O'D (J) v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice O'Higgins
Judgment Date02 April 2004
Neutral Citation[2004] IEHC 85

[2004] IEHC 85

THE HIGH COURT

O'Higgins

HC 201\04
[2001 No. 501 J.R.]
O'D. (J.) v. DPP
JUDICIAL REVIEW

BETWEEN

J. O'D.
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CONSTITUTION ART 38.1

C (P) V DPP 1999 2 IR 25

G V DPP 1994 1 IR 374

D V DPP 1994 2 IR 465

M (P) V MALONE 2002 2 IR 560

F (B) V DPP 2001 1 IR 656

P (P) V DPP 2000 1 IR 403

TOAL V DUIGNAN & ORS (NO 2) 1991 ILRM 135

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

BRICKETT V JAMES 1978 AC 297

O'FLYNN V CLIFFORD 1988 IR 740

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

O'C (J) V DPP 2000 3 IR 479

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

BARRY V DPP & ORS UNREP SUPREME 17.12.2003 2003/5/993

Abstract:

Criminal law - Delay - Sexual offences - Prosecutorial and non-prosecutorial delay - Whether delay could be explained by reference to actions of applicant - Whether risk of unfair trial

The applicant was sent forward for trial on a total of 32 counts of offences of assault of a sexual nature against seven different individuals. The applicant applied by way of application for judicial review for inter alia an order preventing the respondent from taking any further steps in the criminal prosecution of the applicant. The applicant relied on prosecutorial and non-prosecutorial delay.

Held by O’Higgins J. in refusing the relief sought that the applicant had not shown any specific prejudice. The delay could be explained by reference to the actions of the applicant. The applicant had not discharged the onus of showing that there was a real risk that he would not obtain a fair trial.

Reporter: R.W.

1

JUDGMENT of Mr. Justice O'Higgins delivered the 2nd day of April 2004

2

On 8 th May, 2000, the applicant was sent forward for trial on a total of 32 counts of offences of assault of a sexual nature against seven different individuals. The assaults were alleged to have been committed on different dates between 1975 and 1989. All of the offences are alleged to have been committed in or about the area in Co. Donegal where the applicant resides. The applicant is now aged fifty-four and at the time of the offences alleged he was between twenty-six and forty-one years of age. The complainants were aged between seven and fifteen years at the time of the assaults alleged. The following is a schedule of the offences alleged:

(1) AW

-Born 1971 - aged 11 in 1982-

1 count indecent assault.

(2) AMO

- Born 1967 - aged 8 in 1975 -

1 count indecent assault

(3) DG

- Born 1977 - aged 10 – 11 in 1987/1988-

2 counts indecent assault

(4) SG

- Born 1974 - aged 7 in 1981 -

1 count indecent assault

(5) AD

- Born 1970 - aged 7 – 10 in 1977/1980-

3 counts indecent assault

(6) JOD

- Born 1974 - aged 14 – 15 1988/1989-

16 counts indecent assault 2 counts assault with intent to commit buggery.

( 7) DOD

- Born 1972 - aged 9 – 13 in 1981 – 1985 -

5 counts indecent assault 1 count assault with intent to commit buggery.

3

At the outset of these proceedings counsel for the respondent indicated that it was not intended to proceed with any counts in relation to DOD.

4

On the 23 rd July, 2001, Butler J. granted leave to apply by way of application for judicial review to the applicant therein. The relief sought in the originating notice of motion and in the light of the order made of 23 rd July, 2001, may be summarised as follows:

5

i I. A declaration that the delay in the institution of criminal proceedings charging the applicant herein with the charges set forth in indictment entitled "Bill No DL0032/2001 The People at the suit of the Director of Public Prosecutions v JOD", which said offences were alleged to have occurred on dates unknown between the 1 st September, 1975 and the 3 rd September, 1989 and which are presently pending before the Circuit Criminal Court has irreparably prejudiced the prospect of the applicant herein obtaining a fair trial and is in breach of the applicant's right to a trial in due course of law and to a trial with reasonable expedition.

6

ii II. A declaration that the failure on the part of the prosecuting authorities to institute criminal proceedings earlier than the 12 th day of October, 2000, in circumstances where the Gardaí had been on notice of the alleged offences concerning one or more of the complainants including DG since the summer of 1989 is in breach of the applicant's right to a trial with due expedition and to a fair trial.

7

iii III. An order preventing the respondent from taking any further steps in the criminal prosecution of the applicant.

8

iv IV. An injunction restraining the respondent from taking any further steps in the prosecution of the applicant.

9

v V. Further and other relief.

10

The grounds on which the relief was sought were to the effect that the delay:

11

i i. Violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution.

12

ii ii. Violated the applicant's right to a trial on serious charges with reasonable expedition.

13

iii iii. Prejudiced the applicant in the defence of these proceedings.

14

iv iv. Created a real risk that the applicant would be denied a fair trial or would be subjected to an unfair trial.

15

v v. Irreparably prejudiced the applicant in being able to identify and contact witnesses who might be of relevance to matters at issue in the case.

16

vi vi. Allowed the applicant to believe that he would not be prosecuted in respect of allegations by one or more of the complainants including DG.

The Law
17

In this case it is accepted by the respondent that the delay is prima facie inordinate,

18

1. That being so, it is incumbent on the respondent to show that the delay from the time of the offence alleged to the initiation of proceedings was explicable in all the circumstances.

"The delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her, e.g. as parent, step-parent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and the degree of trust on the part of the child may be more readily inferred. This is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every such case is whether the court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved" per Keane J. (as he then was) in P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25 at p. 67.

19

2. "Explicable in all the circumstances" does not merely mean reasonable. The explanation must be substantially connected with the actions of the applicant.

20

The reason for this and the rationale behind the provision for the explanations of otherwise inordinate delay is that the applicant should not be allowed benefit by reason of a delay which was brought about by the actions alleged against him:

"The court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order."

21

per Finlay C.J. in G v Director of Public Prosecutions [1994] 1I.R. 374 at p. 380.

22

3. For the purposes of ascertaining whether delay is explicable in all the circumstances - and for those purposes only - the court proceeds on the basis that the allegations are true.

23

4. If the delay is explicable in the sense set out above, the court will proceed to enquire as to whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed…

"The court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial"

24

per Keane J. (as he then was) in PC v Director of Public Prosecutions [1999] 2 I.R. 25 at p. 68.

25

If there is such a risk, the right of the applicant to a fair trial is jeopardised and the proceedings will be halted.

26

As was pointed out by Denham J. in D v Director of Public Prosecutions [1994] 2 I.R. 465 the applicant's right to a fair trial would necessarily outweigh the community's right to prosecute.

27

5. "If the delay is not attributable to the actions of the applicant, nonetheless the delay may be such that depending on the nature of the charges the trial should not be allowed to proceed even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired"

28

per Keane J. in PC v Director of Public Prosecutions [1999] 2I.R. 25, at p. 67.

29

6. If the case is not one where the circumstances are such as to give rise to a presumption that even in the absence of specific prejudice his capacity to defend himself would necessarily have been impaired the court has another matter to resolve. In those circumstances there remains the question.

"As to whether the inarguable violation of the constitutional right of the...

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