Garda failure to interview sex offender's wife did not prejudice his trial, court finds

Eoin Reynolds

The Court of Appeal has criticised the failure of gardaí to interview the wife of a child abuser, but has found that her husband's trial, which took place after she died, was not rendered unfair as a result.

The now 87-year-old appellant had argued that his wife would have supported his claim that the girl did not spend the night at their home on the night between the two attacks, which happened in his car and at the couple’s house.

The man, who was aged in his 50s at the time, had pleaded not guilty to two counts of sexual assault at locations in the West of Ireland on an unknown date in the summer of 1991, but was convicted by a unanimous jury verdict at Galway Circuit Court.

Judge Brian O'Callaghan sentenced him to two years in prison on July 16th, 2024.

The court heard that he had abused the girl in his car while giving her a lift to his home and then abused her again the following morning at his house.

In his appeal, he said an unfairness arose by the failure to take a statement from his wife. His lawyers argued that her evidence would have directly challenged the injured party's claim about being abused at the house and would have undermined her credibility in relation to the assault in the car.

Judge Tara Burns, delivering judgment on Tuesday at the three-judge Court of Appeal, accepted that the absence of a statement from the defendant's wife is "the fault of the investigating guards".

While gardaí had said the reason for not interviewing her was that she was unwell, Judge Burns said an effort should have been made to speak to her.

However, Judge Burns said that in circumstances where the man's wife was dead by the time he came to trial, it is not certain that her statement would have been admitted into evidence.

Judge Burns also noted that the man's claim that his wife would have supported him was admitted into evidence, thereby making the jury aware of what the defendant had asserted his wife would have said.

The judge also noted that the injured party was not challenged on her evidence that she had stayed in the appellant's house on the night after the first sexual assault in the car.

She said the failure to cross examine the victim about whether she had stayed at her abuser's home was an "insuperable difficulty for the appellant".

She added: "An accused who does not contest the evidence of the main witness for the prosecution relating to the very issue on which the missing material is said to have a bearing, cannot advance the point that it is unsafe to allow the case to proceed because of the absence of such material."

Judge Burns said the jury was aware of the "asserted missing evidence" and the trial judge warned them to take into account the delay in bringing the case to trial, specifically referencing the lost evidence.

Judge Burns concluded that despite the trial being imperfect, "it cannot be said that an unfairness arose with respect to the appellant advancing his case".

The man's trial heard that the first assault took place while the girl was a front seat passenger in his car.

It began with touching her leg at the start of the car journey and progressed to touching inside her underwear and digital penetration. He also put her hand on his groin area.

The man then stopped at the shop and gave the child money for sweets. He told her not to tell anyone, that it was “their secret”.

She slept in the living room of his home that night. At one point, he came into the living room and gave her a £20 note, again telling her not to tell anybody.

The second incident happened the following morning when he entered the living room and again sexually assaulted her.

If you have been affected by any of the issues raised in this article, you can call the national 24-hour Rape Crisis Helpline at 1800-77 8888, access text service and webchat options at drcc.ie/services/helpline/ or visit Rape Crisis Help. In the case of an emergency, always dial 999/112.