The Supreme Court has returned Brian Shaughnessy’s appeal against his rape conviction to the Court of Appeal, directing it to hear oral evidence about whether his trial lawyers failed to follow a central defence instruction. The Supreme Court did not decide whether the lawyers were incompetent or whether the conviction should be overturned.
A jury convicted Shaughnessy in March 2013 of raping a 17-year-old part-time employee in a hotel suite after a staff party in July 2010. He was sentenced to six years’ imprisonment, with 12 months suspended on conditions. The Court of Appeal upheld the conviction in April 2020.
Shaughnessy’s appeal alleged that his defence team did not properly pursue evidence about how long he and the complainant were in the suite. His account to gardaí put the period at about 45 minutes. In an affidavit on appeal, he said he had instructed his lawyers that they went upstairs immediately after a key was prepared and spent more than two hours there. He argued that the timing evidence could have cast doubt on the complainant’s account.
The former solicitor disputed that Shaughnessy had given those instructions. The Supreme Court said the conflict could not be resolved from the affidavits alone. It also noted gaps in the material, including the absence of a detailed account from Shaughnessy of how the alleged two-hour period was spent and the lack of relevant attendance notes in the material before the court.
The Court set out a test for appeals alleging incompetent representation. An accused must identify credible evidence of a serious failure that could have denied a trial in due course of law; ordinary tactical choices and hindsight about questions that might have been asked are not enough. Where there is a genuine dispute over a central instruction, oral evidence may be needed, followed by an assessment of whether any proven failure was serious enough to undermine the fairness of the trial.
The Court also held that the O’Regan test for admitting fresh evidence does not govern this kind of claim. It said former lawyers may provide evidence in reply, but should not be separately represented or address the appeal themselves. The prosecution is to present any response from them.
On corroboration, the Court said distress or hurried departure after an alleged sexual assault may amount to weak corroboration, depending on the circumstances and the jury’s assessment. It did not disturb the trial judge’s ruling on corroboration in this case.
The case was sent back to the Court of Appeal to hear focused oral evidence and apply the test set out by the Supreme Court. The Supreme Court made no finding about the truth of the competing accounts or the safety of the conviction.