Btf v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 03 June 2005
• Neutral Citation: [2005] IESC 37
• Court: Supreme Court
• Docket Number: [S.C. No. 167 of 2004]
• Date: 03 June 2005

B.T.F. v. D.P.P.

B.T.F.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

[2005] IESC 37

Murray C.J.

Hardiman J.

Fennelly J.

167/04

THE SUPREME COURT

Abstract:

Judicial review - Practice and procedure - Fair procedures - Delay - Issue of delay in instituting proceedings treated as a preliminary issue by High Court - Whether appropriate to do so - Issue of delay considered in isolation from respondent's conduct - Whether appropriate to do so

Facts: the applicant instituted judicial review proceedings against the respondent in respect of criminal charges of sexual assault outstanding against him. He appealed the decision of the High Court (Quirke J.) restraining him from proceeding with the judicial review proceedings on the grounds of delay in instituting same which was treated by the High Court as a preliminary issue at the request of the respondent.

Held by the Supreme Court (Murray CJ; Hardiman and Fennelly JJ) in allowing the appeal and that the conduct of the respondent was a factor to be considered in an application to strike out judicial review proceedings on grounds of delay and the trial judge erred in considering the applicant's delay in bringing the proceedings in isolation from, and without regard to, any delay by the complainant or prosecutor, including the delay in providing a trial date within a reasonable time. That error, in turn was caused by the inappropriate prior decision to treat the question of the applicant's delay as a preliminary issue.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of June, 2005.

2 This is the applicant's appeal from the judgment and order of the High Court (Quirke J.) perfected on the 12th March, 2004. The matter before the High Court was the respondent's motion dated the 27th June, 2003. This motion was for:

"An order directing the preliminary trial of the issue whether the applicant is barred from seeking all or any of the reliefs sought by reason of his delay in bringing these judicial review proceedings."

3 On the hearing of this motion the learned trial judge acceded to the respondent's application and then proceeded to hear and determine the preliminary issue in favour of the Director. Accordingly, the High Court further ordered:

"It is ordered that the applicant is barred from seeking all or any of the reliefs sought by reason of his delay in bringing these judicial [review] proceedings.

And accordingly it is ordered that the applicant's notice of motion dated the 22nd August, 2002 be and the same is hereby dismissed.

And it is ordered that the applicant pay to the respondent the costs of these proceedings when taxed and ascertained."

4 It is from this order that the present appeal is brought.

Grounds and background facts.

5 The Director of the Public Prosecutions put his case to the High Court very baldly as follows:

"The delay in seeking judicial review in the within proceedings is exceptionally long. The applicant was sent forward for trial on the 22nd July, 1999, but only sought judicial review on the 29th July, 2002, some three years later".

6 On the evidence, however, the position seems more complicated than that simple statement might imply. It appears that in October 1996 a female cousin of the applicant made certain allegations against him. At approximately the same time a sister of this lady made allegations of a similar sort against the applicant and an uncle of his. A third cousin made allegations against the uncle alone at about the same time. These allegations relate to events alleged to have occurred in the 1980s, starting when the applicant was ten years old.

7 Arising from these complaints the applicant was charged with certain offences on the 25th September, 1998. He made various appearances in the District Court and on the 22nd July, 1999 was served with a Book of Evidence.

8 It thus appears that the Book of Evidence was served some thirty-three months after the complaint was made and some nine months after the applicant's first appearance in court.

9 The applicant was sent forward for trial and first appeared in the Central Criminal Court on the 28th October, 1999. A trial date was fixed for the 11th December, 2000. The trial actually commenced on the 15th December, 2000, but it collapsed on the 19th December.

10 While the affidavit grounding this motion, sworn on behalf of the Director, simply notes the collapse of this trial, it appears that the reasons for it were actually quite complex. The Book of Evidence contained a statement of evidence of a Dr. Anthony Carroll, a psychiatrist on whom the prosecution proposed to rely. It transpired, however, that, contrary to the impression created by the statement, the doctor in question had never examined the relevant complainant at all and had apparently made the statement on the basis of notes prepared by other persons. Moreover, on Monday the 18th December, the Director gave to the defendant's solicitor copies of statements concerning a complaint by one of the alleged victims of a sexual nature against another person, neither the applicant nor the uncle mentioned above. These matters were known to the prosecution for some weeks at least before the trial but were not disclosed until the trial was under way, for reasons which do not appear.

11 It seems that the collapse of the first trial was in no way attributable to the applicant and may be attributable to confusion or delay on the part of the prosecutor or those for whom he is responsible. But this is disputed in the affidavit of Sergeant Brid O'Toole, sworn on behalf of the Director in this case. She alleges that "The trial was deemed to be unsatisfactory because of the manner of cross-examination" conducted on behalf of the applicant. In fact, it seems that it was during the cross-examination, and not before, that it transpired that the relevant injured party had never in fact been seen by Dr. Carroll. If this is so it is difficult to understand why Sergeant O'Toole attempts to blame the defence for the collapse of the trial. But for present purposes it is not necessary to do more than to note the disputes which exist.

12 A new trial date was fixed for the 5th November, 2001, some eleven months after the date originally set. On this occasion no judge of the High Court was available to preside at the trial and a date more than twelve months later, the 18th November, 2002, was fixed for the trial.

13 On the 29th July, 2002, as already mentioned, the applicant obtained leave to seek judicial review effectively prohibiting the continuance of the trial on the ground of delay, including prosecutorial delay.

14 It may also be noted that the applicant's solicitors had, by letter of the 1st October, 1999, sought a copy of the indictment against the applicant: this was not provided until the 10th August, 2000.

Time for judicial review.

15 By Order 84 Rule 21(1) of the Rules of the Superior Courts it is provided that:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months of the date when grounds for the...