A music teacher charged with indecently assaulting a male pupil has secured a High Court order prohibiting his trial.
Ms Justice McGuinness said yesterday the proposed trial would be "unavoidably unfair" because it would not be possible for the trial judge, by directions and rulings, to offset prejudice that might be caused by delay between the alleged offences and the trial.
While Supreme Court judges had indicated prejudice against a defendant arising from delay before a complaint was made could be reduced and, perhaps, eliminated by proper directions to the jury, there was as yet no guidance on how such directions might be framed or at what point the jury should be directed.
"I feel sure that judges who try this type of case both in the Circuit Criminal Court and in the Central Criminal Court would welcome some explicit guidance from the Supreme Court as to the exact nature of the directions which should be given by the trial judge in these `delay' cases," the judge said.
She was dealing with an application for an order prohibiting the trial of the music teacher on five indecent assault charges relating to dates in 1982 and 1983 when the boy nine and 10 years.
The judge said it appeared no complaint had been made until 1995, 12 years after the last alleged assault. The teacher denies the charges.
It was during an argument with his father in 1995 that the young man spoke of the abuse, according to a statement made by his parents, she said.
Ms Justice McGuinness said the evidence of a senior clinical psychologist giving reasons why no complaint had been made at an earlier date was credible within the general theoretical framework. The psychologist in her report said the man told her his assailant spoke of "our little secret". Because he colluded in this, he felt he was a guilty party.
The judge said that, following a formal complaint in 1995, the alleged assailant was arrested in 1996 and charged. The case was first listed for trial in the Dublin Circuit Criminal Court in 1997 but on the day of the trial additional evidence was served on the defendant.
The trial judge had adjourned the case on the defendant's application because of the delay in serving this evidence and to give his legal team time to consider it.
A new trial date was fixed for later in 1997 but the trial judge at that hearing had ruled the evidence of the alleged victim's complaint was inadmissible due to the delay between the alleged offences and the making of the complaint.
After this ruling, the prosecution served notice of additional evidence containing details of a complaint made by the alleged victim to another person in or about June 1990. Defence counsel objected to the late introduction of this evidence, saying it was "trial by ambush".
The trial judge upheld the objection and discharged the jury. A date was fixed in early 1998 but three days before that trial was due to go ahead, the teacher began judicial review proceedings seeking an order preventing the trial.
In her reserved judgment yesterday, Ms Justice McGuinness said there was no legal requirement for a trial judge to caution a jury about delay between the date of the alleged offences and the trial.
Nor was there any legal requirement that a jury be cautioned on the dangers of convicting on the basis of uncorroborated testimony, she added.
A direction to the jury asking them to consider the difficulties in the case because of the delay might invite the jury to try the case on what the evidence might have been rather than on the evidence they had heard.
She believed it would not be possible for the trial judge to offset the trial's unfairness by proper rulings and directions. In those circumstances, the proposed trial would be "unavoidably unfair".