THE High Court has refused to quash an order of Judge Cyril Kelly in the Circuit Criminal Court, even though it held he had exceeded his jurisdiction in directing a jury to acquit a man of charges of sexual assault.
Ms Justice Laffoy also refused to send the matter back to the Circuit Criminal Court.
In a reserved judgment, she said the matter was first listed in the Circuit Court on April 28th, 1993, but, due to the unavailability of the State Forensic Scientist, a new trial was fixed for June 23rd that year. On the second occasion Dr Brian McCarthy, who had examined the female complainant, had not turned up, and a trial was listed for November 24th.
On that date there was no court available, and it was re listed for hearing on March 11th, 1994. The trial was adjourned by the High Court pending judicial review proceedings, and a trial was relisted for December 5th, 1994.
The attendance of Dr McCarthy, whose cross examination would have been vital to the defence, had still not been procured by the Director of Public Prosecutions, and Judge Kelly had, without hearing evidence, directed the jury to acquit the accused on the grounds he could be deprived of a fair trial.
Ms Justice Laffoy said she had no doubt that, in a criminal trial on indictment, a trial judge had no jurisdiction to direct the jury to find the accused not guilty where the prosecution had not been allowed to open its case, or to adduce any evidence.
While no authority had been cited in support of this proposition, it seemed to her that a conclusion to the contrary would be so fundamentally at variance with principle as to be wholly unsustainable.
Ms Justice Laffoy said Dr McCarthy, who had gone to America, carried out a clinical examination of the complainant within a couple of hours of the alleged sexual assault, and his evidence would have been singularly compelling in corroborating either the woman's allegation or the accused man's denial.
She agreed with Judge Kelly that the situation had the potential of being highly prejudicial to the accused, and materially affected his ability to defend himself. On this ground, and because of the delay since the date of the alleged offence, she refused to quash Judge Kelly's order.
Ms Justice Laffoy said the accused had to face trial on serious charges on five separate occasions over a two year span, and more than four years had elapsed since the date of the alleged offences, and in her view he could not be afforded a trial with reasonable expedition, which was his entitlement under the Constitution.
"I have not overlooked the fact that the complainant has had to face the prospect of a trial and the ordeal of testifying on five occasions in the past, and has had the matter hanging over her for more than four years to no avail," Ms Justice Laffoy said. "I have also not overlooked the requirement in an ordered society to deal effectively with crime and, in particular, serious offences.