B.S. v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,Mr. Justice Sheehan
• Judgment Date: 20 March 2017
• Neutral Citation: [2017] IECA 342
• Date: 20 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 6 Appeal No. 2016/523

[2017] IECA 342

THE COURT OF APPEAL

Sheehan J.

Hedigan J.

Peart J.

Sheehan J.

Hedigan J.

Neutral Citation Number: [2019] IECA 6

Appeal No. 2016/523

Between

B.S.

Applicant/Appellant

V

The People at the Suit of the Director of Public Prosecutions

Respondent

Prosecution – Judicial review – Injunction – Appellant seeking an injunction by way of judicial review restraining the respondent from proceeding with a prosecution against him – Whether it would be unfair and unjust to put the appellant on trial

Facts: The appellant appealed to the Court of Appeal from the order and judgment of McDermott J delivered on 7th October, 2016 in which he refused the appellant’s application for an injunction by way of judicial review restraining the respondent, the DPP, from proceeding with a prosecution against him entitled “The People (at the suit of the Director of Public Prosecutions) v. B.S.” (Bill CCDP 0131-2015). The case was listed for trial before the Central Criminal Court. The offence sought to be prosecuted was one of rape of a 7 year old girl on an unknown date between 1st January, 1970 and 21st May, 1970. The appellant was 16 years old at the time. He brought the appeal on the grounds that the judge erred in law and in fact in: (i) deciding that the appellant had not established prejudice such as to give rise to a real or serious risk of an unfair trial; (ii) deciding that the unavailability of the evidence of two deceased farm labourers, even if such evidence was to be considered “general” in nature did not give rise to a real or serious risk of an unfair trial; (iii) deciding that the unavailability of the evidence of the deceased father of the complainant was not such as to give rise to a real or serious risk of an unfair trial; (iv) finding that there was no real possibility that evidence helpful to the appellant would have been forthcoming from the deceased father; (v) attaching undue importance to his conclusion that the prosecution might not be able to pursue at trial the reason for the termination of the appellant’s employment by the said deceased father; (vi) failing to give due weight to the age of the appellant at the time of the alleged offending and the importance of all other evidence being available at trial to ensure the fairness of the trial; (vii) determining that any potential unfairness to the appellant could be remedied by the trial judge; and (viii) refusing to grant an injunction in the particular circumstances set out on affidavit before him.

Held by the Court that the appellant had engaged with the evidence and his belief that the 3 deceased witnesses could have been of assistance to him went beyond mere assertion; if he was not prejudiced according to the dicta of O’Malley J in S. O’C v DPP [2014] IEHC 65 then he had at least established “moderate prejudice”. Further, there was in the Court’s view inherent prejudice in a delay of what would be 47 years if the trial was allowed to proceed; this was particularly so in a case that was wholly dependent on oral testimony of the complainant and the appellant. The Court held that the appellant had established sufficient prejudice which gave rise to a real risk of an unfair trial which could not be overcome by any delay warning.

The Court held that, having considered all of the particular facts and circumstances of the case and looked at them cumulatively, the case came within the ‘wholly exceptional circumstances category’ as a result of which it would be unfair and unjust to put the appellant on trial. The Court therefore allowed the appeal and granted the application for an injunction restraining the DPP from proceeding further in this matter. Hedigan J handed down a dissenting judgment.

Appeal allowed.

JUDGMENT of the Court delivered on the 20th day of March 2017 by Mr. Justice Sheehan

1 The appellant is a retired farm labourer in his early 60s who lives in sheltered housing in Co. Limerick.

2 He has been returned for trial on one count of rape which is alleged to have occurred on an unspecified date between 1st January, 1970 and 21st May, 1970 when the appellant/applicant was 16 years old and living with his uncle and grandfather. If convicted of this offence he could face a substantial prison sentence, the penalty for rape being life imprisonment.

3 The issue in the present appeal is whether or not the learned trial judge was right in holding that the appellant had failed to establish that there was a real risk of an unfair trial if the prosecution against him was allowed to continue.

Background

4 These proceedings arise following the taking of a statement from the complainant at Roxboro Road Garda Station on the 22nd February 2014 by Garda Elaine O'Neill in the presence of Garda Lesley Moloney and a member of the Rape Crisis Centre.

5 The complainant is a married woman living with her husband and family in Limerick. She grew up on her parents” dairy farm with her seven brothers and two sisters. She complains that on a date or dates unknown between January and May 1970 when she was seven years old and before she made her first communion she was raped by the appellant who she says was always around and was totally trusted. She states that the appellant lured her with sweets and money to a field away from the farm where he sexually assaulted her. She states that this happened a number of times and that she does not remember her parents being at home when these events occurred. She states that the other children were nearby or in the house playing but never in the same field or close by. She says that she told her mother what happened because she was in physical pain and that after that the appellant was gone. The complainant also states that she told a friend in boarding school what had happened, and her husband when she was going out with him. There are statements before this court by the complainant's late mother, an older sister, her husband and her school friend. The complainant's mother stated that she told her husband what her daughter had told her, and that he dismissed the appellant. She is now deceased. The complainant's sister made a statement to the gardaí on the 11th of March 2014 in the course of which she says that on one occasion when she was 12 or 12 and a half, the appellant kissed her on the lips. She says that on another occasion sometime after this, she was sexually assaulted by the appellant. She says no one else was around at the time and that her sister, the complainant, was the only person she ever told about this assault and that she only told her this “in the last few years”. The complainants” school friend has made a statement confirming that the appellant told her about being assaulted sexually when they were in boarding school. There is also a statement from the complainant's husband, who states that the complainant told him about these matters as far as he can remember after they got married.

6 The appellant denies that he raped or assaulted the complainant in any way. He denies that he ever looked after the children when their parents were not there as has been suggested by the complainant. He says that he ended working for her father on very good terms. He says that he was let go shortly after he had been discharged from Croom Hospital where he had been hospitalised for some time and at a time when there were bad things happening on the farm which resulted in the death of a number of animals.

The Affidavit Evidence

7 The application to the High Court for an order stopping the trial was grounded on the affidavit of the appellant, the affidavit of his solicitor Sarah Ryan. In the course of his affidavit the appellant says that he was contacted by a garda who he understands was Elaine O'Keefe on the 1st May 2014 and that he agreed to call into the garda station that day when he was interviewed. He was arrested and charged on the 17th September 2015 and served with a book of evidence on the 11th of December 2015.

8 The appellant sets out the circumstances in which he ceased working on the farm in para. 2 of his affidavit: “I worked for over two years for Mr. L until I reached the age of 17 years and I left on good terms. It is totally wrong to now make it look like I left, to make it anything to do with his daughter, UL. The gardai said to me that Mr. L let me go because of something I did to his daughter and this is completely untrue. Towards… the end of the time I was working with him, he had problems with a lot of his cows dying… I got sick and ended up in Croom Hospital. I was discharged from hospital and went back to tell Mr. L that I was ready to come back to work on the farm. I became unwell again that same night and Mr. L came to me a few days later and said I would be better off elsewhere looking for work. Mr. L said that he would deal with the piseogs himself. He had less animals and things were not the same then. He was nice to me and hoped that I did well working elsewhere. I have no doubt that if Mr. L was alive now, he would help to explain all of this”. At para. 3 he says that helping at the farm also at this time was a man called M H who knew everything that was going on at the farm and with the family. The appellant says that if M H was alive now, he has no doubt that he would be able to explain a lot and he would be able to defend himself. He states at para. 3: “I never looked after the children when I was there and I never went with UL as she claims… There was another man who also worked at the farm called M D H. He was not there as often as M H but also would confirm what I am saying”.

9 Sarah Ryan, solicitor for the appellant, who was first instructed by the appellant on the 17th of September 2015, states in her affidavit filed on his behalf that the appellants” ability to defend himself against the charge has been severely compromised in the particular circumstances of this case and says that she believes there...