The Supreme Court has upheld an order preventing the prosecution of an anonymised man on rape and indecent assault charges after finding that the passage of time had caused potentially important evidence about an earlier Garda inquiry to be lost.
B.J. was charged in March 2000 with two alleged indecent assaults and one alleged rape of HMcC on dates in September and October 1989. He denied the allegations.
The case turned in part on events at Greystones Garda Station in 1990. B.J. said a detective sergeant questioned him, and later him and his wife, about HMcC and then told him he would hear no more about the matter.
The retired sergeant initially swore that those interviews concerned a different woman and categorically denied discussing HMcC. However, under cross-examination in the High Court, significant errors emerged in his account. The High Court ultimately preferred B.J.’s version and accepted that the sergeant had said he would hear no more about the matter.
The High Court prohibited the prosecution in February 2002. The Director of Public Prosecutions appealed, while B.J. cross-appealed against the finding that the delay had not actually prejudiced his defence.
Mr Justice Hardiman, delivering the Supreme Court judgment, concluded that prejudice had been established.
The court found that the sergeant’s memory had deteriorated to the point that the reason for the 1990 questioning, what complaint had then been made and why the matter was apparently not pursued could no longer reliably be established. No contemporaneous notes had been taken.
Those missing details could have been important to the defence, particularly in comparing the complainant’s later account with what had been reported closer to the alleged events. The court also considered that an opportunity to investigate the allegations promptly, including potentially obtaining medical evidence, had been lost.
The Supreme Court held that the lapse of time and deficiencies in the original investigation created a real risk of an unfair trial. It allowed B.J.’s cross-appeal and affirmed the High Court injunction, without needing to decide the broader legal arguments raised by the DPP.