The High Court has dismissed an application to prohibit the prosecution of M.L. over alleged sexual assaults against a boy who worked on his farm, ruling that missing counselling records did not establish a real or serious risk of an unfair trial.
In a judgment delivered on 13 November 2015, Mr Justice Noonan said the applicant had not shown a real possibility that the unavailable records would benefit his defence. The court also held he lacked standing to seek a declaration about the absence of a legal mechanism for obtaining disclosure from third parties outside the State.
The charges concern alleged assaults between June 1988 and August 1991, when the complainant was aged 11 to 15. He first complained to gardaí in 2008. The allegations have not been determined at trial.
The complainant attended an anonymous counselling service in 1992, but the service did not keep session records. From 2001, he attended a psychotherapist in London for about two years. The therapist, now living in Norway, provided two reports to the investigating garda in 2013, but said he had destroyed his session notes. Further efforts to obtain information were unsuccessful, and the prosecution did not intend to call him as a witness.
The complainant also received psychiatric treatment in Abu Dhabi in 2008. The psychiatrist supplied a short report but did not respond to later requests for documents. A psychotherapist to whom the complainant was referred had retired and died in 2012; no documents were available from that source. Neither practitioner was to be called by the prosecution.
For the applicant, counsel argued that the absence of records left the defence unable to test the complainant’s credibility and made a fair trial impossible. The Director of Public Prosecutions submitted that the possibility of inconsistencies in unavailable records was speculative, and that the prosecution had disclosed everything within its power, possession or procurement. The Attorney General argued that the applicant could not obtain documents from parties outside the court’s jurisdiction and had not first pursued a request through the trial court under mutual-assistance procedures.
Justice Noonan said the applicant had to establish a real possibility that the missing material would assist the defence; a theoretical possibility was insufficient. He noted that the reports provided were consistent with the allegations and considered it more likely than not that the underlying notes would be unhelpful to the applicant. Any issue about trial fairness could be addressed by the trial judge through appropriate rulings and directions.
The court refused prohibition, concluding there was nothing exceptional about the case warranting intervention before trial. It also declined the requested declaration on standing grounds and dismissed the application. The ruling did not decide the criminal charges.