The Supreme Court, by a three to two majority, has dismissed a man's appeal over his conviction for rape of his niece when she was 11-years-old.
The man claimed he did not get a fair trial because a 44-year delay between the offence and trial meant his then partner, who allegedly brought the child to his bed after which he raped her, has since died and could not give evidence.
He claimed the partner would have denied the complainant’s claims. The Supreme Court judgments set out the proper approach for trial judges to take in cases where an accused seeks to have a trial halted on grounds of alleged unfairness due to significant lapse of time.
Mr Justice Donal O'Donnell, Mr Justice Peter Charleton and Ms Justice Iseeult O'Malley dismissed the appeal while the Chief Justice, Mr Justice Frank Clarke, and Mr Justice John MacMenamin, dissented. The man was convicted by a jury at the Central Criminal Court in May 2016 of rape and indecent assault of the complainant on dates between August 1st, 1971 and April 30th 1972.
It was alleged the offences occurred during a holiday when the niece was visiting her uncle and other family members.
The niece alleged her uncle indecently assaulted her when they were out hunting on one occasion and, on another occasion, raped her after his partner brought her to his bed. The niece alleged the partner undressed her, put her into the bed beside her uncle and left after which her uncle raped her.
During the trial, a son of the accused testified he had become aware of the allegations from speaking with the complainant and had confronted his father about them. He said his father had not denied the allegations and agreed to seek psychiatric help.
The accused did not testify but, in interviews, denied that conversation took place and denied any wrongdoing. All five Supreme Court judges agreed, at the level of principle, the proper approach to claims of unfair trial over delay requires assessment by the trial judge as to whether a trial is fair and just in light of the lapse of time complained of.
It must be assessed whether an accused had been deprived of a “realistic” opportunity of an “obviously useful” line of defence. A trial judge must consider the prosecution case as it actually developed at the trial and then consider whether evidence is available as to the testimony which might or could have been given but is said to be no longer available.
If a trial judge finds there was a real prospect the evidence concerned could have been tendered, they assess whether such evidence is “material” in light of the prosecution case as it evolved at trial.
The trial judge then finally proceeds, in light of all those factors, to assess if the trial was fair or not.
The Chief Justice said, while not relevant in this case, any culpable prosecutorial failure or wrongdoing can be taken into account in assessing the degree of prejudice which renders a trial unfair.
“No trial is perfect,” he stressed. The judges’ disagreement arose concerning how such principles should be applied to the facts and particular circumstances of the case. The majority court considered, having regard to the strength of the prosecution case and an assessment of the potentially missing evidence, any prejudice caused to the accused by the delay, and consequent absence of the deceased partner, did not render the trial unfair.
Ms Justice O’Malley considered there was a “reasonable possibility” the missing witness might have been of material assistance to the defence but said there was evidence supportive of the complainant’s account and, “significantly”, corroboration in the form of unchallenged evidence of an admission by the accused of criminal behaviour against the complainant.
That was sufficient to dispose of the claim the accused was unable to defend himself against the charge, she found. Mr Justice Charleton agreed the man’s admission carried a high degree of reliability and this and relevant evidence meant the trial judge correctly allowed the matter go to a jury.
Mr Justice O’Donnell disagreed with the Chief Justice there was a “real possibility” the missing witness might have given evidence “highly favourable” to the defence or that such evidence would have survived any challenge to its credibility.
The minority court considered the absence of the witness, coupled with the length of time that had elapsed, rendered the trial unfair.
