The High Court barred the Director of Public Prosecutions from proceeding with charges relating to complaints by C.D.’s nephew, J.D., but declined to stop prosecution of charges arising from complaints by his niece, P.D.
In a judicial review judgment delivered on 9 March 2005, O’Sullivan J. considered whether delays between the alleged offences and formal complaints meant the accused could not receive a fair trial. The judgment records that P.D.’s allegations concerned events between June 1971 and December 1981, when she was aged approximately four to fourteen. J.D.’s allegations concerned events between January 1963 and December 1967, when he was approximately six and a half to ten and a half.
P.D. reported to gardaí in March 2001, about 20 years after the latest alleged offence. J.D. reported in July 2001, more than 34 years after the latest alleged offence. The accused was charged in September and November 2002. He sought to stop the prosecutions on delay grounds, but identified no specific prejudice, such as a lost witness or missing documents.
The judge considered statements the accused had made after being cautioned. He had not indicated that he would contest them. The judgment says the statement relating to P.D.’s complaints demonstrated an ability to recall and deal with events from the relevant period. It also records that the statement relating to J.D. appeared to refer to more incidents than the single indecent-assault complaint, and that counsel for the accused questioned its reliability.
The court concluded that the delay relating to J.D.’s complaints was so long that it gave rise to a presumption that the accused’s ability to defend himself had been compromised. The statement did not displace that presumption; the judge considered the indication of confusion or lack of clarity sufficient to revive it. The court therefore ordered that the prosecution could not proceed on charges referring to J.D.
For P.D.’s complaints, the judge also considered the delay sufficient to raise a presumption of prejudice. But he found it displaced by the accused’s demonstrated ability, in his statement, to recall and address the events alleged. The judge stressed that he was not deciding whether the allegations or the statement’s contents were true. He declined to prohibit further prosecution of those complaints, finding he was not satisfied that the accused was likely to be unable to obtain a fair trial. The judgment also notes that a third complainant living in Australia did not wish to proceed and that a nolle prosequi would be entered in respect of those charges.