The High Court has refused an applicant’s request to prohibit a prosecution on one count of sexual assault alleged to have occurred between 1 January 1992 and 31 December 1993. The court said the claimed prejudice from the death of a potential defence witness was not established on the material before it and could be assessed by the trial judge in the context of the evidence.
The applicant, identified in the judgment as R.B., had been granted leave in March 2017 to seek prohibition. The complainant alleges that, when aged about eight or nine, he stayed overnight in a mobile home where the applicant and his family were living. He alleges that he awoke to find the applicant touching his genitalia and using his hand to touch the applicant’s genitalia. These are allegations set out in the judgment, not findings made in this judicial review.
The applicant argued that there had been a delay of about 20 to 22 years before the complaint, delay by Gardaí in investigating and charging him, the loss of his mother as a possible defence witness, and his psychological illness. The judgment records that the applicant’s mother died in November 2015. The applicant had been informed of the allegations in a Garda interview in September 2014, but there was no evidence that he discussed them with his mother or that she could materially assist his defence.
Mr Justice Coffey said a theoretical possibility that an unavailable witness might have helped the defence was insufficient to prohibit the prosecution. He also concluded that any prejudice should generally be assessed by the trial judge in light of the evidence actually presented. The judgment noted that the admissibility of alleged complaint evidence remained to be argued and that other witnesses were available, including at least two whose proposed evidence supported the applicant’s contention that he had not slept on the couch where the alleged assault took place.
The court said the applicant could ask the trial judge to withdraw the case from the jury if prejudice emerged from the sworn evidence. If the case went to the jury, the judge would be required to give a warning about the passage of time and any resulting difficulties, including alibi issues.
The court also found that the psychological illness did not justify relief at this stage: there was no medical evidence linking its existence or severity to culpable delay, and it did not prevent the applicant from pleading. The High Court refused the reliefs sought. The judgment did not decide the applicant’s guilt or the truth of the allegations.