The High Court has prohibited prosecution on four charges of indecent assault and gross indecency against a redacted applicant, finding that the death of his partner left him without a central defence witness. The court declined to prohibit two further charges concerning a separate apartment location, which may proceed to trial.
Mr Justice John MacMenamin delivered the judgment on 30 March 2007. The applicant sought judicial review by way of prohibition, arguing that delay and changes in the available evidence would prevent a fair trial. The six charges concerned alleged offences between 1985 and 1987 against a complainant who was a minor at the time. The allegations have not been determined at trial.
Four charges concerned two alleged incidents at a house identified in the redacted judgment as Address A. The complainant’s account described the house’s interior and alleged sexual conduct there. The applicant denied the allegations. His partner, B.B., had lived with him at the house during the relevant period, the judgment said, and had travelled to and from work with him. B.B. died in November 2005, after the book of evidence was served.
The judge found that B.B. was the sole co-resident identified in the evidence and could have assisted on central questions of location and opportunity. Given the limited detail fixing the alleged incidents’ dates or times, the court concluded that the resulting prejudice was sufficiently grave and could not be cured by jury warnings or directions. It therefore granted prohibition on the four Address A charges.
The remaining two charges concerned one alleged incident at or near Address B. The applicant said he had never owned or rented an apartment in that area. The judge found that the evidence about the deceased partner and other unavailable witnesses did not establish comparable prejudice for these charges. Any resulting issues could be addressed by the trial judge through warnings or directions. The court refused prohibition on the Address B charges.
The court also described the investigation as involving inordinate delay. It noted that the complainant made statements over roughly two years and that the investigation lasted more than three years. But delay alone did not justify stopping the prosecution: the court found that the necessary prejudice had not been shown for the Address B charges. It also found no exceptional circumstances, such as blackmail or improper pressure, that would make trial unfair.