N.B. v Director of Public Prosecutions (Approved)

Factual and Procedural Background

The Applicant faces trial scheduled for June 2024 on a single charge of indecent assault alleged to have occurred between January 1987 and December 1988. The charge was brought in September 2021, approximately 35 to 36 years after the alleged offence. The Applicant seeks an order prohibiting the trial, alleging inordinate prosecutorial delay and prejudice due to the death of three potential witnesses. The Applicant also claims heightened stress and anxiety resulting from the allegations and prosecution, arguing that these factors place the case within an exceptional category where a trial would be unfair. The High Court, presided over by Judge Bolger, refused the application on 11 March 2024.

Legal Issues Presented

1. Whether there has been inordinate and blameworthy prosecutorial delay sufficient to render the trial unfair and warrant prohibition.
2. Whether the prejudice caused by the death of potential witnesses justifies prohibiting the trial.
3. Whether the Applicant’s mental health issues, including stress and anxiety, create exceptional circumstances making it unfair to proceed to trial.
4. The appropriate role of the trial judge versus the reviewing court in assessing overall fairness of proceedings in cases involving aged allegations.

Arguments of the Parties

Applicant's Arguments

• There has been an inordinate prosecutorial delay of approximately 35 to 36 years between the alleged offence and trial.
• The death of three potential witnesses (the complainant’s mother, father, and uncle) prejudices the Applicant’s ability to mount a defence.
• The Applicant suffers from severe stress and anxiety, medically treated, which is exacerbated by the prosecution and allegations, placing this case in an exceptional category where trial would be unfair.
• The cumulative effect of delay, loss of witnesses, and mental health impacts justify prohibition of the trial.

Respondent's Arguments

• The delay is not inordinate or blameworthy given the complexity of obtaining records from multiple services and the impact of the COVID-19 pandemic.
• The prejudice from the absence of witnesses is not sufficient to prevent trial, especially as the complainant’s sister remains available for cross-examination.
• The medical evidence does not establish that the Applicant’s mental health difficulties are caused or significantly exacerbated by the delay or prosecution.
• Procedural safeguards and judicial management can adequately address any mental health difficulties during trial.
• The Applicant’s case does not fall within the exceptional category warranting prohibition.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the significant delay of 35 to 36 years between the alleged offence and the scheduled trial. However, the Court found that the delay was not inordinate or blameworthy, given the complex investigatory process involving multiple services, the necessity of a District Court order for records, and the impact of the COVID-19 pandemic. The Court emphasized the jurisprudential shift away from scrutinizing complainant delay towards focusing on prosecutorial delay that is inordinate, blameworthy, or unexplained.

Regarding the absence of witnesses, the Court noted the death of three potential witnesses but found that the complainant’s sister, who remains available, could provide relevant evidence and be cross-examined. Thus, the Court concluded that any prejudice from missing witnesses could be adequately addressed at trial.

On the issue of mental health, the Court carefully examined the medical evidence, including reports from the Applicant’s GP, psychiatric team, forensic psychologist, and cardiologist. The Court preferred the GP’s assessment, which did not attribute the Applicant’s mental health difficulties to the allegations or prosecution. The forensic psychologist’s findings of acute distress and suicidal ideation were noted but considered less authoritative given the treating role of the GP and psychiatric team.

The Court acknowledged that poor health can, in exceptional cases, justify prohibition but found that the Applicant’s mental health difficulties, though serious, were not sufficiently linked to prosecutorial delay or the prosecution itself to warrant such a conclusion. The Court also considered available supports and trial management measures to mitigate psychological distress.

Finally, the Court emphasized the primary role of the trial judge in assessing fairness at trial rather than on judicial review, consistent with established precedent. The cumulative factors did not bring the case within the exceptional category justifying prohibition.

Holding and Implications

The Court REFUSED the Applicant’s application to prohibit the trial.

The direct effect is that the trial will proceed as scheduled in June 2024. The decision confirms the principle that prosecutorial delay must be inordinate and blameworthy to warrant prohibition, and that mental health difficulties must be clearly linked to prosecutorial delay or the prosecution to justify exceptional relief. The Court reinforced the trial judge’s primary role in ensuring fairness in cases involving aged allegations. No new precedent was established beyond the application of existing principles.