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Failure to seek and preserve evidence did not give rise to risk of an unfair trial

By: Bakshi Mohit BL

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Court of Appeal dismisses appeal against rape conviction, on the grounds that, in a given case where potentially relevant evidence or information is not known or unavailable it will not, per se, matter whether or not the prosecution have discharged their investigative role in full – it does not necessarily follow from that fact that an unfairness or potential unfairness in the trial arises.

Criminal Law – appellant convicted of rape – sentenced to six year’s imprisonment – appellant and complainant lived comparatively close to each other – appellant knew complainant to see for about a year and a half – complainant moved to an apartment and appellant moved to an apartment in the same building – initial introduction occurred when complainant went to appellant’s apartment randomly to seek information about the Wi-Fi code – on a number of occasions the appellant asked the complainant to meet for coffee, which she decline – on the day of the incident the appellant asked the complainant again and she agreed – she gave the appellant her phone number and to her surprise, the appellant was to entertain her to dinner – she arrived at around 7pm and they had a number of drinks – at some stage during the evening, the complainant felt unwell – complainant went to the toilet in the ensuite and appellant waited in the bedroom whilst she went to the toilet – her next memory was “falling off” onto a bed and thereafter she had a further memory of lying on the bed and suffering pain in the vagina – she found that she was naked and that the appellant was on top of her – he was having intercourse with her and she told him stop – appellant did not stop at first but after repeating the demand, the appellant then stopped – during the incident, the appellant told her to be quite and put his hand over her mouth at one point – complainant visited a Garda Station on the evening of the following day and an initial complaint was made – appellant was interviewed by Gardaí – appellant advanced explanations to the effect that consensual sexual intercourse took place – it became known to counsel that the complainant had told third parties about what had occurred, apparently in detail – whether Gardaí failed to seek out and preserve evidence relevant to the alleged offence contrary to the duty of prosecuting Gardaí – complainant made no mention to the Gardaí of the fact that she had told those who accompanied her to the Garda station anything about what had occurred – in strictness, accordingly, the Gardaí had no reason to suppose that she had done so - accordingly debatable as to whether or not they were in breach of their obligations to seek out evidence in failing to approach them and ascertain whether or not they had any engagement and, if so, ask them to make statements, which presumably they would – on balance that in strictness the Gardaí ought to have approached such persons with a view to ascertaining any such engagement and thereafter sought statements – accordingly there was a departure from the duty upon them – not satisfied that in the absence either of information to the effect that such persons had an engagement in the matter prior to their arrival with the complainant in the Garda station or what, speculatively, they might say, gives rise to any such risk or renders the trial unsatisfactory – appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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