D. v D. P. P.

Factual and Procedural Background

This opinion concerns an application for an order of prohibition by way of judicial review, seeking to prevent the respondent from proceeding with criminal charges numbered 1 to 29 inclusive, as set out in the book of evidence. These charges were returned for trial in the Central Criminal Court, originally scheduled for July 2009. Leave to apply for judicial review was granted by the High Court on 8 December 2008.

The applicant, born in the mid-1940s, faces 29 counts of rape against two sisters, with alleged offences spanning from June 1959 to January 1969. Complaints were made in November 2005, and the applicant was arrested and charged between May 2006 and June 2008. The respondent conceded not to oppose the application regarding charges related to one sister (charges 1 to 15), leaving the court to consider charges related to the other sister.

The application challenges the trial on grounds including the extensive lapse of time (40 to 50 years), lack of specificity in dates of offences, prejudice from loss of evidence and witnesses, prosecutorial delay, and the applicant’s anxiety impairing his ability to mount a defence and obtain a fair trial.

Legal Issues Presented

1. Whether the extensive delay between the alleged offences and trial creates a real or serious risk of an unfair trial sufficient to prohibit the prosecution.
2. Whether the lack of specificity in the charges, particularly regarding time frames, prejudices the applicant’s ability to defend himself.
3. Whether the absence of medical records and the death or unavailability of potential witnesses amount to prejudice justifying prohibition of the trial.
4. Whether prosecutorial delay and its impact on the applicant’s anxiety and ability to receive a fair trial justify prohibiting the trial.

Arguments of the Parties

Appellant's Arguments

• The lapse of time (40-50 years) and lack of specificity over a nine-year period impede the applicant’s ability to defend himself effectively.
• Prejudice arises from unavailability or death of key witnesses, including family members and a neighbour, and the unavailability of hospital records concerning the applicant’s alleged injury and one complainant’s medical history.
• Prosecutorial delay of approximately two years and seven months has exacerbated the applicant’s anxiety and impaired his right to a fair and expeditious trial.
• The applicant suffers severe anxiety and psychological distress, including suicidal ideation, which is worsened by the delay and uncertainty surrounding the trial.
• The charges lack sufficient specificity, rendering some counts unsafe to proceed to trial.

Respondent's Arguments

• The applicant failed to engage specifically with the evidence to demonstrate how missing witnesses or evidence would affect the fairness of the trial.
• The prosecutorial delay, while acknowledged, is not sufficiently explained but does not alone justify prohibiting the trial unless it results in interference with the applicant’s constitutional rights.
• Stress and anxiety claimed by the applicant are not beyond what is expected in a pending prosecution and are not sufficiently substantiated to prohibit the trial.
• Medical reports based on uncontested statements of the applicant should be treated with caution.
• The lack of specificity in charges is not comparable to cases where shorter time frames have been held acceptable; thus, some charges should proceed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized the exceptional difficulty posed by the extensive lapse of time—40 to 50 years—since the alleged offences. It acknowledged that such delay complicates both prosecution and defence, but emphasized that prohibition requires specific grounds demonstrating a risk of unfair trial.

Regarding the absence of hospital records for the applicant’s alleged injury, the court found this to be a significant impediment to the defence, as the records could have clarified timing critical to exculpation. Since these records were unavailable, the court considered this a strong ground for prohibition.

In contrast, the absence of medical records for the complainant’s alleged miscarriage was not shown to have a plausible impact on the defence, as the applicant failed to demonstrate how such evidence would assist. Accordingly, this ground was rejected.

On missing witnesses, the court found the applicant had not sufficiently engaged with the evidence to show how deceased family members or a neighbour could have materially assisted the defence. The private nature of the offences further diminished the likelihood that these witnesses’ testimony would be relevant. Therefore, this did not justify prohibition.

Concerning the lack of specificity in charges, the court drew on precedent to prohibit counts with excessively broad time frames (spanning several years), deeming them unsafe for trial. Counts with shorter time frames were not prohibited.

The court acknowledged prosecutorial delay, noting an unexplained period of at least twelve months post-complaint. It held that blameworthy prosecutorial delay alone does not prohibit trial but, combined with evidence of significantly increased anxiety and impairment of rights, it may justify prohibition.

The applicant’s documented severe anxiety, psychological distress, and risk of suicide, supported by medical and psychological affidavits, were found compelling. The court accepted that this anxiety was aggravated by the delay and justified prohibiting the trial to protect the applicant’s constitutional rights.

Holding and Implications

The court granted the relief sought by the applicant, prohibiting the trial on the grounds of:

• Unavailability of hospital records critical to the applicant’s defence;
• Lack of specificity in certain counts rendering them unsafe to proceed;
• Blameworthy prosecutorial delay resulting in significantly increased anxiety impairing the applicant’s right to a fair and expeditious trial.

The direct effect is that the trial of the applicant on all charges set out in the book of evidence is prohibited. The court did not establish a new legal precedent but applied established principles concerning delay, specificity, prosecutorial conduct, and fair trial rights.