JudgeMr. Justice Geoghegan
Judgment Date19 May 2004
Neutral Citation[2004] IESC 33
CourtSupreme Court
Docket Number[S.C. No. 101 of 2003]
Date19 May 2004
D (D) v. D.P.P.



[2004] IESC 33




- [2004] 3 IR 172

The High Court refused the applicant an order by way of judicial review prohibiting the further prosecution of various charges of sexual assault on the grounds, inter alia, of a thirty year delay in the prosecution as a ground in itself and/or actual or presumed prejudice in the conduct of the defence as a result thereof. The applicant appealed that refusal to the High Court.

Held by the Supreme Court in refusing the appeal, that where a trial judge draws inferences of fact from evidence before it, an appellate court had to exercise due caution before drawing a different inference from such facts. That, while at the hearing of a judicial review a court had to be careful not to pre-empt the outcome of a trial it nevertheless was entitled to consider all the surrounding circumstances before it would consider injuncting the trial. Where an adequate explanation for complainant delay existed, that ground alone would not be sufficient to prohibit the prosecution of offences of sexual assault relating to such complainant.

Reporter: P.C.

Notice: The page breaks of this judgment may not correspond with the hard copy. These will be introduced later.





M (P) V MALONE 2002 2 IR 560

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

M (S) V DPP UNREP MCGUINNESS 20.12.1999 1999/16/4903

L (J) V DPP 2000 3 IR 122

DUNNE V DPP 2002 2 ILRM 241

BRADDISH V DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151



DPP V BYRNE 1994 2 IR 243 1994 2 ILRM 91

C (P) V DPP 1999 2 IR 25

B V DPP 1997 3 IR 140

G V DPP 1994 1 IR 374

RSC O.184 r21(1)




Mr. Justice Geoghegan delivered the 19th day of May 2004


This is yet another appeal in an application to injunct the Director of Public Prosecutions from proceeding with charges of a sexual nature where the alleged offences occurred a long time ago, the period in this case being over thirty years. The application was fought in the High Court on alternative grounds some of which were not really pressed. Essentially, the case made was that the appellant/applicant was not expressly or by implication to blame for the delay and that on that account alone the prosecution should not be allowed to proceed or alternatively, that if it was considered by the court that the delay on the part of the complainant in making a formal complaint to the gardaí was reasonable in the circumstances and was contributed to by the nature of the offences themselves if they occurred, there should still be an injunction on the grounds of actual and/or presumed prejudice in the conduct of the defence.


The High Court (Kearns J.) in an ex tempore but carefully reasoned judgment refused the injunction. The appeal to this court is against that refusal.


The grounds of appeal were:


1. That the trial judge erred in law and in fact in finding that there was an adequate explanation for the delay in reporting the offences to the authorities.


2. That the judge erred in failing to attach appropriate weight to an alleged failure of the prosecuting authorities to investigate the surrounding circumstances of the offences and would thereby reduce the lack of specificity and detail of same.


3. That the judge failed to consider the issue of presumptive prejudice and was wrong in not doing so.


4. That the judge was wrong in holding that where a trial is essentially a test of credibility that is not a ground for stopping it in the circumstances that pertain in this case.


5. That the judge erred in law in failing to consider the prejudice pleaded.


6. That the judge erred in law in failing to consider all the circumstances of the case.


The proceedings in the High Court were judicial review proceedings brought pursuant to leave. It was argued by counsel for the Director of Public Prosecutions in the High Court that counsel for the applicant had made arguments which would themselves have constituted separate grounds for judicial review but that leave had not been sought or granted in respect of such grounds. By the same token, counsel for the Director of Public Prosecutions, Mr. Anthony Collins, S.C. at the hearing of this appeal argued some fundamental propositions relating to the entire jurisprudence of this court on lapse of time and its effect on the trial of sex offences. In these circumstances it is important to consider what are the limits of this appeal and in that connection it is necessary not just to look at the notice of appeal but at the grounds on which leave was granted. I do not propose to set out these grounds but I think that they can be fairly summarised as follows:


1. The delay constituted a breach of the applicant's right to a fair trial.


2. The delay contravened the applicant's right to a trial with reasonable expedition.


3. That there is actual or presumptive prejudice in the preparation and presentation of a defence.


4. That the charges are not specific enough.


5. That media publicity has prejudiced the applicant's right to a fair trial or that such trial in the circumstances would be oppressive.


6. The trial should be stopped having regard to alleged breaches of Article 6 of the European Convention.


The learned High Court judge was dismissive from a quite early stage of the complaints of lack of specificity having regard to previous decisions of this court. I think that the learned High Court judge was correct in adopting this view and I do not recall the matter being seriously pressed at the appeal.


As far as the media publicity is concerned, counsel for the applicant in the High Court did not claim that that, of itself, could be a ground for stopping the trial but merely indicated that regard should be had to it among all the circumstances. It has not seriously featured at the hearing of the appeal either.


I do not think that an issue under the Convention is relevant having regard to our own jurisprudence. Rightly or wrongly in Attorney General's Reference (No. 2 of 2001) [20041 WLR 1 the House of Lords has recently held that as a general rule, time would begin to run for the purposes of Article 6(1) from the earliest time within which a person was officially alerted to the likelihood of criminal proceedings being brought against him and that such period would only begin when a defendant was formally charged or served with a summons rather than when he was arrested or interviewed under caution. There are obiter dicta emanating from this court indicating a wider interpretation of the Article but be that as it may, the Convention was not part of domestic law at the time that this application was heard in the High Court and the appeal can be determined without reference to it.


Rather unusually the transcript of the entire proceedings in the High Court including the submissions made to the learned trial judge is available to this court. In considering this appeal I see no reason to depart from the basis on which the case was argued on behalf of the appellant in the High Court. In the High Court it was more or less assumed by Mr. Gageby, S.C. the then counsel for the appellant and by the learned High Court judge that the long lapse of time prior to complaint was legally relevant but that its effect depended on whether or not the lapse of time was caused or substantially contributed to by the applicant. This was a perfectly correct approach as that has been the accepted jurisprudence of this court for many years. In recent cases the Director of Public Prosecutions has appeared to challenge it. My present view is that that jurisprudence is correct but even if there was any doubt about its correctness, it could only be reviewed by a court of five judges considering whether particular named cases had been wrongly decided and that argument would have to come by way of appeal or cross-appeal from the Director of Public Prosecutions. I wholly reject the idea that somehow or other P.M. v. Malone [2002] 2 I.R. 560 has brought about a change in that jurisprudence. I will be returning to these matters in due course. First, I think it important to consider in detail the facts.


The appellant is an Irish Christian Brother who is sixty three years of age. He is charged with the commission of four acts of indecency with a boy who at the material time was an inmate of an industrial school under the care of the Christian Brothers and in which the appellant worked mainly in the kitchen. In relation to each of the four incidents there are two counts one being of indecent assault and the other being of procuring the complainant to commit an act of gross indecency. The judicial review application to stop the trial is grounded on two affidavits one by the appellant and one by his solicitor Mr. Niall O'Neill. The appellant explains in his affidavit that at the material time he was the cook and kitchen supervisor in the school and that at times up to one hundred and twenty boys had to be fed. He has no recollection of the complainant. A lady called Nora Barrett who died in the 1960s used to help in the kitchen. The appellant goes on to explain that on occasion groups of boys would be assigned to help out in the kitchen but without any regular rota. The appellant then deposes to the fact that dormitory supervision did not form part of his regular duties and that he "rarely supervised" the dormitory. He says in the affidavit that a layman was employed for dormitory supervision duty. The significance of the...

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