Garda rape file goes missing for a second time, court told

An original Garda investigation file into complaints of rape by a woman more than 25 years ago has gone missing for the second time, the High Court has heard.

The material relates to a woman suing the Minister for Justice, Ireland, the Attorney General the Director of Public Prosecutions and Garda commissioner for damages over alleged failure to properly pursue a prosecution following her complaint.

The woman’s alleged rapist won his appeal against a 1998 conviction for rape and incest some years ago and later won a High Court order halting a re-trial on grounds of prosecutorial delay.

She claims the failure constituted negligence and breach of duty on the part of the Garda and State and her constitutional rights to bodily integrity were breached.

The claims are denied.

The action, which has a long legal history, returned before the court on Thursday when Ms Justice Mary Faherty directed the State defendants to, within six weeks, give the woman’s legal team all relevant documents held by them relating to the prosecution and investigation up until April 2004, when the man’s prosecution was halted by the High Court.

The defendants had opposed that discovery.

Investigation file

Earlier, David Fennelly BL for the woman said the material sought was “relevant and necessary” so she can properly advance her claim. His side was also concerned they had recently been informed by the State the original Garda investigation file, which was put into storage in 2006, could not be located.

This was the second time the file had gone missing since his client first made a complaint back in 1990, he said.

“To quote Oscar Wilde to lose a file the file once may be regarded as a misfortune; to lose it a second time looks like carelessness.”

Outlining the background, Mr Fennelly said his client and her mother made a formal complaint of rape and gave statements to gardaí in 1990. The woman’s complaint was validated at a child sex abuse assessment unit at a Dublin hospital.

No further steps were taken until September 1996 when the English Child Protection Agency contacted gardaí, having been alerted to the woman’s complaint by a social worker in Dublin who was contacted by the woman’s mother, counsel said.

In 1997, English police interviewed the alleged perpetrator who later consented to be extradited to Ireland. In 1998, he was convicted of rape, unlawful carnal knowledge, incest and indecent assault and jailed for nine years.

That conviction was overturned in 2001 and a re-trial ordered but he successfully brought judicial review proceedings to prevent a new trial on grounds of prosecutorial delay.

The judge who heard that review described as “extraordinary” that records were mislaid and there was no system to trace and date them, counsel said.

Deaths

Counsel said the delay was due to the deaths of two gardaí involved in the investigation and papers being lost somewhere. This was the first time the investigation file went missing. It was later located.

Counsel said the woman’s mental condition had considerably worsened after prohibition of the trial and she was diagnosed with post-traumatic stress disorder.

In a 2011 ruling on a preliminary point of law raised in the action, the High Court found gardaí and prosecuting authorities owe no duty of care under Irish law to individuals in carrying out their functions in investigation and prosecution of crime.

It would be contrary to the public interest to impose such a duty by reason of the inhibitory effect on the proper exercise of those functions, the High Court found.

That ruling was set aside and referred back to the High Court following an appeal to the Supreme Court in 2015 which said the woman should be allowed to bring her case to trial before the High Court.