B.S. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 07 October 2016 |
| Neutral Citation | [2016] IEHC 548 |
| Docket Number | [2016 No. 89 J.R.] |
| Court | High Court |
| Date | 07 October 2016 |
[2016] IEHC 548
THE HIGH COURT
JUDICIAL REVIEW
McDermott J.
[2016 No. 89 J.R.]
Crime & Sentencing – S. 4 of the Offences against the Person Act, 1861 – Injunction to restrain proceedings – Judicial review – Inordinate delay – Deceased witnesses – Prejudice – Risk of unfair trial – Dismissal from employment – Admissibility of evidence – Appropriate forum
Facts: Following the return of the applicant for trial on the charge of the rape of the complainant contrary to s. 4 of the Offences against the Persons Act 1861, the applicant now sought an injunction by way of the judicial review application restraining the respondent from proceeding with the prosecution presently pending before the Central Criminal Court. The applicant contended that there was a real risk that he would be subjected to unfair trial due to a long delay in the between the alleged offence and the date when the applicant was charged. The applicant further contended that there was a real risk of unfair trial as the main witnesses in the applicant's case were dead including the complainant's father. The applicant averred that the unavailability of the complainant's father/employer to give evidence that termination of the applicant was owing to the applicant's bad health rather the alleged sexual abuse of the employer's daughter resulted in prejudice as to give a real risk of unfair trial.
Mr. Justice McDermott refused the relief sought by the applicant. The Court found that the applicant had not established prejudice that would give rise to any serious risk of an unfair trial or prejudice. The Court observed that apart from the applicant's belief, there was no evidence that could indicate that the suggested evidence would have been forthcoming from the witnesses. The Court observed that as the alleged incident occurred at an isolated place there was no real possibility that the witnesses would have been of any assistance to defend the case of the applicant. The Court held that it could not be established whether the complainant's father would have supported the applicant's version of the reason of the dismissal from service. The Court held that the admissibility of evidence, issue of delay would be a matter for the trial Court.
The applicant seeks an injunction by way of judicial review restraining the respondent from proceeding with the prosecution entitled ‘ The People (at the suit of the Director of Public Prosecutions) and B.S.’ (Bill No. CCDPO131/2015) presently pending before the Central Criminal Court.
An indictment has yet to be filed in the case. The applicant was returned for trial on a single charge that on a date unknown between 1st January, 1970 and 21st May, 1970 he raped the complainant A.B. contrary to s. 4 of the Offences against the Person Act 1861. The applicant claims that there is a real risk that he would be the subject of an unfair trial since in excess of 45 years has elapsed between the date of the alleged offence and the date when he was charged. In particular, it is claimed that important witnesses relevant to his defence are now dead. The applicant denies that he committed the alleged offence. The complainant alleges that when she was seven to eight years old, before she made her holy communion, the appellant, then a farm labourer on her father's farm, raped her. She claims that this occurred repeatedly in an isolated field on a neighbour's land adjacent to her family's farm. She states that she was lured to the field by the applicant by offers of sweets and small amounts of money. She alleges that it happened many times ‘over the few months’. The time frame set out in the charge is limited to the period from January to May, 1970.
The claimant was born in 1963. The applicant was born on 29th May, 1953 and was approximately sixteen to seventeen years old at the time of the alleged offence. While the applicant faces a single charge of rape, it is clear that the prosecution intends to proceed on the basis that the charge is representative of multiple occasions of rape that occurred during the five month period. It is not clear from the book of evidence why the particular period of January to May, 1970 was chosen but this may be related to the date of the complainant's first Holy Communion.
The complainant alleges that the applicant took the opportunity to carry out these rapes when he was left to mind the children. In her statement contained in the book of evidence, she states:
‘I can remember my parents going to mass and leaving (the applicant) to mind us. My parents would take some of the children and leave the younger ones behind. The children who had their communion made were normally taken to mass. I can remember feeling that my parents were at mass. There were other occasions when he would have been minding us, a funeral or wedding or some reason. I know I had not made my communion when this had happened. I know it happened a number of times and feel it lasted for a few months.’
She did not believe that her parents were at home when it happened. She had two sisters and five brothers but if any of them were at home she believed they were nearby or in the house or playing. They were never in the field with her and the applicant. She also alleges that he warned her not to tell anyone.
In her statement, the complainant also outlines how she informed her mother of the abuse shortly after its occurrence. She states:
‘I remember my mother having her hands on her head and being horrified. I remember being told to go to another room or play and after this (the applicant) was gone.’
She claims that she told a number of other people about the alleged abuse in subsequent years. When she was twelve she attended a boarding school. She befriended M.L. who, in a statement included in the book of evidence, describes what she was told about the alleged sexual abuse in second or third year. She also informed her present husband about it in the mid-1980s. He also describes this in a statement contained in the book of evidence. Before Christmas 2013 the complainant received counselling for approximately five weeks following which she was advised and went to the rape crisis centre which she continues to attend.
The complainant made a statement of complaint to Garda Elaine O'Keeffe on 22nd February, 2014.
The applicant attended voluntarily at a Garda Station on 1st May, 2014 and was interviewed in respect of these allegations. It is clear from the transcript of the interview set out in the book of evidence that the Gardaí had other statements in their possession from the applicant's sister and her mother. He denied the allegations. He also challenges the sequence of events set out in the mother's statement that the complainant told her about the allegations about which she then told her husband who, as a result, dismissed the applicant from his employment because of what he had done. The applicant denies that he was dismissed for this reason. He also denies a suggestion in the complainant's mother's statement that he used to mind the children if the parents were at mass or ill.
The applicant was then charged with the alleged offence on 17th September, 2015 and the book of evidence was served on 11th December, 2015. Disclosure has not been completed in this case and it is clear from the transcript of the interview contained in the book of evidence that at least two other statements with some relevance to the case exist. In addition, the court was informed that other statements were taken during the investigation from some of the complainant's siblings. It is likely that the later revelations made to M.L. and the complainant's husband would be challenged as inadmissible during the course of a criminal trial. The two statements referred to in the course of interview do not appear in the book of evidence. Any issue relating to the admissibility of evidence contained in M.L.'s statement or that of the complainant's husband, or other statements made but yet to be disclosed, are matters for the trial judge. In a case of this kind, full disclosure should be made at the earliest stage and there is no reason, given the limited number of statements made in this case, that it should not have been made at the time of the return for trial.
The applicant claims that he is at real risk of an unfair trial because of the death of three relevant witnesses namely:
(a) M.H., a farm labourer was employed at the time on the farm;
(b) M.D.H. another labourer employed at the farm; and
(c) The complainant's late father, (the applicant's employer).
The relevance of what they might have said is set out at paras. 2 and 3 of the applicant's affidavit sworn on the 9th February, 2016. The applicant states that he was employed on the farm for approximately two years from the age of sixteen. His main work was to...
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B S v DPP
...to prohibit his trial on the grounds of delay. The High Court, for the reasons set out in a judgment of McDermott J. ( B.S. v. D.P.P. (2016) IEHC548), refused the relief. Mr. S. appealed to the Court of Appeal. 3. The Order appealed against 4 The majority judgment of the Court of Appeal was......