The Supreme Court dismissed the Director of Public Prosecutions’ appeal against an order prohibiting a trial on three counts of gross indecency alleged to have occurred between 1982 and 1985. It also dismissed the complainant’s cross-appeal against the High Court’s finding about why the complaint was delayed.
In a judgment delivered on 5 April 2006, Mr Justice Kearns said significant blameworthy delay by prosecuting authorities was not, by itself, enough to prohibit a trial. An applicant must also show that one or more interests protected by the right to an expeditious trial had been affected enough to justify that relief.
The charges concerned allegations by G.L., the applicant’s nephew, who was aged between 13 and 16 at the time. The applicant was sent forward for trial in September 2001. G.L. made statements of complaint to gardaí in February 1998. The High Court found that the roughly 34 months between that complaint and the applicant being charged were inadequately explained and amounted to blameworthy delay by the prosecution.
The High Court had prohibited the trial. The DPP appealed the legal basis for that decision, arguing that the accused had to establish prejudice in addition to blameworthy delay. The complainant cross-appealed the finding that his delay in reporting was referable to the applicant’s actions, challenging the High Court’s reliance on clinical psychologist Dr Melissa Darmody’s evidence.
The Supreme Court said the court must balance the effects of delay against the public interest in allowing serious charges to proceed. Relevant interests include freedom from pre-trial detention, anxiety and concern, and the risk that the defence will be impaired. The court said other remedies, such as giving a trial priority, may also be available in some cases.
Applying that test, Mr Justice Kearns upheld the High Court’s decision. The applicant’s affidavit described significantly increased anxiety and concern that the delay had left him unable to produce potentially exculpatory evidence. That evidence was not challenged at the hearing. The judge concluded that the balance favoured the applicant.
The court also upheld the High Court’s assessment of the reporting delay. It said Dr Darmody had met G.L. on three occasions, reviewed medical and psychological material, consulted a counsellor who had seen him, and had substantial clinical experience. The Supreme Court found ample material for her professional view that the delay was attributable to the applicant’s actions, and dismissed both appeals.