D.T. v DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 25 January 2007
• Neutral Citation: [2007] IESC 2
• Docket Number: [S.C. No: 261 of 2004]
• Court: Supreme Court
• Date: 25 January 2007

[2007] IESC 2

THE SUPREME COURT

Denham J.

Macken J.

Finnegan J.

[S.C. No: 261 of 2004]

[S.C. No: 295 of 2004]

T (D) v DPP

Between/

D.T.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent/Cross Appellant

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802 2006 IESC 55

B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 2006 IESC

K (J) v DPP UNREP SUPREME 27.10.2006 2006/30/6512 2006 IESC 56

CRIMINAL LAW (INSANITY) ACT 2006

CONSTITUTIONAL LAW

DELAY

Right to fair trial - Right to trial with due expedition - Sexual offences - Prejudice - Fitness to stand trial - Whether real or serious risk of unfair trial - Brain damage suffered by applicant in road traffic accident - Whether disability or capacity could be an issue of prejudice caused by delay - Whether issue of capacity or disability an exceptional circumstance - SH v DPP [2006] IESC 55, [2006] 3 IR 575; JK v DPP [2006] IESC 56 (Unrep, SC, 27/10/2006); PM v Malone [2002] 2 IR 560 and JB v DPP (Unrep, SC, 29/11/2006) applied - Appeal dismissed; decision refusing injunction upheld (261/2004 & 295/2004 - SC - 25/1/2007) [2007] IESC 2T(D) v DPP

Facts: The applicant/appellant had sought to appeal a decision of the High Court refusing to injunct the trial of theapplicant in respect of sexual offences allegedly committed at a time beginning in 1976. The applicant alleged inter alia

that he had been deprived of his right to a fair trial and was prejudiced in his defence by reason of delay in light of his diminished capacity.

Held by the Supreme Court, per Denham J., in dismissing the appeal, that the issue of the applicant’s fitness to plead

was a matter for the trial judge. The applicant had not established that by reason of delay that there was a real or serious risk of an unfair trial.

Reporter: E.F.

1 Judgment delivered the 25th day of January, 2007 by Denham J.

2 1. This is an appeal by D.T., the applicant/appellant, hereinafter referred to as “the applicant”, from a decision of the High Court (Smyth J.) delivered on the 14th May, 2004 in which the learned High Court judge refused to injunct the trial of the applicant in respect of charges arising out of the complaint of P.K.. There is also a cross appeal on behalf of the Director of Public Prosecutions, the respondent/cross appellant, hereinafter referred to as “the respondent”, from the order of the High Court injuncting proceedings in relation to the complaint of C.K..

3 2. The proceedings commenced on the 21st January, 2002 when the applicant was granted leave by the High Court ( Ó Caoimh J.) to apply by way of an application for judicial review for an injunction restraining the respondent from proceeding or taking any further steps in a criminal prosecution pending before the Central Criminal Court against the applicant in respect of Newtownmountkennedy Charge Sheets 7/2001 to 100/2001 inclusive bearing Bill No. 46/01J. The applicant was given leave to apply for judicial review on four of five grounds sought, being that:

4 (i) by reason of inordinate and inexcusable delay, the applicant has been deprived of his right to a fair trial with due expedition in breach of his Constitutional rights to fair procedures pursuant to Article 38.1 of the Constitution;

5 (ii) the applicant has been prejudiced in his defence of these proceedings by reason of the delay in his case being brought to trial;

6 (iii) there is a real and substantial risk that the trial of the applicant will be unfair by reason of the delay and consequent prejudice resulting therefrom;

7 …

8 (v) the trial of the applicant has not occurred with due or reasonable expedition; furthermore the delay cannot be justified or excused.

9 The fourth ground, which raised issues of specificity, was refused.

10 3. The offences alleged are:

11 (i) 40 offences of buggery committed against P.K. on various dates between 1976 and 1980;

12 (ii) 40 offences of indecent assault committed against P.K. on various dates between 1976 and 1980;

13 (iii) 4 offences of indecent assault committed against C.K., a brother of P.K., during 1978 and 1979;

14 (iv) 2 offences of indecent assault committed against M.W. in 1978.

15 4. In the High Court counsel for the applicant addressed his submissions and legal arguments to the period between the dates of the alleged offences and the dates of complaints being made to the Garda Síochána in October 2000. The facts were set out by the learned trial judge. The applicant was the employer of the three complainants. He was a friend of the parents of P.K. and C.K. (who are brothers) and visited their home from time to time. All the complainants were schoolboys in their early teens at the time when they were employed by the applicant in his business. P.K. was 13 years old when he went to work for the applicant and he worked for the applicant for four summers until he did his Leaving Certificate and went to college.

16 The learned trial judge sets out in detail the explanation given by the complainants as to why they had not made an official complaint earlier. He also describes and analyses the evidence of Mr. Desmond O'Mahony, Clinical Psychologist, as to the reasons for the delay in reporting the alleged offences, whom he observed giving evidence. However, this aspect of the judgment is not now in issue or relevant since the decision of this Court in H. v. The Director of Public Prosecutions [2006] I.E.S.C. 55.

17 The learned trial judge addressed the issue of a fair trial. There was evidence before the High Court as to the applicant's ability to defend himself. The learned High Court judge stated that the applicant had difficulties at school in keeping up with his class and rather poor educational achievements and that the medical evidence was that up to 16th September, 1983 he "may have been functioning intellectually in dull to normal range". In 1983 he suffered personal injuries and was described as of the 24th May, 1984 as "suffering from brain damage from a fat embolism". The learned trial judge describes that in July 1986 a consultant psychiatrist stated on examining the applicant that he had "memory difficulties with very poor recall and short term memory". However, this was not found as to his long term memory. The learned trial judge also considered other medical evidence as to the applicant's memory and ability and held:

"I am satisfied and find as a matter of fact and of law that the alleged cognitive impairment of the Applicant in this case is not such as to expose him to a real or substantial or serious risk of an unfair trial. I am likewise satisfied and so find that the Applicant has not been, as submitted, fatally hampered in preparing a defence to the proceedings involving PK. I am satisfied that the replies given by the Applicant to the Garda, allowing for denials, evasions and deferrals, show a memory for time, place and details."

18 However, while the High Court permitted the trial in relation to P.K., the High Court prohibited the trial in relation to the complaints of M.W. and C.K. in the following words:

"The only...