G.S. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 11 June 2004
• Neutral Citation: [2004] IEHC 120
• Court: High Court
• Docket Number: [2003 No. 653 J.R.]
• Date: 11 June 2004

[2004] IEHC 120

THE HIGH COURT

[No. 67 JR/2002]

HC 230/04

G (P) v. DPP

JUDICIAL REVIEW

BETWEEN/

P. G.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

DUNNE V DPP 2002 2 IR 305

BRADDISH V DPP 2001 3 IR 127 2002 1 ILRM 151

DPP V SWEENEY 2001 4 1R 102

C (P) V DPP 1999 2 IR 25

L (J) V DPP 2000 3 IR 122

C (N) V DPP UNREP SUPREME 5.7.2001 2001/3/603

NEW HAMPSHIRE V HUNGERFORD 1995 142 NH 110

M (P) V MALONE 2002 2 IR 560

B V DPP 1997 3 IR 140

L (J) V DPP 2000 3 IR 122

W (D) V DPP UNREP SUPREME 31.10.2003

D (D) V DPP UNREP GEOGHEGAN 19.5.2004

R V TELFORDS JUSTICES EX-PARTE BADHAN 1991 2 QB 78

K (M) V GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

Abstract:

Judicial review — Sexual abuse — Delay —prohibition — Whether the delay in reporting and/or prosecuting the complaints against the applicant amounted to a breach of the applicants constitutional rights.

Facts: The applicant was charged in March 2001 as a result of complaints of sexual abuse and rape alleged to have been conimitted by him between 1977 and 1985. The applicant sought an order restraining the respondent from prosecuting those charges against him on the grounds that the delay in bringing the said prosecutions and the delay by the prosecution authorities in proceeding with the said prosecutions against the applicant amounted to a breach of the applicant's constitutional right to a fair trial in due course of law and/or a trial within reasonable expedition. The applicant also relied on the fact that not all relevant evidence had been disclosed as one of the complainant's acupuncturist had refused to disclose any reports relating to that complainant and he also maintained that the complainants had failed to provide all relevant information.

Held by Murphy J in refusing the relief sought: 1. That the complainants were inhibited and that prevented them from complaining. That inhibition arose directly from the offence and the dominion exerted by the applicant and accordingly the delay in complaining was reasonable.

2. That the lack of disclosure in this case was not roeted in the delay and accordingly could not be subject to judicial review.

3. That the applicant failed to show any specific prejudice. There was no breach of the applicant's rights to a trial in due course of law and/or within reasonable expedition. The complainants were not a party to these proceedings and accordingly the allegations that they failed to supply information was not relevant.

Reporter: L. 0'S.

1 Mr. Justice Roderick Murphy delivered the 11th day of June, 2004.

1. Pleadings

2 The applicant seeks an order restraining the Director of Public Prosecutions from prosecuting certain charges in respect of complaints of sexual abuse and rape alleged to have been committed by the applicant between 1 ^st September, 1977 and 16 ^th July, 1982 against the applicant's nephew in relation to the circuit Book of Evidence and between the 25 ^th June, 1980 and 25 ^thJune, 1985 in relation to the Central Book of Evidence against the applicant's niece.

3 1.2 By order of the High Court ( Ó Caoimh J.) dated 11 ^th February, 2002 the applicant was given leave to apply for judicial review for such relief on the grounds following:

4 (1) That the delay in bringing the said prosecutions and that the delay by the prosecuting authorities in proceeding with the said prosecutions against the applicant amounted to a breach of the applicant's constitutional right to trial in due course of law and/or trial within reasonable expedition.

5 (2) That the complainants had failed to supply the respondent with all information relevant to the said proceedings.

6 (3) That the respondent was unable to obtain evidence (the) disclosure (of) which was necessary for the purpose of the defence of the applicant upon the said prosecutions.

7 (4) That the said prosecutions of the applicant amounted to a breach of the applicant's constitutional right of a fair trial in due course of law in that the applicant was unable to properly defend himself.

8 (5) That the prosecution of the applicant on the charges stated in the said prosecutions amounted to a breach of the applicant's right to fairness of procedure and natural justice.

2. Grounding Affidavit

9 Mr. Robert Eagar, a solicitor in the firm of Garrett Sheehan & Co., having carriage of the proceedings on behalf of the applicant, verified the facts stated in the application and distinguished between the two prosecutions.

10 There were two books of evidence. The first, dated 10 ^thApril, 2001, was in relation to the Central Criminal Court and the second, dated 29 ^thMay, 2001, was in relation to the Circuit Court proceedings.

11 The deponent says that the applicant had instructed him that he was pleading not guilty and was contesting the allegations made against him.

12 He analysed the charge sheets. The applicant's niece made no formal complaint before 1999 and then made three statements of complaint to the Gardaí in 2000, on 19 ^th February, 5 ^th June and 29 ^th November. The third statement clarified the dates upon which she alleged certain events had taken place.

13 Their mother stated that her daughter, the applicant's niece, complained when she was 15 of interference by the applicant. In March or April of 1999 the niece had told her mother that she was going to make a statement about what happened to her and had received counselling from a therapist from Ms. Rosemary Troy, about April, 1999.

14 Ms. Rosemary Troy said that the niece first attended with her for psychological therapy on 15 ^th May, 1999. The niece had been referred by her acupuncturist, Ms Bagnall. She made various statements to Ms. Troy in the course of therapy concerning alleged sexual abuse perpetrated on her by a family member.

15 The nephew had independently sought help from a therapist, Mr. C.A. Hopper, on 20 ^th May, 1998 until 18 ^th August, 1999. The niece, his sister, had told him about her abuse in December 1999. He made a complaint to the Gardaí on 25 ^th March 2000.

16 The niece was engaged to be married at the time of the making of her statement of complaint to the Gardaí and the nephew was already married for approximately two years prior to making his statement of complaint to the Gardaí.

17 The applicant was arrested on 25 ^th March, 2000 (the day of the nephew's complaint) and charged with the offences.

18 Mr. Eagar believed that the complaints made prior to the statements to the Gardaí were matters of significance in relation to the lapse of time between the dates of the offences alleged and the making of the statements. His firm sought details pertaining to the niece's acupuncturist on 31 ^st October, 2001. On 24 ^thFebruary, 2002 the chief prosecution solicitor indicated that she was not in a position to disclose any report from the acupuncturist who was declining the request for disclosure on the grounds of confidentiality to her client.

19 A letter was also sent on 31 ^st October, 2001 seeking particulars relating to Mr. C.A. Hopper. On 26 ^th November, 2001 Mr. Hopper's qualifications were outlined together with an indication that he was not prepared to make the disclosure requested. A statement of the proposed evidence of Mr. Hopper was disclosed to the respondent in July, 2000, which was extracted from a letter dated 5 ^th July, 2000 to the Gardaí, a copy which had been disclosed.

20 The disclosure sought was, in the deponent's belief, a central issue in relation to the lapse of time between the offences alleged and the making of complaints which extended from 16 to 22 years to the date of the affidavit.

21 The lapse of time between the making of a complaint by the niece to the Garda Siochaána and the applicant's subsequent arrest was more than thirteen months. No indictment had yet been furnished.

22 The deponent referred to and expanded the grounds referred to above.

3. Statement of Opposition

23 The Director opposed the application for judicial review on the grounds that the lapse of time between the perpetration of the alleged acts and the prosecution of the applicant did not amount to a breach of his rights as alleged. Such lapse of time arose as a consequence of the nature and effect of the offences perpetrated.

24 With regard to prosecutorial delay, this did not amount to a breach of the applicant's rights.

25 The complainants were not party to the proceedings and, accordingly, the applicant was not entitled to rely on the grounds that the complainants had failed to supply the respondent with all information relevant to the prosecutions as outlined in (E)(3) of the grounds.

26 The fact that the respondent was unable to obtain evidence which the applicant alleged was necessary for the purpose of his defence did not entitle him to seek the relief sought. The applicant had been furnished, by way of disclosure, with all of the information available as might be relevant to the prosecution. There was no breach of his rights and he was not unable to properly defend himself.

4. Replying Affidavit

27 Sergeant Anthony McHugh had been responsible for the investigation of the complaints since March 1 ^st, 2000. He related that in late November, 1999 the niece contacted Detective Sergeant Lorraine Stack of the Domestic Violence and Sexual Assault Unit of An Garda Síochaána in Harcourt Square, Dublin, to report a hypothetical case of child abuse. An arrangement was then made for the niece to call to her local garda station on 19 ^th February, 2000 and a statement of complaint was made against the applicant. The nephew also made a statement of complaint on 25 ^th March, 2000. Six further witness statements were taken from members of the family between March 1 ^st and May 5 ^th, 2000. On 25 ^th March, 2000 the applicant was arrested and interviewed. A memorandum of those interviews appears in the book of evidence exhibited on behalf of the applicant.

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