D. O'R v DPP

JurisdictionIreland
CourtHigh Court
Judgment Date27 February 1997
Date27 February 1997
Docket Number[1995 No. 210 J.R.]
D. O'R. v. Director of Public Prosecutions
D. O'R.
Applicant
and
the Director of Public Prosecutions, Respondent
[1995 No. 210 J.R.]

High Court

Criminal Law - Sexual Offences - Trial - Applicant charged eleven years after date of last alleged offence - Alleged offences against young persons - Whether delay unconscionable - Whether applicant prejudiced by delay - Appropriate considerations as to delay in cases of sexual offences on young persons - Right of accused to a reasonably expeditious trial - Constitution of Ireland, 1937, Article 38, s. 1.

Criminal Law - Sexual Offences - Trial - Charges alleged offences occurred on date within one quarter of a calendar year - Whether charges described with reasonable specifity. Constitution - Personal rights - Trial in due course of law - Right to a reasonably expeditious trial - Constitution of Ireland, 1937, Article 38, s. 1

Judicial review - Prohibition - Right to fair trial - Sexual offences - Delay - Prejudice to applicant - Constitution of Ireland, 1937, Article 38, s. 1.

Article 38, s. 1 of the Constitution of Ireland, 1937, states that "[n]o person shall be tried on any criminal charge save in due course of law".

The applicant was charged with the commission of ninety offences of unlawful carnal knowledge, indecent assault and sexual assault between 1976 and 1992. Each of the charges on the indictment referred to a specific, unknown date occurring, generally, in a specified quarter of a calendar year. The applicant, who denied the alleged offences, was given leave by Carney J. to apply by way of judicial review for an order of prohibition restraining the respondent from proceeding with those alleged offences which had occurred before 1984.

It was contended for the applicant that none of the charges was laid with adequate specifity having regard to the date when any of them was alleged to have been committed, that the facts alleged had occurred so long ago that it would be unreasonable to require that they be answered, that the lapse of time since the alleged offences made it impossible for the applicant to find witnesses who might reasonably be expected to give alibi evidence as to his whereabouts between 1976 and 1984, and that he had no diary or other documents to assist him in proving his whereabouts for the relevant periods.

On behalf of the respondent, evidence was submitted by an investigating garda that the complaints, the subject matter of the alleged offences, had been received by her between January, 1993 and June, 1995, and that the applicant was arrested and charged in July, 1995.

Further evidence was tendered, on behalf of the respondent, by a clinical psychologist who had assessed six of the complainants. He offered a number of reasons for the delay on the part of victims of child sexual abuse in making their complaints. These included the guilt that may be felt by the victim, the fear that the abuser (who is a respected figure of authority) might be believed more readily than the victim, the fact that a victim might, through feelings of humiliation or degradation, have forced the incidents from her mind, the desire not to visit a perceived humiliation on the victim's family and the victim's possible failure to recognise the abuse as a breach of the criminal law. The psychologist contended that, in the circumstances, it was quite reasonable, from the psychological point of view, for the alleged victims to have allowed a long period to elapse between the last incident of alleged abuse and the making of a complaint.

Held by Kelly J., in refusing the relief sought, I, that notwithstanding the absence of an express provision in the Constitution guaranteeing a reasonably expeditious trial, Article 38, s. 1 thereof confers such a right by implication and the strength of that right is not lessened by reason of its derivation from the general provision for trial in due course of law rather than from a separate express provision.

Cahalane v. Murphy [1994] 2 I.R. 262,D. v. Director of Public Prosecutions[1994] 2 I.R. 465, Director of Public Prosecutions v. Byrne[1994] 2 I.R. 236, Fitzpatrick v. Shields[1989] I.L.R.M. 243, Gibbs v. Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, Kelly J., 16th May, 1996), Hogan v. President of the Circuit Court[1994] 2 I.R. 513, State (Cuddy) v. Mangan[1988] I.L.R.M. 720, State (Healy) v. Donoghue[1976] I.R. 325 and State (O'Connell) v. Fawsitt[1986] I.R. 362 considered.

2. That a delay between the date of an alleged offence and the date of a proposed trial may lead to a real or probable risk of an unfair trial either by reason of the delay in itself being so excessive as to raise an inference of an unfair trial or by the establishment of an actual prejudice created due to the delay.

Cahalane v. Murphy [1994] 2 I.R. 262,D. v. Director of Public Prosecutions[1994] 2 I.R. 465, Director of Public Prosecutions v. Byrne[1994] 2 I.R. 236, Fitzpatrick v. Shields[1989] I.L.R.M. 243, Gibbs v. Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, Kelly J., 16th May, 1996), Hogan v. President of the Circuit Court[1994] 2 I.R. 513, State (Cuddy) v. Mangan[1988] I.L.R.M. 720, State (Healy) v. Donoghue[1976] I.R. 325 and State (O'Connell) v. Fawsitt[1986] I.R. 362 considered.

3. That in determining whether an accused's right to a reasonably expeditious trial has been breached, a court may take into account all of the circumstances of a case, including, inter alia, the complexity of the charges, the accused's right to silence and the presumption of innocence. The onus of proof in establishing a breach of the right rests on the accused.

Cahalane v. Murphy [1994] 2 I.R. 262,D. v. Director of Public Prosecutions[1994] 2 I.R. 465, Director of Public Prosecutions v. Byrne[1994] 2 I.R. 236, Fitzpatrick v. Shields[1989] I.L.R.M. 243, Gibbs v. Presiding Judge of the Dublin Circuit Criminal Court (Unreported, High Court, Kelly J., 16th May, 1996), Hogan v. President of the Circuit Court[1994] 2 I.R. 513, State (Cuddy) v. Mangan[1988] I.L.R.M. 720, State (Healy) v. Donoghue[1976] I.R. 325 and State (O'Connell) v. Fawsitt[1986] I.R. 362 considered.

4. That an adjudication whether an accused's right to a reasonably expeditious trial can only be made on a case by case basis. However, in cases concerning the abuse of young persons, relevant considerations include, inter alia, the extent to which an accused may have contributed to a delay in the making of a complaint, the nature of the alleged offences and the possibility that the defence may be impaired by the delay.

5. That the right of an accused to a fair trial is one of the most fundamental rights under the Constitution. Whilst a court must give due consideration to the right of the community to prosecute an alleged offence, if there is a real risk that an accused will not receive a fair trial, his right to a fair trial may not be balanced to his detriment against that community right.

6. That, in the instant proceedings, the applicant had failed to establish an actual or particular prejudice such as would render a trial unfair. The assertion that the applicant was prejudiced by his difficulty in establishing alibi evidence by way of witnesses and/or documents was not one to which the court could attach particular weight given the spread of allegations in terms both of the number of alleged victims and the number of dates alleged.

7. That given the fact that a trial judge can give appropriate directions to a jury as to how they should approach the evidence and, in particular, the likely conflicts in testimony, the applicant, in all the circumstances had failed to establish a risk of an unfair trial, by reason of delay, as a reality.

8. That, in the instant case, the majority of the impugned charges referred to specific, albeit unknown dates and, accordingly, the charges were sufficiently specific for a trial to proceed.

Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994) applied.

Cases mentioned in this report:—

Barker v. Wingo (1972) 407 U.S. 514.

Cahalane v. Judge Murphy [1994] 2 I.R. 262.

C.B. v. Director of Public Prosecutions (Unreported, High Court, Budd J., 9th October, 1995).

D. v. Director of Public Prosecutions [1994] 2 I.R. 465; [1994] 1 I.L.R.M. 435.

Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236; [1994] 2 I.L.R.M. 91.

Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994).

E. O'R v. Director of Public Prosecutions [1996] 2 I.L.R.M. 128.

Fitzpatrick v. Shields [1989] I.L.R.M. 243.

G. v. Director of Public Prosecutions [1994] 1 I.R. 374.

Gibbs v. Presiding Judge of the Dublin Circuit Criminal Court(Unreported, High Court, Kelly J., 16th May, 1996).

Hogan v. President of the Circuit Court [1994] 2 I.R. 513.

Jago v. The District Court, New South Wales (1989) 168 C.L.R. 23; (1989) 63 A.L.J.R. 640.

R. v. L.P.B. (1990) 91 Cr. App. R. 359.

T. v. Telford J.J. ex parte Badham [1991] 2 Q.B. 78; [1991] 2 W.L.R. 866; [1991] 2 All E.R. 854.

R. v. Tomlin [1954] 2 Q.B. 274; [1954] 2 W.L.R. 1140; [1954] 2 All E.R. 272; (1954) 38 Cr. App. R. 82.

State (Cuddy) v. Mangan [1988] I.L.R.M. 720.

State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 37.

(State) O'Connell v. Fawsitt [1976] I.R. 362; [1986] I.L.R.M. 639.

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