The Supreme Court has restrained the further prosecution of four indecent assault and gross indecency charges tied to an address at Ailesbury Mews, Dublin, finding that delay caused actual prejudice to the appellant. It declined to stop two similar charges alleged to have occurred “at or near” an address at Milltown Grove, Dublin.
The judgment, delivered by Hardiman J. on 28 June 2010, concerned an appeal and cross-appeal from a High Court decision. The High Court had barred prosecution on the Ailesbury Mews charges but refused relief on the Milltown Grove charges. The Supreme Court affirmed that order.
The charges related to alleged events between 1985 and 1987. The complainant first approached gardaí in April 2002 but did not name the appellant until a statement on 27 November 2002. The appellant was arrested in April 2004, charged in June 2005 and returned for trial in October 2005.
For the Ailesbury Mews allegations, the complainant described being taken to the appellant’s home, where he said sexual acts occurred on two occasions. The appellant lived there with a partner during the period in question. That partner died in November 2005, before the judicial review proceedings began. The judgment said the partner could have given independent evidence about the home, its furnishings, access to it and whether the alleged visits could have taken place. The Court agreed that this evidence was irreplaceable and that a trial judge could not address the resulting prejudice through directions or other steps at trial.
The Court also noted the High Court judge’s finding of inordinate investigative delay. The complainant’s statements had been provided gradually over about two years. Hardiman J. said the gardaí had a heavy responsibility to expedite enquiries when allegations concerned events already many years old.
The Court recorded that a detective garda had said there were statements placing the appellant at the alleged locations at the relevant times, but it was admitted during the appeal that no such statements had been taken. The Court did not find that this established a basis to halt the Milltown Grove charges.
Those two charges were alleged only to have occurred “at or near” the address, and the Court said the allegations were extremely vague. It found no convincing case that investigators had made an obvious omission that could have reduced that vagueness. Although the appellant would face prejudice, the Court considered it capable of being addressed by a strong warning from the trial judge. The prosecution may therefore proceed on those charges.