C.O'S v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 18 January 2005
• Neutral Citation: [2005] IEHC 6
• Court: High Court
• Docket Number: [No. 370 J.R./2003]
• Date: 18 January 2005

[2005] IEHC 6

THE HIGH COURT

[No. 370 J.R./2003]

O'S (C) v DPP

BETWEEN

C.O'S

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL LAW (RAPE) ACT 1981 S10

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

RSC O.84 r21(1)

DPP v O'C (P) UNREP MCCRACKEN 27.1.2003 2003/19/4280

Q (M) v JUDGE OF NORTHERN CIRCUIT & DPP UNREP MCKECHNIE 14.11.2003 2003/44/10828

RSC O.84 r20

CRIMINAL LAW:

Delay

Right to trial within reasonable time - Sexual offences - Prosecutorial delay - No specific prejudice - Reactivation of garda investigation - Whether delay in prosecuting inordinate -Whether right to fair and expeditious trial affected - Application refused (2003/370JR - Quirke J - 18/01/2005) [2005] IEHC 6

O'S (C) v DPP

JUDICIAL REVIEW:

Leave

Extension of time - Delay in applying for leave to apply for judicial review - Judicial policy for delay in criminal cases - Application to trial judge - Whether confusion in judicial policy good and sufficient reason for delay in applying for judicial review - Time extended (2003/370JR - Quirke J - 18/01/2005) [2005] IEHC 6

O'S (C) v DPP

1 Mr. Justice Quirke delivered the 18th day of January 2005.

2 By order of the High Court (O'Donovan J.) dated the 26 ^th May, 2003, the applicant was given liberty to seek relief by way of judicial review. The relief sought is an order prohibiting the respondent from prosecuting the applicant in respect of various offences including (a), indecent assault contrary to the provisions of common law and to the provisions of s. 10 of the Criminal Law (Rape) Act 1981 and (b), rape contrary to the provisions of s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.

3 The offences are alleged to have occurred between 4 ^th August, 1988 and an unknown date in May, 1992.

FACTUAL BACKGROUND

4 The facts which are relevant to these proceedings are as follows:

5 1. On 8 ^th September, 1992 the applicant's daughter C who was then aged ten years made a complaint to Dr. Mary Kiernan who was the area medical officer of a family centre in St. Finbar's Hospital in Cork. Arising out of the complaint the applicant's daughter was interviewed on the 8 ^th and 14 ^th day of September, 1992. Both interviews were videotaped. During the course of the interviews the applicant's daughter made the allegations which have given rise to the charges which have been preferred against the applicant.

6 2. Following interviews with Dr. Kiernan the applicant himself made two statements under caution to An Garda Siochána on 11 ^th September, 1992 and 13 ^th January, 1992. He denied the allegations which were made against him.

7 3. On 31 ^st July, 1993, the applicant received a letter from the Director of Public Prosecutions informing him that no prosecution would be brought in relation to a complaint made against him by his daughter. It was indicated that this was because there was no evidence available to the respondent to substantiate the complaints.

8 On 12 ^th October, 1996, the applicant's son S who was then sixteen years old complained to An Garda Síochána that he had been sexually abused by the applicant.

9 On 22 ^nd June, 1998, the applicant was interviewed by Det. Garda Lynch in respect of these allegations. He again denied the allegations.

10 4. On 11 ^th August, 1997, the applicant's son S made a statement to the Garda retracting the allegations which he had made in October of 1996.

11 In July of 1998, a decision was made by An Garda Síochána to take no further steps to the prosecution of the applicant in respect of the complaints made against him by his son S.

12 5. Detective Garda Lynch who had been in charge of the investigation into the complaints made by the applicant's daughter C did not become aware until 11 ^th February, 1998, that the applicant's son S had made a complaint against the applicant of sexual abuse.

13 When he learned of this complaint Det. Garda Lynch reactivated the investigation into the complaint which had earlier been made by the applicant's daughter C in September, 1992.

14 On 2 ^nd December, 1998, the applicant's daughter C made a formal written statement to An Garda Síochána outlining details of the complaint which she wished to make against her father and which comprise the offences with which he has been charged.

15 On 11 ^th August, 1999, the applicant was arrested and interviewed. He denied the allegations which have been made.

16 6. On 27 ^th June, 2000, a file was sent by An Garda Siochána to the Director of Public Prosecutions.

17 7. On 3 ^rd August, 2000, further information was sought by the Director of Public Prosecutions and An Garda Síochána and on 22 ^nd September, 2000, that information was furnished.

18 8. On 16 ^th October, 2000, the Director of Public Prosecutions directed that the applicant should be prosecuted in respect of the offences and on 11 ^th December, 2000, the applicant was arrested charged and brought before the District Court.

19 9. On 27 ^th June, 2001, a Book of Evidence was served upon the applicant and on 25 ^th July, 2000, the applicant was returned for trial in respect of the offences concerned.

20 10. On 12 ^th November, 2002, the applicant applied to the Central Criminal Court to stay his trial which was fixed for hearing on that day. His application was refused by the court. However the trial was adjourned for reasons concerning the availability of jurors.

21 11. On 7 ^th April, 2003, the applicant was again brought before the Central Criminal Court and his trial in respect of the offences commenced.

22 During the course of the trial the jury was discharged on technical grounds.

23 12. On 26 ^th May, 2003, the applicant sought liberty to seek the relief which has been sought herein.

THE APPLICANT'S CLAIM

24 The applicant claims that the respondent has been guilty of inordinate and inexcusable delay by allowing a period of eight years and ten months to elapse between 8 ^th September, 1992, when the applicant's daughter first complained in respect of the offences and 25 ^th July, 2001, when the applicant was returned for trial in respect of the offences.

25 In this case there is no allegation of pre-complaint delay on the part of the applicant's daughter. That is so because there was no such delay. The applicant's daughter was six years old when the offences are alleged to have occurred and was ten years old when she first complained of the offences.

26 She was sixteen years old when she made a formal complaint to An Garda Siochána.

27 It follows inexorably as there can be no question of pre-complaint delay in such circumstances.

SPECIFIC PREJUDICE

28 No specific prejudice has been alleged in this case and the grounds relied upon by the applicant in support of his application for liberty to seek this relief do not make such a claim.

29 Accordingly the claim advanced on behalf of the applicant relates exclusively to an allegation of prosecutorial delay on the part of the respondent in allowing the period of eight years and ten months to elapse between the date of first complaint by the applicant's daughter and the date of his return for trial on 25 ^th July, 2001.

30 In a statement of opposition delivered on behalf of the respondent on 8 ^th October, 2003, the respondent had pleaded that these proceedings have not been brought promptly or within the period of three months limited in that behalf by the Rules of the Superior Courts and accordingly that this court should refuse that relief.

31 Further and...