B (C) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Declan Budd |
| Judgment Date | 09 October 1995 |
| Neutral Citation | 1998 WJSC-HC 138 |
| Court | High Court |
| Date | 09 October 1995 |
1998 WJSC-HC 138
THE HIGH COURT
BETWEEN
AND
Citations:
RSC O.84 r21
MAKIN V AG FOR NEW SOUTH WALES 1894 AC 57
DPP V BOARDMAN 1975 AC 421
DPP V P 1991 2 AC 447
R V STRAFFEN 1952 2 QB 911
REX V SMITH 1915 11 CAR 229
HUME ON CRIMES 3ED (1844) V2 384
R V INDER 1977 67 CAR 143
R V CLARKE 1977 67 CAR 398
R V TUDOR UNREP 18.7.88
R V BROOKS 1990 92 CAR 36
MOOROV V HM ADVOCATE 1930 JC 68
R V HUIJSER 1988 1 NZLR 577
HSI EN FENGS CASE 1985 1 NZLR 222
R V MCLEAN 1978 2 NZLR 358
O'CONNOR V SMITH & DPP UNREP BARR 17.11.94
HOGAN V PRESIDENT OF THE CIRCUIT COURT & DPP 1994 1 IR 513
G V DPP & KIRBY 1994 1 IR 374
O'CONNELL, STATE V FAWSITT 1986 IR 362
COX V IRELAND 1992 2 IR 503
R V TELFORD JUSTICES 1991 2 AER 854
O'C V DPP & SHERIDAN 1992 ILRM 14
CONSTITUTION ART 38.1
CAHALANE V MURPHY 1994 2 IR 262
DPP V CARLTON 1993 1 IR 81
DPP V BURNBY UNREP BARR 24.7.89
CUDDY, STATE V MANGAN 1988 ILRM 720
DPP V BYRNE 1994 2 IR 236
DPP V CARROLL UNREP SUPREME 2.3.94
ROAD TRAFFIC ACT 1961 S49
CONSTITUTION ART 38.1
HEALY, STATE V DONOGHUE 1976 IR 325
CONSTITUTION OF THE UNITED STATES SIXTH AMENDMENT
CONSTITUTION OF THE UNITED STATES FOURTEENTH AMENDMENT
BARKER V WINGO 1972 407 US 514
BELL V DPP 1985 AC 937
ATKINSON V US GOVERNMENT
R V OXFORD CITY JUSTICES EX PARTE SMITH 1982 75 CAR 200
R V DERBY CROWN COURT EX PARTE BROOKS 1985 80 CAR 164
R V BOW STREET STIPENDIARY MAGRISTRATE EX PARTE CHERRY 1989 91 CAR 283
BELL V DPP OF JAMAICA 1985 2 AER 585
L P B 1990/91 CAR 359
HUNTER V CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1982 AC 592
JAGO V DISTRICT COUNCIL OF NEW SOUTH WALES 1989 63 ALJR 640
LIMITATION ACT 1980 S28 UK
R V CANTERBURY CROWN COURT EX PARTE POWELL UNREP LEGGATT 19.12.91
AG REFERENCE 1992 1 QB 630
CRIMINAL JUSTICE ACT 1972 S36
WATSON 1987 8 NSWLR 685
GORMAN V FITZPATRICK 1987 32 ACR 330
COONEY, IN RE 1987 31 ACR 256
BARTON, IN RE 1980 147 CLR 111
R V CLARKSON 1987 VR 973
MURPHY V REGINA 1989 167 CLR 94
VICTORIA V AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES & BUILDERS LABOURERS FEDERATION 1982 152 CLR 25
MCGUINNESS V REGINA 1979 143 CLR 575
HOLDSWORTHS HISTORY OF ENGLISH LAW V3 622
GARVER V AG (NSW)
QUEENSLAND ELECTRICITY COMMISSION; EX PARTE ELECTRICAL TRADE UNION OF AUSTRALIA 1987 61 ALJR 393
AG (NSW) V WATSON 1987 20 LEG REP SL 1
R V SMALE 1992 ONT CJ LEXIS 1357
R V D 57 CCC 3d 151
R V ACCUSED 1993 2 NZLR 286, 1993 1 NZLR 385
D V DPP 1994 2 IR 465
Synopsis:
[1997] 3 IR 140
Judgment delivered by Mr. Justice Declan Buddon the 9th day of October, 1995.
The Applicant applied for an Order of Prohibition at the end of June 1995. The Applicant, who is now retired and a widower, had made an ex parte application on 16th May, 1994 to the High Court for leave to apply for prohibition by way of Judicial Review and, in a reserved judgment delivered on 10th August, 1994, O"Hanlon J. gave leave to apply for prohibition.
On 26th May, 1992 the Applicant was arrested, questioned and released. On 7th October, 1993 he was charged with offences alleging indecent assault and rape on three of his daughters between the years 1962 and 1974. The Complainant, M.B., was born on 18th May, 1957; the Complainant, A.B., was born on 28th May, 1958 and the Complainant, S.B., was born on 13th October, 1959; thus the alleged acts of child sexual abuse would have occurred while the daughters were living in the family home and while they were of tender years. Some of the charges initially preferred against the Applicant were subsequently withdrawn and more charges were added of similar ilk. On 26th January, 1994, District Judge Ballagh returned the Applicant for trialto the Central Criminal Court and on 1st March, 1994 the matter first appeared in the List in the Central Criminal Court. The Applicant's Solicitor was furnished with an indictment containing 69 counts alleging rape or indecent assault on the three Complainants. The Applicant and his wife E.B. had 13 children of whom 11 now survive, including the three Complainants. In 1982 his wife obtained a Barring Order in the Circuit Court and since then the Applicant has lived apart from his wife and family. His wife died on 30th March, 1991.
The Applicant seeks an Order restraining the Prosecution from prosecuting on the following grounds:-
1. The elapse of time between the dates of the commission of the alleged offences and the date of trial is now so great as to give rise to an unavoidable and incurable presumption of prejudice against theApplicant;
2. The very large number of offences alleged in the indictment;
3. The lack of specificity in the dates upon which such offences were allegedly committed;
4. By reason of the great lapse of time the Applicant cannot now locate witnesses as to his whereabouts in the years 1963 to 1973 so as to establish a defence by way of alibi or otherwise to the charges;
5. The Applicant's late wife, E.B., has died and so is unavailable as a witness;6. The Applicant has no documentary evidence available to him as to his activities in the years 1963 to 1973 to support or corroborate his denial of the charges.
A seventh contention that there had been delay on the part of the prosecuting authorities was sensibly withdrawn as being untenable as both the Gardai and the Director of Public Prosecutions had moved with all due expedition bearing in mind the need for sensitive and careful investigations of such allegations.
PRELIMINARY POINT In respect of delay in bringing Application for Prohibition. The application was met at the threshold of the Court by the hurdle of the Respondent's contention that this application was out of time. Under Order 84 Rule 21, such an application has to be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made. It was suggested that the Applicant should have moved for prohibition after his arrest on 26th May, 1992 or after being charged on 7th October, 1993. In the light of the nature of the charges and the multiplicity of the alleged offences, it was reasonable for the Applicant and his advisers to await sight of the indictment which was furnished to the Applicant's Solicitor on 1st March, 1994 at the Central Criminal Court. At this stage the Applicant's advisers became aware of what counts the Director, after deliberation, was in tending to proceed upon; even then, in practice there was likely to be areduction in the number of the counts. It is clear from his Affidavit that the Applicant is illiterate and has suffered from alcohol problems; in view of the practical difficulties in obtaining instructions in respect of the approximately 173 charges initially brought, it seems to me that it was reasonable for the Applicant's advisers to await the selected counts in the indictment. Since the indictment was received on 1st March, 1994, I ruled that the Applicant was within time in bringing his application for leave to apply for relief on 16th May, 1994. Even if this was incorrect and the time ran from 26th January, 1994, the date of the return for trial, then in all the circumstances, including the nature and seriousness of the charges, the Applicant's illiteracy and the appropriateness of an application for prohibition in the light of the long time sequence in this case, I had no hesitation in extending the time, if necessary, up to 17th May, 1994 for the bringing of the preliminary application and deeming the application to have been brought within time. On a preliminary overall view of the issues, there are good reasons in justice and fairness for extending the period so that this application for prohibition may be heard and the argumentsconsidered.
The Respondent's Grounds of Opposition are that:-
1. There is no time-bar on the prosecution of the offencescharged.
2. The trial judge's duty to ensure a fair trial will prevent prejudice to the Applicant arising by reason of the difficulty of establishing an alibi after such a time-lag or such other difficulty as may arise for the Applicant in meeting a case after such an elapse oftime.
3. The Applicant bears responsibility for the delay in the making of the complaints against him by his daughters as his domineering, violent and threatening attitude towards his wife and family prevented their complaints. His intimidation and domination, and threats against their mother, made the daughters afraid to complain during her lifetime.
4. The wife of the Applicant died on 30th March, 1991 and, released from anxiety on her account, the daughters then made theircomplaints.
5. As for the number and particularity of the counts, the Court of trial can ensure that the number and specificity of the counts is such as to ensure fairness.
A problem arises in prohibition and bail cases. These cases are heard in open Court and may rightly attract considerable public interest. Frequently a synopsis of the allegations may be given. It should be noted that this synopsis of the allegations often contains hearsay matters and frequently consists of statements or evidence which have not been subjected to analysis under cross-examination. Evenexperienced journalists have a difficult task in writing an account of such cases when they must steer a course between the Scylla of brief blandness and the Charybdis of publishing lurid matter which may imperil a subsequent fair trial of an accused. Accordingly, I shall be terse in outlining the family history and the circumstances which form the background against which the allegations have been made. The facts have been extracted from the Affidavits and particularly from the Affidavit of the Applicant on...
To continue reading
Request your trial