D. -v- D. P. P.,  IEHC 48 (2009)
|Docket Number:||2008 46 JR|
|Party Name:||D., D. P. P.|
|Judge:||Mac Menamin J.|
THE HIGH COURT
JUDICIAL REVIEW[2008 No. 46 J.R.]
DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTJUDGMENT of Mr. Justice John MacMenamin delivered on the 3rd day of February, 2009.
The applicant was formerly a priest of a rural parish. He is now laicised. He seeks an injunction restraining the respondent from the prosecution of one single count of indecent assault on a minor, M.S., in the Circuit Criminal Court, South Eastern Circuit.
The first ground upon which the applicant relies relates to a delay of 25 years, said to have taken place between the alleged event complained of (a date unknown between September, 1981 and September, 1982) and the initiation of proceedings in the Circuit Court by the laying of an indictment on 2nd October, 2007. The period of time which has now elapsed between the alleged event and the date of this judgment is some 26 or 27 years. The applicant asserts that the period of time which has elapsed since the initiation of the investigation gives rise to prejudice, and that the prosecuting authority has been guilty of inordinate delay.
Second, it is said that on the unusual circumstances of the case there is as a matter of probability a real risk of an unfair trial against a background of unwillingness on the part of the investigating gardaí and the prosecuting authorities to take steps in order to ensure complete investigation. Third, it is submitted that in the light of the history of events to date, and the conduct of the investigation and prosecution, there are issues of prejudice such as to raise an inference that there is a real risk of an unfair trial.
The general principles applicable to this case
The issue of prosecution delay and its consequences in this case falls to be analysed in accordance with decided authority: P.M. v. Malone  2 I.R. 560; P.M. v. D.P.P.  3 I.R. 172; and more recently Cormack v. D.P.P. (Unreported, Supreme Court, 2nd December, 2008, per Kearns J.). However, in conjunction with these well established principles it will be necessary also to consider the test applied by the Supreme Court in J. M. v. D.P.P.  I.E.S.C. 47. In J.M. the circumstances were such that, although the delay taken by itself was not sufficiently blameworthy to prohibit the applicant's trial, nonetheless, when considered in conjunction with the totality of circumstances surrounding the proposed prosecution, it was considered a fair trial could not take place even though no single factor would have justified prohibiting the prosecution. The consistency of this test with those in later authorities such as S.H. v. D.P.P.  3 I.R. 575 is considered later. (See also Noonan v. D.P.P.  1 I.R. 445 where the issues of cumulative circumstances and proportionality were considered in the context of an application for prohibition on the grounds of delay in a case of fraud.)
It is necessary first to consider the background circumstances and set out a chronology of events.
The complainant M.S.
M.S. was born on 15th September, 1970. His younger brother J.S. who also figures prominently in this narrative was born on 8th April, 1973. M.S. is therefore three years older than J.S. The alleged single indecent assault by the applicant on M.S. is said to have occurred between the 1st September, 1981, and 30th September, 1982. It is said to have occurred in the sacristy of a parish church in the south-east of the country. J.S. also complained of not one, but multiple assaults by J.D. The investigation in relation to the complaints made by both brothers proceeded simultaneously until, ultimately, on the application of the accused (now the applicant in this case), the indictment was split and the counts in relation to J.S. only proceeded. The trial of the applicant on these 35 counts took place on 2nd and 3rd November, 2007. For convenience this will be referred to as the "J.S. trial". The applicant was acquitted by direction on all counts on the indictment. For reasons which will emerge hereafter in this complex case, there are close interconnections between the nature of the complaints, the complainants, and the issues which may foreseeably arise in any future prosecution against the applicant on the M.S. complaint.
The history of the investigation - not in itself grounds for review
It has been made clear in a number of decided authorities that the manner in which an investigation is carried out is not in itself an issue which gives rise to judicial review. In Savage v. D.P.P.  I.E.S.C. 39, a missing evidence case, Denham J. observed:-
"[T]he focus on this type of application to restrain a trial is on the fairness of the intended trial without the missing evidence, and not on the discovery of shortcomings in the investigative process." (para. 16)
It is necessary, nonetheless, to analyse the sequence and effect of events in the investigation and prosecution in order to determine whether there has been prosecution delay.
12th February 2003 - M.S. and J.S. make complaints
M.S. stated in the book of evidence that the incident of which he complained occurred in the summertime when he was aged either eleven or twelve years of age. He was not be sure of the exact year but placed the event between September, 1981 and September, 1982. He stated that he found a digital calculator watch in Wexford GAA Park. He brought the watch home, thinking he could keep it. However, his mother would not let him do so. She told him to hand it in to the local parish church. The complainant identified the day upon which he found the watch simply as having been a Sunday without any month being identified. The time of day was not specified. He says he went alone to the parish church with the watch. He went into the sacristy, as the door was open. He had seen the applicant's car outside and therefore he knew he was there. In the sacristy, he saw a long table-like counter on the left. The applicant was there. The complainant told the applicant that he had found the watch, and was handing it in to the church as his mother had told him to do. The applicant allegedly took the watch, told him he was a good boy, and that he could have it back if nobody claimed it. The applicant then put the watch away somewhere. The complainant described the applicant as wearing his clerical clothing at the time. He alleged the applicant placed his hand on the complainant's head, pulled out his shirt from under his jeans and sexually assaulted him. The complainant says that after the incident he remembered hiding in a porch at the back of the church waiting to hear the applicant's car going away.
The complainant said that some time afterwards on a Saturday afternoon, he was informed by the applicant that he could call up to the church and pick up the watch as no one had claimed it. He went back to the sacristy. The applicant handed him the watch and moved closer to him. The complainant said that he knew the applicant was going to "try things on again". He kept stepping back and thanked the applicant for the watch and left.
The circumstances of this allegation are very much in the category of "bare assertion and denial". There was no witness. There is little or no corroborative detail, save as to a description of the colour of the applicant's car. The complainant M.S. did not make any contemporaneous complaint to members of his family or to anyone else. There is no additional description of the sacristy, its furniture or any other matter which might identify time or circumstance. These features apply of course to many cases of this type. The only statement in the book of evidence tantamount in any way to corroboration is the complainant's mother's description of J.S. having told her that the applicant placed his hand on his knee on what was apparently a school boat trip to England. I make no comment on the admissibility in evidence or otherwise of this statement in the context of a prosecution of the M.S. complaint.
J.S.'s allegations of assault
In February 2003, at the same time as his elder brother, J.S. also furnished a statement to the gardaí in which he made allegations of a large number of assaults by the applicant. Some of these had allegedly taken place in the sacristy after Mass when he was an altar boy. But other assaults were said to have occurred at different locations. The brothers were both altar boys in the local parish church.
In total, 35 charges were ultimately proffered against the applicant in relation to J.S.'s allegations. In the first instance, these related to a period commencing on 8th April, 1981, and ending on 7th April, 1986. The terminal date of these alleged assaults was later identified in the indictment in the "J.S. trial" as being 1990. The reason for this expansion in the time scale is explained later in the judgment.
The circumstances of the complaints
No suggestion emerges from the book of evidence that the brothers discussed any issue of assault involving the applicant either before the interview or with anyone else prior to early February, 2003. They say that they then discussed the issue for the first time. As a result of this discussion they decided to go to the gardaí. There is no information as to what triggered this discussion or the subsequent complaints to An Garda Síochána. On 14th February, 2003, the complainants' mother furnished a relatively brief statement to An Garda Síochána. With the exception of the description of J.S. making the complaint about the school trip this did not add substantially to the material.
The applicant's record
In the context of this case it is important to point out that the applicant had by no means led a blameless life prior to 2003. His record is a reprehensible one. He had a criminal record of having assaulted a minor in 1990 for which he received a suspended sentence. This conviction was the subject of substantial publicity in the county. There are suggestions of other doubtful conduct...
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