The High Court has refused to stop the prosecution of B. O’S. over alleged sexual offences against two sisters dating from between 1967 and 1974.
B. O’S., then aged 71, faced 15 indecent assault charges concerning one complainant, D, and 14 concerning her younger sister, S. He denied the allegations and sought an order prohibiting the trial because of the passage of between 43 and 50 years and the resulting loss of potential evidence.
His application relied on three main factors. He had undergone quadruple heart bypass surgery in April 2016. Records from counselling attended by D in Canada were no longer available. He also argued that the sisters had discussed reporting him decades earlier but delayed doing so, with the result that their mother, who later developed dementia, could no longer give evidence.
The defence said the mother could have contradicted an allegation that B. O’S. had raped her and could also have given evidence about family routines and circumstances relevant to the alleged assaults.
Ms Justice Ní Raifeartaigh rejected the argument that the complainants had deliberately delayed reporting matters to prevent their mother giving evidence. The available material instead suggested they wished to protect her from the stress of a trial because of her longstanding mental-health difficulties.
The judge also found it too speculative to conclude that the mother, if available, would have supported the defence. Whether she had herself been raped was, in any event, collateral to the charges involving her daughters.
The missing Canadian counselling records likewise did not establish a real risk of unfairness. There was no evidence that they contained materially inconsistent accounts or information central to testing the allegations.
On health, the medical evidence showed that B. O’S. had recovered well from heart surgery.
The court therefore refused prohibition. It stressed that the trial judge would remain responsible for monitoring whether the passage of time or missing evidence ultimately made a fair trial impossible.