AN ORIGINAL GARDA investigation file into complaints of rape made 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 who is suing the Minister for Justice, Ireland, the Attorney General the Director of Public Prosecutions and the Garda Commissioner for damages for an 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. She also claims her constitutional rights to bodily integrity were breached.

The claims are denied.



History

The action has a long legal history returned before the court when Ms Justice Mary Faherty directed the state defendants to provide the woman’s legal team with all files and documents relating to the investigation and prosecution of the alleged assailant.

The Judge said she was putting a temporal limit on her order.

The Judge directed that all relevant documents held by the defendants relating to the prosecution and investigation up until April 2004, when the man’s prosecution was halted by the High Court, be given to the woman’s lawyers over the next six weeks.

Seeking the discovery of the materials David Fennelly Bl for the woman said the material sought was “relevant and necessary” so she can properly advance her claim.

Counsel said his side were also concerned after they had recently been informed by the state that the original Garda investigation file could not be located. It had been put into storage in 2006 but could not be located.

Counsel said this was the second time the file had gone missing since his client first made a complaint back in 1990. “To quote Oscar Wilde to lose the file once may be regarded as a misfortune; to lose it a second time looks like carelessness,” counsel said.

The application for discovery was opposed by the State.



Background

Outlining the background of the action Mr Fennelly said his client and her mother made a formal complaint of rape and gave statements to gardai in 1990.

The woman’s complaint was validated at a child sex abuse assessment unit at a Dublin hospital.

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

In1997, English police interviewed the alleged perpetrator who later consented to be extradited back 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. The accused man 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.



Delay

Counsel said the delay in the matter was due to the deaths of two Gardai 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 the prohibition of the trial and she was diagnosed with post-traumatic stress disorder. She was in fear of running into her attacker counsel added.

Her damages action also had a long procedural history, counsel said.

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

That was because 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.

However the ruling was set aside and referred back to the High Court following an appeal to the Supreme Court in 2015 ruled preliminary issue of law in the action as to whether a duty of care arose against the Garda and State

That court said in seeking to address important points of law in the context of limited information and material would be dangerous and wrong. The woman the Supreme court said should be allowed to bring her case to trial before the High Court.