Court of Appeal: Death of potential witness did not require withdrawal of sexual abuse case from jury
The Court of Appeal has upheld a conviction of a man who sexually abused his nephew between 1989 and 1991. In so ruling, the court rejected the submission that the non-availability of his deceased mother as a witness should have led to the withdrawal of the case from the jury.
The court applied the criteria set out in The People (DPP) v. C.C.  IESC 94 and held that it was not possible to know what the mother’s evidence might have been. Accordingly, the court held that the non-availability of the mother did not deprive the appellant of pursuing a useful line of defence.
The appellant, AZ, was 43 years old in 1989. He lived with his mother in a house in South Dublin. The complainant was the nephew of the appellant and was aged 14 in 1989. It was alleged that for two years between 1989 and 1991, the appellant sexually abused the complainant when he stayed over at his house.
The complainant only reported the abuse to gardaí in 2009 and the appellant was tried in 2017. The complainant alleged that he stayed over at the appellant’s house once every few weeks and that he was forced to sleep in the same bed as the appellant. It was at this time that the complainant was sexually abused by the appellant.
During the trial, the complainant stated that although the house had other bedrooms, there were no other beds available. In particular, it was said that a “box room” was filled with paper and cardboard boxes from the appellant’s work and so there was no space for the complainant to sleep.
The appellant vigorously denied any wrongdoing, claiming that he had never abused the complainant in any way. He claimed that the box room was fully furnished and always had a bed that the complainant could sleep in. Further, said that he had never slept in the same bed as the complainant and that he always slept in the box room.
The complainant admitted that he never told his grandmother about any of the incidents, stating that the appellant was the father figure of the family.
At the conclusion of the evidence, the appellant made an application for the case to be withdrawn from the jury. The appellant relied on People (DPP) v. P. O’C.  3 I.R. 238 and argued that there was a significant delay between the offences and the complaint in 2009. As such, it was claimed that the appellant had suffered prejudice in his defence, particularly where his mother had died. He claimed that her evidence would have been essential to the resolution of the case because she would have confirmed that the box room was furnished and that the complainant slept there.
It was also noted that the complainant claimed he was abused every two or three weeks and, therefore, the mother’s evidence would have been critical if the offending was actually that frequent. The mother slept upstairs and had to pass the appellant’s room in order to get to her own.
The trial judge did not accede to the appellant’s application and instead gave a detailed warning to the jury about the difficulties with delay in historic sexual abuse cases. The appellant appealed his resulting conviction to the Court of Appeal, claiming that the trial judge erred by not withdrawing the case from the jury.
Court of Appeal
Delivering judgment in the case, Mr Justice Séamus Woulfe began by outlining the test in C.C. for halting a trial due to unfairness caused by delay. It was noted that the main submission by the appellant was that the mother would have been able to give evidence which was critical to central points in dispute. The DPP submitted in response that the trial judge had determined that the mother’s potential evidence was not clearly decisive and that the appellant was engaging in speculation.
The court also had regard to the length of the delay in the case, which was 26 years between the offending and the 2017 trial (although there was an earlier trial in 2012). This delay was “very substantial and was capable of creating both general and specific prejudice” in the case. However, the court concluded that any general prejudice was dealt with by the trial judge in his charge to the jury.
Considering the specific prejudice alleged by the appellant, the court said that it was not clear what the mother’s evidence might have been. It was implicit in the appellant’s appeal that her evidence would have helped him, but this may not have been the case. There was a lack of some further evidence, such as a witness statement, which could have led the court to believe that the appellant was deprived of a line of defence.
It was equally possible that the mother’s evidence could have been damaging for the appellant, who failed to establish that supportive evidence from his mother would have been available. Further, the court noted key distinctions arising from the C.C. case, including that witness statements were taken from the deceased witness and that the witness had played an active role in the abuse. Neither of these factors were present in the appeal.
The court held that it simply did not know what the mother’s evidence might have been if she had been available to give evidence. As such, the court was not persuaded that the non-availability of the mother as a witness deprived the appellant of a realistic opportunity of pursuing an obviously useful line of defence. The appeal was therefore dismissed.