The Supreme Court has allowed the Director of Public Prosecutions’ appeal against a High Court order restraining the prosecution of a man accused of sexual offences against his two sisters. The Court held that he had not demonstrated that the delay created a real or serious risk of an unfair trial.
The High Court had restrained further prosecution on charges including rape and indecent assault. It found that the long period between the alleged offences and trial breached the right to an expeditious trial, and also identified an excessive and unexplained 11-month period in the prosecution process. It considered the deaths of the accused’s parents and changes to the family home relevant to possible prejudice.
The charges were brought in January 2002: 21 counts each of rape and indecent assault relating to one sister, and 39 counts each relating to the other. The alleged offences were said to have occurred on specific dates unknown, between December 1971 and May 1981. The sisters made formal complaints in July and September 1999. The accused was returned for trial to the Central Criminal Court in February 2002.
In its judgment, the Supreme Court said the right to an expeditious trial began when the complaints first came to gardaí, between July and September 1999, rather than when the alleged offences occurred. Applying the test stated in an earlier case, it said the question was whether delay caused prejudice giving rise to a real or serious risk of an unfair trial. The accused had to establish an unavoidable risk on the balance of probabilities.
The Court considered the missing witnesses and other claimed disadvantages. The mother had died before the complaints were made. The father, who knew of the allegations, declined to give gardaí a statement in November 1999 because he was too ill. The Court said there was considerable doubt that he could have assisted either side at trial. It also found that the accused had not shown how changes to the house layout caused additional prejudice, and noted that he did not appear to rely on missing medical notes as real prejudice.
The Court gave central weight to letters sent on the accused’s behalf in 1998. He had invited his sisters to complain to the authorities, saying this would put him in a position to defend the allegations and that he would vigorously defend any prosecution. The Court held that he was fixed with that stated position and had not provided new facts showing that his ability to defend himself had since changed. It said this conclusion did not determine his separate defamation claim.
The Supreme Court allowed the DPP’s appeal. The judgment does not itself decide the truth of the allegations or the accused’s guilt.