The High Court barred the Director of Public Prosecutions from prosecuting J.J.P. on counts 4 to 25 of an indictment, finding that missing Garda records from a 2001 investigation created a real or serious risk of an unfair trial. It refused to prohibit prosecution on counts 1 to 3 and 26 to 64.
Mr Justice Eagar delivered the judicial review judgment on 19 January 2015. J.J.P. had sought an order prohibiting prosecution on all 64 counts, citing delay and prejudice from the missing investigation file.
The indictment concerned allegations of sexual assault by three complainants. Counts 1 to 3 related to the first complainant, counts 4 to 25 to the second, and counts 26 to 64 to the third. The complainants made complaints in July 2010. J.J.P. was charged in February 2013.
The judgment records that the second complainant had made an earlier complaint around August 2001. J.J.P. was arrested, detained and interviewed at that time, but no charges followed. The judgment says the investigation documents appeared to be missing, except for a copy of the custody record. The second complainant’s statement and the record of J.J.P.’s interview were unavailable to the defence.
A jury had been sworn and the trial begun in October 2014. On the fifth day, the prosecution disclosed a 2003 Garda report concerning alleged nuisance calls to the third complainant. The trial judge discharged the jury after the defence applied, as further cross-examination was required. The prosecution was then listed for the February 2015 sittings at Nenagh Circuit Criminal Court.
Justice Eagar considered the three complainants’ cases separately. He found the missing 2001 complaint and interview records prevented the defence from cross-examining the second complainant about them, creating a real or serious risk of an unfair trial on counts 4 to 25. For the first complainant, he found the delay in making a complaint did not justify prohibition. For the third, he said social work notes provided material for cross-examination and referred to admissions recorded in the judgment as having been made by J.J.P. during Garda interviews.
The judge also rejected the delay grounds. He said delay in making the 2010 complaints did not, in itself, warrant prohibition, and that prosecutorial delay alone was insufficient without interference with an interest protected by the right to an expeditious trial. He criticised delays in directing prosecutions in historic sexual assault cases and asked counsel for the DPP to convey his concerns. The order prohibited prosecution only on counts 4 to 25; it did not prohibit the remaining counts.