B (F) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice de Valera |
| Judgment Date | 04 June 2010 |
| Neutral Citation | [2010] IEHC 229 |
| Court | High Court |
| Date | 04 June 2010 |
[2010] IEHC 229
THE HIGH COURT
Between
AND
T (J) v DPP UNREP SUPREME 17.4.2008 2008/59/12339 2008 IESC 20
B (S) v DPP & DISTRICT JUDGE HARNETT UNREP SUPREME 21.12.2006 2006/5/852 2006 IESC 67
H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006 IESC 22
C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77
H (P) v DPP UNREP SUPREME 29.1.2007 2007/27/5627 2007 IESC 3
K (C) v DPP UNREP SUPREME 31.1.2007 2007/30/6173 2007 IESC 5
D (P) v DPP UNREP SUPREME 23.4.2008 2008/11/2163 2008 IESC 22
Z v DPP 1994 2 IR 476 1994 2 ILRM 481
CRIMINAL LAW
Delay
Prohibition of trial - Prejudice to applicant - Real risk of unfair trial - Unavoidable risk of unfair trial - Principles to be applied -Prejudice suffered as result of delay - Delay -Consequences of delay- Death of witnesses - Loss of evidence - Totality of matters complained of - Exceptional circumstances - Whether exceptional circumstances established - Whether risk of unfair trial - Whether totality of matters complained of gave rise to risk of unfair trial -Whether risk of unfair trial unavoidable - JT v DPP [2008] IESC 20 (Unrep, SC, 17/4/2008), H v DPP [2006] IESC 55 (Unrep, SC, 31/7/2006), CK v DPP [2007] IESC 5 (Unrep, SC, 31/1/2007) , PD v DPP [2008] IESC 22 (Unrep, SC, 23/4/2008) , Z v DPP [1994] 2 IR 476 and DC v DPP [2005] IESC 77 [2005] 4 IR 281 applied; SB v DPP [2006] IESC 67 (Unrep, SC, 21/12/2006) and PM v DPP [2006] IESC 22 [2006] 3 IR 172 considered - Application dismissed (2007/569JR - de Valera J - 4/6/2010) [2010] IEHC 229
B(F) v DPP
Facts The applicant sought an injunction by way of an application for judicial review prohibiting the respondent from taking any further steps in certain criminal proceedings against the applicant on the grounds of delay. The applicant was facing 66 counts in total, consisting of 65 charges of indecent assault and 1 charge of buggery against two complainants. The applicant submitted that he was prejudiced in his defence of the charges by reason of the delay in excess of 30 years from the first alleged offence and the date of charge. The applicant submitted that he was prejudiced by reason of the death of certain witnesses, difficulty locating other witnesses and by reason of certain changes to locations where the alleged offences took place. The applicant also invited the court to assess and weigh the alleged prejudices together and consider the overall effect of the totality of the matters complained of. It was submitted on behalf of the respondent that this was not an exceptional case and that there was no real risk that the applicant would receive an unfair trial. The respondent also submitted that since the decision of the Supreme Court in H. v. The Director of Public Prosecutions [2007] 1 I.L.R.M. 401, complainant delay was no longer a ground on which to succeed in an application for judicial review.
Held by de Valera J. in dismissing the application: That the applicant was not likely to be prejudiced in any real way in his defence of these charges. In any event, any prejudice he alleged to have suffered was clearly of the type which could be dealt with by the trial judge through appropriate directions and warnings and was not of the type likely to give rise to a real risk of an unfair trial.
Reporter: L.O'S.
Judgment of Mr. Justice de Valera dated the 4th day of June, 2010
The applicant in these proceedings is seeking an injunction by way an application for judicial review prohibiting the respondent from taking any further step in certain criminal proceedings against him on the grounds of delay and an order staying the said proceedings pending the determination of this application. The charges the subject matter of the prosecution concern the alleged abuse of two persons by the applicant, who is facing 66 counts in total, consisting of 65 charges of indecent assault and 1 charge of buggery.
The two complainants, a female relative, W.N., and a male relative, D.N., are second cousins of the applicant. The complainants' paternal grandmother and the applicant's mother were sisters. The applicant was born in August 1960, W was born in August 1966 and D was born in September 1968.
As regards the female complainant, W, the elapse of time is 30 years 11 months between the first alleged offence and the date of charge and 26 years 3 months between the last alleged offence and the date of charging the applicant. As regards D, the elapse of time is 30 years 11 months between the first alleged offence and date of charge and 22 years 2 months between the last alleged offence and the date of charging the applicant.
The applicant is alleged to have abused W.N. on a regular basis for approximately seven years. In the statements of complaint she made to the Gardaí, she alleges that the abuse occurred when she was between six and 13 years of age. The alleged abuse took place at a number of locations in the Dublin area between 1973 and 1979. The abuse consisted of an incident of rape and numerous incidents of indecent assaults which included fondling, masturbation, digital penetration, attempted oral sex, stimulated sex and ejaculation. Initially the assaults consisted of the applicant fondling W's vagina and forcing her to masturbate him. Over time it progressed to the applicant forcefully penetrating W's vagina with his penis and this act occurred within a week of her father's funeral when she was 11 years of age. It is the State's case that the indecent assaults were numerous and constant and were committed up to three or four times a week. When W was 13 years of age, she began inflicting injuries to her genital area in order to prevent the applicant abusing her.
The applicant is alleged to have abused D on a regular basis for approximately 11 years. In the statements of complaint that he made to the Gardaí, he alleges that the abuse occurred when he was between six and 17 years of age. The alleged abuse took place at a number of locations in the Dublin area between 1974 and 1986 and one incident in the Navan area. The abuse consisted of an incident of buggery and numerous incidents of indecent assaults which included fondling, masturbation, kissing, oral sex, stimulated sex and ejaculation. Initially the assaults consisted of the applicant fondling D's penis and masturbating him. Over time they progressed to D having to perform oral sex on the applicant. Again, it is the State's case that the indecent assaults on D were numerous and occurred on an almost daily basis.
Throughout the years of the alleged abuse, it is acknowledged that the two families were close and lived in close proximity to each other. The statements made by various witnesses to the investigating Gardaí have shown that the applicant was like a member of the complainants' family and was regularly in their family home. He was held in high esteem by a number of members of the complainants' family and the applicant had daily contact with the complainants. It is the State's case that he used every available opportunity to sexually abuse the children in whatever possible location was to hand and that he took advantage of the fact that they were vulnerable children and groomed them from a young age.
At the time of the hearing of the within application, the applicant was in or about 47 years of age and was in full health. The Gardaí had stated that they found him to be fully alert and coherent. Thus, the State submit, we are not dealing with an applicant who is an elderly man with health or memory problems, like in many other sex delay cases. Another unusual facet of this case is that the applicant has not asserted that he is suffering from any particular stress or anxiety in respect of the prosecution the subject of these proceedings.
The applicant submits that he is prejudiced in this case and that the prejudice is such as would give rise to an unfair trial. The applicant identifies nine separate factors which he alleges have or will prejudice him in his ability to obtain a fair trial. These nine factors are as follows:
1. the death of the applicant's parents
2. the death of the applicant's grandparents
3. the death of other potential witnesses
4. a medical condition
5. difficulty in locating tenants of a property named as a location where a number of the offences are alleged to have been committed
6. difficulty in ascertaining the details of certain vehicles mentioned by the complainants in their statements to the Gardaí
7. changes to sheds to the rear of a certain location where a number of offences are alleged to have been committed
8. changes to another location where offences are alleged to have been committed
9. changes to an outdoor location where offences are alleged to have been committed
The applicant points to statements from the complainants in the Book of Evidence which mention episodes of alleged abuse that took place at the applicant's family home which he shared with his parents, now deceased. The applicant submits that his parents could have had something to say about many of the allegations made, such as allegations that he used to shout at the children, that he used a cane to frighten them and that there were no locks on the doors in that house. There is also a reference to D helping the applicant carry out repair works to a house owned by the applicant when this complainant was only 13 or 14 years old and that often times this work was carried out at the house with the applicant's father present. The applicant submits that his parents may therefore have been in a position to...
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