BJ v DPP

• Jurisdiction: Ireland
• Judgment Date: 19 December 2003
• Date: 19 December 2003
• Docket Number: [S.C. Nos. 77 of 2002 and 190 of 2003]
• Court: Supreme Court

Supreme Court

[S.C. Nos. 77 of 2002 and 190 of 2003]

B.J. v. Director of Public Prosecutions

B.J.

Applicant

and

The Director of Public Prosecutions

Respondent

Cases mentioned in this report:-

B. v. Director of Public Prosecutions [1997] 3 I.R. 140; [1997] 2 I.L.R.M. 118.

Barker v. Wingo (1972) 407 U.S. 514.

Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127; [2002] 1 I.L.R.M. 151.

P. C. v. Director of Public Prosecutions [1999] 2 I.R. 25.

Dillon v. O'Brien and Davis (1887) 20 L.R. Ir. 300.

Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305; [2002] 2 I.L.R.M. 241.

Hogan v. President of the Circuit Court [1994] 2 I.R. 513.

J. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478.

P. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87.

The People (Director of Public Prosecutions) v. F. (Unreported, Court of Criminal Appeal, 2nd December, 1996).

The People (Director of Public Prosecutions) v. G. K. Unreported, Court of Criminal Appeal, 6th June, 2002).

D. W. v. Director of Public Prosecutions (Unreported, Supreme Court, 31st October, 2003).

Criminal law - Trial - Delay - Right to fair trial - Reasonable expedition - Sexual offence - Impending prosecution for indecent assault - Fair procedures - Cause of delay - Whether delay excessive - Whether applicant prejudiced in defence by reason of delay - Whether applicant must prove prejudice caused by delay.

Appeal from the High Court.

The facts have been summarised in the headnote and are more fully set out in the judgments of McGuinness and Hardiman JJ., infra.

The applicant was granted leave to apply for judicial review by the High Court (Kearns J.) on the 23rd October, 2000. By a notice of motion dated the 13th November, 2000, the applicant applied to the High Court, inter alia, for an injunction restraining the respondent from taking any further steps in the prosecution of the applicant on three specified charges. On the 12th February, 2002, the High Court (McKechnie J.) granted an order restraining the respondent from taking any further steps in the prosecution of the applicant on the three specified charges.

By notice of appeal dated the 20th March, 2002, the respondent appealed to the Supreme Court. The appeal was heard by the Supreme Court (Denham, McGuinness, Hardiman, Geoghegan and McCracken JJ.) on the 12th May and the 7th and 30th July, 2003.

The applicant was charged with various incidents of rape and indecent assault on the complainant which were alleged to have occurred some nine years prior to a formal complaint being made by her in relation thereto to the gardaí. The complainant was aged sixteen at the time of the alleged offences. It was alleged that the complainant first complained to her mother in 1989 but did not approach the gardaí until 1998. However, the applicant stated that in 1990 he had been questioned by a garda detective sergeant in relation to the matter who, he said, ultimately told him that he would hear no more about it. The accused was arrested and charged in March, 2000 for the said alleged offences.

The applicant applied by way of judicial review for, inter alia, an injunction restraining the respondent from taking any further steps in the prosecution of the applicant on the grounds that his right to a trial with reasonable expedition was breached due to both complainant and prosecutorial delay which was both excessive and unexplained.

The High Court (McKechnie J.) granted an injunction restraining the respondent from taking any further steps in the prosecution of the applicant on the grounds that the applicant's right to a trial with reasonable expedition was breached due to both complainant and, either by itself or as a compounding factor, prosecutorial delay which was both excessive and unexplained. It held that such a right to trial with reasonable expedition could exist independently of any other rights attaching to a trial in due course of law. The High Court also held that had the true issue been whether the applicant could have been afforded a fair trial in accordance with Article 38 of the Constitution, relief would not have been granted as the applicant would not have been prejudiced. The replying affidavit of the detective sergeant was found to be materially inaccurate by the High Court in that it stated that the interview with the applicant in 1990 was in relation to another unconnected matter about a girl other than the complainant.

The respondent appealed to the Supreme Court on the grounds, inter alia, that the High Court erred in finding that delay alone was a sufficient ground for restraining the prosecution. The respondent submitted that a prosecution could only be restrained if a real risk of an unfair trial could be demonstrated which did not pertain to the applicant, as found by the High Court. It was also submitted that the fact that the detective sergeant was dramatically incorrect in his recollection was of no relevance in the assessment of whether there was a real risk of prejudice to the applicant and whether he could obtain a fair trial. The applicant cross-appealed against the High Court's findings that he had not been prejudiced by the delay; its failure to find there was presumptive prejudice and its failure to find that the proven deficits in the sergeant's memory did not constitute prejudice.

Held by the Supreme Court (Denham, McGuinness, Hardiman, Geoghegan and McCracken JJ.), in allowing the cross-appeal, dismissing the appeal and affirming the order of the High Court, 1, that acute dangers were posed to the prospects of a trial in due course of law by the distorting effects of even relatively moderate lapses of time on the memories of witnesses especially when considered that this process could occur without leaving any trace so that a mistaken witness could confidently assert a fact that was false.

• J. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478followed. Barker v. Wingo (1972) 407 U.S. 514 considered.

2. That one of the most obvious modes of defence, especially in cases turning on credibility and which was without forensic or other objective evidence, was to compare what the complainant said in court with his or her first allegation.

• P. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87considered.

3. That there was an extraordinary delay in investigating the matter for which the applicant was not responsible and most of the delay involved in charging the applicant was prosecutorial delay rather than complainant delay.

• P. C. v. Director of Public Prosecutions [1999] 2 I.R. 25considered.

4. That the test of whether there was a real risk of an unfair trial involved ascertaining whether the applicant had been deprived of the reasonable possibility of evidence, or of a line of defence, which could have been of significance.

• P. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 considered.

Per McGuinness J.: That a potentially effective defence was being denied to the applicant by the lapse of time and that the applicant would suffer both the particular prejudice claimed by him and the general prejudice caused by the lengthy delay in itself.

Cur. adv. vult.

Denham J. 19th December, 2003

I have read the judgment about to be delivered by McGuinness J. and agree with it.

McGuinness J.

This is an appeal by the respondent against the order of the High Court (McKechnie J.) whereby the court granted an injunction restraining him from taking any further steps in the prosecution of the applicant on two charges of indecent assault and one charge of the rape of H. McC. The charges arise from two alleged incidents. The first charge of indecent assault arises from an incident which is alleged to have occurred at the applicant's house in September, 1989. The rape charge and the second indecent assault charge arise from a second incident which is alleged to have taken place in a wood in October, 1989. The complainant was aged sixteen at the time of the alleged incidents. She first made a complaint to the gardaí concerning these matters in April, 1998.

The factual background to these judicial review proceedings, the evidence in the High Court and the findings of the High Court Judge have all been helpfully and succinctly set out by Hardiman J. in his judgment which I have had the advantage of reading. There is no need to reiterate these matters here.

The High Court Judge, having carefully surveyed the evidence before him, made certain findings of fact in regard to that evidence. He considered the delay which had occurred between the occurrence of the alleged incidents in September and October, 1989 and the complainant's first statement to the gardaí in April, 1998. In regard to this period of what is frequently termed "complainant delay", the High Court held at p. 33 of the unreported judgment that at least from April/May, 1995 onwards, the complainant was "free of any inhibiting forces, arising from these events, which might have had a continuing prohibitive effect on the making of a complaint to the appropriate authorities".

The High Court also considered the period of delay which occurred between the complainant's first statement on the 9th April, 1998 and the 3rd March, 2000, when the applicant was charged and brought before the District Court, a period of almost two years. The High Court (McKechnie J.) held that this period was excessive and, either by itself or as a compounding factor, would be a ground for granting the relief sought by the applicant.

McKechnie J., however, rejected the various grounds of specific prejudice put forward by the applicant (to which I shall refer later) and held that, despite the delay factor, the applicant could still have a fair trial. He concluded at p. 38:-

"I am therefore granting this relief, on the basis that in my view, the delay above identified constitutes a breach of the applicant's right to a trial with reasonable expedition...