The High Court has prohibited the Director of Public Prosecutions from taking further steps in criminal proceedings against an anonymised applicant, finding a real risk that he could not receive a fair trial after an alleged child sexual abuse case was delayed for about 40 years.
In a judgment delivered on 1 February 2019, Mr Justice Garrett Simons said the alleged offences were said to have occurred between March 1976 and February 1979 in a family home shared by the applicant, the complainant and other relatives. The charges included one count of rape and a large number of indecent assaults. The allegations had not been determined at trial.
The applicant argued that four household members had died and could have given evidence relevant to whether the alleged abuse could have occurred without others noticing. He also said evidence from family members could have tested whether the complainant had disclosed abuse to them, and whether her sister had reported an alleged advance by the applicant. He further argued that the passage of time had made it difficult to obtain alibi evidence about his work at a public house.
The DPP relied on an affidavit from a Garda sergeant suggesting family members were often away from home. The judge noted that the sergeant conceded much of this material was hearsay and that the affidavit did not clearly distinguish direct knowledge from information supplied by the complainant. He did not resolve the wider question of how factual disputes should be addressed in judicial review proceedings, saying it was unnecessary on the evidence before him.
Justice Simons accepted that the deaths of the potential witnesses created a real risk of unfairness. He said their evidence could have helped a jury assess the household’s daily life, the likelihood that frequent alleged abuse went unnoticed, and whether the complainant might have confided in relatives. The lost evidence could also have been relevant to the sister’s allegation. The judge recognised that the witnesses might have given evidence helpful to the prosecution, but said their evidence could no longer be explored.
He also found a real risk of prejudice from the difficulty of establishing the applicant’s whereabouts at the times alleged, given the long delay and likely absence of records. In his view, jury warnings would not ensure a fair trial in the circumstances.
Separately, the court extended the time for bringing the judicial review application to 25 June 2018. It found good and sufficient reason for the roughly 14-day delay, which followed the applicant’s hospital treatment and surgery, and found no prejudice to the DPP. The judgment records that he had been returned for trial to the Central Criminal Court on 12 March 2018 and that a trial date had been set for February 2019.
The final order prohibited the DPP from taking any further steps in the criminal proceedings. The court did not determine the allegations at a criminal trial.