Mc C. -v- D. P. P., [2008] IEHC 232 (2008)

Docket Number:2007 848 JR
Party Name:Mc C., D. P. P.
Judge:Hanna J.

THE HIGH COURT2007 No. 848 JRBETWEENP. Mc C.APPLICANTANDDIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTJudgment of Mr. Justice Hanna delivered on Friday 11th day of April, 2008The applicant P. Mc C. is charged with a very serious offence, namely, having sexual intercourse with a mentally impaired person, contrary to s. 5(1) of the Criminal Law (Sexual Offences Act) 1993. The alleged offence was committed on or about the first day of July 2001. If convicted, the person so convicted faces a term of imprisonment of up to ten years.The alleged offence occurred when the applicant and the co-accused person were in Thomastown in the County of Kilkenny in connection with visiting a fun-fair or carnival. The relevant timeframe is, as follows. On the 2nd of July, 2001, that is the day after the alleged offence, the accused was arrested and interviewed by An Garda Síochána. He made a statement and voluntarily gave DNA samples.In the statement, he admitted engaging in an act of sexual intercourse with the alleged victim. It should be observed and for the purpose of this judgment, the parties should note, that I am making no assumptions as to what might have happened had this matter proceeded to trial. It may well be that the applicant would have attempted to resile from that particular statement. As it happens, we do not know because of the events that came to pass.On the 21st December, 2001, pursuant to s. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990, an order was made to preserve certain material. On the 16th September, 2002, that is some 14 and a half months after the applicant made his statement, he was rearrested and formally charged. By the 4th November, 2002, the case had reached a stage where the book of evidence was served. The matter came before the court on the 20th of January, 2003. The applicant was not in court on that occasion, his mother was, sadly, in extremis at the time. A bench warrant was issued and this was executed on the 3rd March, 2003.He was then sent forward for trial to the Circuit Criminal Court, sitting in Kilkenny. On the 11th March, 2003 he was remanded on bail until the 15th July, 2003. The case was then adjourned. On the 4th November, 2003, the case was listed for trial but it was adjourned on that occasion due to its position in the list and the unlikelihood of it being reached. Between March and July 2004, again, the case was adjourned as being unlikely to be reached. During this time the co-accused launched judicial review proceedings. Between the months of October 2004 and June 2004 the matter was adjourned in light of the judicial review proceedings taken by the co-accused.In 2006, various applications were made on behalf of the applicant seeking to have the criminal case proceeded with separately, in other words, to sever the indictment. These applications were unsuccessful.On the 22nd March, 2006, a trial of this particular charge commenced. However, the trial had to be aborted as a result of an extraneous matter which was introduced by the alleged victim and which was irrelevant and possibly prejudicial in light of the charge which the applicant was facing.On the 25th April, 2006, the matter was again adjourned. This was on the application of the co-accused, Mr Dunne, due to the non availability of a defence witness. On the 7th November, the matter was again adjourned due to the absence of Dr Jennifer Ryan, a forensic scientist, called on behalf of the prosecution.On the 23rd January, 2007 the absence of the transcript of the previous proceedings, caused a further adjournment. A trial commenced on the 1st May, 2007. It transpired that a juror knew the family of one of the parties. An application to discharge was unsuccessful but it transpired that a copy booklet, which had been givento the jury, contained potentially prejudicial matter and this caused the trial to be aborted yet again. I should observe that, at this point, I'm satisfied that both these cessations of the trial were caused, and I accept Ms. Phelan's argument...

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