THE CONVICTION OF a man for raping his then partner’s 15-year-old sister and sexually abusing another, in a trial where the jury were concerned that they had been photographed and part of the accused’s garda interviews were redacted, has been found to be unsafe by the Court of Appeal.
Lawyers for Stephen Lynch (33) had argued that the jury should have been discharged as there had been a perception of intimidation and this had prejudiced the jury against the appellant, in an application that was refused by the trial judge.
Jurors had complained to their jury minder that a person associated with the defence appeared to be taking photographs of them as they were in the car park outside the court, a concern which was relayed to trial judge Justice David Keane.
The Court of Appeal heard that gardaí retrieved a suspect phone but no photos were found, while the court also heard that a guard was later posted to the car park where the incident occurred.
Lynch with an address at Marian Place, Tullamore, Co Offaly, was convicted by a jury following a trial in May 2021 in the Central Criminal Court of one count of rape at his then address of Monksfield, Bealnamulla, Athlone, Co Roscommon, between 17 and 18 October, 2015.
The accused was alleged to have raped his then partner’s teenage sister after she came to see his new-born baby. In July 2021, the Central Criminal Court heard that around two months later, Lynch allegedly sexually assaulted another of his then partner’s younger sisters and was also alleged to have attacked this victim’s friend.
He was further convicted by the jury on counts of sexual assault and assault causing harm at the same address between 18 and 19 December, 2015.
Lynch had pleaded not guilty to all charges.
Eileen O’Leary SC, prosecuting, told the court that the victims wished to waive their anonymity and wanted Lynch to be named.
In delivering the Court of Appeal’s judgement today, Justice Isobel Kennedy said that the matter of the jury minder raising the concern about being photographed had caused the appeal court “disquiet”. She wrote that neither the judge nor the legal teams knew precisely what had occurred nor the impact on the jury.
“When the judge raised a question as to their potential concerns, an indication was given by the jury that the matter had been resolved, but real questions remained outstanding: first, what had actually occurred and second, how had it been resolved,” Kennedy said.
She said that when the foreperson indicated to the trial judge that the matter had been resolved, the court was of the view that further queries ought to have been raised. However, the trial proceeded without the judge or parties being informed as to how the matter had been resolved, the judge said.
“The real concern is that because no inquiry was made, everyone is left in the dark, including this court, requiring us to venture into the speculative realm. This is not desirable,” said the judge.
She added that while the deliberations of the jury were “sacrosanct”, what occurred was outside of the jury room and merited potential inquiry.
Justice Kennedy said that while the jury’s concern of being possibly photographed may have been insufficient to cast doubt on the fairness of the trial on its own, when viewed in conjunction with the “editing of the appellant’s interview”, the court had concerns as to the fairness of the trial.
In his interview, Lynch had claimed that the complainant felt she had been drugged by him but he maintained that his medication would have been too strong for her to be functioning properly in the morning, which he claimed she was.
This portion of his interview was redacted as the prosecution argued that it amounted to “expert opinion”, which Lynch was not qualified to give.
“It is clear the excluded portion amounted to a central plank of the appellant’s case,” said Kennedy.
The judge said the answer given by the appellant was not “opinion in the real sense”, adding that this was “an individual offering his own experience of how one might feel or appear in the aftermath of taking the medication”.
The judge said that, while the jury issue and the edited memorandum each gave cause for concern, taken individually they would not be sufficient to render the conviction unsafe.
“However, when considered together, and while it is a finely balanced case, given that we have an element of disquiet as to the safety of the conviction, we will quash the conviction and order a retrial,” Kennedy said.
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