DT v DPP
| Jurisdiction | Ireland |
| Judge | JUSTICE T.C. SMYTH |
| Judgment Date | 14 May 2004 |
| Neutral Citation | [2004] IEHC 197 |
| Court | High Court |
| Date | 14 May 2004 |
[2004] IEHC 197
THE HIGH COURT
Citations:
L (P) (LENEHAN) V DPP & BUTTIMER UNREP HERBERT 16.4.2002 2002/15/3585
HEALY, STATE V O'DONOGHUE 1976 IR 325
O'CONNELL, STATE V FAWSITT 1986 IR 362
BARKER V WINGO 1972 407 US 514
M (P) V MALONE 2002 2 IR 560
W (D) V DPP UNREP SUPREME 31.10.2003 2003/48/11781
B V DPP 1977 3 IR 140
C (P) V DPP 1999 2 IR 25
W V DPP UNREP SUPREME 31.10.2003 2003/48/11781
O'FLYNN V CLIFFORD 1988 IR 740
O'C (J) V DPP 2000 3 IR 478
J (B) V DPP UNREP SUPREME 19.12.2003
O'C (P) V DPP 2000 3 IR 87
Judicial review - Delay - Injunction - Whether the delay in complaining impaired the accused’s ability to defend himself and created a real and serious risk of an unfair trial.
The applicant faced charges of alleged buggery and indecent assault of one complainant and the indecent assault of two other complainants. The charges related to incidents that allegedly occurred as far back as 1976. The applicant sought by way of judicial review an injunction restraining the respondent from proceeding or taking any further steps in the criminal prosecution against the applicant on the ground of inordinate and inexcusable delay. The relevant period of delay was the period between the dates of the alleged offences and the dates complaints were made to An Garda Siochana.
Held by Smyth J. in granting the relief sought in relation to two of the complainants and refusing it in the case of one other complainant:
1. That the complainant known as PK was damaged by the events complained of and that his inhibition and impairment to complain earlier than he did arose out of the wrongdoing itself and by the gravity of the offences. Consequently, there was not inordinate or inexcusable delay in making the complaints or the bringing of charges.
2. That the applicant failed to establish that there existed a real or substantial or serious risk of an unfair trial. Furthermore the applicant was not fatally hampered in the preparation of his defence and the applicant failed to show any prejudice as a result of the delay.
Reporter: L.O’S.
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
For THE APPLICANT
MR. DEVALLY SC
Instructed by:
TARRANT & TARRANT LAW CHAMBERS
ARKLOW CO. WICKLOW
For THE RESPONDENT
MR. A. COLLINS SC
Instructed by:
THE CHIEF PROSECUTION SOLICITOR
OSMOND HOUSE LITTLE SHIP STREET Dublin 8
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
| MR. JUSTICE SMYTH: | The Applicant seeks judicial review by way of |
injunction restraining the Respondent from proceedings or taking any further steps in a criminal prosecution pending before the Circuit Criminal Court against the Applicant in respect of Newtownmountkennedy Charge Sheets 7/2001 to 100/2001 inclusive bearing Bill No. 467/01J.
(1) 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.
(2) The Applicant has been prejudiced in his defence of these proceedings by reason of the delay in his case being brought to trial.
(3) 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.
(4) The trial of the Applicant has not occurred with due or reasonable expedition; further, the delay cannot be justified or excused.
On the hearing of the application, Mr. Devally, S.C. for the applicant confined his submissions and arguments to that period of stated delay between the dates of alleged offences and the dates of complaints being made to the Garda Síochána in the month of October 2000. In that month, the Applicant was arrested and it was then that the Applicant was made aware of the making of the complaints.
The Applicant faces charges for the alleged buggery and indecent assault of one Complainant and the indecent assault of two other Complainants contrary to Sections 61 and 62 of the Offences Against the Person Act, 1861 respectively. The offences against the first Complainant (hereinafter referred to as PK) are alleged to have taken place between 1st June 1976 and 31st January 1980. Those against the second Complainant (hereinafter referred to as CK) are alleged to have taken place between 1st March 1978 and 31st May 1978 and 1st January 1979 and31st June 1979. Those against the third Complainant (hereinafter referred to as MW) are alleged to have occurred between 1st January 1978and 31st August 1979.
The Applicant was the employer of the three Complainants. He was a friend of the parents of PK and CK (who are brothers) and visited their home from time to time and was entertained there. The parents thought so well of the Applicant that they invited him to PK's wedding to the suppressed annoyance and embarrassment of PK at that time.
All the Complainants were young schoolboys in their early teens at the time they were employed by the Applicant in his market garden business carried on in horticultural glasshouses at Co. Wicklow. Adjacent to the glasshouses was a mobile home where the Applicant lived at the time the Complainants were working for him.
PK was 13 years old when he went to work for the Applicant after completion of his first year in secondary school. He was introduced to the Applicant by his older brother, CK, and PK worked for the Applicant for four summers in succession until 1981, when on completion of his Leaving Certificate examination he went to Agricultural College for two years. PK felt unable to tell his parents of the matters complained of as he was repeatedly told by his mother that they needed the money. It is unnecessary in this judgment to record the many acts complained of, suffice it to say that they were recurrent with the same person in more or less the same set of circumstances over an identifiable period — this is not a case of a once off incident or a very limited series of events and, in my judgment, it is quite distinguishable from the case of CK, and MW in particular. At the end of the calendar year 1986 when PK was aged 22, he married a very young girl, aged 18 (hereinafter referred to as TK). The documents reveal that PK told TK of his abuse by the Applicant in either 1985 or early 1987 and referred to it again with her in 1988. During the years 1989 to 1997 PK lived in Tipperary, but since then has returned to live in or about the area in Co. Wicklow where he was brought up. PK and TK have four children, aged now between about 18 years and 6 years. In relating events to TK, PK became frustrated and aggressive because of fear and embarrassment. TK informed her bridesmaid of the revelations and PK felt embarrassed, humiliated and mortified by this disclosure and charged her to tell no one else and particularly not to inform his parents. He avers that the issue arose some time in 1988 when after watching a television programme he was encouraged by his wife to phone a free phone telephone number for Childline. He did phone the number and spoke to someone (unidentified) for three or four minutes. On a second occasion, a phone call to Childline went dead and he did not pursue the matter further. In the same year, he spoke to his sister who worked in a law office (hereinafter referred to as MK) about his abuse and her reaction was not to make any disclosure and on no account tell his parents, as it would kill them. Again, he felt angry about this. In or about that time, 1988/1989, most probably 1989 or thereafter, PK had been a witness to a hit and run accident in Co. Tipperary and he told his best friend about the abuse in his teenage years. Although this man was TK's best friend, he avers that he did not discuss the matter with him prior to that out of embarrassment. In the matter of disclosure, matters went dormant for about ten to eleven years from about 1989/90 to the year 2000.
For many years PK had been a blood donor. Over the years 1986 to 2000 questions on the Consent Form were worded in different ways concerning homosexual behaviour. Whilst feeling bad about not disclosing what had happened to him in his teenage years because he had children, he thought he was not HIV positive although he could not prove this. On 4th October 2000 PK went to give blood to the Blood Transfusion Service. On this occasion, he was requested to complete a form that included the question: "Have you ever had sex with another male or has another male ever had sex with you?". When PK signified yes to the query, the doctor who was present informed him that he could never give blood again. The matter was now out in the open in the public to a complete stranger, albeit a doctor. That night PK telephoned the Garda Síochána and arranged to call on them, which he did two days later.
Over the period October 2000 to May 2001 a number of statements were taken by An Garda Síochána. On 18th May 2001 the charges were preferred again the Applicant in Bray District Court. On 20th July 2001 Garda Haynes served the Book of Evidence on the Applicant. Following two adjournments during which depositions were taken, the Applicant was sent forward for trial on November 9th, 2001.
On 21st January 2002 the Applicant was granted leave to apply by way of judicial review for the relief earlier noted.
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