Ó'c. v DPP and Others

• Jurisdiction: Ireland
• Judge: Ms Justice O'Malley
• Judgment Date: 07 February 2014
• Neutral Citation: [2014] IEHC 65
• Court: High Court
• Docket Number: Record No: 2012/848 JR
• Date: 07 February 2014

BETWEEN:

S. Ó”C.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2014] IEHC 65

Record No: 2012/848 JR

THE HIGH COURT JUDICIAL REVIEW

Judicial review - Injunction - Pending prosecution - Sexual offences - Right to an expeditious trial - Delay - Prejudice - Loss of evidence - Breach of constitutional rights - Real risk of an unfair trial

In these proceedings, the applicant, S. Ó”C., sought an injunction to prevent his pending prosecution for 159 counts of indecent and sexual assault and one count of rape, all related to single complainant. All of the offences were allegedly committed between 1981 and 1993 when the complainant was aged between five and eighteen. The applicant also sought a declaration that the respondents failed to provide him with an expeditious trial in addition to damages for breach of his constitutional rights.

The applicant denied the allegations and claimed that the delay in the prosecution prejudiced him in his defence to the extent that a trial would be unfair. This delay was also claimed to have resulted in the loss of evidence. This included evidence lost following the death of a psychiatrist, Dr O”Carroll; the lack of medical records about a possible miscarriage in 1990-1991; and the loss of the notes of a psychotherapist attended by the complainant. It was also claimed that the failure of the Gardaí to obtain a statement from Dr O”Carroll before his death was a breach of the duty to seek out and preserve relevant material. The key complaint regarded the credibility of the complainant as the lost evidence bearing on this could not be properly considered.

Held by O”Malley Iseult J., the test to be applied was whether there was a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial. The Court adopted the applicable principles set out in K v His Honour Judge Carroll Moran which explained that the High Court should be slow to interfere with a decision of the Director of Public Prosecutions that a prosecution should be brought; that it should be presumed that an accused person facing trial would face a fair trial; that the onus of proof was on the accused when judicial review to prevent the trial was taken, an onus to be discharged only where a ‘real risk’ of an unfair trial existed; and that discharging this burden required an active engagement with the facts in a specific demonstration of the risk. The Court determined that the relevant onus had not been discharged by the applicant.

The Court found that the evidence of a possible miscarriage could not ‘bear any great weight’ in demonstrating the risk of an unfair trial or the charges against the applicant. The Court also found that the argument about the records of Dr O”Carroll and the possible Gardaí failure to seek out and preserve evidence was not made out and that that the absence of these records would not render the trial unfair. The evidence in relation to the psychotherapist was also found to add little to the case. The Court concluded that, while theoretically possible on the facts that the missing material could have contradicted the complainant”s account of the events, this was not enough to demonstrate that the trial would be unfair.

The Court therefore refused the reliefs sought.

Ms Justice O'Malley

Judgment of Ms Justice Iseult O'Malley delivered the 7th February, 2014.

1 In this case, the applicant seeks injunctive relief relating to the pending prosecution against him of 159 counts of indecent and sexual assault, alleged to have been committed between 1981 and 1993, and a single count of rape alleged to have been committed in 1987. He also seeks a declaration that the respondent has failed to provide him with a trial with due expedition and damages for breach of his rights under the Constitution and under the European Convention on Human Rights.

2 The charges relate to one complainant, a sister of the applicant's wife, who was born on the 301h January, 1975 and at the relevant times was aged between five and eighteen years of age. The applicant was born in 1952 and is now sixty-one years of age. He is a former schoolteacher, having retired on health grounds in 1998.

3 The applicant has sworn an affidavit in which he verifies the Statement of Grounds in this application and denies the allegations made against him. He claims that the delay in prosecuting him has prejudiced him in his defence to the extent that there is a real risk of an unfair trial which could not be remedied by the rulings or directions of a trial judge. It is alleged that there is specific prejudice in that the delay has led to the loss of certain evidence.

4 In particular the applicant has pointed to the death of a psychiatrist to whom the complainant says she spoke in relation to the events; the inability of the complainant's referring GP to remember any mention by her of sexual abuse; the lack of any medical records or notes relating to a miscarriage the complainant may have had in 1990 or 1991; and the loss or destruction of notes belonging to a humanistic and integrative psychotherapist attended by the complainant. The applicant says that the loss of such information results in actual and specific prejudice to him. It is further argued in relation to certain of these matters that there has been a failure on the part of the Gardaí to seek out and preserve relevant evidence.

5 The applicant was originally charged on the 21st February, 2011. It was considered necessary to amend the charges and he was recharged with the offences set out in the Book of Evidence on the 13th June, 2011. The Book was served, and he was returned for trial to the Central Criminal Court, on the 23rd September of that year.

6 Leave to seek judicial review was granted by Peart J. on the gth October, 2012.

The evidence

7 Between the 7th January, 2009 and the 23rd September, 2011, when the Book of Evidence was served, the complainant (hereafter "C.") made six statements to the investigating Gardaí. The statement of her proposed evidence as set out in the Book is therefore a composite, redacted version of these statements. The first statement begins with the assertion that " numerous assaults, indecency and rapes" had been perpetrated against her but this sentence has been redacted from the Book.

8 In the statement C. describes how the relationship between her sister and the applicant developed when she herself was a small child. He became a regular visitor to the family home and C. often spent time with the couple. The applicant often put her to bed and told her a story.

9 C. makes it clear that she felt great esteem and affection for the applicant as she grew up. Her father had left the family home some years earlier and she saw the applicant as, to some extent, taking his place. She was also very close to her sister.

10 It was in these circumstances that the initial alleged sexual behaviour began to occur, with the applicant fondling C.'s vaginal area. According to C., this happened, at a minimum, once a week between 1981 and 1983 or 1984. In that year the applicant and C.'s sister bought a house together. After they had purchased the house she often stayed there overnight.

11 Over the following years, it is alleged, the applicant continued to engage in this type of sexual behaviour and progressed to digital penetration. He is also described as making both C. and other children visiting the house strip naked in his presence. He would on occasion get into C.'s bed naked. She describes what she refers to as attempted rapes occurring about once every two weeks. An incident of actual rape is alleged to have occurred in 1987. This is the only description in the Book of an act of penetrative intercourse. Thereafter, she says that the applicant continued to sexually assault her about once a fortnight.

12 As already noted, in the original, unredacted statement C. had referred to "rapes" in the plural, although only one such incident, in 1987, had been described. In a subsequent statement, served by way of Notice of Additional Evidence on the 3rd September, 2012, she said that following that incident, she and the applicant had sex "countless" times.

13 C. says that in "the summer of 1990-1991" she was in the Gaeltacht and had to see a doctor because she had stomach pains and was passing blood. The doctor, whose name she did not recall, suggested to her that it might have been an early miscarriage. The applicant does not in her statement give any indication as to how she might have become pregnant but she does say that in 1991 she began a relationship with another adult man, whose name she gave to the Gardaí. According to her, this relationship terminated at the behest of the applicant.

14 The investigating garda succeeded in identifying the relevant health centre but there was no record of C.'s attendance there. This, it was suggested, might have been due to the transfer of records to computer in the intervening period. The man in question was also interviewed and he agreed that he had had "a brief romantic liaison" with C. He professed a belief that she was over seventeen at the time.

15 After leaving school C. began a teacher training course in 1993. At some point she started seeing a different man and again the applicant intervened, leading to the ending of that affair.

16 C. relates in her statement that, in the immediate aftermath of this event, she attempted suicide by medication overdose on the 24th May, 1994. She was brought to Beaumont Hospital, had her stomach pumped and was referred to a psychiatric hospital. The admission notes from Beaumont are available, as are the senior house officer and the registrar in psychiatry who saw her there. The notes describe what had happened as a "serious suicide...