The Supreme Court has upheld an injunction stopping the prosecution of B.J. on two charges of indecent assault and one charge of rape, finding that delay had caused a risk of unfair trial.
In a judgment delivered on 19 December 2003, the Court allowed B.J.’s cross-appeal against a High Court finding that a fair trial remained possible. It then dismissed the Director of Public Prosecutions’ appeal and affirmed the injunction restraining further steps in the prosecution. The Court said it was unnecessary to decide the grounds raised by the DPP.
The charges related to two alleged incidents in 1989. The first indecent assault charge concerned an alleged incident at B.J.’s house in September. The rape and second indecent assault charges arose from an alleged incident in a wood the following month. The complainant, identified in the judgment as H.McC., was 16 at the time. She first complained to gardaí in April 1998, and B.J. was charged in March 2000.
The High Court had found that the complainant was free from inhibiting forces from at least April or May 1995, leaving about three years of unexplained delay before her complaint. It also found the nearly two-year period between the complaint and charge excessive. Although the High Court rejected B.J.’s specific prejudice claims and said he could have a fair trial, it granted relief on the basis that the delay breached his right to a trial with reasonable expedition.
On the cross-appeal, the Supreme Court considered the effect of faded memories and lost evidence. It gave some weight to the loss of the vehicle used in the second alleged incident, saying an earlier trial might have allowed its locking system, or evidence about that model, to be checked. It agreed with the High Court that the complainant’s mother’s recollection of her daughter’s demeanour and the recollection of B.J.’s nine-year-old son did not establish prejudice.
The Court placed particular weight on evidence that a garda sergeant had told B.J. that he would hear nothing further about the matter after an early inquiry. The reason for that assurance could no longer be established because the memories of B.J. and the sergeant had faded. The Court said this left B.J. unable to pursue a potentially effective defence without substantial risk. It found he would suffer both that specific prejudice and the general prejudice caused by lengthy delay.
The judgment does not determine whether the allegations were true. Its effect was to leave in place the order preventing the prosecution from proceeding.