The Court of Appeal has stayed a sexual assault prosecution unless the complainant discloses the identities of two people connected to alleged incidents in 1993 and 1999. The conditional order gives her three months from the judgment, delivered on 7 July 2016, to provide the information to the applicant’s solicitors. If she does, the stay will be lifted; otherwise it will become permanent.
The applicant, Antony Babu Vattekaden, was charged with one count of sexual assault after a woman alleged that he touched her vagina during a massage in August 2011. He denied the allegation. The appeal concerned whether he could have a fair trial without the identities of the people involved in the complainant’s earlier allegations.
The complainant said the first incident occurred in 1993, when she was 11, and involved a man from her extended family. She said the second occurred in 1999, when she was 16, and involved a young man she knew. She told gardaí she did not wish to identify either person or make a formal complaint. Neither incident was reported to gardaí as a formal complaint. The prosecution later provided statements and counselling notes relating to the allegations.
The High Court had refused to prohibit the trial, finding that any unfairness could be addressed through cross-examination and rulings by the trial judge. The Court of Appeal agreed with the High Court that the applicant had not delayed unduly in seeking judicial review, but disagreed on the merits.
The appeal court said the prosecution case turned almost entirely on the respective credibility of the complainant and the applicant. It considered other evidence cited in the High Court—including exchanges about reporting the allegation, the applicant’s emotional response and the name used to save the complainant’s phone number—equivocal.
The court held that the applicant had taken all reasonable steps to obtain the information and that, in these circumstances, it was necessary for an effective opportunity to investigate and challenge the complainant’s credibility. It did not decide whether evidence about the earlier allegations would ultimately be admissible at trial; that would ordinarily be for the trial judge.
Rather than issue a final order prohibiting the prosecution immediately, the Court of Appeal granted a stay subject to disclosure within three months. The judgment said the complainant should have a fair opportunity to consider her position. If the identities were not disclosed in time, the stay would become permanent.