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.