C.M. v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] IEHC 264 |
| Court | High Court |
| Docket Number | [No 428 J.R./2005] |
| Date | 28 July 2006 |
[2006] IEHC 264
The high court
between
and
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
O'C (J) v DPP 2000 3 IR 478
J (B) v DPP 2003 4 IR 525
C (P) v DPP 1999 2 IR 25
D (D) v DPP 2004 3 IR 172
P (P) v DPP 2000 1 IR 403
DPP v BYRNE 1994 2 IR 236
F (B) v DPP 2001 1 IR 656
BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844
DPP v F (E) UNREP SUPREME 24.2.1994 1994/2/557
O'R (D) v DPP 1997 2 IR 273
O'C (P) v DPP 2000 3 IR 87
BARKER v WINGO 1972 407 US 514
UNITED STATES v MARION 1971 404 US 307
HEALY, STATE v DONOGHUE 1976 IR 325
W (D) v DPP UNREP SUPREME 31.10.2003 2003/48/11781
M (P) v MALONE 2002 2 IR 560
CRIMINAL LAW
Delay
Complainant delay - Dominion - Right to trial with reasonable expedition -Sexual offence against minor - Whether applicant in position of dominion over complainant - Whether by reason of delay in making complaint applicant has suffered real risk that he will face unfair trial such that trial in respect of alleged offences should be prohibited - Prosecutorial delay - Whether due to applicant's own actions - Whether such as to render fair trial impossible - Constitution of Ireland 1937, Article 38.1 - PC v DPP [1999] 2 IR 25 applied - Relief refused (2005/428JR - Dunne J - 28/7/2006) [2006] IEHC 264
M(C) v DPP
Facts: The applicant sought to restrain the prosecution of the applicant in respect of alleged sexual offences on grounds of delay in violation of the right of the applicant to trial with reasonable expedition. A lapse of time of eleven years occurred between the alleged commission of the first offence and the date for return for trial.
Held by Dunne J. that no blameworthy prosecutorial delay existed. No evidence existed to entitle the applicant to relief. The applicant had not demonstrated that his defence would be impaired by reason of the delay suffered.
Reporter: E.F.
This judgment is circulated in a redacted form to avoid identification of the parties
The applicant herein faces trial in respect of four charges of gross indecency on one P.A. alleged to have been committed between 1st August, 1993 and 30th November, 1993 on a date or dates unknown at an address in Dublin. The trial is pending before the Dublin Circuit Criminal Court on foot of a bill of indictment bearing the record number 301/05. The applicant herein seeks an injunction restraining the respondent herein from continuing to prosecute the applicant in respect of the alleged offences. The basis upon which the injunction is sought is that there was a delay of almost nine years from the date of the first alleged offence to the date complaint was made. As a result, a lapse of time in excess of eleven years has occurred between the date of the alleged commission of the first alleged offence and the date of the return for trial, namely March, 2005, and it is contended that such delay is so great as to deny the applicant's right to trial with reasonable expedition and in accordance with law as guaranteed by the Constitution and as protected by Article 6 of the European Convention on Human Rights.
In addition to seeking to restrain the trial on the basis of delay between the date of the alleged commission of the alleged offences and the making of complaint it is also contended that there has been prosecutorial delay in this case between the time of making of the complaint on 1st May, 2002, and the return for trial in March, 2005 and it is thus contended that there is a duty on the State to move with particular expedition where there has already been considerable delay in making of the initial complaint.
The applicant in this case was born on 20th August, 1928. The complainant was born on 18th April. 1978. He was fifteen years of age at the time the offences are alleged to have been committed. The offences are alleged to have been committed at the applicant's then home. The applicant and the complainant were neighbours.
The complainant herein first complained of the matters alleged against the applicant herein, by way of formal statement of complaint made on 1st May, 2002. He made a further statement to the Gardaí on 15th July, 2002. Prior to that date, an incident had occurred at the home of the applicant on 14th/15th April, 2002. Without outlining in full the details of that incident it appeared that the complainant had broken a window in the home of the applicant. The complainant was drunk at the time. Gardaí who had been called to attend to that incident met the complainant and at that stage the complainant explained that he broke the window because he had been abused sexually by the applicant when he was younger. As a result of his contact with the Gardai, he came to make a first statement of complaint on 1st May, 2002.
As can be seen, a period of almost nine years elapsed between the date of the first alleged offence to the date of first complaint. The applicant complains of that delay. Subsequently the applicant was arrested and charged in respect of the alleged offences on 17th November, 2004. The matter was then sent forward for trial in March, 2005. Complaint is made therefore of the delay between the initial complaint made on 1st May, 2002, and the matter appearing before the District Court in November, 2004, an interval in excess of two years and six months.
A number of affidavits were filed in this matter, namely, an affidavit of Robert Eager solicitor on behalf of the applicant and on behalf of the respondent an affidavit of Detective Garda A.R., an affidavit of Michael Dempsey a clinical psychologist and an affidavit of the complainant. Notices of intention to cross examine were served in respect of Detective Garda T.R. and Mr. Michael Dempsey.
On behalf of the applicant herein, Shane Murphy SC made preliminary submissions prior to the cross examination of the witnesses. He acknowledged that cases of child sexual abuse have been considered a special category when considering delay. He pointed out that delay on a complainant's part may be attributed to the actions of the accused and he argued that a relationship of dominance will generally be required in such circumstances. He referred to the judgement of Hardiman J. in the case ofJ. O'C. v DPP [2003] I.R. 478.
He referred also to the case ofB. J. v. DPP [2003] 4 I.R. 525 in which it was pointed out that in such cases although it is not uncommon to find delays of 15, 20 or 30 years, shorter periods of delay such as that in the present case are no less significant. In that case there had been nine years of complainant delay and an important Garda witness had completely forgotten questioning the applicant in relation to the alleged offences eight years before a formal complaint was made. Hardiman J. in that case pointed out as follows:
"These facts graphically illustrate the acute dangers to the prospects of a trial in due course of law which are posed even by relatively moderate lapses of time. This case emphasises that, simply because we see not a few cases where the lapse of time is in the order of twenty or thirty years, we must not be led into thinking that ten years, or even a much shorter period, is less potent in its effects on memory."
He also referred to the judgment of McGuinness J. in that case where she held that there was no dominion in that case and gave reasons for that view. Counsel argued that the circumstances of the present case are quite similar and that the applicant held no position of authority over the complainant and was not a family member or friend. He pointed out that all of the incidents of abuse are alleged to have occurred in the applicant's home to which the complainant went voluntarily and uninvited. On that basis he argued that there were no circumstances giving rise to dominance.
In considering the delay, counsel also argued that the age of the complainant should be considered. It was pointed out by McGuinness J. in the case ofB.J. v. DPP above as follows:
"The scenario in the present case is different in almost every respect. The complainant was sixteen years of age when the alleged incidents took place; it is likely that a sixteen year old in 1989 had some degree of knowledge of the world."
In this context he also referred to the judgment of Lynch J. inP.C. v. DPP [1999] 2 I.R. 25, to support the proposition that older children are worldlier and therefore less likely to be the subject of dominion. Counsel however accepted that it had been held that dominion is not the only reason that delay might be excused and in this regard he referred to the case of D.D. v. DPP [2002] 3 I.R. 172 in which Geoghegan J. had said:
"Assuming that pre complaint lapse of time is relevant and that as a corollary that it becomes relevant as to whether the applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be held responsible if there has been the element of dominance. The authorities certainly show that that is a main ground but it is not the only ground."
A similar view was expressed in the High Court in the case ofP.P. v. DPP [2000] 1 I.R. 403. Counsel argued that the fact that a sexual offence is alleged is not enough on its own to justify delay. He went on to argue that there was no relationship of dominance between the applicant and the complainant. There was no exceptional circumstance giving rise to an inhibition. As such he argued that the delay on the part of the complaint cannot be attributed to the actions of the applicant and should therefore be considered to be an unnecessary delay.
Counsel for the applicant then dealt with the second limb of his complaint in relation to delay. He pointed out that where...
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