Supreme Court: Man loses appeal against conviction for raping his niece in the 1970s
A man who was found guilty on charges of rape and indecent assault in 2016, for offences which occurred in the 1970s, has lost an appeal against his conviction.
By a 3:2 majority, the Supreme Court concluded that, in light of the strength of the prosecution case and an assessment of potentially missing evidence, any prejudice caused by the delay and absence of one of the central witnesses did not render the trial unfair.
In the Central Criminal Court in May 2016, Mr C was found guilty on counts of rape and indecent assault. The incidents for which he was tried occurred between August 1971 and April 1972, and the victim was Mr C’s niece, AU, who was eleven years old at the relevant time.
The evidence at trial was that, on one occasion complained of, Mr C’s partner at the time, M.Cy, brought the victim to Mr C’s bedroom and undressed her before she was raped by Mr C.
Evidence was given by Mr C’s son that he had “confronted his father with allegations that he had inappropriate relations with a young woman, and that he did not deny it, but rather promised to stay away from young girls and to seek help”, and further, that he had been “alerted to allegations of his father’s behaviour in relation to other young girls, indeed his own sister”. In particular, Mr C’s son gave evidence that, in the 1990s, he had confronted his father about allegations from AU about sexual abuse, stating the following about Mr C’s reaction:
“Well, I was very surprised because I – he didn’t deny that any – anything, and more or less said that it was her own fault”.
AU went to the Gardaí in 2004, after which Mr C was arrested, detained and interviewed by Gardaí. In 2006, the DPP issued charges against Mr C; however, in the interim, Mr C had left the jurisdiction. Mr C lived in Panama before being arrested in the UK in 2013 and extradited to Ireland to face prosecution.
One of the issues at trial was that M.Cy, who had indicated at one point that she would dispute the allegation, had died in 2008. As such, the possibility of M.Cy’s testimony, which was “clearly central, since it was an essential part of the allegation”, was unavailable. The victim’s mother had also died in 2008.
In light of the principles set out in DPP v PO’C  IESC 54, counsel for Mr C made an application to the trial judge that the trial proceed no further by reason of what was said to be the prejudice to the accused arising from the lapse of time since the date of the alleged offences and the absence of witnesses, particularly M.Cy.
The trial judge ruled against the defence, holding that the absence of M.Cy. was “a lost opportunity”, but that this was a consequence of delayed or stale cases. Considering SB v DPP  IESC 67, the trial judge said:
“We cannot speculate about what her evidence might have been, would it have been favourable to the prosecution or to the defence? And neither indeed can the jury speculate in relation to that. Whatever her evidence …it doesn’t come close to the loss of a record which would show the improbability of the accused in the committing of the offence or the improbability, or similar to the improbability of a story that a nurse administering an injection when she had no authority to do so.”
In light of the passage of time, the trial judge gave full “Haugh warning” to the jury in relation to the difficulties which arose by reason of delay and the absence of evidence.
In the Court of Appeal in 2017, Mr Justice George Birmingham dismissed Mr C’s appeal, finding that:
- The absence of evidence from AU’s late mother could not possibly have provided a basis for stopping the trial
- The suggestion that M.Cy would have been of significant assistance involved “a number of major assumptions which appear unjustified having regard to the totality of the evidence”
- In any event, there was independent testimony which supported the victim’s allegations.
- Cy’s absence was not “so gravely prejudicial” to warrant halting the trial.
In granting leave to appeal, the Supreme Court held that Mr C had raised an issue of general public importance, namely “the extent of the burden on an accused person, tried on historic allegations, who argues that his trial is unfair because the lapse of time has resulted in the death of a witness who might have been assistance to him”.
By a 3:2 majority, the Court dismissed Mr C’s appeal. The majority of the Court found that, in light of the strength of the prosecution case and an assessment of potentially missing evidence, any prejudice caused by the delay and absence of M.Cy’s evidence did not render the trial unfair.
Dismissing the appeal, Ms Justice Iseult O’Malley was satisfied that “there was supportive evidence on a range of issues raised in cross-examination”, and said it was significant that “there was corroboration in the form of a clear and effectively unchallenged evidence of admission of criminal behaviour against the complainant”. She said that this evidence was “sufficient to dispose of the claim that the appellant was unable to defend himself against the charges”.
Agreeing that the determination of the trial judge should not be interfered with, Mr Justice Donal O’Donnell outlined the following principles:
- The jurisdiction to determine whether it is just to permit a trial of an accused person on historic allegations to proceed, is one normally best conducted at the trial;
- The decision the trial judge should make is whether he or she is satisfied that it is just to permit the trial to proceed;
- The obligation on the trial judge is to make a separate and distinct determination in this regard, and the trial judge must do so conscientiously, in the light of everything that has occurred at the trial;
- The test to be applied does not involve any assessment of the guilt or innocence of the accused, which is a matter for the jury, but rather the fairness and justice of the process by which it is sought to determine that matter;
- While an appellate court must recognise that a trial court has particular advantages in the making of this assessment, the decision of a trial court is subject to appeal, and trial judges should therefore set out clearly the considerations leading to the conclusion that it is or is not just to permit the trial to proceed.
Applying these principles, Mr Justice Peter Charleton concluded that “the trial judge rightly left this case for the consideration of the jury and the resultant verdict should stand.”
Dissenting from the majority, Chief Justice Frank Clarke was not satisfied that the strength of the prosecution case overcame “the problems caused by the absence of such a central figure as M.Cy”.
Stating that he would have allowed the appeal and quashed Mr C’s conviction, Chief Justice Clarke said there could be “little doubt that, had M.Cy. been available to give evidence, there is at least a realistic possibility that she might have been in a position to give evidence which would have been highly favourable to the defence and there is also a real possibility that such evidence would have survived any attack on its credibility to a sufficient extent to cause the jury to at least have a reasonable doubt as to the guilt of Mr. C. She would, highly unusually, have potentially been in a position to give direct evidence of the events surrounding an allegation of historic sexual abuse, although neither the complainant nor the accused”.
Mr Justice John McMenamin agreed with Chief Justice Clarke that the absence of M.Cy rendered the trial unfair.
© Irish Legal News Ltd 2021