The jury in the trial of a County Donegal couple facing a raft of child cruelty, child exploitation and child sexual assault charges was discharged this week.
Issues of disclosure over files that are in the possession of Tusla, the child and family agency, were raised.
In legal terms, disclosure refers to the obligation of each party to disclose all documents and other material relevant to the case going to court.
It was claimed, after the prosecution’s case was closed, that there had been allegations made relating to foster carers which were included among a batch of files not disclosed.
Neither the accused nor the location of the alleged offences can be reported in order to protect the identity of the children involved in the case.
The pair faced a combined 23 charges in a case heard before Judge Jonathan Dunphy at a special sitting of Letterkenny Circuit Court.
The trial began on January 23 and was into its fourth week when the jury was discharged this week. On the tenth day of its sitting, Judge Dunphy formally discharged the jury on Tuesday afternoon.
Before discharging the jury from duty, Judge Dunphy told legal practitioners: “What is about to happen cannot happen in the future.”
Judge Dunphy told the jury that a point was raised that could not be overcome ‘in a sufficient time frame’.
“Issues of disclosure came to light at a very late stage and they must be resolved,” he told jurors.
He reminded the jury members that a further trial in front of a jury may take place in the matter and that breaching the absolute confidentiality of the in-camera rule would be a criminal offence.
The Judge said he was presented with a ‘regrettable scenario’ where an issue was brought to his attention after the prosecution closed its case. Certain files were in the possession of either Tusla or other parties, which he said could have been ‘highly relevant’ to the case.
“It now appears to go further in the possibility that they could lead to further information or queries that could go to the heart of the case, not least to the credibility of witnesses,” Judge Dunphy said.
The Judge called the timing of the matter being raised as ‘deplorable’ as the trial was in week four and involved such a young complainant.
The female accused was represented by Mr Bernard Madden SC with Patricia McCallum BL and the male accused by Mr Barry White SC with Mr Ciaran Elders BL. The respective instructing solicitors in the defence were Ms Catherine Bonner and Mr Frank Dorrian.
The State was represented by Patricia McLaughlin SC with Donal Keane BL, instructed by the State Solicitor for Donegal, Mr Kieran Dillon
No forensic evidence was offered in the case.
Mr Elders said that a Child and Family Agency (CFA) case in 2023 made discovery of some 20,000 pages and, while this case was a different disclosure, there was ‘some overlap’ between the two.
“One is an inquiry and one is a criminal prosecution,” he said before pointing out a suggested difference in comments made by one of the witnesses in respect of both cases.
Ms McLaughlin told Judge Dunphy that there had been difficulty in ‘getting over GDPR issues’ on foster care files.
Ms McCallum said that only one part of the various files was shared with the defence. She said an issue arose when the defence team was discussing complaints regarding one of the witnesses.
“It is a matter of concern where witnesses have given evidence and this was not among the material disclosed nor available to us to cross-examine,” Mr Madden said.
Mr White asked the Judge to ‘pull the stumps’ on the hearing.
“Other matters were in the knowledge of Tusla. Clearly, there are files that have not been disclosed,” Mr White said. “Whether that is a misunderstanding of Tusla about the nature of a warrant or what, but what is sauce for the goose is sauce for the gander. The State should have realised that there was material missing.”
Mr White said it was ‘regrettable’ that an application was being made to discharge the jury, but said it was to ’ensure a fair trial for both’.
Ms McLaughlin said that 17 files were handed to the defence, including 11 volumes from Tusla.
Last week, Mr Madden told Judge Dunphy that a warrant was served on Tusla in May 2019 ‘to search a place and any persons found in that place and to seize anything found in that place or anything found on a person in that place’.
He said that there were a total of 28 files – 14 for each of the two children in the case. “We have one of them,” he said, adding that suggestions of complaints about foster parents ‘brings into question the credibility of those witnesses’.
Mr Madden said: “It is the fact that all of these other files are in existence and haven’t been produced and disclosed and they would be of great relevance to the defence and would go a long way in ensuring fairness of procedures in the accused getting a fair trial.
“This particular failure is of significance and not one that can be remedied.”
While a detective garda investigating the case said that no complaints were made to gardaí about any of the witnesses, it was noted by counsel that issues could have been raised with social workers.
Judge Dunphy, who said that ‘it is bordering on ridiculous’ that this matter was not case managed, directed that the matter be put into the ‘earliest available’ date.
The accused pair were remanded on bail on the same terms and conditions.