D (R) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice William M. McKechnie |
| Judgment Date | 11 July 2007 |
| Neutral Citation | [2007] IEHC 481 |
| Court | High Court |
| Date | 11 July 2007 |
[2007] IEHC 481
THE HIGH COURT
BETWEEN
AND
OFFENCES AGAINST THE PERSON ACT 1861 S62
OFFENCES AGAINST THE PERSON ACT 1861 S61
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BARKER v WINGO 1972 407 US 514
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C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348
H (P) v DPP UNREP SUPREME 29.1.2007 2007 IESC 3
K (S) v DPP UNREP O'NEILL 2.2.2007 2007 IEHC 45
B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 IESC 66
CUNNINGHAM v PRESIDENT OF THE CIRCUIT COURT & DPP UNREP MCKECHNIE 6.7.2007 2007 IEHC 473
CONSTITUTION ART 38.1
D v DPP 1994 2 IR 465
CONSTITUTION ART 30.3
Mr. Justice William M. McKechnie delivered on the 11th day of July, 2007
1. By order of this Court dated the 7 th July, 2003, the applicant, in the above entitled judicial review proceedings, was granted leave to apply, by way of an application for judicial review, for the reliefs specified at paras D1 - D4 of the Statement grounding the application and to do so on the grounds contained in para. E thereof. In essence he seeks an order preventing the Director of Public Prosecutions from taking any further step in the prosecution of certain charges which stand levelled against him. He seeks this order on the grounds (i) of delay (both complainant and prosecutorial), (ii) of the State's failure to conduct "such proper and necessary inquiries" as were demanded by the circumstances of the case, (iii) of the prosecution's failure to make any or any proper or timely disclosure of material which may be of benefit to his defence, and (iv) on the grounds that such charges lack specificity and particularity. This application is grounded upon the applicant's own affidavit as well as an affidavit from his Solicitor. Superintendent Anthony Dowd has sworn the principle replying affidavit in support of the filed Statement of Opposition. In addition, there are several further affidavits from many other individuals referring to documents, records, reports, maps and sketches, all of which constitute exhibits in such affidavits. Both parties have presented written submissions to this Court and have supplemented these by way of oral presentation. No cross examination took place and accordingly this case was dealt with by affidavit evidence only.
2. The applicant is a former member of a religious order and in that capacity served as a school teacher for many years in an industrial school in the West of Ireland. He presently stands accused of a number of charges which are set out in the Statement of Charges contained in the Book of Evidence. In all there are sixty such charges involving ten named individuals. The details of these charges are as follows:-
(i) There are ten charges of indecent assault, contrary to s. 62 of the Offences Against the Person Act 1861, involving one T.B. and these are said to have occurred between November, 1967 and August or September, 1968,
(ii) There are four similar charges relative to one M.W. and these are alleged to have occurred between January, 1966 and December, 1966,
(iii) There are five such charges of indecent assault and five charges of buggery, contrary to s. 61 of the Offences Against the Person Act 1861, involving one D.D., and all are said to have been committed between the 30 th August, 1965, and March, 1967,
(iv) There are six charges under s. 62 and six charges under s. 61 of the Act of 1861, against one G.C., covering the period between August, 1965 and April, 1967,
(v) There is single charge of buggery involving one B.O'N. which is said to have happened between August, 1965 and October, 1966,
(vi) There are four charges, all under s. 62 of the Act of 1861, relative to one E.C. and these allegedly occurred between August, 1966 and September, 1966,
(vii) There are three charges of buggery allegedly committed on one M.B. which are dated between August, 1965 and August, 1968,
(viii) There is a single buggery charge against M.O'R. which is dated somewhere between the 1 st February, 1967 and the 30 th March of that year,
(ix) There are eight charges under s. 61 involving N.B. which are alleged to have taken place between the 7 th December, 1966, and the 30 th August, 1968, and finally
(x) There are seven indecent assault charges, against J.P.L. covering a period from the 1 st September, 1966, to January, 1968.
3. The applicant in these proceedings was born in 1940 and joined the Christian Brothers at age 15. He left in 1976 and married in 1983. His wife died some years later. He acted as a teacher in this industrial school between the 30 th August, 1965, and the 30 th August, 1968. After leaving that institution he held a number of teaching posts, both at primary and secondary school level, in the West of Ireland, in Dublin and elsewhere in the country. On the 14 th January, 2003, he was suspended from his then post in view of his pending appearance before the local District Court which took place on the day following. He has not apparently worked since.
4. At the outset it is important to set out the most significant dates, events and circumstances which constitute the background to this application. In so doing I propose to give, in general terms only, a chronology of such events and then later in the judgment to comment in more detail on certain specific matters. This chronology is as follows:-
| 30 th August, 1965 - 30 th August, 1968: | Range of dates for the alleged offences; |
| 12 th April, 1996 - 30 th May 2001: | Period within which the following complaints were made, all of which ground the present prosecution; |
| 12 th April, 1996: | Complaint made by Mr. J. P. L.; |
| 5 th November, 1999: | Complaint made by Mr. G. C; |
| 22 nd November, 1999: | Complaint made by Mr. M. O'R.; |
| 30 th November, 1999: | Complaint made by Mr. M. B.; |
| 11 th February, 2000: | Complaint made by Mr. T. B.; |
| 6 th March, 2000: | Complaint made by Mr. N. B.; |
| 29 th March, 2000: | Complaint made by Mr. D. D.; |
| 15 th April, 2000: | Complaint made by Mr. E. C; |
| 27 th July, 2000: | Complaint made by Mr. M. W.; |
| 30 th May, 2001: | Complaint made by Mr. B. O'N, ; |
| 12 th April, 1996: | The first of the above ten complaints is made; |
| 27 th April, 1996 - 8th March, 2000: | Thirty five statements were taken in connection with the applicant, but no prosecutions have been directed in respect of those complaints; |
| 7 th March, 1997: | Accused person interviewed as part of this investigation. Only one of the present ten complainants was involved in that investigation; |
| 23 rd January, 1998: | Gardaí send file to the D.P.P. relative to the investigation last mentioned; |
| April, 1998: | D.P.P. directs further investigations; |
| November, 1999: | Three of the above ten individuals make formal complaints; |
| February - March, 2000: | Three further such persons make complaints; |
| April - July, 2000: | A further two persons make complaints; |
| 31 st August, 2000: | Accused person is arrested, detained and questioned about nine of the above complaints; |
| 24 th October, 2000: | Gardaí send file to the D.P.P. on this investigation; |
| 30 th May, 2001: | Last complaint involving Mr. B. O'N. is made; |
| 1 st November, 2001: | Accused person is again interviewed in relation to a number of persons, only one of whom Mr. B. O'N, is involved in the current charges; |
| 10 th December, 2001: | Gardaí send further file to the D.P.P. to cover the complaint of Mr. B. O'N. and several other persons unrelated to this prosecution; |
| 7 th May, 2002: | Gardaí send third file to the D.P.P. on this investigation; |
| 16 th October, 2002: | D.P.P. issues instructions to prefer charges against the applicant; |
| 15 th January, 2003: | Applicant is charged at the local District Court with the sixty-charges above described; |
| 31 st March, 2003: | Book of Evidence is served on the applicant; |
| 18 th June, 2003: | Applicant is returned for trial at the next sitting of the appropriate Circuit Criminal Court; |
| 7 th July, 2003: | Applicant obtains leave from this Court to institute the within judicial review proceedings. |
5. In his grounding affidavit Mr. R.D., the applicant, completely denies any and all allegations of physical and sexual abuse which the preferred charges allege against him. He says that he is entirely innocent and that during his time in the West of Ireland he was not conscious of any such abuse and was not personally aware of others engaging in such practises. He claims that, because of the lapse of time, it is now impossible for him to obtain a fair trial, or to properly defend himself at any such trial. In addition, he says that witnesses of potential benefit are unavailable because of death, that records which must have once existed have been lost or destroyed and that certain avenues of inquiry, previously available, are now closed to him. Furthermore, because of his advanced age and failing memory, he claims that he will not be in a position to adequately instruct his lawyers in the defence of these allegations. Accordingly, he has suffered general prejudice.
6. In addition however, the applicant also asserts specific or...
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