the trial court, which could assess fairness and make appropriate rulings as the evidence developed.
The court declined to grant an order prohibiting the prosecution and refused all other relief sought. It did not determine the applicant’s guilt or the truth of the allegations.