H.S. v DPP

• Jurisdiction: Ireland
• Judge: Justice Máire Whelan
• Judgment Date: 22 October 2019
• Neutral Citation: [2019] IECA 266
• Date: 22 October 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 266

BETWEEN/

H. S.

RESPONDENT

- AND –

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

[2019] IECA 266

Edwards J.

Whelan J.

Kennedy J.

Neutral Citation Number: [2019] IECA 266

Record Number: 2019/91

THE COURT OF APPEAL

Judicial review – Extension of time – Prohibition of trial – Respondent seeking an order of prohibition to restrain further prosecution of the criminal proceedings – Whether there was a real risk that the trial would be unfair

Facts: The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal from the High Court judgment of 1st March, 2019 and subsequent orders extending time for the bringing by the respondent of an application by way of judicial review and granting an order of prohibition of the trial on indictment of the respondent on seventeen charges of alleged historic child sex abuse of his two younger sisters. The respondent sought an order of prohibition to restrain further prosecution of the criminal proceedings on the basis that there was a real risk that the trial would be unfair. He raised arguments of delay, actual and presumptive prejudice, the unavailability of possible witnesses due to death or absence of recollection and general unfairness arising from the lapse of time contending that some individuals who might have been of assistance to him as witnesses were deceased or otherwise had no clear recollection of events.

Held by the Court that there was no sound basis identified for the contention that the respondent’s former wife would have been in a position to give any relevant evidence which was potentially helpful to the respondent. The Court held that the respondent’s grandparents’ evidence would not be probative of any issue arising such as would render them potentially helpful witness for the respondent. The Court held that no stateable basis had been identified for a contention that he was prejudiced by his grand-aunt’s non-availability to confirm what was not in contention between the parties. The Court was not satisfied that there was probative evidence before the High Court sufficient to warrant a determination that the absence of both the respondent’s uncle and his uncle’s friend amounted to a “potential cause of prejudice”. The Court held that the family doctor was never in a position to give any evidence as to whether the second complainant was or was not abused by the respondent. The Court held that the indisposition and lack of recollection of the second complainant’s mother-in-law and maternal uncle was wholly irrelevant to any issue in this trial. The Court held that, contrary to the conclusions of the High Court judge, the respondent failed to establish manifest, unavoidable prejudice of such significance and gravity as to give rise to a real risk of an unfair trial which could not be avoided by appropriate rulings and directions by the trial judge who would have the opportunity to consider the granular detail of the actual evidence. The Court held that to allow a criminal trial to be de-railed unnecessarily by granting an order of prohibition, as it was satisfied arose in the instant case, when the basis for such an application was insufficient or vague and where the respondent had failed to demonstrate in a specific manner – as the law requires – how exactly each of the unavailable witnesses would have obviated the risk of prejudice or an unfair trial ran counter to the legal authorities and was erroneous. The Court was satisfied that on balance, whilst the desire of the High Court judge to achieve justice was understandable and he expressed the noble concern that he “cannot simply abdicate the difficult decision to the trial judge”, in fact, the approach adopted had the undoubted unintended consequence of usurping the established standard, resulting in the halting of a trial in circumstances where the respondent had failed to establish manifest, unavoidable prejudice of such significance as to give rise to a real risk of an unfair trial in all the circumstances of the case. The Court held that, contrary to the High Court judge’s conclusions the supplemental statement of the complainants’ mother was not demonstrated by the respondent to be a sufficiently significant event as warranted resetting the clock for the purposes of seeking judicial review.

The Court held that the appeal would be allowed and that the orders of the High Court would be set aside.

Appeal allowed.

JUDGMENT of the Court delivered on the 22nd day of October 2019 by Ms. Justice Máire Whelan

Introduction

1 This is an appeal by the Director of Public Prosecutions from the High Court judgment of 1st March, 2019 and subsequent orders extending time for the bringing by the respondent of an application by way of judicial review and granting an order of prohibition of the trial on indictment of the respondent on seventeen charges of alleged historic child sex abuse of his two younger sisters.

2 The respondent sought an order of prohibition to restrain further prosecution of the criminal proceedings on the basis that there was a real risk that the trial would be unfair. He raised arguments of delay, actual and presumptive prejudice, the unavailability of possible witnesses due to death or absence of recollection and general unfairness arising from the lapse of time contending that some individuals who might have been of assistance to him as witnesses are now deceased or otherwise have no clear recollection of events.

Background

3 The respondent was born in 1960. The book of evidence was served on him on the 1st June, 2017 and the case was sent forward for trial on that date with the trial date fixed for the 25th July, 2018. The first complainant is his sister M. born circa 1966. There are five charges of indecent assault and one charge of rape between the years 1974 and 1978 in relation to her. The abuse is alleged to have commenced when she was eight years old.

4 There are a further eleven counts (ten of indecent assault and one of rape) in respect of the second complainant, his sister R., relating to the years 1977 – 1985. R. was born circa 1970. The abuse is alleged to have commenced when she was seven years old. All of the offences are alleged to have taken place in the family home (which changed on a number of occasions during the relevant years) where the sisters resided with the parents of the parties both of whom are alive.

5 The home environment was volatile and unstable, characterised by the alcoholism, violence and brutality of the father. The father and mother were routinely absent from the home by reason of work leaving the younger children, including the complainants, to fend for themselves. There were but two incidents in which a specific date is identified in the statement of charges. Both pertain to the complaints of the respondent's sister R. The first is alleged to have occurred on Christmas Eve, 1977 and the second during a visit by the respondent in 1985 to the family home to inform his family of his engagement. It is alleged that during that visit their parents were at work and he raped R. in her bedroom.

Judgment of the High Court

Procedural issue - Extension of time

6 In his judgment delivered 1st March, 2019 the High Court judge noted that the Director of Public Prosecutions had raised objection that the judicial review proceedings had been instituted outside the three-month time limit specified in O. 84 r. 21 of the Rules of the Superior Court and no good or sufficient reason had been identified for the delay and that the High Court should refuse any extension of time.

7 The High Court judge observes at para. 25 that the complainants' mother had provided a supplemental witness statement to the gardaí on the 7th December, 2017. This was not disclosed to the defence until the 4th April, 2018. The late disclosure of this statement was relied on by the respondent as sufficient reason to warrant an extension of time. He considered that the supplemental witness statement of the mother: -

“… does address a number of potentially significant matters as follows. In some instances, this involves an elaboration on matters addressed in the mother's first witness statement of 4 November 2015.”

The judgment noted that the statement set out in detail the mother's recollection of an incident alleged to have occurred in the family home on Christmas Day, 1978, (the Christmas Day, 1978 incident) over twelve months after one of the alleged incidents of abuse on R. which she dates to Christmas Eve, 1977. R. had recalled a shotgun being discharged in the family home by a third party on Christmas Day, 1978. The mother in her supplemental statement does not recall a gun being fired. An uncle reputed to have been present during the Christmas Day, 1978 incident is now deceased. Another witness is stated to be too unwell to give evidence. The Christmas Day, 1978 incident is referred to in the mother's first statement but her supplemental witness statement gave more particulars.

8 The High Court judge also notes that the said statement: -

“… sets out in more detail the circumstances in which the second complainant was taken to a medical doctor in about the time of some of the alleged indecent assaults. The medical doctor is now deceased.”

9 The judgment notes that the mother provides a description of the layout of one of the houses in which the indecent assaults are said to have occurred and whether the bedrooms had functioning locks. The statement of the mother also provided further details of an alleged admission by the respondent to his mother of his “touching” or “petting” his sister R. The respondent is recorded as having stated to his mother when confronted that this conduct was “harmless” and did not go as far as sexual assault.

10 On the issue of the calculation of time for instituting judicial review proceedings, at para. 31 the High Court judge noted: -

“It is not clear from the case...