A High Court judge has called for an urgent practice direction on implementing the Sex Offenders Act 2001 and for guidelines which clarify the distinction between therapeutic and medical examination of alleged rape and sexual assault victims.
Provision is made in the Act for the allocation by the Central Criminal Court of independent counsel for the alleged victims in certain circumstances including where the defence applies for authority to inquire into previous sexual history.
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.
The trial, in which the man was charged with 79 counts of sexually assaulting her from the time she was eight and one count of raping her on April 12th, 1999, collapsed on its 14th day when Mr Justice O'Sullivan acceded to an application by Mr Hugh Hartnett SC, defending, to discharge the jury.
Earlier, the judge 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.
During the trial, the court heard that the doctor who examined the victim of the alleged rape did not take photographic evidence.
The doctor told Ms Miriam Reynolds SC, prosecuting, that her primary concern was for her young patient who was 15 years old at the time of the incident.
However, an expert witness for the defence, Dr Steven Robinson, a Manchester police surgeon, told the court that the 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 said he was unable to give an independent opinion of the doctor's findings without the necessary photographic evidence.
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 he submitted would not have been admissible in the trial of the two remaining counts alone.
A date is to be fixed on February 28th for a new trial on the two remaining counts.