The Court of Appeal has allowed an appeal by J. C. and granted leave to seek judicial review over the prosecution of two disputed indecent assault counts. It did not rule on whether those counts should proceed or order the prosecution stopped.
The appeal concerned a High Court decision refusing leave to challenge the Director of Public Prosecutions’ decision to prosecute J. C. on counts 2 and 3 of an indictment in Dublin Circuit Court. J. C. admitted one indecent assault count, relating to an incident in 1972, but denied the two other alleged assaults against his sister, identified in the judgment as E. C.
J. C. argued that gaps and delays in disclosure, the passage of more than 40 years, and the unavailability of witnesses and records impaired his ability to defend himself fairly. His case included claims about earlier allegations attributed to E. C. and her reported psychiatric and medical history. Those matters are described in the judgment as the appellant’s contentions; the Court of Appeal did not determine their truth.
The High Court had refused leave after concluding that trial procedures, including cross-examination and submissions to the trial judge and jury, could address the claimed prejudice. It also described the application as resting on hearsay in the solicitor’s affidavit.
The Court of Appeal held that the High Court had, in effect, decided the substantive judicial review application rather than the preliminary question of whether leave should be granted. At the leave stage, the applicant’s burden was light: the court had to consider whether the sworn material, if proved, could support a stateable ground and an arguable case.
The appeal court also rejected the view that the solicitor’s affidavit was hearsay. Although it did not strictly follow the prescribed form, the court said that alone should not prevent the application from proceeding in the circumstances. The affidavit set out the factual basis for the grounds and was made on J. C.’s instructions, with his knowledge and consent.
The court concluded that the grounds met the threshold for leave and said the original grounds were sufficient, regardless of later additions. It therefore allowed the appeal. The judgment grants permission to bring judicial review proceedings; it does not decide the ultimate challenge to the prosecution or the requested relief.