Chambers v DPP

JurisdictionIreland
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date09 July 2004
Neutral Citation[2004] IEHC 138
CourtHigh Court
Date09 July 2004

[2004] IEHC 138

THE HIGH COURT

HC 285/04
[No. 72JR/2002]
CHAMBERS v. DPP
JUDICIAL REVIEW

BETWEEN

DAVID CHAMBERS
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

CRIMINAL LAW (AMDT) ACT 1935 S6

CONSTITUTION ART 38.1

C (P) V DPP 1999 2 IR

O'C (P) V DPP 2000 3 IR 87

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

FITZPATRICK (F (M)) V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

W (D) V DPP UNREP SUPREME 31.10.2003 2003/48/11781

Abstract:

Judicial review - Order of prohibition - Constitutional law - Criminal law -Sexual offences - Delay - Issue of dominion - Psychological evidence - Role of Director of Public Prosecutions - Whether real or serious risk of unfair trial - Whether order prohibiting trial should be granted - Bunreacht na hÉireann, 1937 Article 38.1

Facts: The applicant had been arrested and charged with sexual offences allegedly committed some years previously. The applicant brought an application seeking to prohibit his trial from proceeding. The applicant claimed that the lapse of time between the commission of the alleged offences and the date of trial was so great that it gave rise to an unavoidable and incurable presumption of prejudice against him and breached his right to trial with due expedition. Furthermore it was claimed that the delay had deprived the applicant of prospective witnesses. The applicant had been granted leave to bring judicial review proceedings by McKechnie J and now sought declarations and or orders of prohibition preventing his trial from proceeding. The complainants submitted that the applicant was a respected family member and the close family ties were a factor in the delay in making the complaints to An Garda Síochána. Counsel on behalf of the applicant submitted that the position the applicant held as a respected family member did not justify the unconscionable and excessive delay in making the complaints by the alleged victims.

Held by Ó Caoimh J in refusing the relief sought. The delay for the complainants in coming forward had been explained and must be attributed to the conduct of the applicant in the first place. It could not be said that the death of certain persons had resulted in a situation of clear prejudice for the applicant. A number of persons, including the applicant’s wife were alive, could be called as witnesses by the applicant. The applicant had failed to establish prejudice as to warrant a finding that a fair trial was no longer possible.

Reporter: R.F.

1

Mr. Justice Aindrias Ó Caoimh delivered the 9th July, 2004.

2

By order of this Court (McKechnie J.) made the 13 th February, 2002, the applicant was given leave to apply by way of application for judicial review for the following relief:-

3

1. A declaration that the delay between the dates of the alleged offences and the dates of making of complaints by the complainants herein is inordinate and inexcusable and in breach of the applicant's right to a fair trial and a trial with due expedition;

4

2. A declaration that the prosecuting authorities including the respondent herein have been guilty of unnecessary and excessive delay in bringing the said prosecution and have failed to vindicate the applicant's constitutional rights to a fair trial in accordance with natural and constitutional justice;

5

3. An Order of Prohibition or alternatively, an injunction by way of judicial review restraining the respondent herein from continuing to prosecute the applicant in respect of 18 charges alleging offences contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935which offences are alleged to have been committed between 1 stJune, 1967 and 30 th April, 1968;

6

4. An Order of Prohibition or alternatively an injunction by way of judicial review restraining the respondent herein from continuing to prosecute the applicant in respect of 3 charges alleging offences contrary to common law and s. 6 of the Criminal Law (Amendment) Act, 1935which offences are alleged to been committed between the 1st June, 1972 and the 31 st August, 1972.

7

The grounds upon which this relief is sought are as stated to be as follows:-

8

1. The delay in the institution of these proceedings has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland.

9

2. The delay in the institution of these proceedings has violated the applicant's right to a trial with reasonable expedition and to basic airness of procedures and constitutional and natural justice.

10

3. The delay in the institution of these proceedings is inordinate, inexcusable and excessive.

11

4. The delay in the institution of these proceedings has prejudiced the applicant in defence of these proceedings.

12

5. The delay in the institution of these proceedings has created a real and serious risk that the applicant would be denied a fair trial or subjected to an unfair trial.

13

6. The delay in the institution of these proceedings has prejudiced the applicant in being able to call upon witnesses, who are no longer living, whose evidence would be of relevance to the matters at issue in this case.

14

7. The delay in the institution of these proceedings has prejudiced the applicant in that he has not been given details of the reason for the lengthy delay in the making of any complaint against him.

15

8. The applicant has been prejudiced in his defence of these proceedings for reason of a lack of specificity in the charges alleged.

16

9. The delay in the institution of these proceedings has allowed the applicant to belief that he would not be prejudiced in respect of allegations made by M.D. and B.J.

17

An affidavit has been sworn by the applicant on the 12 thFebruary, 2002, in which he indicates that his trial was listed before Carlow Circuit Court in February 2002. He indicated that the return for trial was made at the District Court on the 11 th June, 2001.

18

The applicant indicates that at the time of swearing his affidavit he was 58 years of age having been born on the 8 th October, 1943. He indicates his background and the fact that he previously transferred a 50% interest in his lands to his wife while retaining ownership of the family home on the lands. He says that he and his wife no longer reside together having separated due to unhappy differences arising sometime in or around July of 1998. The applicant indicates that the prosecution is on foot of complaints made against him by M.D. and B.J. both being nieces of his wife and being the daughters of his wife's brother. He refers to the fact that the complainant B.J. complained to Garda Brendan Murphy sometime in or around 1999 that he had perpetrated various offences of a sexual nature against the complainant in the summer of 1972. He refers to the complaint of M.D. having being made on the 4 th August, 1999, in respect of various alleged offences of a sexual nature alleged to have occurred from in or around 1967 and subsequent four to four and a half years. The applicant indicates that he was arrested on the 10 th August, 1999, and brought to Carlow Garda Station for detention and questioning in respect of allegations made by the complainants. He says that on the 6 thFebruary, 2001, he was once again arrested by Garda Murphy, taken to Carlow Garda Station where he was charged with the 21 offences the subject matter of these proceedings. He points out that on the 9 th April, 2001, he was served with a Book of Evidence and was returned for trial on the 11 th June, 2001. Having referred to the period in which the alleged offences are stated to have been committed the applicant then comments upon the Book of Evidence and refers to the fact that he was not aware of the complaints made by the complainants until the 10 th August, 1999. He indicates that no detail in given in the Book of Evidence as to why no complaint was made by the complainants at an earlier stage and no sufficient reason is offered as to the lengthy delay being a period of approximately 32 years in respect of M.D. and 27 years in respect of B.J. The applicant further comments upon the fact that prior to making formal complaints the complainant M.D. made certain disclosures to her sister some six years previously. He observes that no reason is offered to explain the delay in making the formal complaint to the gardaí being six years subsequently.

19

In his affidavit the applicant identifies a number of people whom he says cannot now be called because they have died in the intervening periods, the eldest of whom was identified as having died in 1969 and the last of whom apparently died in or about 1994/1995. The applicant also identifies a niece of his wife who he says was resident at the farm during the summer of 1967 and had slept in the room in which one of the complainants alleges that he had sex with her. He expresses belief that this lady resides in Northern Ireland but he does not know her address. He also refers to his parents-in-law having resided in the house and expresses his belief that the alleged events could not have occurred without their knowledge. He complains that these persons are no longer available to give evidence. It should be stated however that much of this affidavit is in the nature of a submission and not of statement of fact. Finally, the applicant suggests that a Statement of Evidence contained in the Book of Evidence relating to what was allegedly said by him to the gardaí is inaccurate. He denies a number of the utterances alleged to have been made by him.

20

The applicant has sworn a further affidavit in which he seeks to address his delay in moving to this court and he expresses the view that it was reasonable for him to wait until he was served with the indictment to see what counts were selected thereon. He further states that he was suffering severe ill health since in or around 1998 and as a...

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