B (J) v DPP

JurisdictionIreland
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date14 November 2003
Neutral Citation[2003] IEHC 136
CourtHigh Court
Docket NumberHC 309\04
Date14 November 2003

[2003] IEHC 136

THE HIGH COURT

HC 309\04
[2001 No. 441JR]
B (J) v. DPP
JUDICIAL REVIEW

BETWEEN

J. B.
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CRIMINAL JUSTICE ACT 1994 S4

C (P) V DPP 1999 2 IR 25

O'C (P) V DPP 2000 3 IR 37

B V DPP 1997 3 IR 140

L (J) V DPP 2000 3 IR 122

F (S) V DPP 1999 3 IR 235

M (P) V DPP 2002 2 IR 560

REDMOND V DPP UNREP KEARNS 30.10.2003 2002/24/6062

O'FLYNN V CLIFFORD 1989 IR 524

O'C (J) V DPP 2000 3 IR 478

BYRNE V DPP 1994 2 IR 236

MCKENNA V CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316

F (B) V DPP 2001 1 IR 656

Abstract:

Constitutional law - Criminal law - Judicial review - Order of prohibition - Sexual offences - Delay - Role of Director of Public Prosecutions - Whether real or serious risk of unfair trial - Whether evidence of dominion - Whether order prohibiting trial should be granted - Bunreacht na hÉireann, 1937 Article 38.1

Facts: The applicant had been arrested and charged with sexual offences allegedly committed some years previously. The applicant brought an application seeking to prohibit his trial from proceeding. The applicant claimed that the lapse of time between the commission of the alleged offences and the date of trial was so great that it gave rise to an unavoidable and incurable presumption of prejudice against him. Furthermore it was claimed that the institution of the criminal proceedings had a severe and adverse impact on his mental health. In addition it was alleged that the prosecuting authorities had been guilty of inordinate and inexcusable delay in the prosecution of the alleged offences, the first statement of complaint being made some four years before the applicant was returned for trial. The complainants were relations of the applicant and submitted that the delays that had occurred in making the complaints were due to being afraid of the applicant and that the applicant was in a position of trust and authority. It was submitted by the defence that there was no evidence of dominion by the applicant. Issue was taken by the prosecution with regard to the delay by the applicant in bringing the judicial review proceedings.

Held by Ó Caoimh J in making the following order. In the case of one of the complainants it was clear that the delay in reporting the alleged abuse could not be the responsibility of the applicant and the charges in respect of this complaint would not proceed. However in the case of the other complainants there was psychological impairment which affected their ability to report the complaints which delay was explicable by reference to the conduct of the applicant. The applicant had failed to establish any degree of prejudice such as to give rise to a real and serious risk of an unfair trial in respect of these other charges and a trial on these charges would proceed.

Reporter: R.F.

Mr. Justice Aindrias Ó Caoimh
1

The applicant who describes himself as a retired policeman, farmer and businessman seeks:

2

1. A declaration that, by reason of the lapse of time in the institution and prosecution of criminal proceedings, currently pending before Clonmel Circuit Criminal Court and entitled "The Circuit Court, South Eastern Circuit, County of Tipperary, between The People (at the suit of the Director of Public Prosecutions), Prosecutor and J.B., accused", the applicant has been deprived of his rights to a trial with due expedition and will, further, suffer serious and irreversible prejudice in the defence of the said proceedings in consequence of which he has been denied his right to a fair trial in respect of the same.

3

2. An order of prohibition, including interim and/or interlocutory orders, by way of application for judicial review preventing the respondent from further prosecuting the applicant in the said proceedings currently pending before Clonmel Circuit Criminal Court.

4

3. Alternatively, an injunction, including interim and/or interlocutory orders by way of application for judicial review restraining the respondent from taking any further steps in the prosecution of the said proceedings.

5

The grounds upon which the applicant was given leave to seek the above mentioned reliefs are as follows.

6

1. On the 20th June, 2000, the applicant was returned for trial to the Clonmel Circuit Criminal Court on fourteen counts of indecent assault in respect of five of his nieces, on various dates between the 29th March, 1971 and the 9th March, 1987.

7

2. The applicant has been deprived of his right to a trial in respect of the said alleged offences with due expedition because of the lapse of time between the alleged commission of the said offences and the trial of the same.

8

3. The lapse of time since the alleged commission of the said offences is such as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

9

4. The State, and in particular, the Garda and prosecuting authorities, has been guilty of inordinate and inexcusable delay in the prosecution of the alleged offences. The first statement of complaint giving rise to the proceedings was made by T.M. on the 7thday of September, 1996, whereas the accused was not returned for trial until the 20th day of June, 2000.

10

The applicant is now 65 years of age and in poor health. The institution of the criminal proceedings has had a severe and adverse impact on his mental health and brought an end to his working life.

11

The application is grounded upon an affidavit of Michael O'Connor, solicitor on behalf of the applicant, who says that on the 20th June, 2000, at Tipperary District Court, the applicant was returned for trial to Clonmel Circuit Criminal Court on fourteen charges of indecent assault on his five nieces, four of whom were sisters, on various dates between the 29th March, 1971 and the 9th March, 1987. The book of evidence is exhibited by him with his affidavit. Mr. O'Connor states that the applicant was originally returned for trial to a sitting of Clonmel Circuit Court on the 5th December, 2000, but that the trial was adjourned on that occasion when the defence had to bring a motion for discovery of certain documentation in the Garda investigation file. He says that the trial was further adjourned on a subsequent occasion on the 30th January, 2001. The trial was thereafter listed for hearing at Clonmel Circuit Court on the 24th July, 2001. Mr. O'Connor says that, having obtained copies of the original statement of complaint made by each of the relevant complainants, it is apparent that a full statement of complaint was made by T.M. who was born on the 4th April, 1965, on the 7th September, 1996. On the 26th October, 1996, the applicant was arrested and detained at Thurles Garda Station, pursuant to s. 4 of the Criminal Justice Act, 1994, for a period of almost twelve hours. He says that during this time he was questioned with regard to the allegations made by T.M. but did not make any admissions in respect of same. Reference is made to the dates of birth and the days upon which the other complainants made complaints and these are as follows:

12

1. M.C.A.B., born on the 2nd May, 1964 and who made a statement of complaint on the 12th June, 1997.

13

2. E.K., born on the 24th July, 1960 who made a statement of complaint on the 23rd October, 1998.

14

3. B.B., born on the 26th July, 1967 who made a statement of complaint on the 3rd November, 1996.

15

4. M.K., born on the 29th March, 1963 who made a statement of complaint on the 13th November, 1998.

16

Mr. O'Connor points out that on the 15th June, 1999 the applicant was arrested and charged with the relevant offences at Tipperary District Court. The matter was adjourned to the 7thSeptember, 1999, for the book of evidence to be served. It was further adjourned to the 7th December, 1999, when the applicant was unable to appear on health grounds. The matter was further adjourned to the 17th December, 1999 at Clonmel District Court when the Court was cancelled and the matter was adjourned to the 10thJanuary, 2000. On that date the book of evidence was still not ready and the matter was adjourned back to Tipperary District Court on the 18th April, 2000. On that date the book of evidence was finally served and the matter was adjourned to the 20th June, 2000 for submissions. On that date, the applicant was returned for trial on fourteen of the original sixteen counts set forth in the statement of charges in the book of evidence. The learned District Judge did not consider that there was a case on which to send the applicant forward for trial on Counts Nos. 9 and 11 in the book of evidence. Mr. O'Connor says that at the time these offences are alleged to have been committed the applicant was a relatively young man and enjoyed good health. He points out that he is now 65 years of age and that his health has deteriorated. He refers to the applicant having developed septicaemia and symptoms of prostatic obstruction. He refers to a medical report in this regard. Mr. O'Connor says that the institution of these proceedings has had a severe and adverse impact on the applicant's mental health. He points out that the applicant was admitted to St. Joseph's Hospital in Clonmel with chest pains and was kept in intensive care for a period of approximately ten days in October of 1996. No physical cause of this pain was found and it was considered to be stress related. During this period of time he was treated for shock and placed on antidepressant medication. Mr. O'Connor says that following his discharge from hospital the applicant never returned to work and an auctioneering business, which he had recently established, closed in November of 1996. It is pointed out that the applicant has not worked since that date. It is stated that he has become depressed and speaks openly about suicide in the context of facing the charges, which have been made herein. Mr. O'Connor...

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