M. A. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 23 November 2015
• Neutral Citation: [2015] IEHC 749
• Docket Number: [Record No. 2015/652 JR]
• Court: High Court
• Date: 23 November 2015

BETWEEN

M. A.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2015] IEHC 749

[Record No. 2015/652 JR]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – Sexual assault – Disappearance of evidence – Ex parte application for leave to seek prohibition – O. 84 of the Rules of the Superior Courts – Whether there was delay in making the application.

Facts: The applicant sought an order for prohibition or restraint of his prosecution for an alleged offence of sexual assault. The applicant contended that the continuation of the prosecution in the circumstances of the present case - disappearance of evidence, would be contrary to the concept of a fair trial. The applicant contended that the application satisfied the requirement of O. 84 of the Rules of the Superior Courts and any application made prior to the date, without hearing from the expert, would have been premature.

Mr. Justice Richard Humphreys held that an order by way of prohibition to prohibit the applicant's prosecution pending in the criminal court would be refused. The Court held that the applicant had failed to make the application in time. The Court held that the adjudication regarding fairness of the trial rested with the trial judge. The Court stated that the question of whether a point could be raised would have been explored in detail had the application been made in time.

EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of November, 2015

1 The applicant has applied ex parte for leave to seek prohibition of a criminal trial. The trial in question is due to commence in Trim Circuit Court tomorrow, 24th November 2015, and relates to the alleged sexual assault of a named complainant in September 2010. The applicant maintains his innocence and applies for prohibition for reasons associated with the apparent disappearance of evidence or failure of the prosecution to disclose such evidence.

2 Given the nature of the trial, I made an order under section 45 of the Courts (Supplemental Provisions) Act 1961 that there be no identification of the parties.

3 The Applicant is alleged to have performed oral sex on the complainant without her consent while she was in bed following the consumption of alcohol.

4 Following the alleged incident, the complainant was brought by Gardaí to the Sexual Assault Treatment Unit in the Rotunda Hospital to be examined and have tests conducted. Counsel for the applicant stated that the prosecution have failed to produce the results relating to these tests and examinations.

5 On 27th October, 2015, it appears that the solicitor for the applicant knew that the results of the kit were not available despite the trial date having been fixed based on previous assurances.

6 Following this, the Applicant sought the opinion of an expert, Dr Reich, rather than making application to court at that...