The High Court has refused an application to prohibit the trial of an anonymised applicant charged with having sexual intercourse with a mentally impaired person, finding culpable delay by the prosecution but no established prejudice sufficient to stop the case proceeding.
In a judgment delivered on 11 April 2008, Mr Justice Hanna said about 14 and a half months passed between the applicant’s arrest and formal charge. He found that charging delay excessive and said it contributed to a period of culpable delay. Court-list congestion and proceedings brought by a co-accused also contributed to the overall timeline, the judge said.
The alleged offence was said to have occurred on or about 1 July 2001 in Thomastown, Co Kilkenny, while the applicant and co-accused were visiting a funfair or carnival. The applicant was arrested the following day, interviewed and gave a statement admitting sexual intercourse with the alleged victim. The judge stressed that he was making no assumption about what might have happened at trial, including whether the applicant would have sought to withdraw that statement.
The case had been sent forward for trial in the Circuit Criminal Court in Kilkenny. Two attempted trials were aborted: one in March 2006 after irrelevant and potentially prejudicial material was introduced, and another in May 2007 after potentially prejudicial material was found in a booklet given to the jury. The judge accepted that these were mishaps and did not attribute them to deliberate conduct by the prosecution or defence. He noted that the jury’s discovery that a juror knew a party’s family was not the reason for the second trial’s termination.
The applicant argued that delay and resulting stress and anxiety put a fair trial at risk. The court was not satisfied that the evidence showed distress beyond what would ordinarily be expected of someone facing a serious criminal charge. It also rejected the claim that repeated court appearances in Kilkenny made a fair trial impossible, saying it would be for the trial judge to manage any local familiarity or notoriety.
The judge distinguished a case relied on by the applicant in which two trials had proceeded to juries. Here, he said, there had been no completed trial and the public’s right to prosecute had not yet been vindicated. Applying the required balance between that public interest and the applicant’s right to a fair and timely trial, he dismissed the judicial review application and refused to prohibit the trial. He did not determine the applicant’s guilt or innocence.