The Supreme Court allowed PL’s appeal and substituted orders prohibiting Her Honour Judge Buttimer from proceeding with the trial and restraining the Director of Public Prosecutions from taking further steps towards the prosecution. In a judgment delivered on 20 December 2004, Geoghegan J. said his decision rested only on the risk of an unfair trial because the desk behind which the alleged conduct was said to have taken place could not be produced.
Geoghegan J. agreed with Hardiman J. on that ground, describing the desk as an actual “island of fact” analogous to a music room considered in an earlier case. He said the court had previously recognised that specific factual evidence which might have supported a defence could make a trial unfair if it was no longer available.
He did not decide the appellant’s other grounds for relief. The judgment also set out Geoghegan J.’s disagreements with aspects of the legal analysis in the other judgments, including the scope of the “island of fact” principle and whether a trial could be prohibited on delay alone. He said he was not prepared to endorse a broader approach based on a merely potential factual avenue that had never been explored without consideration by a five-judge court.
On delay, Geoghegan J. described the ordinary approach as a two-stage inquiry: first, whether the delay was attributable to the accused, assuming the complaint to be truthful; and then, applying the presumption of innocence, whether the delay prejudiced the defence. He also considered that courts retained a reserve power to stop any criminal trial in exceptional circumstances where delay or other matters created a real and serious risk of unfairness or meant the trial would not be in due course of law.
Those observations were not the basis for the orders. Geoghegan J. concluded that the appeal should be allowed on the desk issue alone.