A man has had charges of sexually assaulting a schoolgirl 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, 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 31st, 2018, between St Stephens Green and Cowper Luas stops.
On Monday Diana Stuart, prosecuting, told the jury that there was no evidence to offer against the man and there would be no prosecution.
Judge Pauline Codd discharged him from the indictment after telling the jury that following "certain rulings" made by her there would be no prosecution in the case.
Earlier this morning, the judge ruled that the informal identification at a Luas stop by the teenager, in the presence of investigating gardaí, should be excluded. She said she had considered evidence that had been given in the absence of the jury, along with submissions made by both the prosecution and the defence.
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.
The judge said it was clear from the teenager’s evidence that it was “not a fleeting glance case” and that he had been in the same carriage as her for four stops.
The judge said that gardaí had nominated the accused as a suspect following several days’ surveillance after spotting a man matching the girl’s description.
The judge noted that investigating gardaíbrought the teenager to a particular Luas stop for several days to see if she could identify her attacker getting off the tram.An identification was made 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. “I saw his face. It was the same person,” she told the hearing.
However, the judge ruled there were several 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.
The judge also said gardaíaccompanying 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.
Surveillance operation
The judge 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.
The judge noted that the law requires the optimum method of identification is a formal 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 a 16-year-old at the time and 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 it should have been postponed until “safeguards such as foils and a neutral independent garda could be in place”.
The judge said there was “a complete lack of safeguards in the identification” and the “proper course is to exclude” it from the case.