C.D. v DPP
Jurisdiction | Ireland |
Judge | Mr. Justice John Quirke |
Judgment Date | 15 December 2005 |
Neutral Citation | [2005] IEHC 431 |
Date | 15 December 2005 |
Court | High Court |
Docket Number | 2005/292JR |
BETWEEN
AND
[2005] IEHC 431
THE HIGH COURT
Criminal law - Delay - Constitution - Right to trial with reasonable expedition - Sexual offences - Delay in making complaint - Dominion - Whether delay explicable by reference to alleged crime - Whether real risk of unfair trial
Facts: the applicant had been charged with indecent assault against two pupils of his who were minors at the time of the alleged offences in 1982 and 1984, namely DC and MC. He obtained leave from the High Court to restrain the further prosecution of the said charges on the grounds that his constitutionally protected right to a trial with reasonable expedition had been violated on the basis of both complainant and prosecutorial delay. MC provided evidence that he only reported the abuse in 1996 due to the inhibitory effects of it on him up to then. DC reported his alleged abuse in 2002 but provided no explanation for the delay in making his complaint.
Held by Quirke J in granting the relief sought in respect of the charges relating to DC but refusing the relief sought in respect of the charges relating to MC that the right to an expeditious trial, which derived from Article 38.1 of the Constitution and was also protected by article 6 of the European Convention on Human Rights, had a separate existence independent from the right to a fair trial and that the courts would intervene to prohibit the trial of criminal offences on the sole ground of inexplicable or culpable delay on the part of prosecuting authorities in bringing an accused to trial. The first inquiry should be as to what were the reasons for the delay and whether the court was satisfied that the delay in making the complaint was referable to the accused’s own action. The applicant’s constitutional right to a trial of the offences against MC with reasonable expedition had not been breached by the delay since it was referable to his own conduct.
That the period of 16 months which elapsed between the submission of the file to the prosecution solicitor and the return for trial was not excessive and was certainly not culpable.
Reporter: P.C.
OFFENCES AGAINST THE PERSON ACT 1861 S62
CRIMINAL LAW (AMDT) ACT 1885 S11
BARKER v WINGO 407 US 514 1972
B (C) v DPP 1997 3 IR 140
C (P) v DPP 1999 2 IR 25
O'C (P) v DPP & PRESIDENT OF CIRCUIT COURT 2000 3 IR 87
L (J) v DPP 2000 3 IR 122
O'C (J) v DPP 2000 3 IR 478
L (P) v BUTTIMER & DPP 2004 4 IR 494
M (P) v MALONE & DPP 2002 2 IR 560S
(T) v DPP & ORS UNREP SUPREME 22.6.2005 2005 IESC 43 2005/53/11168
O'FLYNN v CLIFFORD 1988 IR 740
BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844P
(P) v DPP 2000 1 IR 403
HEALY v O'DONOGHUE 1976 IR 325
O'CONNELL, STATE v FAWSITT 1986 IR 362 1986 ILRM 639
CONSTITUTION ART 38.1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
F (T) v DPP & JUDGE KENNY UNREP HIGH COURT QUIRKE 18.1.2005
GALVIN v MURRAY & CORK CO COUNCIL 2001 1 IR 331 2001 2 ILRM 234
EX -TEMPORE JUDGMENT of the Hon. Mr. Justice John Quirke delivered the 15th day of December, 2005 .
By order of this court dated the 18th March, 2005, the applicant was given leave to seek relief by way of judicial review including an injunction restraining the respondent (hereafter "the DPP") from taking any further steps in the prosecution of the applicant in respect of 85 charges of indecent assault contrary to the provisions of s. 62 of the Offences Against the Person Act, 1861 and one offence of gross indecency contrary to the provisions of s. 11 of the Criminal Law Amendment Act, 1885.
85 charges relate to alleged offences committed against M.C. between January 1982 and September, 1983 when the applicant was a Brother at a school in Waterford and M.C. was a pupil at that school.
The remaining charge relates to an offence allegedly committed between September, 1983 and June, 1984, by the applicant against D.C. who was a brother of M.C. and was also a pupil in the same school at the same time.
The facts which are relevant to these proceedings are as follows:
1. The applicant was born on 12th March, 1935 and is now seventy years old. He is now a priest but was, at all times material to these proceedings, a Brother at the primary school in Waterford.
2. M.C. was born on 11th January, 1972 and is now 32 years old. D.C. was born in 1974 and is now 30 years old. Both M.C. and D.C. were pupils in the primary school in Waterford between January 1982 and June 1984.
3. On 3rd November, 2002, M.C. made a statement to the Garda Síochána at Waterford Garda Station. He complained that on a number of occasions between January 1982 and September, 1983, the applicant indecently assaulted him whilst he was a pupil at the primary school in Waterford.
4. On 7th November, 2002, M.C.'s brother D.C. made a statement in which he complained that the applicant had subjected him to a sexual assault between September, 1983 and June 1984 at the same school.
5. On 18th December, 2002, the applicant was interviewed by the Gardaí at Henry St. Garda Station in Limerick. He had left the order and become a priest and was living in Co. Clare.
He denied the allegations made by both M.C. and D.C.
6. The Gardaí commenced an investigation and took statements from a number of witnesses.
7. On 27th May, 2003, the Gardaí sent a file to the State Solicitor for Waterford who referred the matter to the Director of Public Prosecutions on 3rd June, 2003.
8. The Director of Public Prosecutions raised a query on 25th July, 2003 and the State Solicitor responded to that query on 20th October, 2003.
9. The query had required the State Solicitor to seek further information from the Gardaí. The information was transmitted to the Director of Public Prosecutions.
10. On 7th January, 2004, the Director of Public Prosecutions raised a further query with the State Solicitor which was transmitted to the Gardaí who replied on 18th February, 2004.
11. A further issue was raised by the Director of Public Prosecutions on 12th May, 2004, to which the State Solicitor responded on 27th May, 2004.
12. On the 24th August, 2004, final directions were received by the State Solicitor to prosecute the applicant in respect of the offences alleged against him and these were conveyed to the Gardaí on the 25th August, 2004.
13. On 7th October, 2004, the applicant was charged with the offences and the matter was adjourned to the 18th November, 2004, when a Book of Evidence was served upon the applicant and he was returned for trial.
14. The Book of Evidence contains a statement by M.C. in which he states that whilst he was a pupil in the primary school in June 1982, the then Headmaster (or School Principal) was replaced by the applicant.
15. He was about nine or ten years old at this time and took up hurling with the school GAA club.
In his statement he alleged that whilst travelling in the applicant's motorcar on the way to hurling matches the applicant indecently assaulting him. These assaults became increasingly frequent and increasingly serious.
16. M.C. alleged that whilst most of the initial assaults occurred within the applicant's motorcar but the applicant then commenced to assault him in the school in the evenings when the applicant would ask M.C. to help him with various tasks. A number of offences are alleged to have occurred within the applicant's office where, M.C. stated that "…once we were inside he would lock the door. Nobody could see into his office because there was frosted tape on the door panes."
17. M.C. said that the assaults stopped when he was eleven or twelve years old after an incident in M.C.'s mother house when M.C. struck the applicant with a hurling stick on his hip.
18. In a statement contained within the Book of Evidence D.C. alleged that on a Friday between September, 1984 and June, 1985 the applicant indecently assaulted him on a stairs within the school. He said that the applicant committed this offence having placed D.C. on his knee.
19. In evidence M.C. averred that he only became aware of the extent to which the abuse had affected him when he grew older. He said that he was too ashamed and embarrassed to mention what had happened to him for many years. He said that he first reported it to a friend in 1996. This occurred because he had been drinking during an entire evening and night and decided to confide in his friend.
Approximately a year later, in 1997, he confided in his wife who lent him support and encouragement.
20. He confirmed his original statement in relation to the windows on the applicant's office. He said that they were "frosted" and continued "the frosted tape was on the door panes so none of the boys could look in".
21. Mr. Paul Gilligan who is a clinical psychologist averred in evidence that he interviewed M.C. on the 19th May, 2005 and 24th May, 2005 and consulted with Dr. McCann who was M.C.'s general practitioner, Ms Fran Hayes and Ms. Michelle O'Neill who have been M.C.'s therapeutic counsellors and Dr. Robert Daly who is a consultant psychiatrist.
22. He confirmed the contents of his report dated 1st June, 2005, which he said, was a report of an assessment carried out on the instructions of the Director of Public Prosecutions for the purposes of assessing
(a) the effect of the alleged offences upon M.C.,
(b) the reasons for his delay in reporting the offences and
(c) whether the failure to report was referable to the effects of the alleged abuse or to the nature of the applicant's relationship with M.C.
23. Mr. Gilligan reported that M.C. had carried the memories of the abuse at the...
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