The Court of Appeal has set aside a High Court order prohibiting the trial of a man on 17 charges of alleged historic sexual abuse of his two younger sisters. It found that the evidence did not establish manifest, unavoidable prejudice creating a real risk of an unfair trial.
The judgment, delivered by Ms Justice Máire Whelan on 22 October 2019, allowed an appeal by the Director of Public Prosecutions. The High Court had granted prohibition after finding that the passage of decades and the loss or unavailability of potential witnesses meant the trial could not be fair. The Court of Appeal set aside the High Court orders; it did not determine guilt or innocence.
The charges allege offences between 1974 and 1985, including two counts of rape. Most were not tied to specific dates. The alleged incidents are said to have taken place in family homes. The sisters are anonymised in the judgment as M. and R.
The accused argued that deceased relatives, his former wife, a family doctor and other unavailable witnesses could have assisted his defence. The Court of Appeal said the claims about his former wife’s possible evidence were vague and did not establish that she had been present at the family home when the alleged 1985 offence occurred. It found that the grandparents’ possible evidence about visits would not be probative, and that no basis had been shown for treating the grand-aunt’s evidence as helpful on a matter in dispute.
The court also found that the Christmas Day 1978 shotgun incident was peripheral: no abuse charge related to that occasion, and the incident was about a year after the nearest alleged offence. The mother’s account differed from R.’s, and that difference could be explored at trial. The doctor was not said to have been told about abuse or to have examined R. in connection with an abuse allegation. The court found no demonstrated relevant evidence from the other relatives who had died or had no recollection.
The appeal court held that the trial judge is generally best placed to assess prejudice against the evidence actually given and to protect fairness through rulings and directions. It said the accused had not shown that the alleged prejudice could not be addressed at trial. The decision therefore leaves the prosecution able to proceed; it makes no finding on the charges.
On timing, the court held that the accused had not adequately shown why the mother’s supplemental statement, disclosed in April 2018, justified resetting the judicial review time limit or extending time. It left unresolved whether the time limit runs from return for trial or from service of an indictment, saying that question did not need to be decided after its substantive ruling.