Court of Appeal dismisses appeal against High Court refusal to prohibit trial due to historical indecent assault allegations.

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APPROVED JUDGMENT

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THE COURT OF APPEAL

Neutral Citation: [2025] IECA 158

Record No: 237/2024

Edwards J. McCarthy J. Kennedy J.

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

N.B.

Appellant

JUDGMENT of Mr. Justice Edwards delivered on the 29th day of July, 2025.

Introduction

1. This appeal has been brought by Mr. N.B. (i.e. “the appellant”) against a judgment of the High Court (Bolger J. [2024] IEHC 137) delivered on the 11th of March 2024, and reflected in a High Court Order of the 11th of April 2024 (perfected on the 16th of September 2024) refusing to grant the appellant certain reliefs sought by him in an application for judicial review (including, inter alia, an Order prohibiting the appellant’s prosecution in respect of an allegation of historical indecent assault).

Background to this Appeal

2. In 2016, an allegation was made by N.B’s nephew, D.N (i.e., “the complainant”), that when he was a child the appellant had indecently assaulted him in a bedroom in his (DN’s) family home on an unknown date between the 1st of January 1987 and the 31st of December 1988. The complainant was born in 1975 and the appellant in 1969, so there is approximately

6 years in age disparity between them. The allegation was to the effect that the appellant was visiting the complainant’s home and that while he was there the complainant’s mother sent the complainant upstairs to play. The complainant alleges that the appellant accompanied him upstairs and that while they were together in a bedroom the appellant had forced the complainant to perform oral sex on him.

3. Therefore between 36 to 38 years has elapsed between the alleged offence and the date of this judgment.

4. The complainant has had many adversities in his life, during which he has inter alia suffered addiction and substance abuse issues for which from time to time he has sought treatment and therapy, and he has also spent time in prison for various offences. He contends that over the years he made disclosures concerning this alleged indecent assault by the appellant to numerous persons, including family members, counsellors and therapists from whom he sought treatment, and a prison psychologist.

5. The appellant was contacted by Tusla in relation to this allegation in June 2017 and was informed that they were investigating it. The appellant was co-operative with that investigation and was interviewed twice by a social worker on behalf of Tusla. Tusla deemed the complaint to be unfounded in 2019 and the appellant was notified of this by letter on the 16th of January 2019.

6. Tusla, as they were obliged to do, had at the commencement of their investigation duly notified the gardaí of the concerns that had been raised with them and a separate garda investigation was also commenced. The complainant provided a statement of complaint to gardaí on the 11th of December 2017. The course of the garda investigation is described in detail in an affidavit of a Garda Ciarán Geraghty sworn on the 24th of March 2023.

7. It establishes, inter alia, that in accordance with normal police practice Garda Geraghty had sought to gather as much information as possible before interviewing his suspect. To that end he had taken up records from numerous bodies and institutions providing services with whom the complainant had had a potentially relevant engagement, a time consuming exercise. On the 20th of April 2019, the appellant was contacted by Garda Geraghty and was apprised that gardaí had received a formal complaint from the complainant alleging that he had been indecently assaulted by him. Garda Geraghty arranged to meet the appellant and duly interviewed him on the 27th of April 2019. Following this interview yet further records required to be taken up, and further it was deemed appropriate to make an application to the District Court for a s. 63 order in aid of that. A completed investigation file was sent to the Director of Public Prosecutions (“DPP”) on the 11th of February 2021.

8. The DPP directed that the appellant should be prosecuted for indecent assault on the 31st of August 2021. The appellant was subsequently charged on the 15th of September 2021 with one charge of indecent assault contrary to common law and as provided for by s. 62 of the Offences Against the Person Act 1861. A Book of Evidence was served on him on the 16th of November 2021, and he was returned for trial before the Dublin Circuit Criminal Court.

9. The appellant denies committing this alleged offence and has entered a not guilty plea to the charge.

10. The appellant believes that he has been significantly prejudiced due to the significant time which has elapsed since the alleged commission of the offence, and contends that he cannot now get a fair trial. He points to delay in commencing proceedings against him, and in bringing the prosecution to trial. Further, he points to the loss through death of potentially exonerating witnesses, to heightened stress and anxiety because of the allegation and his prosecution against a background of pre-existing poor mental and physical health, and to the lack of explanation for the delays in his prosecution. He contends that individually and cumulatively the existence of these factors brings him within the exceptional category of cases where it would be unfair to put him on trial.

11. In these circumstances the appellant sought leave from the High Court to apply by way of judicial review for various reliefs including, inter alia, an Order of Prohibition prohibiting his trial. Leave to apply for judicial review was granted on the 21st of February 2022. However, the Order granting leave did not contain any stay. In the absence of a stay the Circuit Criminal Court proceeded on the 15th of March 2022 to fix a date for the trial of the criminal proceedings, namely the 25th of June 2024.

12. The judicial review case came on before the High Court for substantive hearing on the 13th of February 2024, and judgment was reserved. The High Court (Bolger J.) then delivered its judgment on the 11th of March 2024, and in doing so refused to grant prohibition or other relief to the appellant. A final order dismissing the application was made on the 11th of April 2024.

13. The appellant has now appealed to the Court of Appeal against the High Court judge’s said judgment and Order. The appellant’s criminal trial, although it had been listed for the 24th of June 2024, has since been adjourned pending the outcome of the appellant’s appeal.

The Judgment of the High Court – [2024] IEHC 137

14. The High Court judge noted that the burden of proof rests on an applicant to prove that there is a real risk of an unfair trial, and further that prohibition is a remedy to be granted only in exceptional circumstances.

15. She further noted that the jurisprudence no longer seeks an explanation for a complainants delay but, rather, focuses on any prosecutorial delay which must be inordinate, blameworthy or unexplained. Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and direct prohibition. This may be due to the absence of witnesses where there must be, “at least, a real possibility that the witness or evidence would have been of assistance to the defence. In other words, I do not believe that it is sufficient to point to a theoretical possibility that an unavailable witness might have had something to say that would contradict the complainant's account and that of other witnesses.” (as per O’Malley J. in S.Ó’C. v. DPP [2014] IEHC 65, at para. 65)

16. The High Court judge further noted that the role of the trial judge is crucial in ensuring fairness during the trial of an aged complaint. That judge is better able than a judicial review judge to assess the difficulties caused to a person accused of aged allegations and has a primary role. She noted the observations of O’Donnell J. (as he then was) in DPP v. C.C. [2019] IESC 94, to the effect that the assessment of the overall fairness of the proceedings, “is best carried out at the trial, rather than in advance on the basis of affidavit evidence professionally drafted and speculation as to what might transpire at a trial. The courts came to require that applicants at least directly engage with the case, rather than seek to raise hypothetical issues. Moreover, the place that any lost evidence, whether real or oral, might play in a case was best assessed in the context of the case itself, and the manner in which it proceeded”.

17. Further, she noted that there is an additional, although rarely invoked, jurisprudence where it may be unfair to put an accused on trial due to the cumulative impact of adverse factors. In rare cases that cumulative factors might be such as to bring the matter into the wholly exceptional category where it would be unjust to put an appellant on trial, citing this court’s decision in MS v. DPP [2021] IECA 193 as an example. In that case the applicant had relied inter alia on ill-health. Kennedy J., in giving judgment for the Court of Appeal, had emphasised that it was the cumulative impact of all of the factors present that had motivated the court to prohibit the applicant’s trial and that ill-health would not per se contra-indicate prosecution or render a fair trial impossible. She had stated at para 57 of her judgment, “It is quite clear that old cases may be prosecuted, it is also clear and my firm view that age is no restriction, nor is ill health, either mental or physical.”

18. The High Court judge next considered the delay in the present case from complaint to trial. She accepted that considerable time of between 35 to 36 years (at that stage, greater now) would have passed from when the complainant alleges he was indecently assaulted to when the applicant would stand trial. Of that time, nearly four years was attributable to the period between the complainant’s initial complaint to the service of the book of evidence. The High Court judge was not satisfied, however, that there was evidence of inordinate, culpable or unjust delay. Moreover, she was not prepared to find that there was blameworthy prosecutorial delay.

19. The High Court judge then moved to consider the claim of prejudice on account of deceased potential witnesses. These had been identified by the appellant as the complainant’s mother, father and uncle who the appellant contends could have exonerated him and/or enabled him to challenge the credibility of the evidence against him. The High Court judge considered that as the complainant’s sister will be giving evidence and may be able to give an account of the arrangements and the family home of the relevant time, the appellant had not established that any prejudice contended for could not be adequately and better addressed by the trial judge.

20. The High Court judge next considered the applicant’s mental health and the claim of heightened stress and anxiety at a level sufficient to put this case into the exceptional category of cases where it would be unfair to put him on trial. She noted the medical report from the appellant’s GP, which described the appellant’s complaints, diagnosis and treatment, and which was prepared by reference to, inter alia, the contemporaneous accounts of the appellant’s treating psychiatric team. She further considered the psychological report of Dr. Rioghnach O’Leary concerning the appellant following her assessment of him, noting later in her judgment that the appellant had been referred to Dr. O’Leary by his solicitor, and that Dr. O’Leary had not been involved in any treatment of the appellant. She further noted a report from the appellant’s consultant cardiologist, a Dr. Bassareo, which set out that the appellant had a history of cardiac arrest in 2016 and that he is at a moderate risk of 11% likelihood to suffer from myocardial infarction, stroke or vascular death in the next 10 years.

21. The High Court judge then sought to assess the significance of the medical evidence with which he had been presented. She noted that the GP had confirmed the appellant’s long history of depression and anxiety which necessitated psychiatric attendances in 1997, 2006, 2009, 2019 and 2020 and that he confirmed what the applicant reported, and his psychiatric team had diagnosed, as being the causation/triggers for his psychiatric issues, none of which referenced the complaint of indecent assault made against him or his subsequent prosecution. Neither did his interview with An Garda Síochána in April 2018 or his being charged in September 2021 feature. She rejected the suggestion that the applicant may have been too embarrassed to tell his doctors about the charges on the basis that he had clearly been willing to share other personal details about issues in his life with his doctors. He had been discharged from the psychiatric services in June 2021 and, as of the date of the report of the GP in February 2022 had not been referred back. There was no suggestion that he had been receiving additional treatment since that time.

22. At paragraph 16 of her judgment the High Court judge referenced a number of specific findings by the psychologist Dr. O’Leary based on her assessment, including that the appellant’s mental health had deteriorated from when he first learned of the allegations in June 2017, and that following contact from An Garda Síochána in May 2019 the applicant had become acutely suicidal in early 2020. Dr. O’Leary had expressed the opinion that it was highly likely that the applicant may become actively suicidal prior to and during the trial.

23. The High Court judge noted that some of Dr. O’Leary’s conclusions were markedly different from the views of the applicant’s GP which were based on the records of his treating psychiatric team. She preferred the accounting conclusions of the GP, none of which identify the complaint or prosecution or pending trial as a causation of or trigger for the applicant’s mental health difficulties. There had been no reference in the GP’s report to the applicant having suicidal ideation.

24. The High Court judge nonetheless accepted that the appellant has a history of depression and anxiety and cardiac issues, but felt that there was insufficient evidence that those medical issues, or any exacerbation of them since the appellant first became aware of the allegations made against him, could be safely attributed to the length of time it has taken to bring the complaint to trial. She did not accept that any delay that has occurred has caused the appellant’s current mental health difficulties.

25. The High Court judge further concluded that the circumstances of the appellant’s case, including his mental health difficulties, were not such as to bring the matter into the wholly exceptional category where it would be unjust to put the appellant on trial. At paragraphs 21 and 22 of the judgment she stated:

“21. The court was told of a number of supports that can be made available to the applicant during the trial if necessary, including the individual psychotherapy that Dr. O’Leary says has commenced with her with a view to reducing his psychological distress to a tolerable level. The trial may be managed so to allow the applicant to take breaks, avail of shorter hearing days and be assisted by a support person. I am satisfied that those steps, combined with the very important role to be played by the trial judge as set out at para. 5 above, means 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.

22. The applicant’s case falls outside of the exceptional category where it would be unjust to put an accused on trial.”

26. In the circumstances, the High Court judge refused to grant the appellant the relief that he was seeking by way of judicial review.

Notice of Appeal

27. By a Notice of Appeal lodged the 30th of September 2024, the appellant now appeals to this Court against the High Court’s refusal to prohibit his criminal trial. In support of this application, the appellant has advanced five grounds which are as follows:

(1) “The learned trial judge erred in law in discounting prejudice caused by the unavailability as potential witnesses of three family members on the basis that a fourth family member will be a prosecution witness who can be cross-examined by the defence.

(2) The learned trial judge erred in law in discounting the duration of pre-trial stress and anxiety to the applicant on the basis that certain psychological supports could be put in place at his trial.

(3) The learned trial judge erred in law in finding that the appellant’s case fell outside the exceptional category where it would be unjust to put him on trial.

(4) The learned trial judge erred in law in failing to enumerate the criteria for a case to be deemed in the “exceptional category” and to apply those criteria to the instant case.

(5) The learned trial judge erred in preferring evidence in the report of a GP over what was contained in the psychologist’s report in circumstances where no oral evidence had been heard in respect of the issues which it was argued were in conflict.”

Submissions to this Court

Applicant’s submissions

Ground 1: Discounting prejudice caused by the unavailability of potential witnesses

28. The appellant argues that the complainant made his complaint to gardaí at a point where three people who, the appellant contends, could exonerate him are deceased, namely the complainant’s mother, father and uncle. Accordingly, there is evidence of real prejudice to him due to the significant passage of time before he was prosecuted, and that the existence of such real prejudice means that he cannot now get a fair trial.

29. The appellant relies on the case of Pauletti v. Garda Cathal Dunne and Director of Public Prosecutions [2022] IEHC 714, at para. 47: “As stated by O’Malley J. in S. Ó C. v. Director of Public Prosecutions [2014] IEHC 65, cited with approval by the Court of Appeal in R.B. v. Director of Public Prosecutions, there must be a “real” link between the evidence that could have been by the unavailable witness and the facts in issue or likely to be in issue, at trial. Fanciful, speculative or hypothetical arguments as to deficiencies in the evidence available at trial could not establish a real risk to an unfair trial, for which prohibition should lie.”

30. The appellant says that there is a real link between the witnesses who have passed away and facts likely to be in issue. Further he says that his arguments as to their relevance and their potential to have assisted his defence, if they were still available, are neither fanciful, nor speculative, nor hypothetical. On the contrary, the appellant contends that he has engaged in written submissions with the facts in issue or likely to be in issue. In that regard he makes a number of points:

31. First, he challenges the validity of the High Court judge’s contentions at paragraphs 9 and 10 of her judgment to the effect that the prejudice inuring to the appellant by virtue of deceased witnesses is ameliorated by the availability of the complainant’s sister and that issues arising can be adequately and better addressed by the trial judge. He points out that the complainant’s sister was only 9 or 10 years of age at the relevant time and suggests that a child of that age could not be fully aware of family arrangements let alone remember the details of events occurring 35 or 36 years previously. Further, he says that the account given by the complainant about the family situation at the time is inherently inconsistent with, and in some respects directly contradicts (as detailed at paragraph 73 of the appellants written submission) the account given by the complainant’s sister. He says that such conflicts are incapable of resolution at this point in the absence of other witnesses who might have assisted.

32. Then, at paragraphs 75 and 76 of his written submissions, the appellant states: “75. The complainant states in his statement: ‘I remember my dad watching the football or horse racing with my Ma and the front room on the tele. I was in the room with them. [NB] cycled over to our house. It wasn’t to visit me. I don’t remember why he had come over. I remember he was in the room with us and my Ma said go upstairs and play or something. I’m unsure who said it but he said it ss well “come and we go upstairs and play” and [NB] and I went upstairs.’

76. The only independent witnesses who could give an account of this are the complainant’s mother and father were now deceased. The complainant’s sister was not there at the time and therefore her evidence is of limited value.”

33. Further, at paragraphs 80 to 82 of his written submissions, the appellant states: “80. In the complainant’s sister’s statement she claims firstly to have heard about the abuse from her mother, she states, ‘… I found out off my Mam that [DN] had accused [NB] of abusing him. I was annoyed that [DN] was blaming his past on [NB] and this is lies, my Mam wasn’t believing him, I don’t remember my Dad saying anything.’

81. She later went on to say,

‘… he said that [NB] abused him at the back of the shops and maybe the tennis courts, I’m not sure if he mentioned it happened in his bedroom too.’

82. These statements show not only that the account given by the complainant to his sister is inconsistent with the account he is now giving, but it also shows that his mother did not believe him and his father paid no attention which raises questions as to why that was the only people who can answer those questions are now deceased.”

34. The appellant maintains that in circumstances where there is reason to believe that at least one of the deceased witnesses, the complainant’s mother, did not believe the complainant, it is not speculative to suggest that that witness could have assisted his case This was not a situation where the position of the potential witness is completely unknown, and where it could legitimately be said to be speculative as to whether the witness would be likely to testify in favour or against the accused. In this instance, based on the complainant’s sister’s account, it is known that the complainant’s own mother did not believe him when he stated that he had been abused by the appellant. The appellant argues that it cannot therefore be said that his contention that he is prejudiced by the absence of this witness is either fanciful, speculative or hypothetical.

35. The appellant has cited several cases in elaboration on his arguments, including, S. Ó’C v. DPP [2014] IEHC 65; B.S. v. DPP [2017] IECA 342; X v. DPP [2020] IECA 4; and M.H. v. DPP [2018] IEHC 560 (on which he places particular reliance). I have given due consideration to all of the jurisprudence cited.

36. In summary, it was submitted that the appellant will suffer “significant and irreparable prejudice” in his ability to defend the matter should it proceed to criminal trial, on account of the unavailability of specific potential witnesses, the fading memory of available witnesses by reason of the significant lapse in time, and inherent inconsistencies and contradictions evident in the Book of Evidence which are incapable of being resolved due to the passage of time and death of witnesses.

Ground 2: Discounting pre-trial stress and anxiety on the basis of supports available

37. The appellant states at paragraphs 98 to 103 inclusive of his written submissions that the evidence, which was before the trial judge, included the following: “98. The appellant’s mental health deteriorated subsequent to the allegation the subject matter of the proceedings coming to his attention in June 2017.

99. The appellant’s mood became notably depressed and he experienced chronic anxiety both in relation to the prospect of being charged with the alleged offence and the thought that people could consider him capable of sexually abusing a child. The appellant was unable to sleep and suffered from severe insomnia.

100. The appellant [attended his]GP at this juncture in relation to the symptoms and was prescribed anti-depressant and anti-anxiety medication, in addition to sleeping tablets. The appellant was unable to return to work on account of his poor mental health.

101. In early 2019, the appellant learned that Tusla had deemed the complaint to be unfounded. His symptoms subsided to some extent.

102. In late 2019, the appellant was interviewed by Gardaí in relation to the allegation. This had a devasting effect on him and his symptoms were exacerbated. He became suicidal.

103. The appellant’s psychologist opined that “The psychological distress that [N.B] experiences on an ongoing basis is undoubtedly pervasive, intense and debilitating.”

38. The appellant submits that in light of that evidence the proposed supports identified by the judge in the court below are inadequate to deal with the prejudice asserted by the appellant. It is submitted that the High Court judge failed to give due weight to the evidence before her which set out in detail the gravity of the physical and mental condition of the appellant and the High Court judge misapplied the case of M.S. in that regard.

39. The appellant has referred us to D v. Director of Public Prosecutions [2012] 2 ILRM

117 as supporting his arguments. He says there is a clear nexus to be drawn between the stress experienced by the accused in the D case and the stress of the appellant in the present case, where there is also evidence of potential for suicide.

40. The appellant submits that the High Court judge erroneously concluded that the balance lay with allowing the trial to proceed on the basis that there are a number of supports available. The individual psychotherapy suggested by Dr. O’Leary was suggested as a requirement. The appellant submits that she gave no evidence that such psychotherapy would remove the stress and anxiety completely, nor that it would remove the risk of suicide of the appellant or stop the increase of same as the trial approaches. The High Court judge also stated that the trial may be managed so as to allow the applicant to take breaks, avail of shorter hearing days and be assisted by a support person. The appellant submits that these are of no value to him. He does not struggle with attention or ability to be present in a courtroom for the required timeframe. Taking breaks and shortening trial days would do nothing but prolong the suffering of the appellant when his difficulty centres around the increased stress, anxiety and depression that has presented as a result of the accusation itself hanging over him for a prolonged period. And having a support person available would be of limited assistance to his mental condition.

Ground 3: Finding the case fell outside the exceptional category

where the trial would be unjust

41. The appellant has referred us to the case of T.C. v. Director of Public Prosecutions [2017] IEHC 839 as bearing similarities to the instant case, inasmuch as the complainant in the instant case, as an adult, apparently made numerous complaints to various third parties as long ago as 1994-1996 and consistently since then. The appellant contends that there is no apparent reason why the complainant could not have made a complaint to gardaí sooner.

42. The appellant also suggests similarities between the instant case and the case of D. v. Director of Public Prosecutions [2017] 2 ILRM 117, as there has been, the appellant contends, prosecutorial delay since the making of the complaint involving more significant periods of time during the course of the investigation which are not explained adequately or at all.

43. The appellant contends that the evidence before the court of significant prejudice arising from delay, both in the form of missing witnesses and also in the form of extreme stress and anxiety was sufficient to meet the test in M. O’H v. Director of Public Prosecutions [2007] 3 IR 299, namely, “There must be something more than normal, something extra caused by the alleged prosecutorial delay”. The appellant submits that the High Court judge erred in her finding that the evidence adduced was not sufficient to meet this test. Significant evidence had been before the court by way of affidavit exhibiting two detailed reports, one from the appellant’s GP setting out his medical situation and another from a psychologist setting out in detail how the appellant was particularly affected by the prosecution and stating: “it is apparent that [NB]’s pre-existing fragile mental state was unable to cope with the allegation made by [DN] and his functioning and overall quality of life have been severely impacted. The psychological distress that [NB] experiences on an ongoing basis is undoubtedly pervasive, intense and debilitating.”

44. The appellant submitted that this evidence, together with the evidence put forward of the prejudice caused by the lack of three essential witnesses is in fact “something more than usual” and “something extra” and that the same was in fact caused by blameworthy prosecutorial delay in circumstances where the explanation for same, as erroneously accepted by the High Court judge was nothing more than a vague assertion that it was due to “seeking and acquisition of additional records and further investigation” from 2017 to 2019 and the “intervening Covid pandemic” thereafter, neither of which adequately explains or justifies the four year delay. Ground 4: Failing to enumerate the criteria for a case to be deemed in the “exceptional category” and to apply those criteria

45. The High Court judge found that, “The applicant’s case falls outside of the exceptional category where it would be unjust to put an accused on trial.”. The appellant submits that in coming to this conclusion, the High Court judge failed to enumerate any criteria by which a case would fall within that category and also failed to give any reasons as to why the appellant’s case did not come within that category.

46. The appellant submits that it is unclear in general what type of evidence is required to meet this threshold or how severe the impact on the appellant’s stress and anxiety is required to be in order to establish “something more than normal, something extra”. Implicit in the appellant’s submissions, however, is a contention that regardless of any uncertainty which exists as to precisely where the threshold falls to be located, his circumstances will inevitably exceed any such threshold and that on any view of it his case falls within the exceptional category where it would be unjust to put him on trial.

Ground 5: Preferring evidence in the report of a GP over what

was contained in the psychologist’s report

47. The appellant notes that the High Court judge treated Dr. O’Leary’s report and the GP’s report as conflicting and submits that she acted erroneously in deciding to prefer one report over the other in circumstances where that decision was grounded on the circumstances in which Dr. O’Leary’s report was commissioned, and the fact that Dr. O’Leary had not been one of the appellant’s treating health professionals. The appellant contends that these were circumstances of no relevance to the validity of the findings in Dr. O’Leary’s report.

48. It was submitted that if the report of Dr. O’Leary had not been dismissed, that this evidence would have been sufficient to bring the case into the “exceptional category” in circumstances where said report affirms the additional stress that the impending trial has put on the appellant and that he is at risk of suicide.

Respondent’s Submissions

49. The respondent submits that the High Court judge properly applied relevant authorities and precedents and correctly determined that an Order of Prohibition or the injunction of a criminal prosecution is an exceptional remedy and that an applicant for such relief bears the onus of proof of the existence of a real risk of an unfair trial that cannot be avoided by appropriate rulings and directions on the part of the trial judge. Ground 1: Discounting prejudice caused by the unavailability of potential witnesses

50. In response to the appellant’s contention that the passing of three potential witnesses since the alleged offending constitutes evidence of prejudice flowing from prosecution delay, the respondent submits that he is incorrect. It was submitted that this is purely speculative and the appellant’s submissions on this ground runs contrary to the dicta that he himself cites, including that of O’Malley J. in S. Ó’C v. DPP [2014] IEHC 65, as approved in R.B. v. DPP [2019] IECA 48 and as cited in Pauletti v. Dunne [2022] IEHC 714 where it was observed: “Fanciful, speculative or hypothetical arguments as to deficiencies in the evidence available at trial could not establish a real risk to an unfair trial, for which prohibition should lie.”

51. The respondent contends that the appellant’s submission is also at odds with J.O’C v. DPP [2000] 3 IR 478, P.H. v. DPP [2018] IEHC 329 and M.H. v. DPP [2018] IEHC 560.

52. The respondent submits that whilst the appellant seeks prohibition by reason of inordinate blameworthy prosecution delay, he cannot point to any such relevant delay. The respondent states that there is none, as the High Court judge so found; and that the relevant family members upon whose absences he relies, died during his childhood and early adulthood. As such, their unavailability is not due to any prosecution delay. Ground 2: Discounting pre-trial stress and anxiety on the basis of supports available

53. The respondent notes that the appellant’s GP’s report expressly correlates his anxiety and stress with his poor physical health and does not attribute them to court proceedings.

Ground 3: Finding the case fell outside the exceptional category

where the trial would be unjust; Ground 4: Failing to enumerate the criteria for a case to be deemed in the “exceptional category” and to apply those criteria

54. It was submitted that the High Court judge conducted the appropriate fact-specific consideration and properly concluded that the appellant’s case fell outside the exceptional category where it would be unjust to put him on trial. Further the respondent contends that the High Court judge did not erroneously discount anything, as alleged or at all. The respondent submits that it was not necessary nor appropriate for the High Court judge to establish, publish and/or apply a list of special criteria that constitutes exceptional special circumstances, because as noted in A.T. v. DPP [2020] IECA 6 comparisons with other cases are of limited assistance.

Ground 5: Preferring evidence in the report of a GP over what

was contained in the psychologist’s report

55. The respondent says that the High Court judge’s approach to the medical evidence was justified in circumstances where Dr. O’Leary, the forensic psychologist the appellant engaged for his judicial review, was not his treating psychologist and did not have access to all of his records.

Analysis & Decision

Was there blameworthy prosecutorial delay?

56. Although it is undeniably the case that several decades have elapsed since the alleged offence is said to have been perpetrated, and it appears to be the case that the complainant made disclosures to a number of parties prior to the 11th of December 2017, his formal complaint to An Garda Síochána was only made on that date. Accordingly, in terms of assessing the issue of prosecutorial delay we are concerned with the period from the date of complaint to An Garda Síochána until the commencement of the appellant’s judicial review proceedings, which occurred on the 21st of February 2022.

57. The respondent proffered an affidavit of Garda Ciarán Geraghty sworn on the 24th of March 2023 to explain how the Garda investigation was conducted and progressed, and the procedural history of the criminal case up to that point. The affidavit of Garda Geraghty was detailed and represented, in my assessment, a proper engagement with potential concerns about the length of time taken. Having considered this affidavit, I do not consider that the appellant’s characterisation of it as amounting to nothing more a vague assertion that the length of time taken was due to “seeking and acquisition of additional records and further investigation” from 2017 to 2019 and the “intervening Covid pandemic” thereafter, is justified. The affidavit is much more detailed than that, identifying as it does specific bodies and agencies from whom material needed to be obtained and the steps taken to action that, the making of initial contact with the appellant and arranging to meet with him by appointment, the interviewing of the appellant, detailed further police work carried out in the course of the investigation including unsuccessful efforts to negotiate access in order to inspect and photograph the physical location of the alleged indecent assault, the need to seek a s. 63 order from the District Court in respect of certain records, the need to respond to queries from the DPP, and the procedural steps taken following the initiation of criminal proceedings against the appellant. I also do not consider that it is warranted to say that the matters put forward neither adequately explain nor justify the four year delay. The High Court judge was satisfied with the explanations put forward, and I am in turn satisfied that there was an adequate evidential basis for her to arrive at that view. I find no error on the part of the High Court judge concluding that there was no blameworthy prosecutorial delay. The first specific prejudice claimed – i.e., the deceased witnesses

58. The appellant has pointed to 3 potential witnesses, now unfortunately deceased, who he claims might have been able to exonerate him, or (perhaps to put it less dramatically) might have assisted his defence, if they had been available to him. He claims that because these potential witnesses are not now available to him there is a real risk that he will not receive a fair trial.

59. The three witnesses in question are the complainant’s mother and father, and an uncle of the complainant. The first thing to be said is that all of these potential witnesses died well before any complaint was made by the complainant to An Garda Síochána. Their nonavailability has therefore nothing to do with the state authorities, much less any delay (which in any case has not been found to exist) on the part of the state authorities.

60. Insofar as the complainant’s father and uncle are concerned, the appellant does not identify any basis for suggesting that they would exonerate him or otherwise assist him in his defence. As is frequently the case where reliance is placed on the missing potential witnesses, it is purely speculation as to what the witnesses in question might have been in a position to say if they were alive and available to be called. Neither of the two gentlemen in question were ever interviewed by gardaí investigating this alleged crime, much less signed a witness statement. Indeed, it is unclear whether they even knew of the allegation being made, or were apprised of disclosures said to have been made by the complainant to other persons. There is no evidence that either of them had ever given any intimation prior to their death as to what they might say if required to give evidence on any issue at a trial of NB. To suggest otherwise is entirely speculative.

61. The position in respect of the complainant’s mother is perhaps less straightforward. Again, it is the case that she was never interviewed by gardaí investigating this alleged crime, much less signed a witness statement. However, the complainant’s sister, who is a witness on the book of evidence, has asserted in her written statement that their mother was aware of her son’s [i.e. D.N’s] allegation that her brother [NB] had sexually abused him, and did not believe him. The complainant’s sister stated, “Coolmine is a drug rehabilitation place, [DN] had been treated in there and I found out off my Mam that [DN] had accused [NB] of abusing him. I was annoyed that [DN] was blaming his past on [NB] and this is lies, my mam wasn’t believing him, I don’t remember my Dad saying anything.” On the basis of the complainant’s sister’s account, the appellant contends that he could have expected that if D.N’s mother had been alive and available to testify then she would have been sympathetic to him as a witness and in a position to assist his defence. It is not at all clear to me, however, how admissible evidence could have been adduced from the complainant’s mother before the jury. It is entirely problematic and involves hearsay upon hearsay. Anything that the complainant’s mother was told by the complainant was hearsay. Moreover, anything that the complainant’s sister heard from their mother was equally hearsay. While the prosecution might have been able to adduce evidence from the mother, if she were alive today, of recent complaint (if indeed it was recent) for the limited purposes of demonstrating consistency on the part of the complainant, they would be most unlikely to do so in circumstances where the mother was contending that she did not believe any complaint made to her. Moreover, the appellant’s side could not call the mother as their witness to adduce testimony from her as to any complaint received as it would be inadmissible hearsay; much less adduce opinion evidence from her as to whether what she had been told was true or not. I think that the appellant has simply not engaged with the potential legal problems of adducing evidence from the complainant’s late mother on this issue if she had been alive today, and has not demonstrated how he might have been able to elicit admissible testimony in that regard from her that he could use to his advantage. I cannot conceive of that as being a realistic possibility.

62. It may well be true that the complainant’s mother, father and uncle might have been in a position to speak more authoritatively than the complainant’s sister, who would have been quite young at the time, concerning the family dynamics within their house, and concerning the layout of the house and routine within the house. However, in circumstances where the alleged occasion on which the appellant is said to have abused DH is said to have occurred on a date unknown in a period bracketed by two dates, it is entirely speculative to suggest that any of these witnesses could have “exonerated” the appellant, e.g. by establishing him with an alibi, or by establishing the absence of an opportunity to offend, or other such matter.

63. In all the circumstances I am satisfied that the trial judge’s approach was a reasonable one and one that was within her legitimate discretion to adopt, namely to say that it would be a matter for the trial judge to keep fairness to the accused in the trial process constantly under review, and to intervene to stop the trial if necessary should he/she conclude that the appellant could not get a fair trial due to the absence of deceased witnesses. Further, that she took the position that the complainant’s sister, who is still alive and available to testify, might potentially at least be of some assistance with respect to matters such as family dynamics, and the layout of the house and routine within the house, such that the trial should be allowed to proceed pro temp, was entirely understandable in circumstances where the trial judge would be monitoring fairness to the accused in the trial process at every stage. Her conclusion that the trial judge would be best placed to make an assessment as to whether the appellant was so prejudiced by the absence of deceased witnesses that the trial should not be allowed to continue, was an entirely correct and justified one in the circumstances of the case.

64. I find no error with regard to the trial judge’s approach to the deceased witnesses issue.

The issue of alleged heightened stress and anxiety

65. The evidence clearly established that the appellant has long-standing physical and mental health problems. The evidence from the GP’s report, which had been compiled with reference to notes and records from the appellant’s treating psychiatrist, was that the main trigger for psychiatric issues, including heightened stress and anxiety suffered by the appellant, was his physical health problems, and in particular his cardiac problems. There was no evidence that he had indicated to his treating psychiatrist or to his GP that he was experiencing heightened stress and anxiety on account of the allegation against him and his prosecution, or that he even mentioned these matters to them. Further, there was no indication that he had expressed suicidal ideation at any time to his GP or treating psychiatrist. Dr. O’Leary had not been involved in treating or managing the appellant’s mental health, whereas the GP and treating psychiatrist had been. The GPs report, which reviews his case from a physical and mental health perspective up to early 2022, was therefore informed by historical and contemporaneous dealings with the appellant as a treating health professional, as well as by notes taken by the author and other treating professionals who had assessed the appellant’s mental health in real time as he presented with various issues and complaints. Dr. O’Leary’s assessment, in contrast, was carried out on the instructions of the appellant’s solicitor “to outline [NB]’s mental health history and to identify how this allegation and resultant legal proceedings have affected him on the psychological and emotional level”, and principally on the basis of such information as was provided to her by the appellant himself, a review of social work records and a review of medical records relating to the appellant as compiled by the GP, and psychometric testing carried out by Dr. O’Leary. However, Dr. O’Leary had never observed the appellant as he had presented to the treating professionals for treatment.

66. Preferring the evidence of the GP over the evidence of Dr. O’Leary, the High Court judge concluded that it had not been demonstrated that the appellant had suffered heightened stress and anxiety on account of the allegation of indecent assault made against him, and the fact of being prosecuted. I am satisfied that this was a conclusion that was open to the High Court judge on the evidence before her. Her reasons for preferring the evidence of the GP to that of Dr. O’Leary are cogent and pellucid. I find no issue in her approach to the assessment of the medical evidence.

67. Insofar as it has been suggested that the High Court judge’s basis for preferring one health professional’s evidence over another was “of no relevance to the validity of the findings in Dr O’Leary’s report”, I beg to disagree. I consider that it must be of significance that the records kept by the appellant’s treating health professionals do not record any complaint of suicidal ideation, and I regard it as remarkable that Dr. O’Leary, who reviewed the records, does not comment on that absence. Further, Dr. O’Leary does not comment on the absence in those records of any reference to the allegation made against the appellant, or to his prosecution or to his pending trial as being a causation of or trigger for the appellant’s observed heightened stress and anxiety, despite the fact that he was under the active care of both a psychiatrist and another psychologist as well as his GP. Further, Dr. O’Leary does not engage with, or query, the attribution by the treating health professionals of the appellant’s observed heightened stress and anxiety to his poor physical health in general and his cardiac history in particular.

68. I do not doubt, as the High Court judge did not doubt, that being the subject of an allegation of indecent assault, and facing prosecution and trial, has contributed to some extent to the appellant’s stress and anxiety. However, he was suffering from significant stress and anxiety ever before he became aware of the complaint against him or the fact that he would be prosecuted. While he has exhibited heightened stress and anxiety in recent years, the medical evidence from his treating professionals suggests that this is predominantly due to concerns about his overall health and in particular his cardiac problems. It is of significance that he had a major exacerbation of his underlying cardiac issues in 2016 when there was an incident in which he collapsed from a cardiac arrest, had to be revived using CPR, was hospitalised, underwent multiple stenting, and is left in a situation where he requires constant close medical management and needs to take medication for life. Having regard to what is disclosed in the appellant’s medical records, as reported by his GP, I do not consider that the evidence establishes that the allegation made against him and his prosecution triggered his observed state of heightened stress and anxiety in recent years. Rather, this state of affairs has been primarily attributed to worries and concerns that he has about his physical health issues. While I do not wholly discount the concerns expressed by Dr. O’Leary, which I accept represent her considered professional opinion offered in good faith, that the appellant is considered by her to be at risk of suicide, I am not persuaded on the totality of the medical evidence that that risk exists at a level which necessitates our intervention by prohibiting his trial. I find no error in the approach of the High Court judge to the assessment of the medical evidence and in her approach to the claim of heightened stress and anxiety. The trial judge can be apprised of the appellant’s fragile mental health state and his welfare can be closely monitored during the trial.

Does this case fall within the exceptional category of cases

where it would be unjust to require the accused person to stand trial?

69. I have arrived at a very clear view that the issues raised by the appellant, whether they are considered individually or cumulatively, do not require this court to intervene on the basis that this case comes within the exceptional category of cases where it would be unjust to require a person in the position of the appellant to stand trial. I do not consider that this case is exceptional to that extent. I accept that a threshold for admission to the exceptional category has not been specified with precision, but I am satisfied that on no view of this matter would I be justified in prohibiting the appellant’s trial. I reiterate that I consider that the High Court judge was right in believing that the judge presiding at the appellant’s criminal trial will be best placed to ensure that he is treated justly and fairly. That protection will be available to the appellant and will be more than adequate to ensure that his rights, and the rights of all others concerned, are appropriately vindicated. I find no error on the part of the High Court judge in concluding that this case does not come within the exceptional category of cases where it would be unjust to require the accused person to stand trial.

Conclusion

70. I am satisfied in all the circumstances to uphold the judgment and decision of the High Court judge. Accordingly, the appeal must be dismissed.

71. As this judgment is being delivered electronically, I am authorised by McCarthy and Kennedy JJ. to state that they agree with it and with the Orders that are proposed therein.

Costs

72. The respondent has been wholly successful in resisting this appeal and in the circumstances is prima facie entitled to her costs. The court will therefore, and notwithstanding that there is at present no application for costs, provisionally award the costs of this appeal to the respondent. However, should either party wish to seek a different order in respect of costs, they should cause to have filed and served a written submission of not more than 1,500 words within 14 days of the delivery of this judgment, after which their opponent will have a further 14 days in which to respond by lodging and serving a reply of no greater length. In the event of such an application, or applications, being received within the specified time the Court’s provisional order as to costs will be automatically vacated and the court will then proceed to adjudicate, in light of the submissions received, on the issue of the appropriate costs order(s) to make, if any, and will in due course communicate its decision and the reasons therefore to the parties.