C (M) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 06 October 2011 |
| Neutral Citation | [2011] IEHC 378 |
| Court | High Court |
| Date | 06 October 2011 |
[2011] IEHC 378
THE HIGH COURT
BETWEEN
OFFENCES AGAINST THE PERSON ACT 1861 S61
RSC O.84 r20
U (M) v DPP UNREP MACMENAMIN 28.4.2010 2010/50/12638 2010 IEHC 156
O'C (J) v DPP 2000 3 IR 478 2000/13/5164
T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S2
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S14
INTERPRETATION (AMDT) ACT 1997 S1
INTERPRETATION ACT 1937 S21
INTERPRETATION ACT 2005 S27
DPP v JUDGE DEVINS UNREP O'KEEFFE 2.12.2009 2009/18/4412 2009 IEHC 584
H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
P (P) v DPP 2000 1 IR 403 1999/22/7059
DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13
DUBLIN CORP v FLYNN 1980 IR 357
CRIMINAL LAW
Delay
Sexual offences - Evidence - Trial after long period - Absence of corroborating or contradicting evidence - Credibility of witnesses - Islands of fact - Whether collateral evidence irrevocably lost - Prejudice - Whether loss of relevant personal and documentary records prejudicial - Whether death of material witnesses prejudicial - Whether real or serious risk of unfair trial - Whether risk of unfair trial consequence of delay - Whether rulings or directions could be given by trial judge to remedy disadvantage - Whether specific prejudice rendered case wholly exceptional - Whether offence of buggery known to law - Whether blameworthy prosecutorial delay - Exercise of discretion - Factors to be taken into account - Gravity and seriousness of offence - Public interest in ensuring prosecution of crime - Whether applicant's position perilous - Whether possible to show complainant's account was inconsistent with objectively provable facts - Whether applicant's old age and poor health were factors to be taken into account in considering prohibition - MU v DPP [2010] IEHC 156 (Unrep, MacMenamim J, 28/4/2010) followed - JO'C v DPP [2000] 3 IR 478, PT v DPP [2007] IESC 39, [2008] 1 IR 701, SH v DPP [2006] IESC 55, [2006] 3 IR 575, Devoy v DPP [2008] IESC 13, [2008] 4 IR 235 considered - Relief granted (2010/1573JR - Hedigan J - 6/10/2011) [2011] IEHC 378
C(M) v DPP
Facts: The applicant was accused of committing offences against the complainant including four counts of indecent assault. The applicant was now 78 years old and a permanent resident of a nursing home. The complainant was 55 years of age. The applicant sought an order restraining the respondent from continuing to prosecute him the applicant on counts pending before the Circuit Criminal Court and a declaration that the offence of buggery was not known to the law. The applicant alleged that the delay of 42 years was prejudicial to him. The respondent contended that there was no blameworthy prosecutorial delay in the case and that the facts of the case were not exceptional, with limited "islands of fact" arising.
Held by Hedigan J. that the applicant's old age, poor health and recent admission to a nursing home, together with the specific prejudice suffered as a result of the missing evidence and antiquity of the events in question, placed the case in a wholly exceptional category of case. There was a real risk to the fundamental rights of an accused person on the facts of the case. The Court would grant the applicant an order restraining the respondent from continuing to prosecute the applicant.
Reporter: E.F.
Judgment of Mr. Justice Hedigan delivered the 6th day of October 2011.
1. The applicant resides at Our Lady's Manor Nursing Home, Dublin. The respondent is the person charged with the direction, control and supervision of prosecutions in the State and his office is located at Chapter House, 26-30 Upper Abbey Street, Dublin.
2. The applicant seeks the following relief's:-
(1) An Order restraining the Respondent herein from continuing to prosecute the Applicant in respect of the 12 counts alleged in Indictment Bill No. 160/10, served on 29 th day of November 2010, at present pending before the Dublin Circuit Criminal Court.
(2) A declaration that the offence of buggery contrary to section 61 of the Offences Against the Person Act 1861 is not an offence known to law.
(3) Such further or other relief as to this Honourable Court seems fit.
(4) An order pursuant to Order 84, Rule 20, of the Rules of the Superior Courts staying the further prosecution of the Applicant herein on the charges complained of herein until the determination of these proceedings.
(5) The costs of and incidental to these proceedings.
2 3.1 The applicant is accused in an indictment before the Dublin Circuit Criminal Court bearing Bill No. 160/2010 of committing 12 offences against a sole complainant, one C O'R. The offences that the applicant is alleged to have committed include four counts of indecent assault contrary to common law and eight counts of buggery contrary to Section 61 of the Offences against the Person Act 1861. The Book of Evidence contains two witness statements, one of the complainant and one of the investigating Detective Garda Ken Donnelly.
3 3.2 The earliest charges date back to November 1967 (44 years ago), and the most recent date back to October 1969 (42 years ago). All offences are alleged to have taken place at the presbytery of Meath St Church in Dublin. It is alleged that the applicant committed the abuse as some form of "punishment" of the complainant. The complainant was aged between 11 and 13 at the time of the alleged abuse. He claims to have been terrified of the applicant who was the local parish priest. It is claimed the applicant would call to the complainant's house and demand that he accompany him to the presbytery. The complainant's brother has made a statement recalling the applicant calling to the house looking for the complainant. The alleged abuse consisted inter alia of the complainant being stripped naked, placed lying across the applicants lap and being slapped by the applicant with his slipper. It is also alleged that the applicant fondled the complainant's genitals and that he gagged him and raped him while he was kneeling on a sofa.
4 3.3 In an interview, organised at the request of the applicant, which took place on the 24 th April 2009, the applicant stated that he did not know the complainant and that the complainant did not attend the local school in School Street save perhaps for a short time. When the matter was investigated by Gardaí it was discovered that the school's register and roll book contained entries confirming the complainant's attendance. Entries were made during the period from 1 st July 1962 until 30 th June 1970.
5 3.4 The complainant specifically alleges that during the time in which he alleges being assaulted and molested by the applicant, the applicant took him out of school, got him a job with a company called TMDC, subsequently got him dismissed from that job and got him another job with a company called Ormond Printing Co. The applicant denies ever having any connection with either company. No records from TMDC or Ormond Printing Co. are available at this remove of time and none of the staff who worked at either company at the relevant time have been located. All that can be established is that these companies did exist.
6 3.5 The complainant claims that during the time in which he alleges being assaulted and molested by the applicant, the applicant took him to Kevin Street Garda Station where he alleges the applicant had him detained. The complainant states that a Sergeant P.J. Murphy was present on both occasions and a Sergeant 'Lugs' Brannigan was present on one of the occasions. The applicant denies ever having brought the complainant to Kevin Street Garda Station for any purpose. Sergeant Brannigan is deceased and Sergeant P.J. Murphy's whereabouts are unknown and he cannot be located. The applicant is now 78 years old and suffers from poor health he is a permanent resident of Our Lady's Manor Nursing Home. The complainant is 55 years of age.
2 4.1 It is submitted that a delay of some 42 years has specifically prejudiced the applicant in the preparation and presentation of his defence by denying him the opportunity to challenge, by collateral means, the credibility of his accuser. In MU v. DPP [2010] IEHC 156, Mc Menamin J. identified the following principle from the jurisprudence of the Irish Superior Courts at page 8:-
"As has been frequently pointed out a trial after a long period without corroborating or contradicting evidence is in fact a trial of the credibility of the witnesses. Thus the issue of whether there are 'islands of fact' and, or, material items of evidence, becomes the more important…"
It is submitted that the ability of the applicant to test the credibility of the complainant herein against 'islands of fact' has been irrevocably lost due to the loss of collateral evidence in relation to TMDC, the Ormond Printing Co. and Sergeants Murphy and Brannigan. The applicant is specifically prejudiced and there is a consequent risk of an unfair trial. It is clear that there are limited islands of fact in this case. Two islands of facts which would have been independently verifiable are the specific allegations the complainant makes that (a) the applicant got him a job from which he subsequently got him dismissed and subsequently obtained another job for him and (b) that the applicant took him to Kevin Street Garda Station on two occasions and had him locked up there. No relevant personal, or relevant documentary records, from either TMDC or the Ormond Printing Co. can be located at this remove of over 40 years. Sergeant Brannigan is deceased and Sergeant P.J. Murphy's whereabouts are unknown. These...
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