The Supreme Court has dismissed D.C.’s appeal against a refusal to let him seek judicial review to stop his trial on charges of sexual assault and rape. The court held that he had not raised an arguable case that there was a serious risk he could not receive a fair trial.
D.C. sought to prohibit the prosecution, arguing that the Gardaí and the Director of Public Prosecutions had failed to obtain the identities of two men who, according to the complainant’s friend, were present earlier that night. The friend’s statement said the complainant went to a bedroom with one of the men. The complainant later told Gardaí she knew the men’s identities but declined to name them, saying she did not believe the information was relevant.
The applicant argued that the information could help his defence and bear on the complainant’s credibility. Those were his submissions, not findings by the court. The Supreme Court noted that the alleged events in the apartment were different in circumstances and time from the later incident underlying the charges. It also said the alleged incident and its aftermath were witnessed by several people who had given statements and might be called at trial.
The court said the prosecution authorities had sought a further statement and the men’s names at the applicant’s request. The complainant refused to identify them, and the judgment said the court could not conceive of further steps the Gardaí could take to compel her. The evidence sought was outside the DPP’s control or power.
The judgment also addressed the statutory limits on evidence about a complainant’s sexual experience with someone other than the accused. Under section 3 of the Criminal Law (Rape) Act 1981, such evidence or questioning at trial requires the trial judge’s leave. The Supreme Court left it to the trial judge to decide whether there is sufficient material for an application under that section.
The appeal concerned the High Court’s refusal, on 18 May 2004, to grant leave for judicial review; it was not a determination of guilt or innocence. The Supreme Court affirmed that decision and dismissed the appeal. It said questions about consent, credibility and witness attendance were matters for the trial judge, who retains responsibility for ensuring a fair trial and can address issues as they arise. At the time of the judgment, the trial was listed for 5 December 2005.