D (D) v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 23 July 2008
• Neutral Citation: [2008] IESC 47
• Court: Supreme Court
• Date: 23 July 2008

[2008] IESC 47

THE SUPREME COURT

Fennelly J.

Macken J.

Finnegan J.

Record Nos. 279/05

Record Nos. 280/05

D (D) v DPP

JUDICIAL REVIEW

BETWEEN:

D.D.

APPLICANT/APPELLANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

D (D) v DPP

RESPONDENT/RESPONDENT

OFFENCES AGAINST THE PERSON ACT 1861 S62

CRIMINAL LAW (AMDT) ACT 1990

OFFENCES AGAINST THE PERSON ACT 1861 S47

OFFENCES AGAINST THE PERSON ACT 1861 S17

RSC O.40 r4

H (S) v DPP 2006 3 IR 575

MCFARLANE v DPP UNREP SUPREME 7.3.2006 2006/35/7440 2006 IESC 11

J (B) v DPP UNREP SUPREME 1.5.2007 2007 IESC 18

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4(1)

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4(4)

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4(5)

DPP v F (E) UNREP SUPREME 24.2.1994 1994/2/557

O'R (D) v DPP 1997 2 IR 273

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

DPP v O'CONNOR UNREP CCA 29.7.2002 2002/10/2240

McA (J) v DPP UNREP GILLIGAN 15.1.2004 2004/33/7660 2004 IEHC 54

M (J) v DPP UNREP Ó CAOIMH 21.3.2003 2008/32/7804

M (J) v DPP UNREP SUPREME 28.7.2004 2004/29/6677 2004 IESC 47

CRIMINAL LAW

Delay

Sexual offences - Right to fair trial - Right to expeditious trial - Complainant delay - Test to be applied - Multiple complainants - Whether real risk of unfair trial - Whether delay resulted in prejudice to accused - Onus of proof - Large number of counts on indictment - Lack of specificity - Charges alleged offences occurred on date within calendar years - Whether charges described with reasonable specificity - SH v DPP [2006] IESC 55, [2006] 3 IR 575 followed; McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134 and People(DPP) v O'Connor (Unrep, CCA, 29/7/2002) considered - Criminal Justice (Administration) Act 1924 (No 44), s 4 - Defendant's appeal allowed (279 & 280/2005 - SC - 23/7/2008) [2008] IESC 47

D(D) v DPP

Facts: The appellant appealed against so much of the Order of the High Court dated 10 June 2005 refusing to prohibit the prosecution of the appellant in respect of 23 offences alleged to have been committed against four complainants. The respondent cross appealed against so much of the aforementioned Order allowing the appellant’s applicant and restraining the respondent from taking any further steps in or further proceeding with the prosecution of the appellant in respect of eleven offences in respect of six complainants. The appellant was charged with 34 counts comprising 18 counts of indecent assault, 11 counts of sexual assault and 5 counts of assault alleged to have been committed on certain unknown dates between 1971 and 1984. The same issues arose on both the appeal and the cross appeal namely: complainant delay, prosecutorial delay, prejudice and lack of specificity as to time. The first complaint against the appellant was made on 2 November 1994 and the latest complaint was made in mid 1997. The appellant was charged in October 1997 and again in February 1999. Counsel for the appellant conceded at the appeal hearing that the ground in relation to complainant delay could not succeed having regard to the decision of this court in

S.H. v DPP

[2006] 3 IR 575. In relation to prosecutorial delay it was stated that the appellant’s trial was adjourned from time to time over a period of one year and nine months on the application of the respondent to enable three applications for judicial review relating to Christian Brothers in the same industrial school as the appellant had worked to be concluded. The appellant submitted that his defense was prejudiced by reason of the decline of his recollection of events and also the fact that several potential witnesses were now longer available.

Held by Finnegan J (Fennelly and Macken JJ concurring) in dismissing the appeal and allowing the cross appeal in relation to all but one complainant:

1. That at the time of the investigation of the complainants leading to the charges against the appellant there was a wide ranging investigation into alleged abuse at the same industrial school. In those circumstances it was reasonable to seek to adjourn the appellant’s trial pending resolution of judicial review applications taken by other Christian Brothers against whom complaints were made. The appellant failed to establish that the period of one year and nine months delay amounted to culpable prosecutorial delay.

2. That the appellant failed to indicate whether any of the evidence which the unavailable witnesses would have given was available through some other source. He did not establish that there was a real risk of an unfair trial arising out of unavailable witnesses.

3. That there only existed lack of specificity in relation to one complaint such as would entitle the appellant to have his trial in relation to that complaint prohibited. That complaint was made by G.T. and related to a single incident within a time span of seven years.

Reporter: L.O’S.

1 Judgment of Mr Justice Finnegan delivered on the 23rd day of July 2008

2 The appellant was charged with 34 counts as follows:-

3 18 counts of indecent assault contrary to section 62 of the Offences against the Person Act 1861

4 11 counts of sexual assault contrary to the Criminal Law (Amendment) Act 1990

5 5 counts of assault contrary to section 47 of the Offences against the Person Act 1861.

6 The offences were alleged to have been committed against ten separate complainants. By order of the High Court dated the 10 ^th June 2005 the respondent was restrained from taking any further steps in or further proceeding with the prosecution of the appellant in respect of eleven offences in respect of six complainants and an order restraining the respondent from taking any further steps in or further proceeding with the prosecution of the appellant was refused in respect of the remaining 23 offences alleged to have been committed against four complainants. The appellant appeals the said order insofar as prohibition was refused and the respondent cross appeals insofar as prohibition was granted. At the commencement of the hearing of this appeal the respondent gave an undertaking that a number of counts would not now be prosecuted. As a result of the undertaking this court is concerned with eleven counts involving six complainants as follows:-

On the appeal

7 Count 9 that the appellant did on a date unknown between 1- 3-1975 and 31-7-1995 indecently assault one K.S. a male contrary to section 62 of the Offences against the Person Act 1861

8 Count 10 that the appellant did on a date unknown between 1- 3-1975 and 31-7-1975 other than on occasion the subject matter of count 9 indecently assault one K.S. a male contrary to section 62 of the Offences against the Person Act 1861.

9 Count 12 that the appellant did on a date unknown between 23 ^rd August 1975 and 22 ^nd August 1976 indecently assault one J.C. a male contrary to section 62 of the Offences against the Person Act 1861.

10 Count 13 that the appellant did on a date unknown between 1- 3-1975 and 31-7-1975 other than on occasion the subject matter of count 12 indecently assault one J.C.a male contrary to section 62 of the Offences against the Person Act 1861

11 Count 16 that the appellant did on a date unknown between 1- 1-1978 and 31-12-1979 other than on occasion the subject matter of count 15 indecently assault one P.H. a male contrary to section 17 of the Offences against the Person Act 1861.

12 Count 17 that the appellant did on a date unknown between 1 ^st September 1977 and 31 ^st December 1979 unlawfully assault one P.H. thereby occasioning him actual bodily harm contrary to section 47 Offences Against the Person Act 1861.

On the Cross Appeal

13 Count 3 that the appellant did on a date unknown between 1- 3-1971 and 30-11-1976 indecently assault one J.D. a male contrary to section 62 of the Offences against the Person Act 1861.

14 Count 4 that the appellant did on a date unknown between 1- 3-1971 and 30-11-1976 other than on occasion the subject matter of count 3 indecently assault one J.D. a male contrary to section 62 of the Offences against the Person Act 1861.

15 Count 5 that the appellant did on a date unknown between 1- 1-1973 and 31-12-1979 indecently assault one G.T. a male contrary to section 62 of the Offences against the Person Act 1861.

16 Count 18 that the appellant did on a date unknown between 1- 1-1978 and 31-12-1984 indecently assault one J.B. a male contrary to section 62 of the Offences against the Person Act 1861.

17 Count 19 that the appellant did on a date unknown between 1- 1-1978 and 31-12-1984 other than occasion the subject matter of count 18, indecently assault one J.B. a male contrary to section 62 of the Offences against the Person Act 1861.

The Appeal and the Cross Appeal

18 The same issues arise on both the appeal and the cross appeal namely:-

19 1. Complainant delay.

20 2. Prosecutorial delay.

21 3. Prejudice.

22 4. Lack of specificity as to time.

23 The appellant submits that on the proper application of the law relevant to each of these issues the further prosecution of the remaining counts against him should be restrained. The respondent on the like basis submits that the remaining counts which he wishes to prosecute should not be restrained.

Preliminary Issues.

24 In the High Court the appellant relied on four affidavits sworn by his solicitor. He did not himself swear an affidavit. In many instances the averments by the deponent clearly constitute hearsay being in effect a recitation of instructions given to him by the appellant. Order 40, Rule 4 of the Rules of the Superior Courts provides as follows:-

"4. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as...