A PART-TIME postman from Mullingar who raped and sexually assaulted a woman in her isolated rural home over an 11-year period in the 1980s and 1990s has lost, by a three to two majority, his Supreme Court appeal against conviction.
In Dublin on Wednesday, two senior judges dissented in the ruling, which dealt with the legality of a blood sample taken from the defendant.
The offences occurred when Michael Boyce (48 ), a postman and married man, of Rathconrath, Mullingar, Co Westmeath, broke into the woman’s home a number of times and assaulted her in the dark.
The woman, now 80, was aged from 55 to 66 at the time of the assaults, from 1983 to 1994.
Mr Boyce was convicted and jailed for eight years at the Central Criminal Court in 2001 of raping the woman at her home in 1989 and was convicted of attempted rape, indecent assault and sexual assault on her from 1983 to 1994.
The main evidence was DNA evidence from a blood sample obtained voluntarily from him while in custody in a Garda station.
The Court of Criminal Appeal later granted his application to refer the case to the Supreme Court to determine whether gardaí were entitled to use the common law, and not invoke the Criminal Justice (Forensic Evidence ) Act 1990, to take a blood sample from him while in custody.
Ms Justice Susan Denham, Ms Justice Fidelma Macken and Mr Justice Joseph Finnegan all ruled on Wednesday that gardaí had acted lawfully in the case where Boyce had voluntarily agreed to provide a blood sample, without the invocation of section 2 of the 1990 Act.
Mr Justice Hugh Geoghegan and Mr Justice Nial Fennelly disagreed. The effect of the majority decision is that Boyce’s conviction was upheld.
In her judgment, Ms Justice Denham said that because Boyce had consented to give the sample, the issue was what law was applicable, plus the effect of the 1990 Act on the common law.
She said there was nothing in the 1990 Act which explicitly stated that only that Act should apply to persons in custody or in jail. The 1990 Act also expressly stated the powers conferred under section 2 of that Act were “without prejudice” to any other powers exercisable by a garda.
She held the Oireachtas did not intend to exclude the common law when it passed the 1990 Act and that the common law may also be applied to a person detained or in prison. There was no express mandatory application of the scheme for taking samples under the 1990 Act to all persons detained in the manner referred to in the Act.
The 1990 Act provided a scheme existing in tandem with the common law and it was open to the Garda to use the common law in this case.
In his dissenting judgment, Mr Justice Fennelly said gardaí could not escape the obligation to follow the provisions of the 1990 Act by exercising a common law power over a person in custody.
The key fact was that the person from whom the sample was taken was in custody, he said. The 1990 Act dealt only with persons in custody under various statutory provisions, including section 4 of the 1984 Criminal Justice Act. As Boyce was in custody under that provision, gardaí were obliged to follow statutory procedures and their failure to do so contravened the Act.
