Judgment: 2007-07-19 · Court archive

Supreme Court dismisses appeal over bid to halt sexual-offence trial

The Court held that the accused had not linked the death of a potential defence witness to delay or shown an unavoidable risk of an unfair trial.

Supreme Court · S.C. No. 64/05

Who, what, where, when and why

Who
  • R.McC. (Appellant)
  • Director of Public Prosecutions (Respondent)
  • Vincent
What

The Court held that the accused had not linked the death of a potential defence witness to delay or shown an unavoidable risk of an unfair trial.

Where

Places mentioned in the report

  • O’Connell Street
When

Judgment:

Why

Reasons reported in the judgment

The Court found no basis to criticise the prosecuting authorities for delay. It also said the complainant’s reporting delay was modest compared with delays in other cases and that the appellant had not shown that the loss of the potential evidence was caused by that delay. The Court concluded that the required causal link was absent and dismissed the appeal, leaving the High Court order in place. It did not decide the criminal charges.

The Supreme Court dismissed R.McC.’s appeal and affirmed the High Court order refusing to prohibit his prosecution for alleged sexual offences. The appeal concerned an application for judicial review based on alleged delay and claimed prejudice arising from the death of a potential defence witness.

The charges are eight counts of sexual assault alleged to have occurred between June 1993 and December 1995, and one count of unlawful carnal knowledge alleged to have occurred on an unknown date in 1993. The complainant, described in the judgment as the appellant’s daughter, was aged between 11 and 13 during the alleged offences. These are allegations; the appeal did not determine guilt.

The complainant first told her boyfriend about the alleged abuse around 1997, told her mother in 2000, and made a formal complaint to gardaí in October 2001. The appellant was arrested and questioned in November 2001, released without charge, and arrested and charged in June 2003. He was sent forward for trial in October 2003. The High Court dismissed his prohibition application in February 2005. The Supreme Court considered the appeal under the law stated in *H v Director of Public Prosecutions* (2006), which required a real or serious risk of an unfair trial caused by delay.

The claimed missing evidence concerned a conversation the appellant said took place in O’Connell Street in April or May 2001, in the presence of his brother Vincent. According to the appellant’s account recorded by gardaí, the complainant said that her mother was urging her to go to the police or she would be put out of the flat. Vincent died in August 2002 and had made no statement to gardaí. The Supreme Court said it was unknown whether he would have supported the appellant’s account. The appellant could give evidence about the conversation, and it could be raised with garda witnesses and put to the complainant.

The Court found no basis to criticise the prosecuting authorities for delay. It also said the complainant’s reporting delay was modest compared with delays in other cases and that the appellant had not shown that the loss of the potential evidence was caused by that delay. The Court concluded that the required causal link was absent and dismissed the appeal, leaving the High Court order in place. It did not decide the criminal charges.

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