�'C. v Director of Public Prosecutions & ors

Factual and Procedural Background

The Applicant seeks injunctive relief against a pending prosecution concerning 159 counts of indecent and sexual assault alleged to have occurred between 1981 and 1993, and one count of rape alleged to have occurred in 1987. The charges relate to a single complainant, the sister of the Applicant's wife, who was a minor at the time of the alleged offences. The Applicant, a former schoolteacher, denies the allegations and contends that the delay in prosecution has caused specific prejudice, risking an unfair trial. He points to loss of evidence including the death of a psychiatrist who saw the complainant, missing medical records, and destroyed psychotherapist notes. The Applicant was initially charged in February 2011, with amended charges served in June 2011, and returned for trial in September 2011. Leave for judicial review was granted in October 2012.

Legal Issues Presented

1. Whether the delay in prosecution has caused a real or serious risk that the Applicant will not receive a fair trial.
2. Whether the Gardaí breached their duty to seek out and preserve relevant evidence, particularly concerning the psychiatrist's records and statements.
3. The impact of lost or destroyed evidence on the fairness of the trial.

Arguments of the Parties

Applicant's Arguments

• The significant delay between the alleged offences and prosecution has caused specific prejudice, risking an unfair trial.
• The Gardaí failed to obtain statements and records from the deceased psychiatrist, breaching their duty to seek and preserve evidence.
• Loss of evidence, including medical records and psychotherapist notes, impairs the defence’s ability to challenge the complainant’s credibility and the prosecution’s case.
• Prejudice arising from the delay cannot be remedied by judicial warnings or directions at trial.
• The inability of the complainant’s GP to recall any disclosure further exemplifies the evidential difficulties caused by delay.

Respondent's Arguments

• The Gardaí acted reasonably in their efforts to obtain the psychiatrist’s records and statements, and the psychiatrist’s death was unforeseen.
• Evidence of the complainant’s mental state is available from hospital records and witness statements related to her suicide attempt.
• The complainant’s own statements indicate uncertainty about whether she disclosed abuse to her GP, an issue for cross-examination.
• Missing psychotherapist notes are of limited relevance as no explicit details of abuse were disclosed in those sessions.
• The absence of medical records relating to a possible miscarriage does not render the trial unfair.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court applied the test from S.H v. D.P.P. to determine whether the delay caused a real or serious risk of an unfair trial. It adopted the nine propositions summarized in K v. His Honour Judge Carroll Moran, emphasizing the presumption of fairness in criminal trials and the high threshold for preventing prosecution on delay grounds.

The Court carefully examined the alleged prejudice arising from lost evidence. It found that the missing Gaeltacht Health Centre records concerning a possible miscarriage were of limited relevance and unlikely to affect trial fairness. The Gardaí had made extensive efforts to obtain the psychiatrist Dr. O'Carroll’s records and statements, and his death was accidental and unforeseen, thus not constituting a breach of duty under Braddish v. D.P.P..

The Court noted the absence of evidence suggesting that the missing psychiatrist records would have contained material inconsistencies beneficial to the defence. The Applicant had not demonstrated a real possibility that the lost evidence would materially assist his case. Similarly, confusion about disclosures to the complainant’s GP was a matter for cross-examination and judicial warning rather than grounds to prohibit trial.

The loss of psychotherapist notes was considered insignificant because the complainant did not provide explicit details during those sessions. Overall, the Court concluded that the Applicant had not discharged the burden of proving a real risk of an unfair trial that could not be addressed by trial judge directions or rulings.

Holding and Implications

The Court REFUSED THE RELIEFS SOUGHT by the Applicant, thereby allowing the prosecution to proceed.

The decision directly affects the parties by permitting the trial to continue despite the delay and lost evidence. No new legal precedent was established; rather, the Court applied existing principles regarding delay, prejudice, and fairness in criminal prosecutions. The ruling reinforces the high threshold required to prevent prosecution on grounds of delay and evidential loss, emphasizing judicial warnings and trial management as primary safeguards for fairness.