The High Court has rejected W’s application to stop a prosecution over alleged sexual offences said to have occurred between 1980 and 1982, finding that delays did not establish a real and serious risk of an unfair trial.
In a judgment delivered on 14 April 2005, Mrs Justice Macken considered W’s challenge to delays before and after the complainant made a formal complaint, as well as complaints about multiple documents returning W for trial. The complainant was 12 or 13 at the time of the alleged offences. The allegations remain allegations; the court was considering whether the prosecution could proceed, not deciding guilt.
The court accepted affidavit evidence from the complainant and a psychologist that the effects of the alleged abuse explained why the complaint was delayed. Neither was cross-examined. Macken J also found that the complainant’s 1985 conversation with a Garda, a family friend, did not amount to a failure to complain at the first available opportunity: the complainant was then about 17, receiving psychiatric treatment, and was not psychologically able to make a formal complaint.
The complainant first attended Gardaí in August 1998. The investigation included further statements, visits to locations in Counties Galway and Mayo, and responses to queries from the Director of Public Prosecutions. W was arrested in January 1999 and charged in October 2001. The judge was not satisfied that W had shown the investigation was unreasonably lengthy or that the post-complaint period breached the right to an expeditious trial.
W argued that the passage of time impaired an alibi defence because the allegations covered about 400 days and several locations. The judge held that this did not establish actual prejudice: the dates and locations would have posed similar difficulties even if the complaint had been made earlier, and a trial judge could direct the jury about missing information. The long lapse of time alone did not establish presumed prejudice.
Macken J therefore rejected the judicial review application insofar as it sought relief based on delay, including an order prohibiting further prosecution steps. She did not finally determine the separate challenge to the trial returns. A prior order required the original returns to be sent to the High Court to be quashed, but the court had no evidence about service of that order or steps taken to enforce it. The judge said the parties should address whether multiple sets of returns remained, and adjourned that issue for a date to be fixed if it could not be resolved by agreement.