C (T) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 18 August 2009
• Neutral Citation: [2009] IEHC 400
• Court: High Court
• Date: 18 August 2009

[2009] IEHC 400

THE HIGH COURT

RECORD NO. 914JR/2008

C (T) v DPP

[2009] IEHC 400

BETWEEN:

T.C.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL LAW AMDT ACT 1935 S6

OFFENCES AGAINST THE PERSON ACT 1861 S48

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

H (P) v DPP UNREP SUPREME 29.1.2007 2007/27/5627 2007 IESC 3

M (J) v DPP UNREP SUPREME 28.7.2004 2004/29/6677 2004 IESC 47

T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39

CRIMINAL LAW

Delay

Prohibition - Sexual offences - Right to fair trial - Right to expeditious trial - Complainant delay - Prosecutorial delay - Applicable principles - Test to be applied - Allegations of indecent assault against minor family member - Delay in making complaint - Whether real and substantial risk of unfair trial - Whether delay resulted in prejudice to accused - Death of key witnesses - Unavailability of testimony of highly probative value - Age and physical condition of accused - Whether real or serious risk that applicant by reason of delay would not obtain fair trial - Cumulative effect of all factors - Totality of circumstances surrounding proposed prosecution - Whether demonstrable prejudice could be avoided by appropriate warnings and directions - D v DPP [1994] 2 IR 465, DPP v Byrne [1994] 2 IR 236, Z v DPP [1994] 2 IR 476, Devoy v DPP [2008] IESC 13, [2008] 4 IR 235, DC v DPP [2005] IESC 77, [2005] 4 IR 281, PM v Malone [2002] 2 IR 560, PM v DPP [2006] IESC 22, [2006] 3 IR 172, Barker v Wingo (1972) 407 US 514, McFarlane v DPP [2008] IESC 7, [2008] 4 IR 117, H v DPP [2006] IESC 55, [2006] 3 IR 575, PH v DPP [2007] IESC 3, (Unrep, SC, 29/1/2007), JM v DPP [2004] IESC 47, (Unrep, SC, 28/7/2004) and PT v DPP [2007] IESC 39, [2008] 1 IR 701 considered - Constitution of Ireland 1937, Article 38.1 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6 - Prosecution of Offences Act 1974 (No 22) - Criminal Law (Amendment) Act 1935 (No 6), s 6 - Order of prohibition granted (2008/914JR - Hedigan J - 18/8/2009) [2009] IEHC 400

C (T) v DPP

Facts The applicant had been granted leave by the High Court to seek to prohibit the further prosecution of various sexual offences alleged to have occurred between 1973 and 1978 on the grounds of both complainant and prosecutorial delay which resulted in the unavailability of several witnesses who would have been material to the defence and further deterioration in his health and age. The complaint had been first made to the garda in 2005, some six years after the complainant contended that her suppressed memories of the alleged events had been "released" by a psychotherapist.

Held by Hedigan J in granting the relief sought, that the right to fair trial as guaranteed by Article 38.1 of Bunreacht na hireann and Article 6 of the European Convention on Human Rights, imported a right to a trial with reasonable expedition and without undue delay (D.P.P. v. Byrne [1994] 2 I.R. 236 applied). However, the remedy of prohibition required that the applicant establish a real risk of an unfair trial by reason of the circumstances arising from the delay which could not be avoided by appropriate rulings and directions on the part of the trial judge.

The core inquiry in assessing complainant delay was not so much the reason for the delay in making a complaint but rather whether the accused would receive a fair trial. In this respect, the period of 27 months between the complaint and the arrest of the applicant was no sufficient, of itself, to presume irreparable prejudice and direct the prohibition of the trial. The loss of the evidence had irretrievably damaged the ability of the applicant to defend himself and therefore gave rise to a real and serious risk of an unfair trial which could not be avoided or ameliorated by appropriate warnings and directions of the trial judge.

Reporter: P.C.

1 The applicant is an 84 year old man, who has been charged with a series of sexual offences against his niece ('the complainant') between the 1 ^st of April 1973 and the 31 ^st of December 1978.

2 The respondent is the authority responsible for the prosecution of criminal offences in Ireland. His statutory authority to carry out this function is derived from the Prosecution of Offences Act 1974.

3 The applicant is seeking an order of prohibition or in the alternative an injunction, by way of judicial review, enjoining the respondent from taking any further steps to prosecute him on the aforementioned charges.

I. Factual and Procedural Background

4 In January 1999, the complainant informed a counsellor that she had been abused by the applicant as a child. This complaint was made in direct response to a question from the counsellor and it appears to be the first time that any such allegations were made by the complainant. At that time, the complainant was suffering from depression arising from her mother's death and was being treated with specialist medication. Her treating psychiatrist has opined that the complainant may have had a number of suppressed memories from her youth, which only resurfaced once her mother had passed away.

5 In July 1999, the complainant attended a family gathering during which she informed a number of her relatives of the alleged abuse. She did this, somewhat unusually, by furnishing them with written therapeutic notes of conversations between her childhood and adult persons. The applicant was informed of the allegations by his brother shortly after this gathering and recalls a distinct change in the manner of certain friends, neighbours and relatives towards him. There is also a history of animosity between the applicant and the complainant's husband, with allegations of insulting remarks and harassment being made and refuted by both parties.

6 The complainant continued to receive psychiatric treatment for some time after informing her counsellor and family members of the alleged conduct of the applicant. On the 2 ^nd of November 1999, her psychiatrist noted that the complainant had expressed concern as to the 'lies' that the applicant's sisters might tell if she were to take any further steps. Similar observations were noted on the 5 ^th of December 1999 and on the 8 ^th of December 1999 the complainant is recorded as being concerned that the applicant would deny everything and that his sisters would support him.

7 No formal action was taken in respect of the complaint for several years. It seems that the complainant may ultimately have been prompted to pursue the matter further by an incident which occurred on the 1 ^st of February 2005, wherein the applicant was witnessed by a member of An Garda Síochána as making an offensive 'V' sign towards the complainant.

8 On the 8 ^th of February 2005, the complainant visited her local Garda station and made a formal complaint in respect of the applicant's alleged sexual abuse of her. A criminal investigation was commenced and a full statement of the applicant's complaint was completed on the 7 ^th of March 2005. The substance of the complaint is that the applicant did, on numerous occasions while the complainant was aged between 12 and 17 years, rape and sexually assault her. All the incidents, bar one, are said to have taken place in the applicant's home where he resided with his mother, his two sisters and his nephew who was aged between 4 and 9 years at the time. The dwelling in question is a small, three-bedroom terraced house in which the only bathroom containing the sole lavatory is located upstairs. The complainant maintains that she would often visit her grandmother on Sunday afternoons, while the applicant, his two sisters and his nephew were present in the house. It is on these occasions that she alleges that the applicant raped and sexually assaulted her, either in his own bedroom or in the attic of the house.

9 It must be noted that the applicant's mother, the complainant's grandmother, died in 1979. One of the applicant's sisters died in June 2001 and the other in November 2002. The latter of these two sisters made a remark during her final days to the parish priest, to the effect that the complainant's allegations were untrue and that the applicant would never have engaged in such conduct. In addition, the applicant has asserted that the garage at the rear of the house in which the incidents are alleged to have taken place was used by two particular gentlemen for the repair and maintenance of motor vehicles. Both of these individuals are also now deceased.

10 On the 18 ^th of November 2005, the applicant was arrested and questioned by members of An Garda Síochána in respect of the alleged offences. On the 31 ^st of March 2006, a file was sent to the respondent who directed on the 15 ^th of February 2007 that charges should issue. On the 8 ^th of March 2007, sample charges were sent to the office of the Chief Prosecution Solicitor and on the 20 ^th of May 2007 the applicant was again arrested and charged with the following offences:-

(a) Twenty-five counts of indecent assault of the complainant at the applicant's home and one further count at the complainant's home on dates unknown between the 1 ^st of April 1973 and the 31 ^st of December 1978, contrary to common law and as provided for by section 6 of the Criminal Law (Amendment) Act 1935;

(b) One count of attempted rape of the complainant at the applicant's home on a date unknown between the 19 ^th of April 1974 and the 18 ^th of April 1976 contrary to common law; and

(c) Four counts of rape of the complainant...