Barry v DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 17 December 2003
• Neutral Citation: [2003] IESC 63
• Court: Supreme Court
• Date: 17 December 2003

[2003] IESC 63

THE SUPREME COURT

Keane C.J.

Murray J.

M'Guinness J.

141/03

BARRY v. DPP & ORS

BETWEEN

JAMES M. BARRY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND (by order of the court dated 17 th November 1997) THE DISTRICT JUDGE FOR THE TIME BEING ASSIGNED TO DEAL WITH THE PROCEEDINGS ENTITLED "THE DIRECTOR OF PUBLIC PROSECUTIONS (PROSECUTOR) -AND- DR. JAMES BARRY (ACCUSED)", THE DISTRICT COURT AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 5.1

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 6

VIDEO RECORDINGS ACT 1989 S25

POLICE PROPERTY ACT 1897

GREALIS & CORBETT V DPP 2001 3 IR 144

O'C V GOVERNOR OF CURRAGH PRISON 2000 ILRM 76

B V DPP 1997 3 IR 140

O'C (P) V DPP 2000 . IR 87

S V DPP & CONNELLAN UNREP SUPREME 19.12.2000 2000/16/6203

HOGAN V PRESIDENT OF THE CIRCUIT COURT & DPP 1994 1 IR 513

DORAN V IRELAND UNREP 31.7.2003 ECHR

O'R V DPP UNREP SUPREME 18.3.1997 1997/11/3516

DPP V JOHNSON & MADISON 1988 ILRM 750

O'C (J) V DPP 2000 3 IR 478 2000/13/5164

Abstract:

Judicial Review — Prohibition — Indecent Assault — Delay — Abuse of process — Fundamental unfairness — Oppression — Constitutional justice- Whether delay in making complaints and prosecuting charges amounted to an abuse of process and a denial of constitutional rights — Bunreacht na hEireann, Articles 38.1, 40.1 and 40.3 of the Constitution- Articles 5.1 and 6 of European Convention on Human Rights and Fundamental Freedoms

The applicant who is a registered medical practitioner was charged with a number of offences in the District Court on 30"' November 1997 of indecent assault against 42 females between 1966 and 1995. The first complaint to the Gardai was made in may 1995 by a female to the effect that she had been indecently assaulted by the applicant. As a result of this complaint a warrant was issued on 4" June, 1995 authorising a search of the applicant's premises, which was subsequently carried out. As a result of subsequent civil proceedings against the applicant in the Circuit Court, his identity became known to the public. Thereafter, the Gardai received approximately six hundred complaints from women claiming to have been indecently or sexually assaulted. Charges were preferred in respect of forty two complaints, of these, twenty one complainants swore affidavits in the course of the trial, exhibiting the statements made to the Gardai. These affidavits were filed during the course of the trial. The statements alleged to have been made to the Gardai by the twenty one remaining complainants were exhibited in an affidavit swom by Donal Murray on 18"' February, 2000.

The complainants range in age from eleven to twenty one. In a number of the statements the complainants offer explanations as to why they made no complaint at the time of the alleged indecent assault. Common aspects of these explanations relate to the complainants' belief that the actions of the applicant were necessary because he was a doctor, their trust in him as a doctor, their relative youth and inexperience at the time, their lack of knowledge as to what was normal and appropriate in medical examinations and fear or nervousness and anxiety because of the reaction of the applicant to their hesitation in doing what he was asking them to do.

The applicant sought an order prohibiting the first named respondent from taking any further steps in the prosecution of the charges of indecent assault against him on the grounds that there had been gross and inexcusable delay resulting in legal and moral prejudice to the applicant in initiating the said prosecutions amounting to an abuse of process and a contravention of Articles 38.1, 40.1 and 40.3 of the Constitution and Articles 5.1 and 6 of the European Convention on Human Rights and Fundamental Freedoms. Furthermore he alleged that there had been a pattem of abuse of process and fundamental unfairness amounting to oppression and a denial of the fight to constitutional justice. The applicant was granted leave to apply for such relief on 17 November, 1997. However, the proceedings were not ultimately determined in the High Court until l4~ February, 2003. The applicant claimed that there was gross and inexcusable delay relating to thee separate periods. Firstly he alleges that there was delay from the alleged assaults to the making of complaints. Secondly the applicant claims that there was delay from the making of complaints to the issuing of criminal proceedings and thirdly that there was delay from the institution of the judicial review proceedings to their determination. The applicant based his oppression argument on a number of specific grounds. The most notable relating to the introduction of the thirty four affidavits during the course of the trial, the decision of the D.P.P. to prefer 237 charges in respect of alleged offences against forty thee women at the same time and the delay which ensued from the applicant's arrest and interrogation to his being charged.

A significant element of the delay resulted from the protracted discovery process related to this action. The applicant submitted that the twenty one affidavits filed and the statements exhibited in Donal Murray's affidavit, in respect of which no affidavits had been swom by the complainants constituted hearsay and accordingly were inadmissible in evidence. The applicant alleged in these circumstances there was no admissible evidence before the High Court and accordingly the trial should be prohibited on the basis that there was a real and serious risk of an unfair trial in breach of his constitutional right to a trial in due course of law. The applicant further submitted that even if the statements were admissible, they did not meet the requirements which had been laid down in the High Court and Supreme Court as to the evidence which the prosecution were obliged to adduce where it was claimed on their behalf that the delay was, in the particular circumstances of the case, excusable. In this regard

the applicant also sought to rely on the fact that there was no evidence from any psychologist or equivalent expert. The applicant also sought to establish that the trial judge himself had contributed to the delay by not giving judgment in the case until 14~ February, 2003.

Held by the Supreme Court (Keane C.J., Murray, McGuinness JJ) in dismissing the appeal in full:

1. That the affidavits were not inadmissible by reason of the fact that the complainants had simply exhibited the statements already made by them to the Gardai and swom that their contents were true and accurate. Similarly, the statements made by the complainants who did not swear affidavits but whose statements were exhibited in the affidavit of Donal Murray were properly admitted.

2. That affidavits in judicial review proceedings are not required to do more than verify the facts set out in the statement grounding the application or the statement of opposition, as the case may be. The court may order an oral hearing to take place if it is satisfied that an issue of fact arises which requires the hearing of oral evidence.

3. That the delay from the events alleged to have occurred and which were the subject of the complaints in this case was in many instances such that, applying the principles laid down in B v D.P.P [1997] 3 JR 140 and subsequent cases, the applicant would be entitled to an order restraining the continuance of the prosecution unless it was established as a matter of probability that the delay was explicable and excusing in the particular circumstances of the case.

4. That the reasons given by the complainants for delaying in making complaints to the Gardai, specifically their age and lack of awareness that their experience was not unique were perfectly understandable.

5. That the facts of this case are distinguishable from cases involving unlawful sexual intimacy by an adult with a child simpliciter. In that type of case, once the child has reached an age at which it is reasonable to assume that he or she is aware that the actions of the adult concemed were wrongful, the court is naturally put on inquiry as to why no complaint was made at that stage. The present case involves conduct which was allegedly carried out by the applicant under the guise of medical examiner and accordingly the complainants would have been uncertain as to whether this conduct was wrongful, not to mention unlawful.

6. That it was not necessary or in fact appropriate to distinguish between the statements in which the complainants offered explanations as to why they had delayed in making complaints and those in which no explanations were proffered.

7. That for the purposes of this case it is necessary to assume that the complaints were truthful. However, this does not and cannot amount to a finding that the applicant was guilty, as a matter of probability, of the conduct alleged.

8. That the issue of whether or not it is necessary to adduce evidence on affidavit by a psychologist or some equivalent expert to the effect that the inaction of the complainants was explicable must depend on the particular circumstances of the case.

9. That the applicant did not refer to any specific prejudice he would suffer in the conduct of his defence as a result of the delay in making the complaints. Old age and ill-health are not, of themselves, grounds which would justify the court in restraining the continuance of the prosecution.

JO 'Cv D.P.P Unreported Supreme Court]udgment, NA May, 2000.

10. That the period which elapsed from the making of the first complaint in 1995 to the charging of the applicant in October 1997 was not unreasonable based on the fact that over six hundred complaints were made to the Gardai, written statements were...