Monday 26 September 2016

€493,000 award to woman who claimed she was repeatedly sexually assaulted as a child by a relative is overturned by the Court of Appeal

Published 04/02/2016 | 12:24

Judge's gavel.
Judge's gavel.

A €493,000 award to a woman who claimed she was repeatedly sexually assaulted as a child by a relative has been overturned by the Court of Appeal because of delay in bringing the action.

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Caroline McNamee (40), from Mullingar, Co Westmeath, now living in England, sued Michael Boyce (70), a farm labourer from Rathconrath, Mullingar.

She claimed he began sexually assaulting her from the age of four and the assaults, including rape, buggery and forced oral sex continued until 1992.

He was tried in the Circuit Court in 1999 on six counts of sexual assault and convicted in relation to one.

She sued him in the civil court and n November 2014, a High Court jury awarded her €493,037.

He appealed that claiming the High Court judge should have dismissed the case on grounds including her inordinate and inexcusable delay in bringing the case and the manner in which she pursued the claim.

In particular, he claimed he was prejudiced during the civil action by the fact that his wife, Helen Boyce, had died in 2005 and was not available to give important evidence.

Mrs Boyce's evidence had assisted him in the criminal trial and he would have been in a better position to defend the civil case had she given evidence.  She (his wife) would have been able to do so if Ms McNamee had not delayed in pursuing the civil action.

The High Court, in rulings by two different judges, found that any prejudice to him could be overcome by allowing a transcript of what Mrs Boyce said in the criminal trial to be admitted as evidence in the civil case.

The High Court also ruled that certain allegations, after 1985, were statute barred.

A three-judge Court of Appeal today unanimously found the High Court had erred in not dismissing the proceedings.

Ms Justice Mary Irvine said it was a "tragic claim" and it was an enormous sanction to dismiss a claim of such a nature on grounds of delay.

"However, there are clear principles which must be applied so as to ensure the effective administration of justice and basic fairness of procedures", she said.

Proceedings must be conducted  within a timeframe such that a defendant will not be unduly prejudiced by inordinate or inexcusable delay. The judge was satisfied the delay by Ms McNamee in pursuing her claim "exposed the defendant to a significant risk of prejudice in terms of his ability to defend the very serious allegations against him"

That stemmed principally from the death of his wife in 2005 and had there not been the delay it is likely the civil action would have been heard when Mrs Boyce was alive.

Earlier, Ms Justice Irvine said a transcript of evidence is not the same as evidence from the witness box.  A transcirpt is "arid, devoid of character and a poor means of imparting sincerity or sensitivity".

Mrs Boyce may have been a "trully impressive witness" and a transcript was no substitute for her direct verbal testimony.

Credibility was a major issue in the criminal proceedings in which Ms McNamee told the court about the first time she was assaulted.

She claimed she was four years of age and the assault occurred in a shed which housed an outside toilet for the Boyce home.

Mr Boyce said it did not happen and they had no outside flushable toilet, that all they had was a metal bucket which was kept in a shed.   Mrs Boyce backed up that evidence.

Mrs Boyce also disputed Ms McNamee's claims she stayed overnight in the Boyce house, once again calling into question Ms McNamee's credibility on a critical issue, the judge said.

Mr Boyce was not convicted in the criminal case of any assault in the Boyce home, an outcome which might well have been influenced by the wife's evidence about the toilet, she said.

Equally, a jury might have been influenced by Mrs Boyce's evidence on other issues including whether Ms McNamee stayed overnight and whether Mr Boyce had bought her gifts of clothing as she had maintained, the judge said.

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