The High Court refused an application to stop a prosecution for 41 alleged indecent assaults, finding the applicant had not established specific prejudice from the passage of time that would justify prohibiting the case from proceeding.
The redacted judgment, delivered by Mr Justice de Valera on 30 July 2007, concerned an application for an injunction by way of judicial review against the Director of Public Prosecutions. The applicant relied principally on delay.
Eight charges are alleged to relate to assaults against the applicant’s sister, identified in the judgment as MB, on dates between 1965 and 1968. The other 33 are alleged to concern another sister, identified as EO’L, between 1966 and 1974. The judgment does not determine the criminal charges.
The application was heard in December 2006. The judge considered the test set out in H. v the Director of Public Prosecutions: whether delay created a real or serious risk that the accused would not receive a fair trial. The applicant bore the burden of showing, on the balance of probabilities, an unavoidable risk of an unfair trial caused by the delay.
The judgment also referred to a later Supreme Court decision, W.M. v the Director of Public Prosecutions, which reiterated that test and noted that general prejudice from delay may, in many cases, be mitigated by rulings and directions from the trial judge. The court observed that the alleged offences in W.M. covered 1971 to 1981, a period it described as not dissimilar to the dates alleged in this case.
Accepting the respondent’s submission that the applicant had not established evidence of material detriment or prejudice, the judge said the applicant’s affidavit disclosed no specific prejudice that would justify prohibiting the prosecution. The court also found no basis to conclude that the trial judge would be unable to take the steps needed to ensure a fair trial.
The judgment therefore refused the requested relief. It does not set out any separate order concerning costs.