F.M. v The Director of Public Prosecutions (Approved)

3.������ There are two facets to this appeal, one procedural and one substantive. The procedural facet arises in circumstances where the High Court judge, notwithstanding that the application before him was out of time, refused to uphold an objection based upon delay that was raised in oral argument in the court below, in circumstances where no plea had been made in that respect in the appellant�s Statement of Opposition. The substantive facet to the case relates to whether the Circuit Court judge�s decision was a rational one made within jurisdiction.

4.������ In circumstances in which I have arrived at a clear view on the substantive issue that the appeal should be allowed for the reasons I will now set out, it is strictly speaking unnecessary to express a definitive view on the procedural issue and it will suffice, if in due course I express a provisional view obiter dictum.�

8.������ The matter was listed for trial again on the 29th of January 2019. On that date the defence consented to an application for an adjournment by the prosecution in circumstances where a prosecution witness, a sister of the complainant, had suffered a tragic bereavement (her 19 year old son was killed in an accident while abroad) and was too distressed to attend court. The trial was therefore adjourned to the 27th of March 2019.

10.���� When the Court reconvened on the following morning, the 28th of March 2019, the prosecution made yet another application for an adjournment but on different grounds. The grounds advanced on this occasion were that the complainant was unavailable. A medical certificate was produced to the court from the complainant�s General Practitioner, stating:

11.���� The court was further informed by prosecuting counsel that the medical report had been provided by the complainant in circumstances where she had been contacted by a Garda on the previous evening and advised that the case would be proceeding the next day. The complainant had protested at the time about the short notice in circumstances where she would have to travel some distance and had expressed unwillingness to travel. However, counsel assured the court, the complainant still wished to pursue the case and wanted an opportunity to do so at a future date.