A JUDGE'S decision directing a jury to-enter a "not guilty" verdict in the case of a man charged with sexual assault where there was no trial was challenged by the Director of Public Prosecutions (DPP) in the High Court yesterday. Miss Justice Laffoy reserved judgment.
Ms Adrienne Egan, counsel for the DPP said there had been no trial and, therefore, there could be no acquittal. The man walked free from the Dublin Circuit Criminal Court in December 1994 after Judge Cyril Kelly was told a doctor who examined the alleged victim refused to return from abroad to give evidence. A warrant had been issued for the doctor's attendance.
The doctor had sought guarantees that his year's wages would be paid by the State if he lost his job by taking time off.
Judge Kelly had directed the jury to enter a not guilty verdict. He said he was sorry for the young woman but the accused man could be prejudiced if the trial proceeded without the chance to cross examine Dr Brian McCarthy, formerly of the Meath Hospital, Dublin.
Judge Kelly had said the trial shad been due to proceed four times but it was now quite, clear Dr McCarthy had no intention of returning from his new job, in Canada.
The 23 year old accused man had pleaded not guilty to sexually assaulting the then 16 year old girl in Dublin on July 12th, 1992. He also denied breaking her arm.
After the jury entered the not guilty verdicts on both counts, Judge Kelly told the man he was free to go. No evidence was heard.
Yesterday Mr Aindrias O Caoimh SC applied on behalf of the DPP for an order quashing Judge Kelly's decision to acquit the man and asking, that the matter be sent back to the Circuit Criminal Court.
Mr O Caoimh submitted that Judge Kelly was not entitled to direct an acquittal. He could have done so having heard evidence and deciding it did not support the charge.
The State had indicated the last time the case was to be lizard that it was prepared to go on without the doctor, but the accused, man's lawyers claimed he was an important witness.
All reasonable efforts had been made by the prosecution to get the doctor to attend. He was not amenable loan order of the Irish courts, although a bench warrant had been issued for his attendance.
Mr Brendan Grogan SC, for, Judge Kelly, said there had been a real risk that the accused, man would not get a fair trial if it proceed ed without Dr McCarthy. It was clear everybody involved in the trial considered the doctor an important witness.