The High Court has prohibited the prosecution of an 84-year-old man charged with historic sexual offences against his niece, finding that the loss of two central witnesses created a real and serious risk that he could not receive a fair trial.
In a judgment delivered on 18 August 2009, Mr Justice Hedigan granted relief in the man’s judicial review proceedings. The order prohibits the continuance of the prosecution. The court did not determine whether the alleged offences occurred.
The charges concerned alleged offences between 1973 and 1978. They comprised 25 counts of indecent assault, a further count of indecent assault, one count of attempted rape and four counts of rape. The man denied the allegations.
The complainant first disclosed the alleged abuse to a counsellor in January 1999 and told relatives later that year. She made a formal complaint to gardaí in February 2005. The man was arrested and charged in May 2007. He sought to stop the prosecution, arguing that the passage of time had caused unavoidable prejudice to his defence.
The applicant pointed to the deaths of relatives who had lived in the house where most of the alleged offences were said to have occurred, as well as two men who had worked in a garage behind it. The judge found that the applicant’s mother and two sisters had been present in the house during the relevant period and that there was some evidence they might have supported his account. In particular, evidence before the court from both sides indicated that the two sisters had denied the abuse alleged. Both had died before the formal complaint.
The judge rejected the prosecution’s submission that the defence could be presented by other means or protected through warnings and directions from the trial judge. The applicant’s surviving nephew had been a very young child at the time and was unlikely to replace the lost evidence, the judgment said.
The court considered the delay before the complaint and the period of about 27 months between the complaint and the applicant’s arrest. It found that the latter period, by itself, did not justify stopping the prosecution. But the judge concluded that the loss of the sisters’ evidence had irretrievably damaged the defence, and that the combined effect of the delay, the man’s age and his health confirmed that a fair trial was no longer possible.
The order was made in judicial review proceedings. It barred the prosecution from continuing; it was not a determination of the criminal charges.