A.D v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 06 April 2006 |
| Neutral Citation | [2006] IEHC 135 |
| Court | High Court |
| Docket Number | [No. 915 J.R./2004] |
| Date | 06 April 2006 |
[2006] IEHC 135
THE HIGH COURT
BETWEEN
AND
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
SEX OFFENDERS ACT 2001
F (B) v DPP 2001 1 IR 656
DPP v BYRNE 1994 2 IR 236
C (P) v DPP 1999 2 IR 25
P (P) v DPP 2000 1 IR 403
O'CONNELL, STATE v FAWSITT 1986 IR 362
C (D) v DPP 2006 1 ILRM 348
M (P) v MALONE 2002 2 IR 560 2002/16/3761
O'FLYNN v CLIFFORD 1988 IR 740
W (D) v DPP UNREP SUPREME 31.10.2003 2003/48/11781
CONSTITUTION ART 38.1
EUROPEAN CONVENTION ON HUMAN RIGHTS
CRIMINAL LAW
Delay
ght to fair trial - Right to trial with reasonable expedition - Prosecutorial delay -Actual prejudice - Presumed prejudice -Failure to explain delay - BF v DPP [2001] 1 IR 656 followed - Injunction restraining prosecution granted (2004/915JR -MacMenamin J - 6/4/2006) [2006] IEHC135
D(A) v DPP
Facts: The applicant, who faced trial on a number of counts of sexual assault sought a declaration that the delay in the institution of proceedings against him irreparably prejudiced his prospect of obtaining a fair trial and breached his right to a trial in due course of law and to a trial with reasonable expedition. The applicant also sought an injunction restraining the respondent from further prosecuting him in relation to those charges. The alleged incidents occurred between 1997 and 1999, when the applicant was between fourteen and sixteen years of age. However, notwithstanding the fact that the Health Board were advised of the allegations in 1999, a case conference in relation to this matter took place in 2000 and the complainant made a written statement of complaint to the Gardai in 2001, an application for a summons was not made until 2003, by which point the applicant had attained the age of eighteen years.
Held by MacMenamin J. in allowing the application:
1. That the prosecuting authorities were guilty of inordinate, inexcusable and culpable delay. Furthermore, in the circumstances, it was not unreasonable for the applicant to have concluded that after the elapse of three years, no prosecution would take place thereafter.
2. That any of trial of the applicant would not take place while memories were fresh or while the applicant was reasonably close to the age at which he was alleged to have committed the offences and he would now be required to face a trial as an adult in which he would be made answerable for alleged offences committed between the time he was aged fourteen and sixteen years. Consequently, there were exceptional circumstances justifying the interference with the trial by the court.
B.F. v The Director of Public Prosecutions [2001] 1 I.R. 656 applied.
Reporter: L.O’S
This judgment is circulated in a redacted form to avoid identification of parties
1. Arising for consideration in this judicial review application are the issues of a constitutional right to a trial with due expedition and an assertion of prosecutorial delay in a situation where the parties involved were at the time of the offences alleged young people under the age of eighteen years.
The applicant stands accused of 21 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act1990 in that he did on various dates between 1st October, 1997 and 30th June, 1999 sexually assault one P.M. (hereinafter referred to as the "the complainant").
2. It is alleged that the applicant committed these offences whilst the male complainant was a foster child in the applicant's parents home in a rural location. The applicant was born on 1st November, 1982. It has been stated he was accordingly aged fourteen years and nine months at the date of commencement of the period in which the alleged offences occurred. He was aged sixteen years and five months at the end date of the time at which the offences allegedly occurred.
3. The complainant is stated to have been born on 10th August, 1985. Accordingly, on that basis, he was twelve years and two months at the alleged date of commencement of the offences and thirteen years and nine months at the end of the period in question.
In view of the importance of absolute and relative age difference in this case it should be pointed out that, on the second page of his statement of evidence, the complainant identifies September 1997 as the time the alleged offences commenced when, he says, the applicant was "going on seventeen years of age". This would not appear to be in accord with the applicant's date of birth of 1st November, 1982. In September, 1997 the applicant was, on the evidence, aged fourteen years and nine months, not going on seventeen years. On the basis of the complainant's date of birth as set out in the respondents written submissions, in September 1997 he would have been aged twelve years and one month.
In the month of July 1999 the complainant was removed from the applicant's parents home and an investigation was launched by the relevant Health Board into whether the applicant had been engaged in alleged sexual offences against the complainant.
3. At the outset of the case the following dates were identified as being relevant:
Period of alleged offences 1st October 1997 — 30th June 1999
complainant made by another foster child, D O'L, to social worker 13th July 1999
Health Board to Superintendent of An Garda Siochána 20th July 1999
he would think about making a written statement 29th March 2001
Gardaí take statements from a number of witnesses August 2001 — February 2002
referral of the case to the National Juvenile Office 12th March 2003
4. In response to the affidavit sworn by the applicant, affidavits have been filed by the State Solicitor Mr. Martin Linnane, Sergeant M. M. of An Garda Siochána, the complainant P.M. and by Garda M.W. However, no affidavit has been filed by an officer in the Office of the Director of Public Prosecutions charged with dealing with the file from October 2002 to the 12th March, 2003, and thereafter the book of evidence also contains statements from social workers in the employment of the relevant Health Board.
At the time relevant to these allegations the applicants” parents ran a foster home. They offered foster accommodation to children referred to them by the Health Board. P.M., the complainant was a foster child placed in the home from August 1997 until June of 1999.
Three months after the removal of the complainant and other children from the foster parents, on 16th November 1999 the relevant Health Board launched an investigation into the allegations. They wrote to the applicant's parents saying that they would be in touch with them when the investigation was complete. The applicant states that, thereafter nothing further was heard from the Health Board in relation to the investigation and nothing at all was heard from the prosecuting authorities. From July 1999 until he attained the age of 18 years the applicant he commenced a weekly course of counselling and of psychological assessments under the auspices of the Health Board. These took place every Wednesday after school and his mother drove him to a nearby town for this purpose. The applicant states that he attended each one of these counselling sessions. This continued for approximately 18 months.
5. When the applicant became eighteen years of age, he no longer came within the remit of the Child Psychiatric Service of the Health Board. However he thereafter continued counselling and psychiatric treatment for of period of one year. He says that living with this regime was difficult. He found it difficult to concentrate properly in school. He completed his Leaving Certificate in June 2000 and passed all subjects bar one. He did not attain the academic level that he would have hoped for and consequently embarked on a CERT course as a trainee chef and thereafter completed one year of his studies at an Institute of Technology.
6. The applicant states that all through this time it appeared to him that, due to the young ages of himself and the alleged victim, the matter was being dealt with only by the Health Board. He says now he was too young to fully appreciate the mechanics of such a situation but he thinks the Health Board informed the prosecuting...
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