The High Court has refused an application to stop a sexual assault trial in Trim Circuit Court over the apparent loss or non-disclosure of forensic test results.
The accused, identified only as M.A., sought judicial review on 23 November 2015, the day before his trial was due to begin. He maintained his innocence of an allegation that he performed oral sex on a woman without her consent after she had consumed alcohol in September 2010.
Following the alleged incident, the complainant was brought by gardaí to the Sexual Assault Treatment Unit at the Rotunda Hospital for examination and testing. M.A.’s lawyers said the prosecution had not produced the results from that examination.
His solicitor knew by 27 October 2015 that the results were unavailable. Instead of immediately seeking court intervention, the defence obtained an expert opinion. A report from Dr Reich, dated 11 November and received on 16 November, stated that the relevant testing could have detected saliva and allowed DNA analysis.
M.A. argued that losing that potential evidence prejudiced his ability to receive a fair trial. He also submitted that the application was made within the general three-month judicial review limit and that obtaining expert evidence before going to court was reasonable.
Mr Justice Humphreys accepted that the court rules no longer imposed a separate requirement to act “promptly”. However, he pointed to a rule allowing judicial review to be refused where delay causes or is likely to cause prejudice to respondents or third parties.
The judge said criminal trials affect not only the DPP but also complainants and witnesses who prepare to attend. Had the application been made earlier, the DPP could have been put on notice and the issue explored more fully.
The application was refused both because of the delay and because trial fairness was primarily a matter for the Circuit Court judge. The court said the missing-evidence issue could still be argued at trial.