H (J) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 02 April 2004
• Neutral Citation: [2004] IEHC 57
• Date: 02 April 2004
• Court: High Court
• Docket Number: RECORD NO. 84 JR/2002

H (J) v. DPP

BETWEEN/

J. H.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2004] IEHC 57

RECORD NO. 84 JR/2002

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Delay

Judicial review - Delay - Prosecutorial delay - Application for prohibition of prosecution of offences - Whether applicant prejudiced as result of delay - Whether prosecution of offences should be prohibited (2002/84JR - Murphy J - 2/4/2004)

H (J) v Director of Public Prosecutions

Facts: the applicant had been convicted of sexual offences, which he appealed and which appeal was allowed and a re-trial directed by the Court of Criminal Appeal. He then applied to prevent the respondent from proceeding on the re-trial on the grounds that he had been prejudiced by the delay of itself in prosecuting the offence. The applicant further argued that there was inexcusable and culpable prosecutorial delay and that the capacity of the applicant to defend himself had been impaired. The respondent alleged that the complainant delay was due to the dominion exercised by the applicant over the complainant.

Held by Murphy J in granting an injunction restraining the respondent from prosecuting the applicant that, in assessing the delay, the court had to look not to the date of the original trial but to the date of the pending re-trial. The court also had to take into account the prejudice suffered by the applicant due to having suffered anxiety and served a prison sentence.

Reporter: P. C.

Citations:

DPP V HAMILL & DEIGNAN 2000 1 ILRM 150 1999/8/1764

HEALY, STATE V DONOGHUE 1976 IR 325

C V DPP 1999 2 IR 45

O'C (J) V DPP 2000 3 IR 478

DPP V BYRNE 1994 2 IR 236

P(P) V DPP 2000 1 IR 403

B(F) V DPP 2001 1 IR 656

BARKER V WINGO 1972 407 US 514

M (P) V MALONE 2002 2 IR 560

MILLS V THE QUEEN 1986 29 DLR 161

O'FLYNN V CLIFFORD & ORS 1988 1 IR 740

B V DPP 1997 3 IR 140

MCKENNA V DUBLIN CIRCUIT COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316

Judgment of

Mr. Justice Murphy

1 dated the 2nd day of April, 2004.

2 The applicant in this case was tried and convicted of certain sexual offences committed against his daughter in 1999 and appealed to the Court of Criminal Appeal on the 3^rd December, 2001. That court allowed the appeal and directed a re-trial.

3 On the 18^th February, 2002, within the three month period, leave was granted by McKechnie J. at a time when the applicant had served two years in custody out of the nine years to which he was sentenced.

4 The applicant was given leave for an injunction by way of application for judicial review restraining the respondent from prosecuting the applicant in proceedings entitled CC¹¹³/₉₈The People of Ireland (D.P.P) v. The Applicant.

5 The applicant says that the delay between the dates of the alleged offences (1^st September, 1985 to 21^st September, 1987) and the date of return for trial of the applicant on the 2^nd October, 1998, amounts to a failure to vindicate the applicant's constitutional entitlement to fairness of procedures, a breach of his rights to constitutional and natural justice and to an expeditious hearing.

6 The applicant submitted that the Gardai failed to investigate the matters with reasonable expedition after the initial complaint of the 4^th May, 1990 and to carry out any step in the investigation whatsoever during the period between the taking of a statement from the complainant's mother in December, 1990, up to the 27^thFebruary, 1998, when warrants for the arrest of the applicant were obtained by the Gardai. It was alleged that such a delay itself is of such magnitude as to amount to be a breach of the above mentioned rights. The applicant had not been in a position to contact the children who are neighbours of the applicant, nor to, remember their names, and has been greatly stressed by the making of the allegations. The trial on those offences at such a remote time from the date of the alleged offences amounts to an abuse of the process of the court.

7 The applicant referred to the indictment in relation to a total of seven counts, one of rape, one of unlawful carnal knowledge, one of incest and four of indecent assault, alleged to have been committed against his daughter, between the dates 1^st September, 1985 to the 21^st September, 1987. On the 27^th February, 1998, eight warrants for his arrest were issued. He was arrested in England on foot of those warrants and consented to being extradited on the 6^th August, 1998 and returned for trial on the 2^ndOctober, 1998.

8 He said that he was not guilty of the offences and had maintained that position at all times.

9 He referred to the relationship between his daughter's mother and its deterioration and his subsequent emigration to England, where he maintained contact with his children. He subsequently married in England.

10 In 1990, his daughter wrote asking him to come home for her confirmation and requested him to send her money. When he came home her mother told him that she knew what he had been doing and told him that he should never see the children again and that she had taken their daughter to hospital on the 4^th May, 1990, and that Garda Rita Walsh had taken a statement from the daughter.

11 In December, 1990, a further short statement was taken from the daughter's mother, regarding the daughters's paternity. As appeared from the book of evidence (p. 64) the next statement taken from the daughter was on the 20^th September, 1996, almost six years later.

12 On the 25^th May, 1999, the applicant's solicitor had written to the Chief State Solicitor seeking, inter alia, information as to the cause of the delay in prosecuting the matter. No reply was received until the 14^th July, 1999, which did not address the issue of the delay.

13 The trial commenced on the 19^th July, 1999, before the Central Criminal Court. During the course of the trial it emerged from the evidence of Garda Rita Walsh that she had forwarded her report to her superior officers and thereafter nothing had happened with the file between the end of 1990 and a phone call from the English Child Protection Agency in September, 1996. No explanation was given for the inaction on the file — it was stated that two superior officers were since deceased. When Garda Walsh was prompted to search through the archives, she found the original file with the statements and medical report. It was accepted by the prosecution that "nothing happened" with the file in the intervening six years.

14 The applicant averred that he was not advised of the possibility of applying to halt his trial on the ground of a breach of his constitutional rights and no application was made on his behalf.

15 The Court of Criminal Appeal, heard his appeal on the 3^rdDecember, 2001, and were of the opinion that the trial judge's decision to give a warning on corroboration due to the delay, left an element of uneasiness in the case and remitted it to the Central Criminal Court, where it was re-listed on the 20^th December, 2001, and a date fixed for trial on the 12^th May, 2003. The applicant was re-admitted to bail by the Court of Criminal Appeal.

16 It was submitted on the applicant's behalf that he has been prejudiced by the delay itself in prosecuting the offence, as is stated in the grounds referred to above. He had served over two years in custody. He had been prejudiced by his time in custody, which led to marital difficulties. He and his wife became estranged and he had returned to live in this jurisdiction.

17 He maintained that there was gross delay on the part of the prosecution authorities in the conduct of the case from December, 1990 to September, 1996, during which time nothing happened. This was inexcusable and culpable prosecutorial delay. The delay was further compounded by the delay between his interview with the English police in April, 1997 and the issue of the warrants for his arrest in February, 1998. There were further delays between February, 1998 and his arrest in July, 1998.

18 The respondent submitted that the facts upon which the applicant was basing his claim were known to him either before or at the time of his trial in July, 1999. He has not applied for judicial review within the appropriate time, nor had he sought an extension of time. The court should, ordinarily, decline to grant the relief sought. The delay was explained by reason of the dominion he exercised over the complainant prior to her making a complaint to her mother in May, 1990. The subsequent delay was not blameworthy. If such delay had occurred, it was regrettable, but not such as would violate any constitutional right or cause any prejudice in consequence of the lapse of time. The applicant had failed to discharge the onus of proof upon him to establish that there was a real risk that he would be subjected to a trial which was other than fair and in due course of law.

19 Garda Rita Walsh substantiated the averments of the applicant with regard to the alleged prosecutorial delay in her affidavit.

20 The applicant, in his replying affidavit, rejected any suggestion that his application was out of time in that he had applied for the relief sought as soon as possible following the quashing of his conviction in the Court of Criminal Appeal and the direction of a re-trial. It was only then that the relevance of prosecutorial delay was explained to him and the issue was raised before the Court of Criminal Appeal.

21 Mr. Anthony Collins S.C. made submissions on behalf of the applicant in relation to the time for applying for judicial review. The applicant could not have brought prohibition proceedings while he was a convicted person and had to wait until his conviction had been set aside. He then applied within the time specified by the Rules of Court. The nature of prosecutorial delay due to unexplained Garda inactivity on the file had only been apparent during the course of his original trial. However, it was not until he...