The High Court has stopped the prosecution of a former priest on a single allegation of indecent assault against a boy dating from more than 25 years earlier, after finding a real risk that a fair trial could no longer take place.
The applicant, identified as J.D., had been a priest in a rural parish and was later laicised. He faced one count concerning an alleged assault on M.S. in a church sacristy between September 1981 and September 1982, when M.S. was about 11 or 12.
M.S. and his younger brother, J.S., both complained to Gardaí in February 2003. J.S. made numerous separate allegations against J.D. and was the complainant in a 2007 trial involving 35 counts. J.D. was acquitted by direction on all of those counts after the trial judge found J.S.’s testimony unsafe.
Mr Justice John MacMenamin found substantial unexplained delays in the investigation of the brothers’ allegations. These included a 15-month period before Gardaí meaningfully located J.D., further unexplained gaps during the investigation, and nine months before a prosecution direction issued.
More significantly, important psychiatric material emerged only at or after the 2007 trial. One report recorded an allegation by J.S. that his older brother M.S. had abused him in childhood. Further psychiatric and counselling records concerning M.S. were disclosed only during the subsequent judicial review proceedings in 2008.
The judge held that this late material could be central to any defence because the credibility of M.S. would be the fundamental issue in a trial based largely on assertion and denial. Trying to explore the possible relationship between the brothers’ accounts risked confusing the jury, inhibiting legitimate cross-examination and introducing prejudicial material.
Although the court found that the absence of an elderly former sacristan did not itself establish sufficient prejudice, the delayed disclosure did.
MacMenamin J concluded that the resulting prejudice could not be remedied by trial directions. He also held that, considering all the circumstances together, there was a real risk of an unfair trial. Judicial review was therefore granted, prohibiting the prosecution.