High Court: Application for prohibition of trial for prosecutorial delay refused

About this case:

• Citation:
  [2024] IEHC 137
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger determined that there was no evidence of “inordinate, culpable or unjust delay” and that “that the balance to be struck between the applicant’s rights and the community rights to prosecute are in favour of proceeding with the trial. The applicant’s case falls outside of the exceptional category where it would be unjust to put an accused on trial.”

Background

The applicant, a man charged with an indecent assault alleged to have occurred between 1987 and 1988, applied to prohibit his trial for inordinate prosecutorial delay.

Nearly four years had passed between the complainant’s complaint to gardaí on 11 December 2017 and the service of the book of evidence on 16 November 2021.

The applicant suggested that he had been prejudiced by the delay due to the death of three potential witnesses capable of exonerating him, being his mother, father and uncle, and that he had suffered stress and anxiety sufficient to place him within the exceptional category of cases where it would be unfair to put him on trial.

The High Court

Ms Justice Bolger began by setting out the relevant jurisprudence, noting that the burden of proof rests on the applicant to prove that a real risk to an unfair trial exists as per D. v. DPP [1994] 2 IR 465 and Z. v. DPP [1994] 2 IR 476, and that prohibition should only be granted in exceptional circumstances in line with D.C. v. DPP [2005] 4 IR 281.

The judge considered that whilst the jurisprudence no longer seeks an explanation for a complainant’s delay, it focuses on prosecutorial delay which is “inordinate, blameworthy or unexplained”, and the role of the trial judge is crucial to ensuring fairness during the trial of an “aged complaint”.

Addressing the approximately 36-year period from the alleged incident to the trial date of 5 June 2024, the court noted the affidavit of the investigating garda that the complainant’s disclosures to a number of different services over the years all required investigation and the gathering of records before the complainant was interviewed in 2019, and subsequently. The affidavit also described the need to secure an order from the District Court to secure certain records and that the Covid-19 pandemic had intervened in the process in March 2020.

Having referred to S.Ó’C. v. DPP [2014] IEHC 65 as authority for the proposition that the absence of witnesses will only create prejudice where there was a real possibility that the witness would have been of assistance to the defence, Ms Justice Bolger observed that the complainant’s sister would be giving evidence and would be available for cross-examination, and so no sufficient prejudice had been established.

Turning to the applicant’s allegation that he suffered from elevated severe stress and anxiety as a result of the alleged delay and accordingly, that the trial should not go ahead, the judge heard that several cases considered an accused’s medical condition to be relevant, including D. v. DPP [2011] IEHC 384, Devoy v. DPP [2008] 4 IR 235 and O’H. v. DPP [2007] 3 IR 299.

Considering the medical evidence before her from the applicant’s GP, his consultant cardiologist and a forensic psychologist to whom he was referred by his solicitor, the court examined the applicant’s averments that his mental health had deteriorated following the allegations coming to his attention in June 2017, that his mood became depressed and he experienced chronic anxiety due to the possibility of being branded as a sex offender, and that his sleep had been severely disturbed.

Ms Justice Bolger highlighted that the notes concerning the applicant’s own beliefs as to the triggers for his psychiatric issues did not refer to the complaint made against him or his subsequent prosecution, and that the applicant did not aver as to why he did not disclose to his doctors the allegations against him or his prosecution.

Proceeding to the report of the forensic psychologist which described the applicant’s difficulties coping with the allegations and his suicidal ideation, the judge commented that some of the psychologist’s conclusions were “markedly different” from those of the applicant’s GP. The court preferred the evidence of the GP, pointing out the purpose of the psychologist’s assessment versus the “treating role” of the applicant’s GP and psychiatric team.

Having heard about a number of supports which could be offered to the applicant during his trial, including psychotherapy and management of the trial to allow breaks, shorter hearing days and assistance from a “support person”, Ms Justice Bolger was satisfied that the role of the trial judge in combination with those supports meant “that the balance to be struck between the applicant’s rights and the community rights to prosecute are in favour of proceeding with the trial. The applicant’s case falls outside of the exceptional category where it would be unjust to put an accused on trial.”

Conclusion

Accordingly, the High Court refused the application.

N.B. v. The Director of Public Prosecutions [2024] IEHC 137