Abuse trials prohibited over prejudice

The Supreme Court has granted orders preventing the further prosecution of two men on sex charges. The separate cases related to a man facing charges of rape, indecent assault and buggery between 1979 and 1980, of a girl aged between seven and nine, and a music teacher facing five charges of indecent assault against a former boy pupil between 1982 and 1983.

Yesterday's unanimous decisions are expected to have implications for others facing trial on sex charges dating back many years. Several of the Supreme Court judges highlighted the problems facing the courts when dealing with such cases.

The first case related to a music teacher facing five charges of indecent assault against a former pupil, alleged to have occur red between January 1st, 1982, and December 31st, 1983, when the boy was aged 11 and 12.

A complaint to the Garda was first made in 1995 and the teacher was charged in 1996. The trial was adjourned twice and he took proceedings seeking an order prohibiting the trial.

He contended his right to a fair trial was prejudiced due to excessive delay and claimed he was specifically prejudiced because he could not prove conclusively, due to lapse of time, his belief and recollection that the room where the alleged abuse occurred could not be locked at the time. The High Court found that while the delay was explicable in light of the circumstances and the offences alleged, there was evidence of specific prejudice due to delay and the applicant had established, as a matter of probability, there was a a real and serious risk of an unfair trial.

In a unanimous decision, five Supreme Court judges agreed and dismissed the DPP's appeal against the High Court finding. The Chief Justice, Mr Justice Keane, said the DPP's submissions did not have sufficient regard to the presumption of innocence to which the applicant was entitled at this stage of the inquiry. He said it had been open to the DPP once the issue was raised of whether the room could have been locked to investigate the matter further and place before the High Court material which might have shown there was no substance in the difficulties on which the applicant sought to rely.

There was no obligation on the applicant to go further than indicating the nature of his defence, the materials on which it was based and the alleged difficulties which now arose in presenting that defence to a jury.

To ask him to go further "would be to place him in a different position from other persons charged with serious crimes and to erode the presumption of innocence to which he is entitled to a degree which is not justified even by the special nature of the offence with which he is charged", Mr Justice Keane said.

Where a conflict arose, the public interest in ensuring that anyone charged with a criminal offence received a fair trial must take precedence over the unquestionable public interest in the prosecution and punishment of crime, he said. It was profoundly unsatisfactory that the veracity or

otherwise of the complainant would not be tested in court, but this was the unavoidable consequence of the application of the legal principles set out.

Ms Justice Denham said a prosecution for child sexual abuse was difficult, but this did not mean alleged offenders should not be prosecuted. A prohibition on such trials would occur only where there was a real and serious risk of an unfair trial and would be an exception, not the rule. These were civil proceedings to prohibit a trial and the burden of proof was on the applicant to prove his case. If he was unsuccessful, the criminal trial would proceed and the presumption of innocence would apply. However, she would not apply the presumption of innocence in this type of application. While she would uphold the High Court order prohibiting this trial, she did so "as an exception to the general rule".

In the second case, a three-judge Supreme Court unanimously granted an order res training the further prosecution of a man for rape, indecent assault and buggery of a girl arising from an incident between June 1st, 1979, and September 30th, 1980. It overturned a High Court decision refusing to stop the trial.

The court again found the applicant had established a specific prejudice, giving rise to a serious risk of an unfair trial. In particular, the man claimed that three months before the offence was alleged to have occurred, he had moved out of the caravan where it was said to have happened. However, because of lapse of time, he could not locate the persons to whom he had sold the caravan or people who could verify that he was living at another location.

The Chief Justice said the DPP had not sought to challenge that evidence by either serving notice to cross-examine the applicant or by making inquiries. Given the presumption of innocence to which the applicant was entitled, he was satisfied he had discharged the onus of establishing a real and serious risk of an unfair trial which could not be avoided by the judge giving directions or rulings to the jury.

Ms Justice McGuinness said it was of particular importance that this case related to an allegation of a single incident. Issues of dominion, authority or even influence did not arise as they had in other sex cases. She did not accept that the presumption of innocence played no part in the decision of the court in the case.

From the time a person was arrested or charged with an offence until the end of their trial, they were entitled to the benefit of the presumption of innocence.

A court could assume a complainant's allegations were true for the purpose of looking at the reasons for delay in reporting a sexual assault, but when the court subsequently considered whether there was a real risk of an unfair trial, in question was a trial based on the presumption of innocence.

By that approach, the court would hold the balance between a situation in which it would be impossible to try persons accused of sexual offences against children where delay in reporting had occurred and the equally undesirable situation where all persons accused of such offences would have to face trial no matter how much time had elapsed and no matter how great the danger of an unfair trial.