The Supreme Court has lifted a stay on four rape charges against D.H., ruling that the trial judge was not entitled in this case to stop proceedings until the prosecution further investigated earlier notes about the complainant’s uncertainty over whether penetration had occurred.
The appeal concerned a Central Criminal Court order made during a 2016 trial. The trial judge had found no prosecutorial delay and no proven prejudice from the passage of time. But, after reviewing Eastern Health Board records during a hearing on delay, she became concerned that notes from 1994 and 1995 recorded uncertainty about whether sexual intercourse had occurred. The complainant’s later Garda statement and trial evidence described penetration.
The trial judge stayed the four rape charges until the evidence from the complainant and social worker Ms. Convery about that earlier period had been evaluated. She did not direct a particular investigative step or retain control of the case. The judge declined to direct an acquittal, finding sufficient evidence for a jury to consider the charges. Two sexual assault charges were returned to the list for a new trial date.
In a judgment delivered by Ms. Justice O’Malley on 17 July 2018, the Supreme Court allowed the Director of Public Prosecutions’ appeal and ordered that the stay be lifted. It also held that the Director had a right to appeal the stay to the Court of Appeal, though a direct appeal to the Supreme Court could be possible if constitutional criteria were met.
The Court said a trial judge may stop a trial where necessary to prevent unfairness, and a permanent stay is justified only where the unfairness cannot be corrected through the trial process. It considered that a temporary or conditional stay should be used only when no other order is appropriate, given its effect on the Director’s ability to prosecute and both parties’ interest in a final verdict.
The Supreme Court found that the defence had received the relevant disclosure and that counsel had made a considered decision not to cross-examine the complainant on the earlier notes. The Court said the judge should have given greater weight to that decision and to the possibility that questioning could have brought other evidence before the jury that strengthened the prosecution case.
The Court concluded that the stay was unnecessary and inappropriate on these facts. It said the order had, in effect, directed prosecution authorities to conduct a further evaluation and restrained them from proceeding, intruding on the Director’s role in deciding whether to prosecute. The judgment said such an intervention might be required in very unusual circumstances, but the features of this trial did not warrant it.