The Irish Times - Saturday, July 31, 1999
Sir, - Carol Coulter touched on a number of important points concerning the conduct of the child rape case against Nora Wall and Paul McCabe ("Disturbing Questions Raised ...", The Irish Times, July 28th).
However, there are other issues in relation to this case which need to be publicly addressed and explained in the interests of justice being seen to be done:
1. Counsel for the DPP told the Court of Criminal Appeal on July 27th that the main reason he was applying to have the convictions quashed was because, "through inadvertence", a witness had been called by the prosecution in the trial whom the DPP had already decided should not give evidence. Why did the DPP decide that this witness should not be called? Who decided to call the witness despite the DPP's decision to the contrary?
2. It is the general assumption, not publicly contested, that the person concerned was the only corroborating witness in the trial. This person claimed to have seen the rape. In his summing-up Judge Carney warned the trial jury that it would be dangerous to convict on the uncorroborated evidence of an injured party. Was not the corroborating evidence given by the witness called by the prosecution against the instructions of the DPP crucial to securing a conviction? Without it, what supporting evidence was there, apart from the contested confession statement of Paul McCabe?
3. How did it escape the notice of the DPP's office around the time of the trial in June that this crucial witness had given evidence against the instructions of the DPP? Presumably, the DPP had a representative in court, apart from counsel. Did nobody at the DPP's office read the papers during and after the trial and wonder who this witness could possibly be?
4. During the sentence hearing on July 23rd, counsel for Nora Wall submitted that there was a "potential miscarriage of justice" in a failure by the prosecution to disclose
(a) potentially significant evidence about this witness and
(b) that the complainant in the case had alleged that she had been raped in London.
Nora Wall's counsel applied for an adjournment of sentencing, or at least a stay until the following week on any sentence imposed, because the Court of Criminal Appeal would be sitting and could consider the issues raised. In this way his client "might not suffer imprisonment unduly or unfairly". However, the prosecution rejected claims of non-disclosure, saying that the Garda had had no knowledge of these matters during its investigation and, in any case, they were not relevant. It "strenuously opposed" the defence application. The judge then went on to sentence Nora Wall to life imprisonment and Paul McCabe to 12 years, saying as he did so that, on the facts of the case, he could find nothing in favour of either accused. He refused leave to appeal.
What happened next was truly astonishing. In the Court of Criminal Appeal only four days later the prosecution conceded that
(a) there had been non-disclosure of information regarding the witness (i.e., that the DPP had decided the person should not be called);
(b) whatever the significance of the victim's allegation that she had been raped in London, it could not be argued that this information was not relevant;
(c) there was another matter concerning the complainant, which he did not reveal in court, of which the defence had not been made aware. On the basis of these facts the DPP applied to have the convictions quashed. The court did so without delay.
In view of all this, it has to be asked why the prosecution did not take the prudent course of supporting the application for a delay in sentencing because important issues touching on the safety of the convictions had been raised and needed to be clarified urgently. At the very least could they not have requested a pause in the proceedings to take instructions from the DPP, when the matters the prosecution were eventually to disclose in the Court of Criminal Appeal might well have come to light?
Is not the consequence of doing neither of those things that Nora Wall and Paul McCabe were sent to jail for a very grievous offence? Additionally, Nora Wall in particular had to suffer the humiliation of the most extensive media coverage, not only concerning the case itself, but about other unrelated matters, including a most lurid and totally uncorroborated allegation headlined in your own edition of July 24th. -
Dun Laoghaire, Co Dublin.
Irish Times, July 28, 1999 by Carol Coulter
When the prosecuting barrister in the case against Ms Nora Wall and Mr Paul McCabe rose to his feet in the Court of Criminal Appeal yesterday he announced that the Director of Public Prosecutions was not opposing leave to appeal or to appeal against their convictions. If the court so desired, it could direct a retrial, Mr Denis Vaughan Buckley said.
Mr Vaughan Buckley gave as the main reasons for this concession from the DPP the fact that, "through inadvertence", a witness had been called who the DPP had already decided should not be called, and the defence had not been made aware of the DPP's earlier decision. He said that the DPP had not been aware of other problems raised by the defence until they were mentioned in court last Friday.
Because the DPP was conceding the appeal, there was no need, therefore, for the defence lawyers to go into the reasons for seeking it. But they had given an outline of these reasons when sentence was imposed last Friday, and affidavits had been prepared for yesterday's hearing. The reasons alluded to on Friday, and the progress of the trial, raise disturbing questions.
Mr Paul McCabe, a homeless man, was arrested in October 1990 and charged with the rape of a girl in St Michael's Child Care Centre, Co Waterford, in 1990, when the girl was 12. Ms Nora Wall, formerly Sister Dominic, who had been in charge of the centre, was also charged.
Mr McCabe was questioned and made three statements in which he admitted the offence and also implicated Ms Wall. The case was due to begin in July 1998, but did not open until June 1999 because the alleged victim went to England for a time. Both accused denied the charges.
The conduct of the case will be discussed when the issue of a retrial comes up in November. If a retrial goes ahead, the evidence will again be put to a jury, and witnesses will be cross-examined on it.
The DPP has acknowledged that one witness was called who should not have been called. There was one corroborative witness, who gave evidence of seeing two instances of the alleged rapes, of interrupting them and comforting the alleged victim. However, the alleged victim gave no evidence of recalling her being there.
In his summing-up to the jury, Mr Justice Carney warned of the danger of convicting on the uncorroborated evidence of an injured party. The prosecution stated that corroboration against Ms Wall existed in two forms: the testimony of a witness and the statements of Mr Paul McCabe. It now appears that the DPP did not want this witness to give evidence.
The statements of Mr McCabe were also the subject of defence objections. Specifically, no notes were taken of the interviews and there was no record of the questions put to Mr McCabe.
Further, when arrested in 1996, Mr McCabe made three statements relating to one alleged rape, in 1990. Later another count of rape, which allegedly took place between the end of 1987 and January 1989, was added to the indictment. He was not questioned on this and made no statement.
The jury acquitted him and Ms Wall on the rape he had admitted in his confession (later contested), but convicted him on the earlier alleged rape, on which there was no confession.
When the two were sentenced last Friday, counsel for Ms Wall, Mr Hugh Hartnett SC, also raised a number of other issues which, he said, they had been unaware of and which were relevant. These included an interview the alleged victim and her friend, the corroborative witness, gave to the Star, in which the victim said she had been raped in England.
Mr Hartnett also drew attention to a victim impact report which referred to counselling she had received and periods she had spent in St Declan's Mental Hospital in Waterford in 1996, which had also not been disclosed. She had also said she had been abused and beaten by a boyfriend.
Counsel also said that the witness had made separate allegations against her father, her uncle and her brother, which had been the subject of a judicial review. He sought an adjournment for consideration of these matters, which was refused. Ms Wall was sentenced to life imprisonment and Mr McCabe to 12 years.