The Supreme Court dismissed an appeal by S.A. against a High Court decision refusing to stop his criminal prosecution over alleged sexual offences dating from 1961 to 1969. The court held that the prosecution could proceed, while leaving the trial judge responsible for ensuring that the long delay did not unfairly prejudice the defence.
S.A. is accused of eight counts of buggery, 63 counts of indecent assault and one count of attempted buggery. The allegations concern conduct said to have occurred while he was a Christian Brother working at the former Artane Industrial School. Earlier allegations relating to another person had been dropped before S.A. was returned for trial. The judgment does not determine whether any of the remaining charges are true.
The High Court had found that the overall delay was inordinate. It also found unreasonable delay by gardaí in progressing an investigation after a statement was taken from one complainant in January 1996. But it concluded that S.A. had identified no particular prejudice from that period and that it had not significantly increased the risk of an unfair trial. The Supreme Court was hearing S.A.’s appeal from the High Court’s refusal of relief.
Delivering the judgment, Mr Justice Hardiman rejected the Director of Public Prosecutions’ submission that courts should apply a “principle of parsimony” when asked to restrain a trial because of delay. He said the right to a fair trial is superior to the community’s interest in prosecution where there is a real risk of unfairness. An applicant need not prove that an unfair trial is certain or probable, he said.
The court considered the effect of S.A.’s interviews with gardaí. According to the judgment, he admitted conduct amounting to indecent assault involving two named boys and other boys he could not identify, while consistently denying buggery. The judgment also records no admission concerning the female complainant, whose allegation was said to concern a different location.
Mr Justice Hardiman treated the admissions as significant because they were undisputed. He concluded that, in light of them, the lapse of time did not require the prosecution to be prohibited. He expressly declined to decide what the outcome should be if the admissions were absent, disputed or not independently verified. The judgment says the trial judge must take great care to ensure S.A. is not unreasonably prejudiced at trial.