The Court of Criminal Appeal has quashed T.C.’s convictions for rape and sexual assault, finding that new information about one complainant created a real risk that the trial was unfair.
The judgment, delivered by Denham J. on 23 June 2009, says T.C. had been convicted in the Central Criminal Court in February 2008 on some of 15 counts involving three complainants. The jury acquitted him on some counts and disagreed on others. He received a 14-year sentence, with the final year suspended, leaving 13 years to serve.
After the trial, complainant S.H. told a doctor preparing a victim impact statement that she had been abused at age nine by a male identified in the judgment only as M.M. The prosecution had not known of the allegation before trial. The Director of Public Prosecutions learned of it in September 2008; prosecuting Gardaí had been told before sentencing, but the information was not before the sentencing court. S.H. later said she did not want to make a statement to Gardaí or have the allegation investigated.
T.C.’s appeal argued that the absence of this information had limited the defence’s ability to cross-examine S.H. and affected the credibility of the complaints. The court treated the matter as newly disclosed evidence, rather than prosecution non-disclosure before trial. It said a trial judge could have considered an application to admit evidence of S.H.’s previous sexual history, subject to the statutory fairness test.
The court concluded there was a real risk that the information could have affected the fairness of the trial and the jury’s consideration of guilt. It allowed the appeal on that ground and quashed the convictions. It did not decide the other grounds of appeal.
The court had previously found that the trial judge was entitled to refuse the defence request for separate trials of the remaining complaints. But it said the new information changed the evidential circumstances, so severance would be a fresh issue for any retrial. The Director of Public Prosecutions may prosecute a retrial; the appeal judgment did not order one.