DPP v O'C [Central Criminal Court]

• Jurisdiction: Ireland
• Judge: MR. JUSTICE CARNEY
• Judgment Date: 03 April 2001
• Neutral Citation: 2001 WJSC-CCC 2117
• Court: Central Criminal Court (Ireland)
• Date: 03 April 2001

2001 WJSC-CC 2117

THE CENTRAL CRIMINAL COURT

DPP v. O'CONNOR

DUBLIN

DIRECTOR OF PUBLIC PROSECUTIONS

Prosecution

-v-

JOHN O'CONNOR

Defendant

Citations:

SANDS MANUAL ON INTERNATIONAL COURTS AND TRIBUNALS 1999

RYAN & MAGEE THE IRISH CRIMINAL PROCESS 1983

ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE PARA 1–236

CAHALANE V MURPHY & DPP 1994 2 IR 262

AG, PEOPLE V DWYER 1972 IR 416

CRIMINAL JUSTICE ACT 1964

Synopsis:

CRIMINAL LAW

Delay

Sexual offence - Constitutional law - Delay in prosecution of offences - Right to expeditious trial - Order of prohibition - Whether trial should proceed - Whether applicant prejudiced in his defence (Central Criminal Court - Carney J - 03/04/2001)

DPP v O'C

Facts: The accused in this case was charged with sexual offences against two nieces and a nephew. The offences were alleged to have taken place more than twenty years previously. The court in its judgment issued orders relating to the issue of the delay that had occurred in the prosecution of the offences.

Held by Mr. Justice Carney in making the following orders. As the applicant had been refused judicial review the issue of delay arose in the context of a criminal trial. These issues related to the burden of proof and on which party that burden rested. It fell to the court of trial to decide whether or not to quash the indictment. In relation to the twenty year delay the onus in this matter rested upon the prosecution and the standard of proof applicable was that of beyond reasonable doubt. The onus of proof in relation to prejudice rested upon the accused and in this regard the civil standard of proof applied.

1 MR. JUSTICE CARNEY ON TUESDAY, 3RD APRIL 2001 - DAY 2

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

THE HEARING RESUMED AS FOLLOWS ON TUESDAY, 3RD APRIL

MR. JUSTICE CARNEY: Gentlemen, I have not concluded my consideration

3 of the matters that we are dealing with. There was, for example, material matters to be found in Sands, RyanandMagee, extensively in Archbold which I am considering. I was not referred to any of these matters.

MR. O'HIGGINS:	Sorry about that, my Lord.
MR. JUSTICE CARNEY:	Accordingly I will send for you when I am ready

4 and I would ask you to keep in touch with the Court.

MR. O'HIGGINS: If there is any matter in which counsel can be of

5 any assistance; my apologies if my submission was not fulsome enough, please indicate and we will assist the Court in any way possible.

MR. JUSTICE CARNEY:	Very good, I will send for
	you when I am ready.
MR. McCARTHY:	Will you say not before
	twelve o'clock, my Lord?
MR. JUSTICE CARNEY:	I think that is safe
	enough, yes.

SHORT ADJOURNMENT

JUDGMENT WAS GIVEN AS FOLLOWS

MR. JUSTICE CARNEY: The accused in this case is charged with the

6 perpetration of extremely serious sexual offences, including rape, against two nieces and a nephew. The offences are alleged to have taken place more than 20 years ago.

7 There is no statutory time limit for the prosecution of offences on indictment, but a constitutional right to an expeditious trial has been identified by the courts. In the ordinary case a 20-year time delay in prosecution would be fatal on the grounds that it was a violation of the accused's right to a trial within a reasonable period of time.

8 I myself dealt with a prosecution against a veterinary surgeon in relation to offences in relation to alcohol in which animal rubs were being sold to the general public as a brand of vodka and whiskey and I was upheld by the Supreme Court in restraining that trial proceeding on the grounds of delay on the part of the prosecution, a fraction of the delay involved in this case.

9 That is the general position, but a special jurisprudence has developed in relation to sexual cases in which it may be open to the prosecution to proceed notwithstanding the time delay. The circumstances in which this arises are still, of course, evolving but are set out predominantly in the judgments of the Supreme Court. Such matters have been raised generally speaking if not exclusively in judicial review proceedings and a judicial review proceeding is a civil action between the parties and the civil burden of proof applies.

10 In this case judicial review was sought but there was delay as I understand it and the applicant was refused judicial review and told to raise his issues before the trial judge.

11 Accordingly, what is different about this case is that the issues in relation to delay are arising not in the context of a civil action between the parties where the civil standard of proof would arise but are arising as a step within a criminal trial. And it requires to be determined upon whom the burden lies in relation to the issues that arise and according to what standard of proof.

12 The exercise which we are engaged in is well known to the textbooks, including the Irish textbooks, and it is termed "A motion to quash the indictment". It is clear that what is contemplated is not a formal motion for judgment served in advance of the trial, because the jurisdiction to raise a motion to quash the indictment exists during the currency of the trial and may take place at any time.

13 Sands says at page 116 under the heading "Legal Objection to Indictment":

"If the prisoner does not stand mute he may take legal objections to the indictment and raise them by:"

1. Motion to quash the indictment;

2. Demur; or

3. Special plea in bar.

14 1. A motion to quash the indictment may be made where the indictment has a defect of substance which cannot be cured by amendment or where the Court has not cognisance of the offence or on the ground of want of jurisdiction. If the indictment is clearly bad it is the duty of the Court to quash it. If the defect is merely formal, objection to it should be made before plea pleaded and the jury is sworn. The Court may then amend an indictment and proceed with the trial.

15 If the defect is substantial the motion to quash may be made after plea pleaded. If the indictment is clearly bad, the Court will quash it. If a doubt exists, and this more especially in a serious...