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Taxi driver freed after sex assault case appeal

A Dublin taxi driver who received a four-year sentence for sexual assault has walked free from court after his conviction was overturned on appeal.

The Court of Criminal Appeal this afternoon quashed the conviction of Declan Kavanagh (52), having found that the judge at his trial made an error in principle by allowing evidence of a flawed identification parade to go before the jury.

The court ordered that no retrial should take place, having determined that the remaining evidence against the applicant was of a "tenuous nature".

Mr Kavanagh, of Foxdean Drive, Clondalkin, had pleaded not guilty to sexually assaulting the woman close to her Dublin home in the early hours of December 11, 2005.

The woman alleged she had flagged down a taxi driven by Mr Kavanagh as she walked home from her Christmas party.

He was sentenced to four years' imprisonment, with two years suspended, by Judge Patrick McCarten in May last year, after he was convicted of the charge by a jury following a three-day trial at Dublin Circuit Criminal Court.

He was also disqualified from holding a driving licence for 10 years.

Counsel for Kavanagh, Dominic McGinn, told the court that the trial judge erred by allowing evidence of what he described as a "defective" and "meaningless" identification parade to go before the jury.

He said the accused was the only man in the parade who fitted the vague description of the assailant as given by the complainant because gardai had "ignored" a requirement to populate the line-up with volunteers of a similar, age, height and background.

Mr McGinn said that as many as six of the "foils" in the parade line-up were of dissimilar appearance to Mr Kavanagh and that it was "inevitable" that the complainant would choose him as he was the only person who fitted her description.

Counsel for the State, Damien Colgan, told the court that it was "just not possible" to provide a series of "clones" for an identity parade and that while a parade had to protect an accused person from being wrongly identified, it was not designed to hide them.





Identity

Mr Colgan said the guidelines for identity parades were not set out on a statutory basis and existed merely to set out the best possible practice.

Presiding judge Mr Justice McKechnie, sitting with Mr Justice Paul Gilligan and Mr Justice William Hanna, said it was "perfectly evident" that the parade assembly fell short of the minimum standards required by law.

Mr Justice McKechnie said the court was "quite satisfied" that no warning delivered by the trial judge could have given the jury the opportunity to correct infirmities that went to the "very core" of the evidence. Mr Justice McKechnie said the court would set aside the conviction and told Mr Kavanagh that he was "free to go".

hnews@herald.ie


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