O'B (C) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 30 March 2007 |
| Neutral Citation | [2007] IEHC 115 |
| Court | High Court |
| Date | 30 March 2007 |
[2007] IEHC 115
THE HIGH COURT
BETWEEN
AND
A (J) v DPP UNREP MACMENAMIN 30.3.2007 2007 IEHC 116
K (J) v DPP UNREP SUPREME 27.10.2006 2006 IESC 56
B (J) v DPP UNREP SUPREME 29.11.2006 2006 IESC 66
T (D) v DPP UNREP SUPREME 25.1.2007 2007 IESC 2
K (C) v DPP UNREP SUPREME 31.1.2007 2007 IESC 5
B (J) v DPP UNREP QUIRKE 21.12.2006 (NO TRANSCRIPT AVAILABLE)
M (P) v DPP 2006 2 ILRM 361 2006 IESC 22
M (P) v DISTRICT JUDGE MALONE & DPP 2002 2 IR 560
Judicial Review - Whether the degree of prejudice was established - Whether there was prosecutorial delay - Absence of essential witness - Whether there were other potential witnesses, evidence and records - Whether there was sufficient proximity and gravity to discharge the onus of proof - Whether exceptional and unfair circumstances existed to put the applicant on trial.
the complaints in question are initiated on the basis of allegations made by the same complainant. The applicant faces a total of six charges of indecent assault and gross indecency against the applicant. The first four charges are alleged to have taken place at address A and the other two charges are expected to have taken place at address B. The complainant alleges that as a young person he was abused by the applicant on a number of occasions. Issues arose over a potential witness who the applicant says lived with him at address A but later died. The applicant claims he would have been an essential witness given the particular prejudice that would have arisen from the description of the house which he shared with the deceased including the applicant’s habits as described by the complainant.
Held by McMenamin J that judicial review was to be granted by way of prohibition in relation to the charges at address A but not in relation to address B.
Reporter: E.C.
JUDGMENT of Mr. Justice John MacMenamin delivered on the 30th day of March, 2007.
This judgment is circulated in redacted form to avoid identification of the parties
1. This case was heard immediately after that of J. A. and the Director of Public Prosecutions [2005 No. 1344 J.R.], and should be read in conjunction with that judgment delivered on the same day. Both cases relate to a claim for Judicial Review by way of prohibition by reason of delay in a case of sexual assault.
As pointed out in the decision in A. v. Director of Public Prosecutions the two applications are, to a degree, connected, in that the prosecutions in question are initiated on the basis of allegations made by the same complainant, M.O'C. The cases of course should be considered separately. The observations, as to the legal principles now applicable outlined in A. are common to both cases.
The charges in the instant case span the period from18th August, 1985, to 7th August, 1987. The applicant faces a total of six charges of indecent assault and gross indecency against the applicant. The first four of these alleged offences are stated to have occurred at Address A in Dublin. The fifth and sixth offences are stated to have occurred at or near Address B.
The applicant was born on 2nd June, 1954. He is a company director and former joint owner of a public house in Dublin.
The complainant was a pupil in a Christian Brothers School. He was born on 8th August, 1971. He entered the school in September, 1984. During the time span in question in these judicial review proceedings he was not in regular attendance at the school.
4. The complainant alleges that as a young person he was abused by a number of persons between the age of eight years until the age of approximately fifteen years. He alleges that the applicant herein abused him on a number of occasions when he was in the region of thirteen to fourteen years.
Four affidavits in total have been sworn by the applicant. A replying affidavit has been filed by the complainant, M.O'C., and affidavits have also been sworn by M.D., a psychologist retained by the Director of Public Prosecutions, Detective Sergeant J.M., and Detective Garda J.D. who had charge of the investigation. While the substance of the evidence will be dealt with in the course of consideration of the particular allegations of prejudice, for completeness this judgment sets out a chronology of events which although slightly adapted, closely reflects that in the case of A. v. The DPP as, it is contended, there was an inter-relationship between the two investigations. It is unfortunately necessary for context to repeat certain other elements of the background material also.
4th April, 2002. The complainant met the members of Gardaí and made a complaint against a number of persons not including the applicant herein.
22nd July, 2002. The complainant made his first, more formal statement of complaint. In this statement he made allegations against two individuals named B.C. and W.R..
23rd July, 2002. The complainant made a second statement of complaint. In this statement he made complaints against W.R. and the first applicant, J.A. but not the applicant herein.
Date unknown between 23rd July and 13th November, 2002. The complainant made a third statement of complaint. In this statement he made complaints against J.A. and two other unnamed individuals. This statement (it is accepted) was wrongly dated the 22nd July, 2002.
13th November, 2002. The complainant made a fourth statement of complaint. In this statement he made allegations against a man from Northern Ireland called 'T.', and a man called 'S'.
27th November, 2002. The complainant made a fifth statement of complaint. In this statement he made allegations against C.O'B., the applicant herein and his co-accused of J.A.
27th November, 2002. The complainant made a sixth statement of complaint. In this statement he made complaints against the applicant, C.O'B. The complainant outlines witnesses, routes to locations, places, descriptions of locations where it is alleged abuse occurred and details of the motor vehicle in which the complainant allegedly travelled.
21st June, 2003 Detective Garda M. and Detective Garda G.C. took a further statement from the complainant. Together with the complainant they attended at a number of scenes where it was alleged that the complainant had been assaulted by J.A., and also scenes where it was alleged that the complainant had been assaulted by C.O'B..
27th June, 2003 The complainant made a seventh statement. In this statement he identified an address where he claims one of the incidents involving J.A. occurred.
22nd October, 2003. The complainant made an eighth statement. In this statement he identified the location where alleged assaults involving J.A. took place.
22nd October, 2003. The complainant made a ninth statement. In this statement he clarified the contents of previous statements.
18th March, 2004. J.A. was arrested and detained. During the course of his detention he was interviewed and denies the allegations made against him by the complainant.
15th April, 2004 The complainant made a tenth statement. This statement related to the applicant herein, C.O'B.
19th April, 2004 The applicant C.O'B. is arrested. He is interviewed by Detective Garda G.C. in the presence of Detective Garda S.D.
31st May, 2004. J.A. furnished a statement to the Gardaí on a voluntary basis.
19th June, 2004. The complainant made an eleventh statement. In this statement he set out reasons why he did not complain earlier.
28th June, 2004. A file was submitted to the respondent.
15th November, 2004. The respondent issued directions although these were unspecified in these proceedings. On15th November, 2004 Detective Garda J.D. attends at Address A, speaks to the occupants of the house and drafts on paper in sketch form the exterior and interior of the house.
27th November, 2004. The Gardaí met the complainant and put the statement of the applicant J.A. made on 31st May, 2004 to him.
30th November, 2004 Detective Garda D. called to Address D and meets Mr. M.M. of S. D. C Ltd. regarding his knowledge of apartments at Address B.
26th May, 2005. Directions received from the Director to charge both applicants.
27th June, 2005. The applicant C.O'B. was arrested, charged and cautioned. He was released to appear before District Court 46 on11th July, 2005.
29th June, 2005. The applicant J.A. was arrested for the purposes of charge.
11th July, 2005. The applicant C.O'B. first appeared in Dublin District Court.
20th July, 2005. Evidence of arrest, charge and caution of the applicant, J.A, was given before District Court 46.
12th September, 2005. Book of Evidence served in case of the applicant C.O'B.
29th September, 2005. Book of Evidence served in the case of J.A. He was returned for trial.
10th October, 2005 The applicant, C.O'B., appears before Dublin Metropolitan District Court and returned for trial.
11th November, 2005 The case was first mentioned before the Circuit Criminal Court.
14th November, 2005. General disclosure was furnished to the solicitors of the applicant, J.A.
20th November, 2005 Death of Mr. B.B., partner of the applicant or the relevant person to the charges.
22nd November, 2005. A written request was made on behalf of the applicant, J.A., for specific disclosure. It was accepted that Detective Garda J.M. was unaware of the request until it was averred to by the applicant in these proceedings.
28th November, 2005 The applicant, C.O'B., was given leave to seek an order by way of judicial review.
12th December,...
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