O'C v DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.,Mrs. Justice Denham,Murray, J.,HARDIMAN J.
• Judgment Date: 06 July 2000
• Neutral Citation: 2000 WJSC-SC 5259
• Court: Supreme Court
• Docket Number: [S.C. No. 92 of 1999]
• Date: 06 July 2000

O'C (P) v. DPP & PRESIDENT OF THE CIRCUIT COURT

BETWEEN

P.O.'C

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

THE PRESIDENT OF THE CIRCUIT COURT

Respondents

2000 WJSC-SC 5259

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

92/99

THE SUPREME COURT

Synopsis

Criminal Law

Criminal; delay; sexual offences; fair trial; presumption of innocence; applicant, music teacher, had been charged on five counts of indecently assaulting one of his pupils between January 1982 and December 1983; applicant had obtained order of prohibition in High Court restraining respondent from further proceeding with prosecution on grounds of prejudice suffered by him owing to delay; respondent seeks to appeal against such finding; whether delay of alleged victim in reporting alleged crime to authorities explicable by reference to nature of alleged crime; whether, assuming allegation to be true, delay explicable with reference to dominion exercised by alleged perpetrator over alleged victim; whether degree to which applicant's ability to defend himself has been impaired is such that trial should not be allowed to proceed; whether, if applicant can demonstrate to court that it is probable that a specific defence which might otherwise have been open to him or her is no longer available because of the passage of time, the court may halt the trial on ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by trial judge; whether applicant is entitled to strike a reasonable balance between demonstrating prejudice and maintaining whatever degree of reticence and flexibility may be advised to him, bearing in mind the possibility that he may have to face trial; whether specific prejudice as a result of the delay has been established by the applicant in the present proceedings; Art. 38.1 of the Constitution.

Held: Appeal dismissed; judgment and order of High Court affirmed.

O'C (P) v. D.P.P. - Supreme Court: Keane C.J., Denham J., Murray J., Hardiman J., Geoghegan J. - 06/07/2000 - [2000] 3 IR 87

Facts: The applicant had been charged with sexual offences. The complaint was made fourteen years after the offences allegedly occurred. The case had been listed for trial twice and aborted due to the late service of evidence by prosecution. The applicant sought to prohibit trial and in the High Court Mrs. Justice McGuinness made the order sought. The delay in making the complaint was as a matter of probability explicable on the basis of expert evidence tendered to the Court. However, there was a real risk of an unfair trial because the delay, exacerbated by the vacation of two trial dates, had prevented the applicant from gathering evidence from colleagues and staff who had worked with him at the time of the alleged incidents. The High Court so held in granting the relief sought and further held that the risk of an unfair trial could not be countered by rulings and directions to the jury by the trial judge during the course of the proposed trial. The respondents appealed the judgment to the Supreme Court.

Held by the Supreme Court in dismissing the appeal. The Chief Justice (Mr. Justice Geoghegan agreeing) held that the Constitution required that any person was entitled to be tried with reasonable expedition. The public interest in ensuring that every person received a fair trial took precedence over the public interest in the prosecution and punishment of crime. Mrs. Justice Denham held that the delay in making the original complaint would not be per se grounds for prohibiting the prosecution. The applicant had established specific prejudice as a result of the delay and the order of the High Court would be upheld. However this was done as an exception to the general rule. Mr. Justice Murray held that the right of the State to proceed with prosecuting cases where there had been a long delay was subject to the right of the accused to receive a fair and speedy trial. However in this case the case did not turn solely on the issue of delay but on rather on the absence of evidence which the accused could have relied on had there not been such a delay. Mr. Justice Hardiman held that the applicant had established specific prejudice as a result of the delay in the case and order of the High Court would be affirmed.

Citations:

O'CONNOR V DPP & PRESIDENT OF CIRCUIT COURT UNREP MCGUINNESS 4.3.1999

CONSTITUTION ART 38.1

O'CONNELL, STATE V FAWSITT 1986 IR 362

HOGAN V PRESIDENT OF CIRCUIT COURT 1992 2 IR 513

B V DPP 1997 3 IR 140, 1997 2 ILRM 118

C (P) V DPP & BRENNAN 1999 2 IR 45

AG V RYANS CAR LTD 1965 IR 642

HEALY, STATE V DONOGHUE 1976 IR 325

G V DPP 1994 1 IR 374

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

AG, PEOPLE V CALLAGHAN 1966 IR 501

O'LEARY V AG 1993 IR 102

UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 ART 11

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(2)

AMERICAN CONVENTION ON HUMAN RIGHTS 1969 ART 8(2)

COFFIN V UNITED STATES 1895 156 US 422

ESTELLE V WILLIAMS 1976 425 US 501

DPP, PEOPLE V O'SHEA 1982 IR 384

DPP, PEOPLE V QUILLIGAN (NO 2) 1989 IR 46

CRIMINAL PROCEDURE ACT 1967

O'C (J) V DPP 2000 3 IR 478 2000 13 5164

DOWD V KERRY CO COUNCIL 1970 IR 27

O'KEEFFE V COMMISSIONER OF PUBLIC WORKS UNREP SUPREME 24.3.1980 1980/9/1610

SHEEHAN V AMOND 1982 IR 235

SHERRY V WINE 1985 ILRM 196

AG'S REFERENCE (NO 1 OF 1990), IN RE 1992 3 AER 169

AG OF HONG KONG V CHEUNG 1994 1 AC 1

F V DPP UNREP CCA 2.12.1996 (NOT AVAILABLE)

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

CRIMINAL EVIDENCE ACT 1992 S27

1 6th day of July 2000byKeane C.J.

Keane C.J.

2 The applicant was charged on five counts of indecently assaulting one P.K., a male, on dates unknown between the 1st January 1982 and the 31st December 1983. The offences are alleged to have been committed in a Dublin school providing musical education where the applicant was at the time a teacher and the complainant a pupil.

3 The complainant was approximately 11 years old when the first offence is alleged to have been committed. In his statement, he said that the began music lessons at the school when he was approximately 7 years old. The lessons were on a Friday evening and lasted approximately half an hour. They took place in room 45 in the school whichwas on the top left hand side of the building as one looked at the school from the road. The complainant, who was studying the violin, was usually brought to the school by his mother and collected by her following the lesson.

4 The complainant said that, during the year 1982, the applicant became very friendly with him and gave him magazines and books on cars in which he (the complainant) had a great interest. After approximately half an hour of the lesson, the applicant would tell him to put the violin down so that they could have a talk. He said that the applicant would put him sitting on his knee and he would then say something like "justa second" and would get up and go and lock the door. He would then return and place the applicant on his knee again, saying something like "we don't want anyone interrupting our littlechat".

5 The complainant said that the applicant then opened his pants, fondled his private parts and masturbated him. Before he left the room he would give him money from a purse, ranging from 50p to a couple of pounds. He would say before he left the room that this was "our littlesecret". It happened to him on at least five occasions in 1982 and might have happened on more occasions.

6 The complainant said that he did not tell his parents about these incidents at the time, because of what the applicant had told him. In his statement, he added

"When I was 17 years old I went to Germany working and it was then that it really struck me. Until then I always believed I was the guilty party. Looking back on it and because of the stature I had in school I feel guiltyfor not putting an end to it. Since then I have told my parents about it and I have also told three of my friends in Ireland about it. I told another friend in Germany about it when I worked there. The friends I told were (three names supplied)."

7 There were also statements in the book of evidence from the complainant's parents in which they said that he had told them of the alleged abuse in the year 1995. There were also statements from two of the persons whom the complainant said he had told about the alleged abuse, confirming that he had so told them.

8 The complainant having then reported the alleged abuse to the Gardai, the applicant was interviewed by them on the 19th January 1996. In his statement, he denied having sexually interfered with the complainant and said that he was very surprised that he was making such an allegation. While he did not recall giving him any books, he said that he could have and that he gave most of his students "a few bob pocket money from time to time."

9 The applicant, having been charged, was returned for trial to the Circuit Court. The case was first listed for trial on the 23rd July 1997. On that day, a copy of additional evidence containing an opinion of Dr. Paul McQuaid, a psychiatrist, was served on the applicant. This was to the effect that the complainant's explanation for the delay in making the complaint was consistent with the type of emotional and psychological reaction that commonly occurs in abuse of this nature. The trial was adjourned because of the delay in serving this evidence on the applicant and a new trialdate fixed for 16th October 1997. At the outset of this trial, another notice of additional evidence was served consisting of a statement from one K.W. containing details of a complaint allegedly made by the complainant to K.W. in or about June 1990. An objection having been raised on behalf of the applicant to the introduction of this evidence, the jury was discharged so as to allow for the fixing of a new...