C (P) v DPP
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 22 February 2002 |
| Neutral Citation | [2002] IEHC 44 |
| Court | High Court |
| Date | 22 February 2002 |
[2002] IEHC 44
THE HIGH COURT
BETWEEN
and
Citations:
OFFENCES AGAINST THE PERSON ACT 1861 S62
CONSTITUTION ART 38.1
RSC O.84 r21
O'CONNELL, STATE V FAWSITT 1986 IR 362
O'C (P) V DPP 2000 3 IR 87
O DOMHNNAILL V MERRICK 1984 1 IR 151
DOWD V KERRY CO COUNCIL 1970 IR 2
SHEEHAN V AMOND 1982 1 IR 235
B V DPP 1997 3 IR 140
C (P) V DPP 1999 2 IR 25
O'C (J) V DPP 2000 3 IR 480
R V TELFORDS JUSTICES EX-PARTE BADHAN 1991 2 QB 78
BARKER V WINGO 407 US 514
F (S) V DPP 1999 3 IR 235
DPP V BYRNE 1994 2 IR 236
O'C (S) V DPP UNREP SUPREME 10.12.2000 (EX-TEMPORE)
Synopsis:
CRIMINAL LAW
Sexual offence
Judicial review - Prohibition - Delay -Right to expeditious trial -Evidence - Whether delay in prosecuting alleged offences prejudiced accused - Whether real risk of unfair trial - Whether unavailability of witnesses prejudiced accused - Bunreacht na hÉireann, 1937 article 38(1) (2000/116JR - O'Neill J - 22/02/2002)
C v DPP
Facts: The applicant had been charged with sexual offences. The offences had allegedly occurred some thirty years previously. The applicant initiated judicial review proceedings seeking to prohibit the trial. The applicant claimed that due the delay in prosecuting the alleged offences the conduct of his defence was severely impaired. The applicant claimed that some potential witnesses had died or could not be located. In addition the applicant claimed that the complainant could not be said to have been under the dominance of the applicant in the intervening years and that it could not be said that the applicant had contributed to the delay.
Held by O’Neill J in granting the relief sought. The complainant could not be said to have been under the dominion of the applicant nor was there any other reason that the applicant could be blamed for the delay in the complainant reporting the matter to the Gardaí. A substantial amount of potentially relevant evidence had been lost as a result of the lapse of time. A trial without that evidence carried with it the real risk that the trial would be unfair to the applicant. At the very least the circumstances of the case gave rise to presumed prejudice.
On the 13th day of March, 2000 O'Higgins J. gave leave to the Applicant to apply by way of judicial review for:-
(i) An order seeking leave to apply for judicial review by way of prohibition for an order prohibiting the respondent from taking any further steps in bringing of a prosecution against the Applicant in respect of the charges set out upon the statement of charges dated the 16th day of November, 1999, the District Court, District Court area of Dublin Metropolitan, charge sheets Nos. 1056 – 1060 of 1969, bearing the title Director of Public Prosecutions and P.C., Accused being five charges of offences contrary to Section 62 of the Offences against the Person Act, 1861, the offences referred to on charge sheet nos. 1056 –1060 of 1999 prepared at a Garda Station in Dublin.
The Applicant obtained leave upon the grounds set out at paragraph (d)(i) of his statement grounding the application for judicial review. The nature of the complaint made by the Applicant is that as a result of the delay between the committing of the alleged offences some time between 1971 and 1973 and the ultimate prosecution of these offences some twenty-seven years later, that the Applicant is generally and specifically prejudiced by that delay, in that he cannot now locate all the necessary witnesses to his whereabouts during the years 1971 – 1973, and that two of his work colleagues from the shop, the location to which four of the five allegations relate have now died, and that by reason of all of this the Applicant contends that his ability to challenge the allegations now made against him is severely impaired. He further complains that he has been unable to acquire all the necessary documentary evidence as to his activities in the years in question so as to corroborate his defence to these allegations and he says that the only defence that is now available to him is a bare denial on oath of the charges which cannot now be properly supported or corroborated because of the inordinate delay. In consequence of all of this he contends that the further prosecution of these charges would constitute of a breach of his right to a trial in due course of law contrary to the requirements of Article 38.1 of Bunreacht na hÉireann.
In his affidavit the Applicant sets out a history of the matter. The charges relate to offences alleged to have been committed by him against one named complainant. The applicant was questioned by the Gardaí in connection with the complaint made by this named person and was interviewed on the 17th April, 1997. He was arrested on the 23rd June, 1999 in relation to these alleged offences. The nature of the allegation made against the Applicant is that while he managed a shop in the City of Dublin, between the 1st January 1971 and the 31st December, 1973 and that while he ran a club during the same period at a location unknown within the State, that he indecently assaulted a young boy who worked in the shop and was also a member of the club. The Applicant vehemently denies these charges.
The criminal proceedings came before the District Court sitting in the Dublin Metropolitan area on the 23rd June, 1999. The charges related to five offences contrary to Section 62 of the Offences against the Person Act, 1861. The Applicant was remanded on his own bail on the 23rd June, 1999. The case was adjourned to the 14th July, 1999 and then until the 19th October, 1999, and on the 16th November, 1999 the Book of Evidence was served on the Applicant. The Applicant was sent forward for trial to the Circuit Court and was due to be arraigned on the 17th February, 2000. The matter was adjourned on that date to the 16th of March, 2002. These judicial review proceedings were then commenced, leave being granted by the order of O'Higgins J. on the 13th March, 2000, and as part of his order all further proceedings in the prosecution were stayed pending the determination of these proceedings.
The Applicant describes in his affidavit the difficulty he and his solicitor experienced in preparing a defence to the allegations in question. In a form of reference which he still has in his possession he is able to say that while the charges relate to dates commencing on January 1st, 1971, that he did not begin work in the ship until the 19th August, 1972. From August of 1972 to May 1983 he managed the shop and that there were approximately six people employed there at any one time, three of these people being part time. Both full time staff of the shop between 1971 and 1973 are now dead. Both would have worked every Saturday. The Applicant says that one of these, who lived near the complainant, was well acquainted with him and might have had a particular awareness of his period in the shop for that reason have valuable evidence for the defence.
The accounts administrator in the shop then, the Applicant now believes to be living somewhere in Europe. So far as temporary staff who worked in the shop are concerned, the Applicant cannot now say who they were, and he feels himself hopelessly handicapped in any effort with which he might earlier have made to contact and interview any of these people to get the benefit of what assistance their evidence might have given him.
The Applicant says that from 1969 to 1984 he was one of three leaders of a club which was then located in the City of Dublin which provided leisure activities, for example pool tournaments and other games, during the week for members in the area, and at weekends took the members to various places in Wicklow on outings and to hostels where they engaged in hill walking and other outdoor pursuits. The Applicant describes how his efforts to locate potential witnesses whom he either associated with or who worked in the shop or in the various hotels where the club members stayed over the alleged period in an attempt to trace such people who would have been in a position to give supporting or corroborative assistance to assist his defence, has been thwarted by the great lapse of time an he also points to the fact that any witnesses who might have been around at that time could not reasonably be expected to remember events which do not directly concern them, nearly thirty years later.
The Applicant points to the fact that there is no allegation made by the complainant of any attempt by the Applicant to dominate, intimidate or prevent him from reporting any of the alleged offences, and he says that there is no allegation that he was requested or threatened or induced in any manner to remain silent in relation to any of these allegations. He goes on to refer to an allegation made by the complainant in his statement to the effect that he, the complainant, alleges that he called to see the Applicant in the early eighties approximately ten years after the alleged offences took place when the complainant alleged that he warned the Applicant that if he opened a club in the Arbour Hill area that he would report the Applicant to his neighbours. The Applicant denies any recollection of this meeting taking place, but highlights the fact that the complainant's statement makes it clear that there was no contact between 1973 to the early eighties and again since then to 1997 when the complainant made a report to the Gardaí.
The Applicant interprets the complaint's statement to be to the effect that he was not inhibited consciously or subconsciously within his family in any way which could have prevented him from divulging the allegations which he now makes twenty-seven hears later. It is contended that the complainant has not since 1973 been under the dominance of the Applicant, or otherwise...
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