A man has failed to stop his trial for alleged indecent assault on a child some 36 years ago.
The man is facing trial later this year relating to a single charge of indecent assault alleged to have occurred between January 1987 and December 1988.
Ms Justice Marguerite Bolger rejected arguments on his behalf that the trial should not go ahead because of inordinate delay and because he has suffered heightened stress and anxiety due to the allegations and his prosecution. He claimed these reasons brought him within the exceptional category of cases where it would be unfair to put him on trial.
The Director of Public Prosecutions (DPP) opposed the application.
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The judge said the complainant made a statement to gardaí in December 2017 and a prosecution of the man was directed by the DPP in August 2021.
The fact that the complainant had made several different disclosures to different services over many years meant an investigation and gathering of records was required before gardaí interviewed him in April 2019, after which further inquiries took place.
Nearly four years passed, including the period from the complainant’s initial complaint to the service of the book of evidence on the accused, the judge noted.
However, she said, she did not consider there was evidence of inordinate, culpable or unjust delay. Having regard to other factors she also found there was no blameworthy prosecutorial delay.
The accused also claimed the delay prejudiced him because the complainant’s mother, father and uncle, whom he says could have exonerated him and/or enabled him to challenge the credibility of the evidence against him, are all now dead.
However, the judge said, the complainant’s sister will be giving evidence and may be able to give an account of the arrangements in the family home at the relevant time and will be available for cross-examination both on her recollection and her credibility.
Among his claims about stress and anxiety caused by the case is that a forensic psychologist has found it is highly likely that he may become actively suicidal before and during the trial.
The judge said some of the psychologist’s conclusions were markedly different from the views of the man’s GP which were based on the records of his treating psychiatric team.
She preferred the account and conclusions of his GP, none of which identify the complaint or prosecution or pending trial as causation of, or trigger for, his mental health difficulties. There was also no reference in the GP’s report to him having suicidal ideation, she said.
The judge accepted he has a history of depression, anxiety and cardiac issues for which he has been and continues to be prescribed medication and remains under medical care.
However, she said there was insufficient evidence that those medical issues, or any exacerbation of them since he first became aware of the allegations against him, can be safely attributed to the length of time it has taken to bring the complaint to trial.
She said the court was told of several supports that can be made available to him during the trial if necessary, including the individual psychotherapy that has already begun with a view to reducing his psychological distress to a tolerable level.
The trial may be managed to allow him to take breaks, avail of shorter hearing days and be assisted by a support person, she said.
She was satisfied that those steps, combined with the very important role to be played by the trial judge in ensuring a fair trial, means that the balance to be struck between his rights and the community’s rights to prosecute are in favour of proceeding with the trial.
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