Judge calls for guidelines on Sex Offenders Act

A High Court judge has called for an urgent practice direction on implementing the Sex Offenders Act 2001 and for guidelines that clarify the distinction between therapeutic and medical examination of alleged rape and sexual assault victims.

Provision is made in this act for the allocation by the Central Criminal Court of independent counsel for the alleged victims in these cases in certain circumstances including where the defence applies for authority to probe previous sexual history.

Mr Justice Philip O'Sullivan also urged that in cases involving vulnerable witnesses, such as a complainant in a sexual assaults case, that search warrants should be sought from a district justice rather than a peace commissioner.

Mr Justice O'Sullivan was addressing the Central Criminal Court following what he called his "reluctant ruling" to discharge the jury in the trial of a 61-year-old Tipperary man accused of raping and sexually assaulting his niece.

"This matter of suggested practice direction has already been put en train, insofar as the judiciary can do it, by the President of the High Court - it is clearly matter to which urgent thought should now, at this late stage be given," Mr Justice Philip O'Sullivan said.

The trial, in which the accused stood charged with 79 counts of sexually assaulting his niece from the time she was eight years old, and one count of raping her on April 12, 1999, collapsed on its 14th day when Mr Justice O'Sullivan acceded to an application by defence counsel Mr Hugh Hartnett SC

(with Mr Roderick O'Hanlon BL) to discharge the jury.

Earlier, Mr Justice O'Sullivan had consented to an application by Mr Hartnett to direct the jury to enter a not guilty verdict on 78 counts of sexual assault on grounds of non-availability of forensic evidence as opposed to therapeutic medical examination.

The court heard in the third week of the trial that the doctor who examined the victim of the alleged rape didn't take photographic evidence of resulting damage caused to her vagina.

The Tipperary doctor told prosecuting counsel Ms Miriam Reynolds SC that her primary concern was for her young patient who was 15-years-old at the time of the incident.

She said that documenting photographically the laceration she had found inside the girl's vagina would have required putting her 'in an undignified position', which she said, "was extremely distressing for girls in their teens".

However, an expert witness for the defence, Dr Steven Robinson, a Manchester police surgeon told the court that the Tipperary doctor had "let the authorities down badly" by not informing them that her examination of the girl was purely therapeutic rather than a combination of both forensic and

therapeutic examination which he claimed is 'the modern medical practice'.

Dr Robinson, who has 28 years experience in examining sex assault victims, said this "failure" had left him at a disadvantage, as he was unable to give an independent opinion of the doctor's findings without the necessary photographic evidence.

He also said that the doctor's clinical observations of damage seen in the alleged victim did not match the allegations of continuous digital penetration by the accused from the time she was eight-years-old.

These allegations formed the basis for 78 of 79 charges of sexual assault made against the accused on which Mr Justice O'Sullivan directed that he be found not guilty by the jury.

Mr Hartnett then applied for the discharge of the jury on the remaining charge of rape and sexual assault as the jury had evidence in relation to the 78 charges, which counsel submitted would not have been admissible in the trial of the two remaining counts alone.

"In my view I have no option but to withdraw the remaining charges from the jury," Mr Justice O'Sullivan said, adding that he was "loathe to abandon so much work, but had no other choice".

He agreed that the evidence was highly prejudicial to the accused, it had no probative value in relation to the two outstanding counts, and the prejudice could not be redressed.

Mr Justice O'Sullivan said he would not normally make comments of general application "because I have enough to do with my own role in any trial and also because I acknowledge that I am not particularly experienced in criminal trials."

However, he said, he shared with all members of the judiciary an overriding concern that, if at all possible, the system should eliminate any legitimately avoidable stress in the case of vulnerable complainants in sexual abuse cases "and because this trial has shown that thought must be given in this context to force specific procedures".

Mr Justice O'Sullivan apologized to the jury for keeping it 'in the dark' during the lengthy legal arguments which, on several occasions, ran into days.

He thanked the members for their consideration and excused them from jury service for the next ten years.

A date is to be fixed on February 28 next for a new trial on the two remaining counts.