B v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date26 July 2021
Neutral Citation[2021] IEHC 517
Docket Number[Record No. 2019/209 JR]

[2021] IEHC 517

THE HIGH COURT

[Record No. 2019/209 JR]

Between
B
Applicant
and
The Director of Public Prosecutions
Respondent

Prosecution – Sexual offences – Prohibition – Applicant seeking to halt his trial before the Central Criminal Court – Whether the applicant had suffered a real and serious prejudice such that he could not get a fair trial

Facts: The applicant applied to the High Court seeking to halt his trial before the Central Criminal Court on charges of raping and sexually assaulting the two complainants, who were his younger brother and sister. The applicant’s core submission was that due to the delay in bringing the prosecution against him, he had suffered a real and serious prejudice such that he could not get a fair trial. The applicant conceded that for the purposes of this application, the court should assume that the sexual acts complained of by the complainants occurred. The applicant maintained that given the time that had elapsed since the date of the alleged offences, the jury would not have the tools available to them to determine whether or not he had the requisite knowledge, at the relevant times, that what he did was seriously wrong. It was submitted that in the circumstances of this case, that even if the trial judge were to instruct the jury on the application of the presumption of doli incapax, the jury would not have evidence on which it could properly decide whether the presumption should stand, or be held to have been rebutted, and therefore there was a serious risk that the applicant would not get a fair trial.

Held by the Court that it was not satisfied that the applicant had discharged the onus of establishing that there was a real or serious risk that as a result of the delay in prosecuting him and the effect of that delay on the consideration by the jury of the issue of whether he was doli incapax at the time of the offences, he could not get a fair trial. Having regard to the dicta of O’Malley J in PB v DPP [2013] IEHC 40, which dicta have been adopted and approved in a number of subsequent cases, the Court was satisfied that in this case, the trial judge was the person best placed to deal with any issue of unfairness that may arise; he or she would be able to give the jury the requisite instruction or warnings to eliminate any unfairness, and if that could not be done, the trial judge could withdraw the case from the jury. Having regard to the principles laid down by Charleton J in K v Moran [2010] IEHC 23, as applied by Barrett J in X v DPP [2019] IEHC 22, which judgment was affirmed by the Court of Appeal, the Court was satisfied that it was not appropriate to make an order prohibiting the further prosecution of the applicant in respect of these charges.

The Court proposed making an order providing for the following: (a) refusing the reliefs sought by the applicant; and (b) prohibiting the publication of any matter that would identify the applicant, or the complainants, so as not to jeopardise the applicant’s right to a fair trial.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 26th day of July, 2021

Introduction
1

At common law there was a rebuttable presumption that a child between the ages of seven years and fourteen years was doli incapax. The presumption was rebuttable by the prosecution, which had to satisfy the jury that the child knew that what he was doing was wrong, not merely that it was wrong, but that it was gravely or seriously wrong.

2

The presumption of doli incapax was abolished by s.52 of the Children Act 2001 (as amended). It was abolished as and from 16th October, 2006. The offending alleged in the present case, predated the 2006 Act, which was not retrospective. Accordingly, the presumption continues to apply in this case.

3

In this application, the applicant seeks to halt his trial before the Central Criminal Court on charges of raping and sexually assaulting the two complainants, who were his younger brother and sister.

4

The applicant is charged with the sexual assault of his younger sister, J, in circumstances which included the penetration of her mouth by his penis. He is also charged with sexually assaulting his younger brother, T, in circumstances which included the penetration of his anus by the applicant's penis. In addition, the applicant faces a charge of sexually assaulting J and a further charge of sexually assaulting T.

5

The applicant was born on 7th July, 1981. He is charged with the rape and sexual assault of his sister J on unknown dates between 8th September, 1994 and 25th November, 1995. The applicant was 13–14 years of age at the time of the alleged offences relating to J, who was then aged 6–7 years.

6

The applicant is charged with the rape and sexual assault of his brother, T, between 1st September, 1996 and 30th June, 1997. The applicant was 15 years of age at the time of the alleged offences. His brother, T, was then aged 12–13 years.

7

Against a background, which will be described in more detail later in the judgment, the complainants attended at a garda station and made complaints in the matter in January 2017. In March 2017 the applicant was arrested, detained and interviewed. He made no admissions in the course of eight interviews. In April 2018, the DPP directed that there should be no prosecution. When the complainants appealed that decision, a review decision by the DPP was issued on 15th October, 2018, directing that there be a prosecution in the matter.

8

On 31st October, 2019, the applicant was charged and released on station bail to appear before the District Court. The case came before the District Court for the first time on 23rd November, 2018. On 18th January, 2019 the applicant was sent forward for trial to the Central Criminal Court.

9

On 8th April, 2019, the applicant was granted leave to seek reliefs by way of judicial review and in particular, to seek an order prohibiting his further prosecution.

10

The applicant's core submission is that due to the delay in bringing the prosecution against him, he has suffered a real and serious prejudice such that he cannot get a fair trial. The applicant conceded that for the purposes of this application, the court should assume that the sexual acts complained of by the complainants occurred. The applicant maintains that given the time that has elapsed since the date of the alleged offences, the jury will not have the tools available to them to determine whether or not he had the requisite knowledge, at the relevant times, that what he did was seriously wrong.

11

It was submitted that in the circumstances of this case, that even if the trial judge were to instruct the jury on the application of the presumption of doli incapax, the jury will not have evidence on which it could properly decide whether the presumption should stand, or be held to have been rebutted, and therefore there is a serious risk that the applicant will not get a fair trial.

12

In response, the respondent has submitted that having regard to the relevant case law, there is a heavy onus on an applicant seeking to prohibit a trial. It was submitted that the case law establishes that such questions should be left to the trial judge, who can give the necessary warnings to a jury and if necessary, can withdraw a case from the jury. It was further submitted that the perceived unfairness in the trial in this case, was not relevant to the charges concerning the applicant's brother, T, as the applicant was 15 years of age at the relevant time and therefore the presumption did not apply.

13

In relation to the applicant's sister, J, the presumption would apply, but it can be rebutted by evidence called by the prosecution at the trial, which would tend to show that the applicant had an awareness that what he was doing was seriously wrong. It was submitted that the matter should be permitted to proceed to trial and the trial judge can ensure that a fair trial is obtained on the basis of the evidence actually tendered at the trial.

14

The submissions of the parties will be dealt with in greater detail later in the judgment.

Background
15

As this is an application to halt a criminal prosecution, the case law makes it clear that each application must be considered on its own facts. Hence, it is necessary to set out the facts alleged against the applicant in some detail.

16

All the offences are alleged to have taken place in the family home. It was common case that prior to the death of the applicant's grandmother on 8th September, 1994, the four children in the family, being the applicant, his brother T, and his sisters J and R, all slept together in the one bedroom. There were two sets of bunk beds. The boys slept in one set of bunk beds and the girls in the other.

17

After the death of the grandmother, the two girls moved into the room that had previously been occupied by her. The two brothers continued to occupy the room in which they had previously slept; although the bunks were dismantled into two separate beds.

18

The earliest of the sexual acts involved the applicant's sister, J, between 8th September, 1994 and 25th November, 1995. In her statement she recounted that after the death of her grandmother, when she and her sister were sleeping in that room, and when she was roughly 8 years of age, the applicant had suggested that they should have a sleepover. That was agreed upon. She went to sleep in the room that was normally occupied by her brothers and her brother T slept in the other room with her sister, being the room that had been formerly occupied by the grandmother.

19

She states that during the middle of the night, she awoke to find that the applicant was kneeling beside her and had his finger inside her vagina. She did not remember what happened after that, or if she told him to stop. She remembered going to the bathroom after the incident, as she was bleeding. She did not...

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