DPP v F.M.

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 02 July 2021
• Neutral Citation: [2021] IEHC 576
• Court: High Court
• Docket Number: [Record No. 2019/552 JR.]

Between

The Director of Public Prosecutions

Applicant

and

F.M.

Respondent

[2021] IEHC 576

[Record No. 2019/552 JR.]

THE HIGH COURT

JUDICIAL REVIEW

Acquittal – Indecent assault – Judicial review – Applicant seeking to quash the order of the Circuit Court judge directing the jury to acquit the respondent – Whether the order challenged resulted from an impermissible preliminary application

Facts: A prosecution was brought against the respondent. The respondent’s trial was listed for hearing on 27th March, 2019. On that date, counsel for the prosecution sought an adjournment due to the unavailability of a prosecution witness. That application was declined. The judge decided to proceed with the respondent’s trial. The judge swore in a jury and adjourned the trial to the following day. On the morning of 28th March, 2019, counsel for the prosecution informed the court that the complainant was unavailable due to ill health and a medical report by the complainant’s general practitioner, dated 27th March, 2019 was handed into the judge. Counsel for the respondent made it clear that any adjournment was strenuously opposed. The applicant, the Director of Public Prosecutions, asserted that counsel for the respondent then made an application to have the case against the respondent dismissed for reasons of unfairness, in accordance with the Supreme Court’s decision in People (DPP) v PO’C [2006] 3 IR 238. The applicant asserted that the court entertained that application, notwithstanding the fact that no evidence had been heard and that PO’C applications are not available at the pre-trial stage. The respondent asserted that no PO’C application was in fact made and that no PO’C application was engaged with by the Circuit Court judge. The trial judge declined to adjourn the matter and, in circumstances where the prosecution was not in a position to offer any evidence, the judge directed the jury to acquit the respondent. By order made on 29th July, 2019, the High Court granted the applicant leave to seek judicial review. The relevant relief sought by the applicant was described in the 29th July, 2019 order and reflected in para. D of the statement of grounds, as follows: “(i) An order certiorari quashing the order of a Circuit Court judge sitting at Bray Circuit Court on the 28th March, 2019 directing the jury to acquit the respondent herein of four charges of indecent assault on dates between 1st April, 1968 and 31st December, 1970; (ii) An order remitting the aforementioned charges of indecent assault to the Circuit Court so that they may proceed in accordance with law; (iii) An extension of time for the bringing of this application, if necessary, and (iv) Such further or other relief as may be appropriate.”

Held by the Court that it was plain from the judge’s ruling in the Circuit Court that it was one which flowed from the fundamentally important principle of ensuring due process and a fair trial and the judge’s commitment to that principle. However, the Court held that the attention of the presiding judge was not drawn with sufficient clarity to the limits placed upon that jurisdiction in the context of a preliminary hearing at the commencement of a trial on the issue of delay.

The Court held that the applicant was entitled to the relief sought, in particular at (i) and (ii) of the 29 July 2019 order granting the applicant leave to seek judicial review, reflecting the relief at (i) and (ii) of para. D of the applicant’s statement of grounds of the same date.

Application granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the day of 2nd July, 2021

Introduction

1 The background to this case concerns four charges of indecent assault. The assaults are alleged to have occurred between 1st April, 1968 and 31st December, 1970. A prosecution was brought against the respondent, the complainant being **a family member, who was aged between seven and nine at the time of the alleged incidents. The respondent's trial was listed for hearing on 27th March, 2019. On that date, counsel for the prosecution sought an adjournment due to the unavailability of a prosecution witness. That application was declined. The judge decided to proceed with the respondent's trial. The learned judge swore in a jury and adjourned the trial to the following day. On the morning of 28th March, 2019, counsel for the prosecution informed the court that the complainant was unavailable due to ill health and a medical report by the complainant's general practitioner, dated 27th March, 2019 was handed into the judge. This report referred, inter alia, to the applicant being under extreme stress and to a number of physical symptoms and the GP's view included the following: “I don't think that she is currently in a fit state to testify.” This was the first time the prosecution sought an adjournment based on the complainant's unavailability. Counsel for the respondent made it clear that any adjournment was strenuously opposed. The applicant in the present proceedings asserts that counsel for the respondent then made an application to have the case against the respondent dismissed for reasons of unfairness, in accordance with the Supreme Court's decision in People (DPP) v. PO'C [2006] 3 IR 238. The applicant contends that the submission made by the respondent on 28th March, 2019 was to the effect that the historical nature of the charges meant that a fair trial could not be held and that the trial should be prohibited and that a “ PO'C application” was made. The applicant asserts that the court entertained that application, notwithstanding the fact that no evidence had been heard and that PO'C applications are not available at the pre-trial stage. The respondent asserts that no PO'C application was in fact made and that no PO'C application was engaged with by the learned Circuit Court judge. A transcript of 27th and 28th Mach, 2019 is available. It is not in dispute that counsel for the respondent made specific reference to the PO'C decision and quoted certain passages from that case, verbatim, on the morning of 28th March, 2019. In his ruling, the learned judge stated, inter alia: “I accept in general terms, the type application is probably one that is made as the evidence unfolds, but it is apparently common case that nine people who have a relevance to this prosecution are now dead. The passage of time has certainly affected the position. But that's not giving a conclusion on the PO'C ground, it's just stating the obvious, that it's a case that had to get on and had to get on quickly.” The trial judge declined to adjourn the matter and, in circumstances where the prosecution was not in a position to offer any evidence, the learned judge directed the jury to acquit the respondent. The applicant seeks, inter alia, to quash the order of the Circuit Court judge made on 28th March 2019 directing the jury to acquit the respondent.

The Order granting Leave

2 By order made on 29th July, 2019, this Court (Meenan J.) granted the applicant leave to seek judicial review in respect of the reliefs set out in para. D on the grounds set out at para. E of the applicant's statement of grounds dated 29th July, 2019. The relevant relief sought by the applicant is described in the 29th July, 2019 order and reflected in para. D of the statement of grounds, as follows:-

• “(i) An order certiorari quashing the order of a Circuit Court judge sitting at Bray Circuit Court on the 28th March, 2019 directing the jury to acquit the respondent herein of four charges of indecent assault on dates between 1st April, 1968 and 31st December, 1970;

• (ii) An order remitting the aforementioned charges of indecent assault to the Circuit Court so that they may proceed in accordance with law;

• (iii) An extension of time for the bringing of this application, if necessary, and

• (iv) Such further or other relief as may be appropriate.”

DPP v. PO'C [2006] 3 IR 238

3 Of particular significance in the present case is whether what has been described as a “ PO'C application” was made on behalf of the respondent on 28th March, 2019. Given the relevance of the principles deriving from that decision, it is appropriate to look in some detail at the Supreme Court's judgment in PO'C which was delivered on 27th July, 2006 by Denham J. (as she then was). In that case, the accused, who was a primary school teacher, was charged with a number of sexual offences against young girls, alleged to have taken place between 1979 and 1981. On 25th January, 2000, the trial began before McGuinness J. and a jury in the Central Criminal Court, no complaint or application being made in relation to delay. The following day, it transpired that two members of the jury knew some of the witnesses in the case and the jury was discharged, with the case recommencing before Finnegan J. and a new jury on 24th May, 2000. After the jury was sworn in, counsel for the accused made an application to the trial judge “ to stay the indictment in this trial”. The basis for the application was that the offences in the indictment were alleged to have occurred between 1979 and 1981 and that, by reason of excessive delay, it would not be possible for the accused to get a fair trial. The trial judge refused the application, stating as follows:-

“On consideration of the authorities to which I have been referred, I take the view that I have no jurisdiction to proceed as requested. However, it may be of comfort to the accused to understand that delay is a matter which may be relevant in the course of this hearing. It is undoubtedly a matter to which counsel for the accused will refer and if appropriate, it is a matter with which I will deal in any charge which I give to the jury. Again, if in the course of a trial it appears that a serious prejudice is caused to the accused it may be grounds upon which I should direct the jury as to the verdict which they should give. So delay is...