The Supreme Court has dismissed S.Q.’s appeal against his rape conviction, finding that Gardaí failed to seek out and preserve evidence from two people who accompanied the complainant to a Garda station, but that the failure did not make the trial unfair.
In a judgment delivered by Ms Justice Baker on 31 March 2023, the Court considered whether the trial was unfair because Gardaí did not record the identities or take statements from the complainant’s work colleague, referred to as R, and his girlfriend. They had accompanied her to the station the evening after the incident. R’s girlfriend remained with the complainant while she made her statement.
The defence at trial was that any sexual activity was consensual. The complainant said she had not consented. A jury convicted S.Q. after hearing the complainant, forensic evidence from a sexual assault treatment unit, Garda evidence and interviews with the accused. The evidence also included messages sent by S.Q. shortly after the incident, including one in which he called himself a “stupid man” and asked forgiveness.
The two witnesses’ involvement emerged in the complainant’s victim impact statement for sentencing. The Supreme Court said the defence later sought information about them over about 20 months, but the inquiry was not properly answered until October 2020. Statements were eventually obtained in 2022, but neither side applied to introduce them as new evidence on appeal. The appeal proceeded on the basis that their evidence was unavailable.
Ms Justice Baker said Gardaí had clearly failed in their duty to seek out and preserve evidence. She said they should have recorded the visitors’ presence and asked the complainant whether she had spoken to anyone about the incident. She also said the complainant was not to blame for the failure.
The Court rejected the Court of Appeal’s approach that the appellant had to show how the missing evidence would have helped his defence. Because he could not have known the witnesses existed before trial, he could not have been expected to identify what they might say. The Supreme Court said an appellate court must assess the fairness of the trial as a whole and whether the missing evidence could have provided an avenue of defence or a lost chance of acquittal.
However, it concluded that the witnesses’ potential evidence was recent complaint evidence, which has limited admissibility and is not evidence that the alleged offence occurred. It could have supported the complainant’s account or, in narrow circumstances, been used to challenge it if her account to the witnesses differed from her trial evidence. The Court found no evidential basis for such a challenge and considered the other evidence strongly indicative of guilt. It concluded that the trial had not been shown to be unfair and dismissed the appeal.