H (P) (Applicant / Respondent) v DPP ( Respondent / Appelant)

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Hardiman
Date29 January 2007

[2007] IESC 3

THE SUPREME COURT

Hardiman J.

Geoghegan J.

Fennelly J.

151/05
163/05
H (P) v DPP
JUDICIAL REVIEW

Between:

P.H.
Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent/Appellant

THIS JUDGMENT HAS NO CITATIONS

CONSTITUTIONAL LAW

Delay

Right to fair trial - Right to trial with due expedition - Sexual offences - Actual prejudice - Death of witness - Whether real or serious risk of unfair trial - SH v DPP [2006] IESC 55, [2006] 3 IR 575 applied - Appeal allowed; order of prohibition refused (151/2005 & 163/2005 - SC - 29/1/2007) [2007] IESC 3H(P) v DPP

Facts: The respondent sought to appeal a decision of the High Court restraining the respondent from prosecuting the applicant in respect of sexual offences alleged to have occurred as far back as 1978. The applicant alleged that by reason of delay there was a real and serious risk of an unfair trial. The applicant further alleged that the death of a key witness in 1984 put his defence at a grave disadvantage.

Held by the Supreme Court, per Hardiman J., in allowing the appeal that it appeared that other sources of this evidence

were in existence and was sufficient to avoid the inference that there was a real and serious risk of an unfair trial.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Hardimandelivered the 29th day of January, 2007.

2

This is the appeal of the Director of Public Prosecutions against the judgment and order of the High Court (O'Sullivan J.) perfected the 9th March, 2005, whereby the Director was restrained from further prosecuting the applicant on the charges he had initiated against him.

3

These charges numbered 114 in all. The first 78 alleged either rape or indecent assault of the applicant's stepdaughter, H. These crimes are said to have taken place between the 1st January, 1978, and the 31st December, 1986. At that time the alleged victim was between 3½ and 12 years old. The balance of the charges alleged indecent assault against another stepdaughter, F., between the 1st January, 1981, and the 31st December, 1989. To put this another way, he is alleged to have sexually abused, in an aggravated way, each of these girls when they were each aged between 3½ and 12: the age difference between them meant that these alleged activities went on over a total period of twelve years and that he is alleged to have been abusing the two girls between the 1st January, 1981, and the 31st December, 1986.

4

Following the decision of this Court in H. v. DPP (Supreme Court, unreported, 31st July, 2006), there is authoritative guidance as to the test to be applied in a case such as this where the applicant claims that, by reason of delay, his chances of a fair trial have been undermined. At p.26 the judgment of the Court in that case, delivered by Murray C.J., the following passage appears:

"The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in the light of the circumstances of a case".

5

This case was argued with admirable focus and economy on both sides. Hence, it is possible to say that for the purpose of this case the only part of the test with which the Court is concerned is whether, by reason of the delay, there is a real or serious risk that the applicant would not obtain a fair trial.

Delay.
6

The complainants made complaints to the gardaí in November, 1999, some ten years after the end of the sequence of alleged abusive events in the case of F. and some thirteen years after the end of those events in the case of H. The applicant was returned for trial some two years later in November, 2001. Assuming that, if this application is refused, it will be possible to hold a trial of the applicant next term, that will be approximately 28 years after the abusive events are said to have commenced in relation to H., and just over 20 years since they are said to have ended. It will be about 26 years after the abusive events are said to have commenced in the case of F. and about 18 years since they are said to have ended.

Prejudice.
7

There was only one substantial issue in this case, that is one matter alleged by the applicant to discharge the onus which lay on him of showing that there was a real or serious risk that his trial would be unfair. This related to the death, in 1984, of a witness called B. M. who was a district nurse for the area in rural Ireland where the applicant and the alleged victims then lived. The applicant said that he was gravely and obviously disadvantaged by the unavailability of this witness. The Director, while denying this, did not dispute that the death of the nurse was, in the circumstances of the case, a matter of some significance. In order to make sense of these submissions it is necessary to set out the background to the case in a little detail.

8

The applicant is the stepfather of the alleged victims: he married their mother at a time when she had three children and they went on to have further children. It is undisputed that the form of abuse alleged on very young children was such as would have caused injury to them which would be visible on examination. Indeed, each of the alleged victims described lasting feelings of pain and discomfort which they described as "scalding" and this was accompanied by a vaginal rash.

9

Although no complaint of sexual abuse was made until many years had passed after the alleged events, the family had come to the attention of the Social Welfare and medical authorities in a different connection, that of actual or suspected non-accidental injury. A brother of the alleged victims, J., was admitted to hospital in April, 1978, and was diagnosed as manifesting battered baby syndrome, having marked bruising of the scrotum and penis and also laceration to the root of the penis, and bruising in the spinal area, on the rib cage and over the right mandible. He was readmitted in October of the same year "with injuries suggestive of non-accidental infliction". On this occasion he had a black eye and bruising to the trunk neck and arm. At the same time, in April, 1978, H., who was one of the alleged victims, was admitted to the same hospital with bruising of the mandible, in the spinal area and in the neck, shin and right popliteal space. Moreover, she had a previously unreported and healed fracture of her right humerus. She too was diagnosed with "battered baby/child syndrome".

10

As a result of these findings, H. and J. were placed in care for a period in a town some distance from their residence. Moreover, according to a statement of one of the gardaí involved in investigating the case the local doctor "had been advised by the Health Board to keep an eye, and open mind, in relation to the family". This doctor himself never treated them for any non-accidental injury. The doctor said he would have been "alert and suspicious" in relation to the family by virtue of the history. He said that B. M., the local nurse "would have called on the family regularly". Another general practitioner who attended the family at a slightly later stage said, according to the Sergeant, that she had never treated any of the family for any complaint which gave reason to...

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