The High Court has refused an application to stop a prosecution for two alleged sexual assaults, despite accepting that the case involved prosecutorial delay.
Mr Justice Eagar delivered the judgment on 20 October 2017. The applicant, identified as J.D. in the case title and as Mr. D. in the judgment, sought an order prohibiting the Director of Public Prosecutions (DPP) from taking further steps in the criminal case. He also sought a declaration that delay had irretrievably prejudiced his right to a fair and expeditious trial.
The judgment says a complaint of alleged sexual assault on the applicant’s adopted daughter, identified as C.D. and Ms. D., was reported by the Eastern Health Board to gardaí around 1998. The file remained inactive after the garda initially assigned to the investigation went on sick leave and later resigned. The judgment says there was no record of that garda’s investigation.
The file was reassigned to Garda Jeannette Power on 30 October 2014, after C.D. made enquiries at Wexford Garda Station. She made a formal statement on 20 November 2014. Garda Power later obtained records and statements from counsellors and family members. The applicant was arrested and charged in March 2015, then arrested and charged again in August 2016 after the DPP directed prosecution on two counts of sexual assault. The case was to proceed on indictment.
The applicant argued that the long delay and missing original file, alongside the death of the first investigating garda, had significantly prejudiced his defence. The DPP accepted there had been prosecutorial delay, but argued that delay alone did not justify prohibiting a trial.
Mr Justice Eagar said the delay did not, on the particular facts, make it apparent that the defence was inevitably prejudiced. He noted the missing garda and files, but found those absences did not establish a specific basis to conclude the trial would inevitably be unfair. The judgment also referred to new evidence gathered by Garda Power, including a statement from the complainant and statements from former counsellors. It described an alleged admission during counselling as significant.
Relying on Supreme Court decisions, the judge said guilt or innocence should generally be determined at a full trial on the merits, and that prosecutorial delay was not sufficient in this case to prohibit a trial. The court refused the reliefs sought. The judgment records that judicial review proceedings were begun on 7 November 2016 and that no further steps had been taken in the prosecution since then; it does not state that the criminal trial had taken place.