Monday 17 December 2018

Rape trial collapses following a newspaper report

The trial involved a Dublin defendant accused of raping a woman he met on a night out in 2015

Independent House, Talbot Street, Dublin
Independent House, Talbot Street, Dublin

Declan Brennan

A RAPE trial has collapsed due to an allegedly prejudicial newspaper report which linked the case to the ongoing debate around the fairness of rape trials.

The trial involved a Dublin defendant accused of raping a woman he met on a night out in 2015. It had run for six days and was at the closing stages, with the jury sent out on Friday to begin deliberations.

Lawyers for the defendant told the Central Criminal Court that on Saturday a comment piece appeared in the 'Irish Independent' newspaper which suggested implicitly that he was guilty and that “the complainant is, in fact, a victim”.

Acceding to an application to discharge the jury Mr Justice Paul McDermott said that the article came close to scandalising the court.

He said the article, with the headline 'A tipping point has come from high-profile cases shining painful spotlights' stated that “society has had a bellyful” in relation to rape trials.

He said that while people are entitled to have views about these matters, it was unacceptable to juxtapose an ongoing trial with those views and others cases with a level of notoriety.

Mr Justice McDermott said that the unprecedented media coverage included references that a fair trial was not being conducted. He told the jury of four men and eight women that it was unacceptable that a trial was subjected to such comment.

He said this the publication of the article had caused a situation to arise in which difficulties presented to the complainant would have to be revisited and the defendant would have to await a potential retrial.

He said the trial had being conducted with commendable professionalism by both the defence and the prosecution. He said the cross-examination on any relevant material was done responsibly and if it wasn't, the court would have intervened.

He said there was an implicit criticism of mounting a defence on behalf of an accused and this was the fundamental core of the right to a fair trial. He added that the suggestion that this trial was conducted improperly was simply wrong.

Opposing the application on behalf of Director of Public Prosecutions, James Dwyer SC submitted that the court could remedy the situation by instructing jurors to put any comment or articles out of their mind when deliberating on the case.

Earlier Anne-Marie Lawlor SC, defending, told the court that her client had being awaiting trial since 2015 and that the trial had been listed to go on three previous occasions. She said this allegation hanging over him had created very significant personal and professional difficulties.

She said that until the publication of the article he was satisfied that he had received a fair trial but he could no longer be satisfied that a jury could assess the evidence given the context.

Ms Lawlor said the article appeared to advance a position that society has had enough of incorrect or wrongful acquittals of persons.

“It advances that society will change, and that this case, being used as a pivot for this opinion, may operate as a bellwether for change,” she said. She said the article amounted to an exhortation to the jury to convict the accused.

Ms Lawlor said the article alongside an accompanying editorial contained a criticism of the trial process. She said this process presumed a person to be innocent and gave an opportunity to test the evidence against an accused.

Mr Justice McDermott said the articles referred to how a person’s clothes or whether they had been drinking might be held against them in rape trials.

This comment about rape trials was then juxtaposed with facts from the trial before the court. He said the publication appeared to involve contempt, but there was a “whiff of scandalising the court as well”.

He said it was the DPP's jurisdiction to prosecute for contempt of court and that there is no such prosecution before the court.

Ms Lawlor said that an editorial in another part of the newspaper was referenced alongside the article describing the ongoing trial, with the headline “We are failing women with our culture of victim blaming”.

This editorial stated that if a complainant is left with “the crushing feeling?” that they are on trial, “we are failing them”.

She said the references to the ongoing trial were in the context of blanket media attention of the conduct of rape trials where consent was an issue.

She said that international coverage, including coverage in Time magazine, BBC, CNN and Fox News, had included commentary that there was an unfairness attached to the conduct of rape trials here.

Ms Lawlor described this as a “feeding frenzy” and that this was “hooked” to her client's case “to say that this case represent an example and to introduce such negative comment”.

She said there was no mention of her client's presumption of innocence or his right to a fair trial.

She said that the article included a description of the complainant leaving the court in distress after she had heard the defendant claim they had consensual sex. It then said the accused “jiggled his foot in agitation”.

Ms Lawlor said these “value judgements” amounted to a portrayal of her client as shifty.

Mr Justice McDermott said he found the jury could not have seen such a movement and the expression was unsatisfactory in the course of a “delicate and finely balanced case”.

Ms Lawlor told the court that the article was discussed for three minutes on Newstalk radio and quoted and described as “a good article” on RTE. She said these served as pointers to the article.

She said the court could not remedy the situation because to ask the jurors if they had read the article at this stage would be to trespass into their role in an unprecedented and unlawful way.

She said to engage in such a consultative process came with a health warning.

Mr Justice McDermott said that there was no precedent for the court to make inquiries into the state of mind of jurors once deliberations had begun.

The court heard that such inquiries have been made in previous trials where potential prejudicial information or commentary was published during the course of the trial but before evidence had finished.

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