Prosecutorial delay in criminal proceedings was not blameworthy

Bolger J: criminal law – judicial review – certiorari and declaratory relief preventing criminal prosecution – delay and manner in which case was prosecuted – real risk of unfair trial – grounds of exceptional from current health and memory issues – five counts of indecent assault – complainant was between 14 and 19 years of age – applicant contends he cannot get a fair trial due to specific prejudice caused by delay and due to his memory and cognition difficulties – delay has compromised his ability to mount a defence – bare allegation which can only be challenged by mere denial in absence of independent or objective factual evidence – specific prejudice due to absence of three witnesses who have passed away and missing documentary evidence from factory where complainant worked – reliance on terminal medical difficulties which gave rise to exceptional circumstances which prohibited trial – cumulative effect of the issues creates a separate real and serious risk of an unfair trial – Held: accused person must not be put at a real risk of an unfair trial – court must address risk caused by delay as to whether that is due to delay in the complaints or with the prosecution or with both – court have generally left that issue to be addressed by trial judge – timeline does not show blameworthy prosecutorial delay – issues arising from applicant’s current medical condition can be adequately addressed by judge’s ruling or directions if appropriate or necessary – issues arising from unavailable evidence can be dealt by trial judge more appropriately – in relation to unavailability of records, no obligation to retain records even if applicant was prosecuted closer in time – no cumulative factor of an exceptional kind – application refused.