DPP choice of rape charge halts ‘unfair’ trial

THE Supreme Court has halted the trial of a young man on a charge of raping a 16-year-old girl in a van in Wexford town.

The three-judge court ruled yesterday it was “palpably unfair” for the DPP to substitute, without any new evidence, the much more serious rape charge for a previous charge of attempted unlawful carnal knowledge.

The DPP had abandoned the prosecution on the lesser charge after the Supreme Court struck down the relevant law as unconstitutional.

Rape carries a maximum penalty of life imprisonment while the maximum sentence for attempted unlawful carnal knowledge was two years, Mr Justice Nicholas Kearns noted.

What the DPP had done was akin to a person being initially charged with driving through a red light and then replacing that charge with one alleging dangerous driving causing death.

Giving the Supreme Court judgment overturning the High Court’s refusal to stop the man’s trial, Mr Justice Kearns said the case arose on the night of February 21, 2003, when the man and girl, who were slightly acquainted and then aged 20 and 16 respectively, happened to meet outside a disco.

The judge said a sexual encounter took place between them in a van in the centre of Wexford town.

The girl was three weeks short of her 17th birthday and later alleged the man had raped her while the man insisted any sexual contact was consensual.

An officer in the DPP’s office subsequently advised there was no prospect of securing a conviction for rape or attempted rape and the man was charged with attempted unlawful carnal knowledge under Section 2.2 of the Criminal Law Amendment Act 1993.

His trial was adjourned pending the outcome of separate legal challenges to the constitutionality of the laws providing for the offence of unlawful carnal knowledge — Section 1.1 of the 1993 Act — and attempted unlawful carnal knowledge, Section 2.2 of the same act.

Both Section 1.1 and Section 2.2 were struck down as unconstitutional. The man’s case was then reconsidered in the DPP’s office and the director ultimately directed a rape charge be brought in October 2006 and the Section 2.2 charge be dropped.

Mr Justice Kearns said it was the choice of the charge of rape which created the difficulty.

The man’s trial would not now be dealt with locally but in the Central Criminal Court and a conviction could well result in a substantial custodial sentence.


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