The Supreme Court has restrained the Director of Public Prosecutions from proceeding with five sexual assault prosecutions after finding that the failure to obtain the complainant’s telephone records created a real risk of an unfair trial.
R.C. was charged with five offences alleged to have occurred between May and August 2001, when the complainant was a minor. R.C. denied the allegations. The complainant’s account included claims that R.C. called or texted her and asked her to visit his apartment. R.C. said he returned her calls and disputed initiating contact.
The prosecution obtained R.C.’s phone records, but not the complainant’s. Garda Noelle Curran said she believed R.C.’s records would show incoming as well as outgoing calls, making separate records unnecessary. The Supreme Court said that understanding was mistaken: the records obtained detailed only R.C.’s outgoing calls.
The court held that the complainant’s records were important and probative because they could have supported R.C.’s account of their contact and bore on the credibility of both accounts. It said the prosecution had a duty in the circumstances to seek records for both phones. By the time their absence became clear, the complainant’s records were no longer available.
The Supreme Court also considered the delay. R.C. was interviewed in autumn 2001 but was not charged until January 2004. The court said the delay had a significant effect and that it was reasonable for R.C. to have believed the matter would not proceed after the interviews. It noted that Vodafone appeared to retain records for a maximum of three years and that there had been a 17-month delay between a request for records in June 2005 and the company’s reply in November 2006.
The court stressed that missing phone records do not generally justify stopping a trial. It concluded that the particular combination of the investigation’s focus on phone use, the failure to seek the complainant’s records while obtaining R.C.’s, and the records’ importance to the case created an unavoidable risk of unfairness that could not be addressed by excluding some evidence.
Allowing the appeal, the Supreme Court set aside the High Court’s refusal of judicial review and restrained the DPP from proceeding with the prosecutions. The court did not determine the truth of the allegations.