The Court of Appeal has ruled that a prosecution for an alleged indecent assault said to have occurred almost four decades ago can proceed, dismissing N.B.'s appeal against the High Court's refusal to stop his trial.
N.B. is accused of indecently assaulting his nephew, D.N., in a bedroom at the complainant's family home on an unknown date in 1987 or 1988. The allegation is that N.B. forced the complainant, then a child, to perform oral sex. N.B. denies the allegation and has pleaded not guilty.
The complainant first raised the allegation with Tusla in 2016. He made a formal Garda complaint in December 2017. N.B. was interviewed by Gardaí in April 2019, a completed investigation file went to the Director of Public Prosecutions in February 2021, and he was charged in September 2021.
He sought to prohibit the trial, arguing that the passage of time had caused irreparable prejudice. Three family members who might, he said, have assisted his defence had died. He also relied on longstanding depression, anxiety and serious cardiac problems, together with evidence from a psychologist concerning a possible suicide risk.
Mr Justice Edwards, delivering the Court of Appeal judgment, found no error in the High Court's approach.
The court held that the three potential witnesses had died before the Garda complaint was made, so their absence was not caused by prosecutorial delay. The possible assistance of the complainant's father and uncle was speculative, while proposed evidence from his mother raised significant hearsay difficulties.
The court also upheld the High Court's preference for contemporaneous medical evidence from N.B.'s treating professionals over the later forensic psychological assessment. That material primarily linked his anxiety to serious physical-health concerns rather than the prosecution.
The appeal was dismissed. The criminal trial remains to be determined, and the trial judge retains responsibility for ensuring that N.B. receives a fair trial and for monitoring his health during proceedings.