B v DPP

JurisdictionIreland
CourtSupreme Court
JudgeMRS. JUSTICE DENHAM
Judgment Date19 Feb 1997
Neutral Citation1997 WJSC-SC 55
Docket Number[1994 No. 161 J.R.; S.C. No. 35 of 1996]

1997 WJSC-SC 55

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Denham J.

Barrington J.

Keane J.

35/96
B v. DPP

BETWEEN

B.
APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

HEALY, STATE V DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

BARKER V WINGO 1972 407 US 514

DPP V BYRNE 1994 2 IR 236

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 506

HOGAN V DPP 1994 2 IR 513

G V DPP & KIRBY 1994 1 IR 374

LPB, IN RE 1990–1991 CAR 359

Synopsis:

Criminal Law

Appeal - dismissal of judicial review - whether breach of applicant's right to trial with reasonable expedition - inordinate lapse of time - Articles 38.1 & 40.3 - whether accused's defence prejudiced - whether real risk due to delay that applicant would not obtain a fair trial - special category of allegations of sexual abuse of children and young children - whether applicant responsible for delay - relationship of parties - dominion - nature of offence - Held: Failure to discharge onus of establishing real risk - appeal dismissed - (Supreme Court: Hamilton C.J., O'Flaherty J., Denham J., Barrington J.. Keane J. - 19/02/1997) [1997] 3 IR 190 - [1997] 2 ILRM 118

|B v. DPP|

1

MRS. JUSTICE DENHAM DELIVERED THE 19th DAY OF FEBRUARY, 1997. [NEM DISS]

2

In 1992 the Appellant (hereinafter referred to as B.) was arrested and questioned and in 1993 he was charged with sexual offences against three of his daughters. In January 1994 he was returned for trial to the Central Criminal Court, which trial stands adjourned pending the outcome to these proceedings.

3

On 16th May, 1994 B. applied to the High Court for leave to apply by way of Judicial Review for an injunction and for an Order of Prohibition prohibiting the Director of Public Prosecutions from proceeding further with the criminal prosecution. On 10th August, 1994 leave for Judicial Review was granted on the grounds that:

4

(i) The lapse of time between the dates of commission of the alleged offences and the date of any possible trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

5

(ii) The very large number of offences alleged in the indictment.

6

(iii) The lack of specificity in the dates upon which such offences were allegedly commited.

7

(iv) By reason of the great lapse of time B. cannot now locate witnesses as to his whereabouts on the years 1963 to 1973 so as to establish a defence by way of alibi or otherwise to the aforesaid charges.

8

(v) B's wife has died and is therefore unavailable as a witness.

9

(vi) B. has no documentary evidence available to him as to his activities in the years referred to and the only defence therefore available to him is a denial on oath of the said charges, which he cannot now support or corroborate.

10

(vii) The Director of Public Prosecutions has further contributed to the prejudice suffered by B. by his lengthy and unexplained delay in commencing charges.

11

In the High Court the Seventh Ground was withdrawn and it was not in issue in that or this Court. The case was heard in the High Court on 22nd, 23rd, 27th, 28th and 29th June, 1995. On 9th October, 1995 a reserved judgment was delivered dismissing B.'s application. It is against that dismissal that this appeal has been brought.

12

The offences charged allege indecent assault and rape by B. of three of his daughters between 1963 and 1973. Some of the initial charges against B. were subsequently withdrawn and similar charges added. When the case came before the Central Criminal Court B.'s solicitor was furnished with an indictment containing sixty nine counts alleging rape or indecent assault on the three daughters.

SOLE ISSUE
13

The sole issue in this appeal is the delay in prosecuting the alleged offences. There is no question of delay by the State authorities. The delay before the Court is that between 1963 when the initial alleged offences occurred and 1992 when the daughters first approached the authorities.

FACTS
14

The trial in the High Court in this case was held on affidavit. There was no oral evidence.

15

B. is a widower, the father of 13 children, 11 of whom are still living. The complaints were made by three of his daughters being M.B. who was born in 1957, A.B. who was born in 1958 and S.B. who was born in 1959. The alleged acts of child sexual abuse occurred between 1963 and 1973 when the daughters were young and living at home.

16

In 1982 B.'s wife obtained a barring order and thereafter B. was not in the family home. B. has stated that the reason for the barring order was his excessive drinking and that there was no question of sexual abuse. B.'s wife died in 1991.

17

The learned trial judge found:

"In the Book of Evidence at Exhibit 1 there is the alleged memo of an interview with the Applicant in an interview room in a Garda Station on 26th May, 1992. This purports to record an admission by the Applicant of sexual assault on his daughter, A.B.; he contends that this is untrue. This purported admission is a description of an indecent assault on his daughter, A.B. when she was aged 13 or 14. The description of the alleged incident described in the purported statement, which is inculpatory in respect of this episode but exculpatory in relation to complaints made by his other two daughters, is consistent with, and fairly typical of, the multiplicity of offences allegedly perpetrated by the Applicant against the Complainants."

18

B. denies the allegations of sexual abuse of his daughters. He states that he is unable to remember his movements or actions in the years 1963 to 1974 and that he did not keep a diary or record of his movements or actions.

19

The Learned Trial Judge considered the evidence and found that it depicted:

"...the Applicant as a violent, dominant and menacing personality. He is portrayed as a domineering husband and parent who subjugated the members of his family. He brought about an atmosphere in the home of such menacing threats and violence that any initiative or capacity to protest or complain was suppressed. His brutal dominance was such that he created a strong and prevalent atmosphere which prevented and stultified normal complaints and reactions and this hold over his family had pervasive, persistent and long-lasting effects. The mother, for whom the daughters each clearly had affection and concern, had obtained a Barring Order against the Applicant in 1982; just before this Order came up for review, the Complainant, A.B., had for the first time revealed the allegation of sexual abuse to her mother. After a very brief hearing in Court the mother was granted an indefinite Barring Order and after this occurred the whole family could breathe easier and it was the first few years of happiness the mother ever had. The Complainants were not prepared to make complaint about their father until after their mother had died as they were not prepared to put her through any more. The Consultant, Psychologist is of the opinion that A.B. was the victim of systematic and severe emotional, physical and sexual abuse during her childhood and for much of her adolescence. Her experience threatened her so severely that she was incapable of conveying this information to any outside agency, and neither her siblings nor her mother were capable, for the same reason, of dealing appropriately with the situation".

TIME
20

There are three relevant spans of time:

21

(a) From 1963 when the alleged offences commenced to 1982 when B. was barred from the family home.

22

(b) From 1982 until the complainants" mother died and they went to the authorities with the allegations.

23

(c) From 1992 when the authorities were contacted until the proceedings commenced.

24

The last time span, (c) 1992 to 1994, was withdrawn (correctly in my view) from the case in the High Court and is not in issue, leaving the delay from 1963 to 1992 for consideration.

DELAY
25

Prima facie the delay of approximately twenty or thirty years between the alleged offences and the pending trial is an inordinate lapse of time. It is necessary to consider the law and the facts to determine whether the delay is a breach of B.'s right to trial with reasonable expedition.

LAW
26

Statute Law puts no limitation in time on the prosecution of the alleged offences. Any such statute of limitations is a matter for the Oireachtas. The Constitution places relevant parameters on a criminal trial in cases of unreasonable delay.

REASONABLE EXPEDITION
27

The Constitution does not state expressly that there is a right to a speedy trial. Article 38.1 provides that no person shall be tried on any criminal charge save in due course of law. In addition Article 40.3 imposes duties on the State, and thus on the Courts as the judicial arm of Government, which include the protection of such rights as fair procedures.

28

The right to reasonable expedition was cited by Gannon J. in State (Healy) v. Donoghue [1976] I.R. 325 at 336. And in State (O'Connell) v. Fawsitt [1986] I.R. 362 Finlay C.J. stated that:-

"...a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expeditiaon."

29

The right to reasonable expedition must be assessed in each case in light of the particular circumstances of that case. If the accused's defence has been explicitly prejudiced by the State's delay, for example by the non-availability of a material witness, then he is entitled, on the delay being unreasonable and prejudicial, to an order prohibiting the trial.

30

Irish case law has already referred to Barker v. Wingo [1972] 407 U.S 514 which analysed the right in the Constitution of the United States of America to speedy trial. Powell J. delivering the opinion of the Court identified four of the factors the...

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