Rape trial collapses after complainant leaves country half way through her evidence

The rape trial of a Dublin man has collapsed after the complainant left on a ferry to England half way through her cross-examination.

In directing the jury at the Central Criminal Court to acquit the accused, Ms Justice Carmel Stewart noted a High Court judicial review had found inexcusable and blameworthy delays in prosecuting the case.

The man, who cannot be identified, was aged 15 when it was alleged he raped his then girlfriend at a park near his home in August 2014. He was aged 18 when charged before a District Court in January 2017.

He had pleaded not guilty to rape and before his trial began this week, his lawyers had brought Judicial Review proceedings seeking to restrain the prosecution on the basis of delays which meant he was now before the Central Criminal Court as an adult rather than as a child.

In a ruling, made in May 2018, Mr Justice Paul McDermott said the delays in prosecuting the case were inexcusable, unreasonable and unsatisfactorily explained.

“They amounted to blameworthy prosecutorial delay in the case of a child,” he said.

He said the case of an alleged serious sexual offence committed by one minor upon another had obvious sensitivities, adding “this is the type of case that should have attracted a very high priority.”

Mr Justice McDermott allowed the case to proceed after concluding that the delays were not sufficient to outweigh the public interest in allowing the charge to proceed to trial.

At the Central Criminal Court this morning, Michael Bowman SC, defending, told Ms Justice Stewart that the High Court had found there was no sense of urgency or priority given to the case.

He made his comments as part of a defence application to the court to direct the jury to return a verdict of not guilty on foot of the young woman's absence.

The court heard that she had a troubled background and that, given her “prior history”, everyone was concerned when she could not be contacted. She left on a ferry on Tuesday evening and was not answering her phone.

An investigating garda examined CCTV footage from the ferry port and was able to identify her at the ferry terminal. Mr Bowman thanked the garda for his efforts to establish that she was healthy, given the concerns around her.

John O'Kelly SC, for the Director of Public Prosecutions (DPP), told the court he was not instructed to oppose the defence application. Ms Justice Stewart noted the woman had been uncontactable since Tuesday and that the only fair outcome at this point was to direct the jury of five men and seven women to acquit the man.

The judge said that should the complainant get back in touch with authorities, she wished to convey her best wishes to her, adding “hopefully she can make a new life for herself”.

The complainant's father became aware of the allegations when he checked the messages on her mobile phone and discovered what was said to be an acknowledgement by the accused that he had sexual intercourse with his daughter without her consent along with an apology for his behaviour.

He notified gardaí in December 2014 and she made a formal statement the following month. She gave permission to gardaí to retain her phone as part of the investigation.

In his ruling, delivered on May 18 last year [2018] Mr Justice McDermott described the XRY analysis that was to be then carried out on the phone as “an uncomplicated mechanical process whereby the relevant information is downloaded and printed off”.

A period of four months elapsed before the phone was sent for analysis on May 13, 2015. The judge said this should have happened within a month.

“There was no reasonable basis or excuse for the delay in submitting the complainant’s phone for analysis...at the earliest opportunity,” he said.

He said an explanation that the investigating garda was too busy during that period was unsatisfactory “considering the very high importance of investigating sensitive cases involving an alleged child offender with speed and more especially, when the case engages the highly sensitive issues surrounding an alleged child offender and an allegation that a female child of somewhat similar age was raped”.

He said this element of the investigation did not proceed “with reasonable expedition”.

He noted separately “a lack of urgency” in interviewing a witness linked to the phone used to send the text messages.

The accused and his parents were contacted and attended at a garda station for interview in December 2015. At that time the interview could not be facilitated because gardaí were dealing with a tiger kidnap case in the area.

The accused re-attended later that month with his mother and was arrested and interviewed.

Mr Justice McDermott said that nothing of significant importance occurred between the date of interview and the date upon which the file was submitted to the Director of Public Prosecutions in July 2016.

He said there was not a sense of urgency nor was any priority given to the case up to that date. He said the delays may well be because of lack of resources or misunderstandings as to the priority appropriate to such a case or around the protocol about the status of juveniles on the Pulse system.

He said this latter issued resulted in a delay in the case between April to July 2016. Gardaí had a concern about changing the status of the accused to “suspected offender” given he was still a juvenile.

This status change is a prerequisite for generating a referral to the Youth Diversion Programme. Mr Justice McDermott said he was not satisfied there was a reasonable excuse for this delay.

“I do not consider there is any reasonable ground for delay...on the basis of [a] lack of understanding of the appropriate protocol in respect of the PULSE System concerning juvenile offenders.

“If there is not a clear protocol in An Garda Síochána in relation to this very important matter, that should be remedied,” he said.

A file was submitted to the DPP in July 2016 and a direction to charge was received the following month. The defendant attended the station by arrangement on January 2, 2017 when he was arrested and charged.

A trial date was fixed for April 2018 but this was later vacated to allow for the judicial review hearing. In his subsequent ruling Mr Justice McDermott allowed the prosecution to proceed after concluding that the delays were not sufficient to outweigh the public interest in allowing the charge to proceed to trial.

He said there was never a suggestion made of any real risk of an unfair trial. He noted because he was being prosecuted as an adult, the accused lost certain benefits of the Children Act including restrictions on publicity and sentencing guidelines.