A man has had charges of sexually assaulting a school girl on the Luas dropped after a judge ruled that an informal identification of him by the teenager was not carried out in a fair way by gardaí.
The 45-year-old man, who cannot be named for legal reason, pleaded not guilty at Dublin Circuit Criminal Court to sexually assaulting the then 16-year-old on January 31, 2018 between St Stephens Green and Cowper Luas stops.
Today Diana Stuart BL, prosecuting, told the jury that there was no evidence to offer against the man and there would be no prosecution.
Judge Pauline Codd discharged the man from the indictment after telling the jury that following “certain rulings” made by her there would be no prosecution in the case. She thanked the jurors for their service and told them jury service was “fundamental to our democracy”.
Earlier this morning, Judge Codd ruled that an informal identification of the man at a Luas stop by the teenager, in the presence of investigating gardaí, should be excluded from the case.
She said she had considered evidence that have been given in the absence of the jury, along with submissions made by both the prosecution and the defence.
Judge Codd said she was satisfied that the complainant, who gave evidence before her, was confident in her identification of the man and had given gardaí a detailed description of the man who had sexually assaulted her when she made her allegation the day after the incident.
The girl had described the man’s hair colour and complexion, his shoes, said he was between 40 and 50-years-old, was carrying a satchel and had distinctive coloured headphones.
Judge Codd said it was clear from the teenager’s evidence before her and the level of detail she gave in describing the man that it was “not a fleeting glance case” and that he had been in the same carriage of the Luas as her for four stops.
Judge Codd said that gardaí had nominated the accused as a suspect following a number of days of surveillance after spotting a man matching the girl’s description in the days after the assault.
The man was followed and gardaí saw him getting into a particular car. The registration of the car was noted and the name and address of the man sourced from that.
The judge noted that investigating gardaí then brought the teenager to a particular Luas stop for a number of days to see if she could see her attacker getting off the tram.
She said the teenager then made an identification, eight days after her initial allegation to gardaí.
The complainant told the court that she had an opportunity to see the accused as he walked slowly past.
She told gardaí that was the man and she recognised him, his hair and facial features. “I saw his face. It was the same person,” she told the hearing.
However, Judge Codd ruled that there were a number of issues with this identification.
She said gardaí did not include any foils – people who look similar to the suspect – on the tram, as would be the normal in an identification parade.
She did note however further evidence that the Luas was busy that day which she said “meant that those other people were foils”.
The judge also had concerns that no notes had been taken by gardaí during the identification process.
Judge Codd said that the gardaí who were accompanying the girl at the time of the identification were “intrinsically linked to the investigation”. She accepted that the complainant was a young person and was clearly comfortable with the garda involved, but she said a “neutral garda” should have been involved.
Judge Codd said it was clear that the officers were watching their phones at the time because they were “tuned into” the surveillance operation that was going on. She noted that this activity resulted in the teenager having “an inkling” and assumption that the suspect would be getting off the Luas on that particular day.
She said had a neutral garda been employed the teenager would not have been aware of this activity and her senses would not have been heightened.
Judge Codd noted that the law requires the optimum method of identification is a formal identification parade and said that a lesser standard is only allowed in particular circumstances. She added that “reliability and fairness are at the heart of the process”.
The judge said the fact that the complainant was 16-year-old at the time and was recently sexually assaulted meant it was fair not to have a formal identification parade and accepted that it was “understandable” that gardaí wanted to make an identification quickly.
She said, however, she felt that sufficient safeguards were not employed to ensure that the identification process implemented was fair. She said the identification process should have been postponed until “safeguards such as foils and a neutral independent garda could be in place”.
Judge Codd said there was “a complete lack of safeguards in the identification” and the “proper course is to exclude” it from the case.