C (D) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 18 May 2004
• Neutral Citation: [2004] IEHC 245
• Date: 18 May 2004
• Court: High Court

[2004] IEHC 245

THE HIGH COURT

[No. 267 JR/2004]

C (D) v. DPP

JUDICIAL REVIEW

BETWEEN

D.C.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

BRADDISH V DPP 2001 3 IR 127 2002 1 ILRM 151

DUNNE V DPP 2002 2 IR 305

D, STATE V GROARKE 1990 IR 305

GEANEY V DPP & CONNELLAN 2000 1 IR 412

MCGRORY V ELECTRICITY SUPPLY BOARD (ESB) UNREP SUPREME 2003/41/9768

MAGUIRE V ARDAGH 2002 1 IR 385

MCKEOWN V JUDGES DUBLIN CIRCUIT COURT UNREP SUPREME 9.4.2003 2003/41/9855

BOWES & MCGRATH V DPP 2003 2 IR 25

GORMAN V MIN ENVIRONMENT 2001 1 IR 306

HALPIN V WICKLOW CO COUNCIL UNREP O'SULLIVAN 15.3.2001 2001/11/3143

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

GILLIGAN V GOV PORTLAOISE PRISON UNREP MCKECHNIE 12.4.2001 2001 10 2728

MCGRORY V ELECTRICITY SUPPLY BOARD (ESB) 2003 3 IR 407

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

SCULLY V DPP UNREP KEARNS 21.11.2003

MASS ENERGY LTD V BIRMINGHAM CC 1994 ENV LR 298

R V COTSWOLD DISTRICT CO 1998 75 P&CR 515

CRIMINAL LAW (RAPE) ACT 1981 S3

Abstract:

Judicial review - Prohibition - Article 38.1 of the Constitution - Whether the Gardai were required to seek out and obtain statements from individuals whom the claimant met the night prior to the alleged incident.

The applicant applied for leave to apply for judicial review for an order of prohibition restraining the respondent from pursuing the prosecution of the applicant in respect of charges of sexual assault and rape. The applicant maintained that the respondent breached fair procedures in failing to seek out and make available witness statements or seeking to ascertain the identity of two specific parties, namely two male individuals the complainant met the night prior to the alleged incident, and make same available to the defence.

Held by 0 Caoimh J. in refhsing the leave application:

1. That as the respondent was on notice of the leave application a higher standard applied than that of establishing an arguable case. The applicant was required to establish a strong case, that is to say, one that was likely to succeed.

Gorman v.Minister for the Environment [2001] 1 I.R. 306 applied.

2.That the applicant's case was based entirely on supposition and speculation. The applicant failed to advance even an arguable case in support of the contention that the Gardai should have questioned the complainant in relation to her prior sexual history, including what may have occurred the night prior to the alleged incident. The obligation on the Gardai to seek out evidence as stated by Hardiman J. in Dunne v. DPP [2002] 2 I.R. 305 did not extend to the remote, theoretical or fanciful possibilities enunciated by the applicant in this case.

Reporter: L. Os.

1 Mr. Justice Aindrias Ó Caoimh delivered the 18th May, 2004 .

2 This is an application for leave to apply for judicial review for the relief of;

3 (i) An order of prohibition restraining the respondent from pursuing the prosecution entitled: "The People at the suit of the Director of Public Prosecutions and [D.C.]" in respect of charges of sexually assaulting one L.H. on the 1 ^st November, 2002 and further raping the said L.H. on the 1 ^st November, 2002, as set out in bill of indictment number CC0026/03 presently pending before the Central Criminal Court.

4 (ii) An injunction restraining the first named respondent from taking any further steps in the Central Criminal Court proceedings, the subject matter of the within judicial review proceedings.

5 (iii) A declaration that the respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures with the result that the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.

6 (iv) A declaration by way of judicial review that the applicant was entitled to be informed of the names of two persons known to the complainant and of very material consequence to the defence and that the said parties be made available to the applicant for the purpose of cross-examination.

7 (v) A declaration by way of judicial review that the said unidentified parties are material to the proper preparation of the applicant's defence to the charges contained upon the bill of indictment number CC0026/03 and that without such material information the applicant's defence will be prejudiced.

8 (vi) A declaration that the failure and or inability to ascertain the identity of the said individuals amounts to an inability to seek out and preserve all material evidence relevant to the investigation of the alleged offences.

9 The grounds upon which this relief is sought are as follows:

10 (i) An order of prohibition, injunction, and declaration sought at (d) (i), (ii) and (iii)

11 That in conducting the prosecution the first named respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures in failing to seek out and make available witness statements or seeking to ascertain the identity of two specific parties and make same available to the defence with a probable bearing on the guilt or innocence of the applicant without delay or at all. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.

12 (ii) Declaration sought at (d) (iv) and (v)

13 The decision of the respondent to proceed with the prosecution of the above mentioned case notwithstanding the fact the applicant's legal representatives had specifically requested certain relevant and vital information by way of written request dated the 19th January, 2004 of the complainant in relation to the matter of two parties known and referred to, by her but unidentified in the book of evidence was otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures and further by reason of the failure on the part of the relevant investigative authorities to seek out and/or to take statements from parties known to the complainant and with a probable bearing on the issue of the guilt or innocence of the applicant. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights. Declaration at (d) (vi)

14 (iii) The decision of the respondent to accept the refusal of the complainant to identify the two individuals without comment is inconsistent with the duties of An Garda Síochána and of the respondent herein to seek out and ascertain all material and evidence relevant to the investigation. In the premises the proposed trial is no longer a trial in due course of law.

15 The application for leave is grounded upon an affidavit of the applicant and of his solicitor Áine Flynn.

16 In his affidavit the applicant states inter alia that he is the defendant in relation to the said bill of indictment at present pending before the Central Criminal Court. He indicates that he stands charged with offences of sexual assault and rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990and was returned for trial to the Central Criminal Court on the 21 ^st January, 2003. He indicates that the matter was listed on the 10 ^th April, 2003, whereupon a date for his trial was fixed for the 29 ^th March, 2004 . He indicates his intention to plead not guilty in relation to this matter.

17 The applicant says that consent will be a central issue in the case. He says, in this regard, given the particular surrounding circumstances of the case, principally though not exclusively, the consumption of a very considerable quantity of alcohol by all the parties on the night in question, and the occasion of possible intimacy, not disclosed by the complainant at any stage by her, but referred to by her friend, and at present unavailable prosecution witness [Ms. R.] with an unidentified party from whom no statement was either sought or taken, he instructed his solicitor to seek further information in relation to the persons identified in the statement of this witness as Kieran and John.

18 The applicant says that his solicitor has written on a number of occasions to the respondent seeking to be provided with the said information. He says that as a result of the statement of the complainant dated the 10 ^th March, 2004, the position is that notwithstanding the fact that she knows who these persons are she is unwilling to provide this information. The applicant says that as a result of the refusal of the complainant in this case to furnish to him and his legal representatives the requested necessary information he is significantly prejudiced in his ability to fully and properly instruct his representatives and it is contended that they cannot adequately or properly prepare his defence to the charges. He says that as a result of this an application was made by his legal representatives on the 23 ^rd March, 2004, (to the Central Criminal Court) and that his trial has now been adjourned and has gone into the next list to fix dates being the 29 ^thMarch, 2004.

19 Ms. Áine Flynn describes herself as a solicitor of Terence Lyons and Company, Solicitors. She refers to the background to the charges by reference to statements contained in the book of evidence served upon the applicant. She says that it appears from same that the two girls who are friends were going for a night out on Halloween...