The Court of Criminal Appeal has overturned as unsafe the conviction - the first in the State's history - of a Sligo man for the rape of his wife. A retrial was ordered and bail was allowed to the man pending the new trial.
The 48-year-old builder was at the Court of Criminal Appeal yesterday when it unanimously allowed his appeal against his conviction and six-year sentence.
After a four-day trial in July 2002, the man was found guilty of raping his wife at their home in Sligo in July 1997 but acquitted of sexually assaulting her.
The appeal rested on the failure of the prosecution to produce at the trial, or to have forensically analysed for alcohol content, a blood sample taken from the man when he was arrested by gardaí in September 1997 and interviewed about the offence.
Mr Patrick Gageby SC, for the man, argued that the sample, had it been forensically analysed at the time, could have supported the man's claim to have been under the influence of alcohol when interviewed and therefore cast doubt regarding the accuracy of statements he had made to the gardaí and whether these were made on a voluntary basis.
The admissibility of the statements was unsuccessfully challenged at the trial.
It was also argued that the trial verdict was unsafe because the jury had not heard any evidence from a publican who, it was said, could confirm the man was drinking in her pub on the day of his arrest.
Given the failure to produce the blood sample at trial and the failure to call the publican, it was argued the man's trial was unfair and unsatisfactory. It was submitted that, had such evidence been available, it would have cast a doubt on the reliability of his alleged admissions and the weight to be given to them. In addition, they would have generally established he was a more reliable witness and, it was argued, have helped to support his denial.
The Court of Criminal Appeal heard that gardaí in evidence (given in the absence of the jury) had said they did not consider the man was under the influence of alcohol and would not have interviewed him were that the case.
The court was also told that while the prosecution had not made available the man's blood sample to the trial, neither had the defence sought that sample at the time.
At the request of the man's present solicitors, the blood sample had since been analysed and a report relating to the sample had been compiled by the forensic science laboratory. Mr Gageby said the sample showed the man had drink taken and that it was in his system at arrest.
He said no evidence was yet available as to whether the sample may have diminished given that it was analysed years after it was taken.
In his submissions, Mr Gerard Clarke SC, for the DPP, said the analysis of the sample did not indicate any excessive amount of drink was taken.
Giving the court's decision, Mr Justice Geoghegan, presiding, sitting with Mr Justice Peart and Mr Justice O'Leary, said the court was prepared to accept the forensic laboratory report as additional evidence and, in light of that report, it considered a serious situation had arisen.
He said the report contained evidence which was admissible and credible. While this evidence could theoretically have been available at trial, no evidence regarding any testing of the blood sample was given at the trial.
This was in a situation where the gardaí had said that not only had they seen no sign of drink taken when they interviewed the man, they said they would not have dreamed of taking any statement from him if they considered he had drink taken. The accused disputed that evidence and that affected the credibility of everything else in the case.
In those circumstances, the court was satisfied the conviction was unsafe as it stood and that the proper way of dealing with the matter was to direct a new trial.
