M.S. v Director of Public Prosecutions (Unapproved)

�This is an appeal by the appellant from the order of the High Court (O�Regan J.) dated the 15 th December 2020, refusing the appellant�s application for an injunction restraining the respondent from further prosecuting the appellant for indecent assault offences alleged to have been committed by him on eleven persons between January 1968 and December 1992. The judge refused to grant an extension of time in accordance with O.84, r.21 of the Rules of the Superior Courts.

�The complaints grounding the current criminal proceedings were made between 23 rd � April 2012 and 2 nd � February 2014. The appellant was interviewed by the garda� on 5 th � December 2015 in respect of 57 complainants including the complainants the subject matter of the within bill.

No indictment has yet been lodged and on the 8 th June 2020 the appellant was granted leave to seek to prohibit the further prosecuting of bill DU874/2019 for which a trial date of 8 th June 2021 had been fixed. This date has since been vacated.

O�Regan J.� ruled that the appellant was out of time under O.84, r.21 of the Rules of the Superior Courts and that time could not be extended having regard to the provisions thereof. Nonetheless, she proceeded to consider the substantive issue in the case and concluded that even if she was incorrect on the issue of time, the appellant had not demonstrated that an Order of prohibition was warranted.

The appellant relies on the Supreme Court decision in S.H. v. DPP [2006] 3 IR 575 and contends that it would be unfair and unjust to put the appellant on trial.� It is accepted on his part that the law has evolved since S.H. and issues such as missing evidence or witnesses are now ordinarily left to the discretion of the trial judge.� However, the appellant seeks to rely on the cumulative impact of factors which it is said causes the appellant to fall within the dicta of Murray C.J. in S.H. which does not exclude the prohibition of a trial in wholly exceptional circumstances.