The Court of Appeal has refused to prohibit a criminal trial over 18 alleged indecent assaults said to have occurred in 1984 and 1985, when the accused was aged 14 or 15 and the complainant was a young child. The court said questions about delay and related evidence were best left to the trial judge.
The appeal challenged an August 2021 High Court decision refusing to stop the trial in the Dublin Circuit Criminal Court. The accused argued that prosecutorial delay and missing evidence created a risk of an unfair trial. The Director of Public Prosecutions said the relevant starting point for assessing delay was the complainant’s formal Garda complaint in June 2016.
The accused argued that records from a 1985 case conference supported an inference that Gardaí had been told about allegations concerning this complainant at that time. The Court of Appeal agreed with the High Court that the records did not establish that on the balance of probabilities. They described Garda contact in detail in relation to another child, but gave less detail about this complainant. The appeal judgment said the evidence did not justify inferring that Gardaí had been involved in both matters.
The appeal court also considered video recordings of interviews with the complainant when she was about four or five. The recordings were no longer available, and the judgment said it was unclear whether they had been lost, misplaced or destroyed. The court considered their absence less significant in the circumstances, while recognising that the trial judge could assess its effect alongside the other evidence.
The accused made substantial admissions in a Garda interview in September 2018. He has said their admissibility will be challenged at trial, but has not resiled from what he said. The appeal court treated the admissions as significant while emphasising that the admissibility issue remained open for trial.
The judgment also noted that allegations had emerged close to the time of the alleged events, and that the accused’s family and psychiatric services had been involved in the aftermath. It said these circumstances could leave him better placed to respond than someone confronted with allegations first made many years later.
The court said the accused had not established a real risk of an unfair trial warranting intervention by judicial review. It acknowledged the argument that prosecution after so long could be harsh or oppressive, but said the seriousness of the alleged offending also had to be weighed. The court dismissed the substantive appeal and left the delay and related issues to the trial judge.
The Director’s cross-appeal challenged the High Court’s finding that the judicial review application was within the three-month time limit. The Court of Appeal dismissed that cross-appeal too, concluding that the High Court was entitled to find that disclosure received in June 2020 had materially strengthened the delay argument.