The Supreme Court has dismissed an appeal by C.C. against a ruling that his trial on historic sexual offence charges could proceed despite the death of a potential defence witness.
The judgment, delivered by Ms Justice Iseult O’Malley on 19 December 2019, concerned allegations dating from 1971. The complainant, identified as A.U., was 11 at the time. She alleged that her uncle raped and indecently assaulted her while she and her family were staying with him. The charges were brought in 2006, and the trial took place in 2016.
The defence argued during the trial that M.Cy., the appellant’s former partner, could have materially assisted the defence. She had died in 2008. The complainant’s account placed M.Cy. in a central role in the alleged rape. The defence also argued that she might have contradicted evidence about a separate incident involving a shotgun and the appellant’s son, C.C.
After the prosecution had presented its evidence, the trial judge rejected an application to stop the case. She treated M.Cy.’s absence as a lost opportunity, but said the court could not speculate about what her evidence might have been. The Court of Appeal upheld that decision, finding that her absence was not so prejudicial as to require the trial to be halted.
The Supreme Court considered whether the trial process was unfair, rather than whether the appellant was guilty. The judgment said the assessment must consider whether there was an evidential basis to conclude that the missing witness could have supported a useful line of defence, and what impact that evidence might have had in light of the prosecution case actually presented.
Ms Justice O’Malley considered there was a reasonable possibility that M.Cy. might have assisted the defence on the rape charge. But she found no evidential basis for the separate claim that M.Cy. could have undermined C.C.’s credibility. The judgment also noted that the jury would have heard C.C.’s evidence that his father had not denied the allegation when confronted by him. That evidence was disputed by the defence but was not contradicted by evidence at trial.
The Court concluded that the evidence, including C.C.’s account of an admission of criminal behaviour, was sufficient to dispose of the claim that the appellant could not defend himself against the charges. It dismissed the appeal, leaving the trial judge’s ruling in place. The judgment addressed the fairness application; it did not decide the appellant’s guilt.