The High Court has refused an application to prohibit the prosecution of a man facing 14 indecent assault charges relating to alleged offences between September 1962 and October 1963.
The charges are before Dublin Circuit Criminal Court under Bill No. DUDP 95/2018 and relate to one complainant, who was about eight at the time of the alleged offences. The judgment anonymises the complainant and excludes identifying details about people and places. The applicant is identified only as N.S.
The applicant argued that the passage of about 55 years had caused specific and incurable prejudice, including the loss of potential evidence from his mother, sister, a doctor and a relative, as well as missing medical and employment records. He said the absent witnesses could have supported his account that he was away from Ireland for parts of the relevant period, and his denial of the allegations. He also relied on his age and health.
The Director of Public Prosecutions argued that the applicant had not met the high threshold for stopping a criminal trial before it began. The respondent said the proposed evidence from deceased witnesses was speculative and that questions about prejudice should be considered by the trial judge in light of the evidence actually presented.
Justice Murphy said the arguments did not establish exceptional circumstances warranting prohibition. She noted that the applicant could not say definitively what his mother or sister would have said, and treated the claimed assistance from their evidence as a theoretical possibility rather than established prejudice sufficient to stop the prosecution.
The judge said she was not finding that the accused was unprejudiced in conducting his defence. Rather, under the current case law, the issue was for the trial judge. That judge could assess the significance of missing or disputed evidence as the case unfolded and, if the accused’s fair trial rights were impaired, withdraw the case from the jury.
The court refused the application. It did not determine the criminal charges or make findings on whether the alleged offences occurred.