Judgment: 2005-02-11 · Court archive

High Court quashes return for trial but refuses to halt historic sexual offence prosecution

High Court · [2005] IEHC 446

Who, what, where, when and why

Who
  • B.C. (Applicant)
What

High Court quashes return for trial but refuses to halt historic sexual offence prosecution

Where

Places mentioned in the report

  • High Court
  • District Court
When

Judgment:

Why

Reasons reported in the judgment

The court rejected that part of his case. MacMenamin J found substantial evidence capable of explaining why the complainants delayed reporting the allegations. This included evidence of fear, family relationships, close living arrangements and what the judge found, for the purpose of the judicial review application, to be continuing dominion or its effects.

The High Court has quashed the District Court order returning an anonymised man for trial on historic sexual offence charges, but refused his attempt to stop the prosecution itself.

Mr Justice MacMenamin delivered judgment on February 11, 2005, in proceedings brought by B.C., who faced allegations from three female relatives concerning events said to have occurred between 1970 and 1983.

The charges included alleged indecent assaults and three alleged rapes. B.C. denied the allegations. The High Court was not deciding whether they were true.

The prosecution accepted that the District Court had acted outside its powers when it returned B.C. for trial in January 2002. That concession followed the Supreme Court's decision in Zambra v McNulty concerning the applicable criminal procedure. MacMenamin J therefore granted judicial review on that ground and quashed the return for trial.

B.C. also sought to have the prosecution permanently stopped because of the passage of time. Some complaints were made more than 20 years after the alleged events. He argued that deceased witnesses, unavailable employment records and lost contact with former work colleagues impaired his ability to defend himself.

The court rejected that part of his case. MacMenamin J found substantial evidence capable of explaining why the complainants delayed reporting the allegations. This included evidence of fear, family relationships, close living arrangements and what the judge found, for the purpose of the judicial review application, to be continuing dominion or its effects.

The court also rejected the claim of blameworthy prosecutorial delay. It accepted evidence that the Garda investigation was unusually complex, involving several complainants, several suspects and overlapping allegations within the same extended family.

On alleged trial prejudice, the judge held that B.C. had not identified sufficiently specific lost evidence. General claims that deceased relatives or missing work records might have assisted him were not enough.

The court said inconsistencies in a complainant's account and the effects of the long passage of time could instead be addressed by the trial judge through appropriate directions.

Accordingly, relief was granted only on the procedural Zambra ground. The application to prohibit the prosecution because of delay was refused.

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