A rape trial in the Central Criminal Court has collapsed as a result of reports published at the weekend in the Irish Independent newspaper.
One article juxtaposed the current controversy about the fairness of rape trials with material from the trial that was still ongoing before the court and this was not acceptable, Mr Justice Paul McDermott told the jury of eight women and four men on Monday.
The jury in the case, which involved an alleged rape in Dublin by a man on a woman, began deliberating on Friday and was to resume its deliberations today, which would have been day six of the trial.
However, at the outset, an application was made by Anne Marie Lawlor SC, for the accused, to have the jury discharged because of reports and an editorial in the Irish Independent which she said had prejudiced her client's right to a fair trial.
The application was opposed by James Dwyer SC, for the Director of Public Prosecutions (DPP).
He referred to cases where directions had been given to a jury to ignore prejudicial matters that had come to their attention but which did not form part of the evidence they were charged with assessing.
However, Mr Dwyer agreed with the judge that it appeared to be the first time such a difficulty had arisen in a case where a jury had begun its deliberations.
Series of articles
Mr Justice McDermott, while hearing the application, noted the series of articles referred to how a person’s clothes or whether they had been drinking might be held against them in rape trials.
This comment about rape trials was then juxtaposed with facts from the trial before the court. There was a reference to a “rape case” rather than an “alleged rape case”.
The article then discussed the issue of rape trials generally and ended in a “crescendo of hyperbole”, stating that society had a “bellyfull of these matters”.
He said he was loathe to get involved in the jury’s deliberations and that the court had been left in a “most unsatisfactory” position.
He said the publication appeared to involve contempt, but there was a “whiff of scandalising the court as well”.
Mr Justice McDermott noted the strength of what was in the article and the fact there was no possibility of a “fade factor” between the publication and the beginning of the jury’s deliberations.
Evidence about what had occurred on the night of the alleged rape was included in an article headlined, ‘A tipping point has come from high-profile cases shining painful spotlights’.
The headline also said it was often the victim who felt they were the one on trial, “but society has had enough”.
Ms Lawlor said the article was one of a number that comprised what was called a "special report", flagged on the newspaper's front page.
Her client’s right to a fair trial and a presumption of innocence did not feature in the coverage, she said. She said the coverage suggested there were incorrect or wrongful acquittals in rape trials and included some facts that were identifiably from the case before the court.
Suggesting an unfairness
There was no other way of reading the articles other than that they suggested that her client was guilty. Also included in the coverage was an article about the recent controversial Cork case which has received coverage in the New York Times, Time magazine, Fox News and CNN suggesting there was an unfairness to rape trials in Ireland.
The Irish Independent was using this "feeding frenzy" and suggesting the facts in the case before the court were an example of what was being alleged about rape trials, Ms Lawlor said. The report referred to the accused as "jiggling" his foot in agitation. It appeared to suggest he was "shifty in some way".
Mr Justice McDermott said a judge should not become involved in asking a jury about its deliberations. He could ask the jury if they had read the article, or tell them to exclude the material from their deliberations. A judge, a jury and an accused should not be put in this position.
Ms Lawlor said the charge against her client had been hanging over him for some time and that he had been satisfied that he had received a fair trial. However, he did not now believe he could be so satisfied. She said that even inquiring into a jury’s state of mind at this stage might be unlawful.
Mr Dwyer said he was opposing the application on behalf of the DPP but was not saying that it was in any way opportunistic.
Presumption of innocence
The jury had been told to try the case on the facts and nothing else, that an accused had a presumption of innocence, and to leave outside the court any views they might have on how rape cases are conducted, he said.
When the jury was called back Mr Justice McDermott told them he was going to discharge them because of "unprecedented media coverage" in the Irish Independent over the weekend.
Facts from the case before them had been juxtaposed with opinion that the conduct of rape trials was not acceptable to the public at large, and this was not acceptable.
It was essential that the integrity of the trial process was maintained.
After the jury had left the courtroom, Mr Justice McDermott put the case back to a later date.
He said he was at a loss to understand why the Irish Independent had not stayed its hand until the case was over. Now the complainant was going to have to go through the trial process for a second time, if the case is brought to trial again. The same applied to the accused.
He said the lawyers involved in the trial had handled the material before the court in a responsible way. It was simply wrong to suggest the case had been handled in any way improperly. Presenting a defence on behalf of an accused was fundamental to a fair trial.
