Judgment: 2020-01-24 · Court archive

Court of Appeal lifts order stopping trial over historic abuse charges

The court allowed the DPP’s appeal, finding that the claimed prejudice from delay and deceased witnesses did not justify stopping the prosecution before trial. It left open the possibility of a fairness application during the trial.

Court of Appeal · [2020] IECA 6

Who, what, where, when and why

Who
  • A.T. (Applicant)
  • The Director of Public Prosecutions (Respondent)
  • the complainant
  • AB
  • CD
What

The court allowed the DPP’s appeal, finding that the claimed prejudice from delay and deceased witnesses did not justify stopping the prosecution before trial. It left open the possibility of a fairness application during the trial.

Where

Places mentioned in the report

  • family home
When

Judgment:

Why

Reasons reported in the judgment

The Court of Appeal has allowed the Director of Public Prosecutions’ appeal against a High Court order that had stopped a man’s trial on historic sexual offence charges. The appeal court held that the prosecution should not be stopped in advance, while stressing that the trial judge must take particular care to ensure a fair trial.

The Court of Appeal has allowed the Director of Public Prosecutions’ appeal against a High Court order that had stopped a man’s trial on historic sexual offence charges. The appeal court held that the prosecution should not be stopped in advance, while stressing that the trial judge must take particular care to ensure a fair trial.

The man, identified in the judgment as A.T., faces one rape charge and 36 sexual assault charges. The alleged offences are said to have occurred between March 1976 and February 1979 in a family home where ten people lived, including the complainant, who was nine when the first incident was alleged to have occurred. A.T. denies the allegations. The judgment says he acknowledged one occasion of sexual intercourse with the complainant in 1983 but maintained it was consensual; that occasion is not among the charges described.

A.T. sought to stop the prosecution because of the more than 40-year delay. He argued that the deaths of four family members who might have supported his defence, and the loss of records or witnesses that could help establish his work schedule, left him at risk of an unfair trial. The High Court accepted that argument and ordered the DPP not to take further steps in the prosecution.

The Court of Appeal said the governing question was whether delay had caused prejudice serious enough to create a real or serious risk of an unfair trial. It found that the High Court had wrongly assumed the deceased family members were needed to establish how the household operated: surviving residents, including A.T., the complainant and two sisters, could still give evidence about that. It also considered speculative the claim that deceased relatives would have known about the alleged abuse or that the complainant would have confided in them.

The appeal court noted that the complainant’s account described the alleged abuse as secretive and said she did not tell the deceased relatives. The judgment records that she said she disclosed abuse to her sister CD, and that the prosecution case also included a separate disclosure to A.T.’s wife, AB. Both the complainant and CD remained available to be questioned about the alleged disclosure to CD. The court also said potential evidence about CD’s separate allegation of abuse, and any account she said she gave to her mother, raised contested admissibility questions for the trial judge.

The court recognised that the age of the allegations would make the defence difficult and that there were few independently verifiable facts. But it found there remained avenues to test the complainant’s account, including evidence about the crowded home, family relationships and opportunities to disclose. It allowed the appeal, ruling that the prosecution should proceed. It did not determine guilt or innocence. The trial judge may consider a fairness application during the trial and must follow the Supreme Court’s approach in *The People (DPP) v C.C.*

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