Connolly v D. P. P.

Factual and Procedural Background

This opinion concerns an application by the Defendant to restrain by prohibition or injunction the prosecution of criminal proceedings currently pending before the Dublin Circuit Criminal Court. The Defendant was charged in 2007 with multiple counts of indecent assault allegedly committed between 1966 and 1969. Three of the original seven charges were withdrawn prior to trial at the Defendant's request. The complainant made multiple statements over 2005 and 2006, and the prosecution initially intended to call a limited number of witnesses, including the complainant and a priest associated with the Child Protection Service. Additional witnesses and evidence were subsequently notified. The trial was adjourned due to late disclosure of certain correspondence and medical records related to the complainant’s psychiatric treatment, which led to this application and a stay of the trial pending determination.

Legal Issues Presented

1. Whether the prosecution failed in its duty to seek out and disclose evidence relevant to the Defendant’s defence, specifically concerning psychiatric treatment records of the complainant.
2. Whether there was blameworthy prosecutorial delay sufficient to justify prohibiting the trial.
3. Whether there exists a real or serious risk of an unfair trial due to delay or unavailability of witnesses and evidence.
4. Whether exceptional circumstances exist that would render it unfair or unjust to permit the prosecution to proceed despite failure to meet the usual criteria for prohibiting a trial.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D.C. v. D.P.P. [2005] 4 IR 281	Prosecution duty to seek out and preserve evidence; criteria for prohibiting trial due to failure to obtain evidence.	Used to establish the threshold for prosecutorial obligations and the necessity of showing evidence relevance and availability to justify prohibition.
Bradish v. D.P.P. [2001] 3 IR 127	Prosecution's obligation to preserve material evidence.	Referenced to support the principle that evidence must be preserved to ensure a fair trial.
Dunne v. D.P.P. [2002] 2 IR 305	Prosecution's duty to seek out evidence and the risk of unfair trial if evidence is not available.	Applied to assess whether failure to seek evidence created a real risk of unfair trial.
Murphy v. D.P.P. [1989] I.L.R.M. 71	Preservation of evidence relevant to guilt or innocence until trial conclusion.	Supported the principle that evidence must be kept for the accused’s defence.
Dillon v. O'Brien and Davies [1887] 20 L.R.IR. 300	Preservation of evidence and custody for trial purposes.	Quoted in support of the prosecution’s duty to preserve material evidence.
McKeown v. Judges of the Dublin Circuit Court (Unreported, 2003)	Limits on the extent of Gardaí’s duty to seek or preserve evidence.	Referenced to highlight practical limits on investigative duties.
P.M. v. Malone [2002] 2 IR 560	Constitutional right to a speedy trial; balancing test for prosecutorial delay.	Applied to balance the accused’s rights against public interest in prosecution.
P.M. v. D.P.P. [2006] 3 IR 173	Balancing exercise for prosecutorial delay and remedies short of prohibition.	Used to confirm that blameworthy delay alone does not automatically warrant prohibition.
Cormack v. D.P.P. and Farrell v. D.P.P. (Unreported, 2008)	Requirement for evidence beyond normal anxiety to prove prejudice from delay.	Discussed in relation to the applicant’s claim of stress and anxiety from delay.
M.OH. v. D.P.P. [2007] 3 IR 299	Prosecutorial delay and balancing public interest with accused’s rights; evidence of anxiety required.	Referenced to emphasize necessity of some evidence of exceptional anxiety or prejudice.
McFarlane (No. 2) v. D.P.P. (Unreported, 2008)	Principles relating to prosecutorial delay including blameworthiness and balancing test.	Outlined detailed factors relevant to prosecutorial delay and prejudice.
D. v. D.P.P. [1994] 2 IR 465; B. v. D.P.P. [1997] 3 IR 140; Z. v. D.P.P. [1994] 2 IR 476	Right to fair trial supersedes community's right to prosecute where real risk of unfair trial exists.	Not elaborated but noted as supporting the principle of trial fairness.
P.OC. v. D.P.P. [2000] 3 IR 87	Right to trial with reasonable expedition.	Reaffirmed the constitutional right to timely trial.
G. v. D.P.P. [1994] 1 IR 374; P.C. v. D.P.P. [1999] 2 IR 25	Special considerations in sexual abuse cases involving children.	Noted as consistent with established principles on delay and fair trial.
P.L. v. Judge Buttimer [2004] 4 IR 494	Prohibition granted due to unavailability of physical exhibit.	Referenced as an example of prohibition based on evidentiary issues.
S.B. v. D.P.P. (Unreported, 2006); R.M.C.C. v. D.P.P. [2007]; D.J. v. D.P.P. (Unreported, 2007); D. v. D.P.P. (Unreported, 2008); T.D. v. D.P.P. (Unreported, 2008)	Cases concerning unavailability or death of witnesses or records.	Noted that these cases turn on their own facts and do not establish general rules.
P.T. v. D.P.P. [2008] 1 IR 701	Exceptional circumstances test for prohibiting trial despite lack of prosecutorial delay or unfair trial risk.	Applied to consider whether cumulative factors warranted restraining prosecution.
S.H. v. D.P.P. [2006] 3 IR 575	Exceptional circumstances may justify restraining prosecution even absent unfair trial risk or prosecutorial delay.	Guided the court’s consideration of wholly exceptional circumstances in this case.

Court's Reasoning and Analysis

The court undertook a detailed analysis of the prosecution's investigative and disclosure obligations, particularly regarding psychiatric treatment records of the complainant. It found that the prosecution had fulfilled its duty to seek out evidence to the extent practicable, and that the absence of certain records was due to their non-existence or unavailability rather than prosecutorial neglect. The late disclosure of correspondence was regrettable but did not amount to blameworthy prosecutorial delay. The court applied established principles from case law to assess prosecutorial delay, emphasizing the need for relevance, availability, and impact on fairness of trial.

The court then considered the constitutional right to a speedy trial and the balancing exercise required when prosecutorial delay is alleged. It noted that while the Defendant claimed significant stress and anxiety caused by delay, there was no medical evidence establishing causation or exceptional anxiety beyond the normal distress expected in criminal proceedings. The court accepted that adjournments and late disclosure are common litigation hazards and that the Defendant and his solicitors were aware of the psychiatric treatment issue well in advance.

Regarding the risk of an unfair trial, the court found no real or serious risk arising from the non-availability of certain witnesses or evidence, noting that other available witnesses could address relevant issues. The absence or death of witnesses does not per se bar a fair trial.

Finally, the court considered whether wholly exceptional circumstances existed to prohibit the trial notwithstanding the absence of prosecutorial delay or unfair trial risk. Drawing on precedent, it recognized that cumulative factors such as the age and health of the Defendant, the antiquity of the allegations, and the stress of proceedings might warrant such relief. However, the court found the circumstances insufficiently exceptional to justify restraining the prosecution.

Holding and Implications

The court REFUSED THE RELIEF SOUGHT, thereby allowing the prosecution to proceed.

The decision directly affects the parties by permitting the continuation of the criminal trial. No new legal precedent was established; the ruling applies existing principles concerning prosecutorial duties, prosecutorial delay, and exceptional circumstances in the context of old allegations of sexual offences. The court reaffirmed the high threshold required to prohibit a trial and emphasized the importance of balancing the accused’s rights with the public interest in prosecution.