O'H v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 28 February 2003
• Neutral Citation: [2005] IEHC 428
• Docket Number: 2002/438JR
• Court: High Court
• Date: 28 February 2003

[2005] IEHC 428

THE HIGH COURT

2002/438JR

O'H (M) v DPP

BETWEEN:

M.O'H.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

P (P) v DPP 2000 1 IR 403

M (P) v MALONE & DPP 2002 2 IR 560

D (V) & O'F (J) v DPP UNREP KEARNS 23.11.2001 2001/15/4199

W (A) v DPP UNREP KEARNS 23.11.2001 2001/24/6472

C (P) v DPP UNREP O'NEILL 22.2.2002 2002/5/1004

DPP v SWEENEY 2001 4 IR 102 2002 1 ILRM 532

JOHNSTON v CHURCH OF SCIENTIOLOGY & ORS 2001 1 IR 682

O'CONNELL, STATE v FAWSITT 1986 IR 362

DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91

H (D) v GROARKE 2002 3 IR 522WARD v SPECIAL CRIMINAL COURT 1998 2 ILRM 493

R v BROWNE (WINSTON) 1998 AC 367

P (P) v DPP 2000 1 IR 403

CONSTITUTION ART 38.1

B (C) v DPP 1997 3 IR 140

C (P) v DPP 1999 2 IR 25

F (B) v DPP 2001 1 IR 656

DPP v BYRNE 1994 2 IR 236

CRIMINAL LAW

delay

Trial - Right to trial with reasonable expedition - Indecent assault - Prosecutorial delay - Prejudice -Whether delay inordinate and excessive - Non-party discovery - Duty of disclosure - P (P) v DPP [2000] 1 IR 403 and F(B) v DPP (Unrep, SC, 22/2/2001) followed - People (DPP) v Sweeney [2001] 4 IR 102 and M(P) v Malone [2002] 2 IR 560 considered - R v Browne (Winston) [1998] AC 367 applied - Prohibition granted - (O'H (M) v DPP - McKechnie - 28/2/2005)

O'H (M) v DPP

Facts: the applicant had been charged with indecent assault in 1995. The High Court ordered the prosecution to disclose certain documents in 1998, which it failed to do. The trial was adjourned on several occasions to allow the documents to be furnished, until 2002. the applicant applied in 2002 to restrain his trial on the basis of the inordinate delay and the failure of the prosecution to produce the documentation which it had been ordered to do.

Held by McKechnie J in grating the relief sought that there was a common law duty of disclosure of all relevant documents upon the prosecution which was a part of the right of the accused to have adequate notice of the case which was to be made against him. That where there had been a long lapse of time between the commission of the alleged offence and the first complaint of the victim to the Gardai, it was necessary that there should be no unnecessary delays on the part of the prosecuting authorities once proceedings had been instituted against an accused.

Reporter: P.C.

1 JUDGMENT of Mr. Justice William M. McKechnie delivered on the 28th day of February, 2003

2 1. By order dated the 26th July, 2002, the applicant in the above entitled judicial review proceedings, obtained leave from this Court to seek an order restraining the respondent from taking any further step in the criminal prosecution of the said applicant on the charges then standing against him. The grounds upon which this relief was sought can be summarised as follows:

3 (a) that the respondent failed to make appropriate and prompt discovery and/or failed to ensure that appropriate and prompt discovery was in fact made,

4 (b) that there had been considerable and inordinate delay on the part of the State in complying with its obligations to seek out and make available witnesses and written material,

5 (c) that the applicant's right to a trial in due course of law and with reasonable expedition has been breached, and

6 (d) that by reason of the aforesaid delay Mr. M.O'H, has been prejudiced and has suffered excessive pre-trial anxiety.

7 2. In the statement of opposition the Director of Public Prosecutions asserts that by the 7th October, 1999 he had fully complied with any obligations imposed upon him as a result of an order of this Court made on the 25th March, 1999, secondly, that he had no obligation to ensure that third parties complied with an order for discovery made on the 21st March, 2000, thirdly, that the applicant himself was responsible for delays which followed upon his successful application to have his trial transferred from the Dundalk Circuit Criminal Court to the Dublin Circuit Criminal Court, fourthly, that the applicant, through his legal advisors, was substantially in delay in waiting until the 17th October, 2000 before taking any steps to identify and locate the authors of certain medical notes and records whom he ought to have known would be necessary before reliance could be placed on the said notes and records as respectively made by them, and finally by vacating a trial date of the 26th June, 2001 the said Mr. M.O'H. must also bear responsibility for any delay resulting therefrom.

8 Overall it is therefore claimed that the Director of Public Prosecutions was not in any way responsible for the delays which occurred in this case and that where fault was to be attributable it had to be assigned to the applicant himself.

9 3. The factual background and chronology of events in this case can best be ascertained from a combined consideration of the affidavits and the exhibits and in particular the exhibits containing the relevant correspondence. Though the result is a somewhat lengthy recitation of this background, nevertheless in the circumstances I do not see how this can be avoided.

10 4. On the 26th July, 1995 the applicant first became aware that allegations of a sexual nature were being made against him by the complainant, a Ms. D.C., when a solicitor's letter outlining such allegations was sent on her behalf to the religious order of which M.O'H. was a member. That was followed by a formal complaint to the Gardaí on the 21st September, 1995. On his return to this jurisdiction, the applicant was interviewed by the Gardaí on the 26th June, 1996 and appeared, by way of summons, before Drogheda District Court on three charges in June of 1997. Having been served with a Book of Evidence, he was on the 16th of September returned for trial, to the next sittings of Dundalk Circuit Criminal Court scheduled for the 7th October, 1997. The original three charges against him were allegations of indecent assault which allegedly had occurred between the 31st July, 1981 and the 3rd August, 1982. Subsequent to his return for trial he was arraigned on nine counts of indecent assault ranging in dates from the 31st July, 1981 to 31st December, 1987. His first trial date, namely, the 9th March, 1998 had to be vacated when it transpired that the presiding judge had formerly been a solicitor in the same practice as the firm who represented him in those criminal proceedings.

11 5. Immediately prior to that date Messrs. McCartan and Hogan Solicitors, who were acting on behalf of the applicant, wrote to the local State Solicitor on the 17th day of February, 1998 and requested certain documents from a hospital at which the victim had previously been treated. This request was refused and as a result Mr. M. O'H obtained leave from this Court on the 25th May, 1998 to seek firstly, an order prohibiting the respondent from taking any further step in these criminal proceedings on the grounds of delay in the institution of such proceedings and secondly, an order of mandamus directing the Director of Public Prosecutions to furnish the medical reports and records which previously had been sought. On the 25th March, 1999 O'Sullivan J. delivered judgment in those judicial review proceedings. He refused any relief on the grounds of delay but held with the applicant on the issue of documentation. The learned High Court judge was quite satisfied that since the complainant had given explicit written authority to the prosecuting Gardaí to procure the relevant reports and records from her treating psychiatrist, Dr. B. there was an obligation on the respondent to so do. Immediately prior however, to making an order in these terms, the court was satisfied to accept an undertaking, to the same effect, given on behalf of the Director of Public Prosecutions. On being requested, in such circumstances to furnish the required reports and records, the said Dr. B expressed an unwillingness to breach patient confidentiality with the result that the matter was referred back to the High Court by the Director of Public Prosecutions on 27th July, 1999. On that date the learned High Court judge made it abundantly clear that the intent of his judgment was to the effect that all such medical reports in the possession of Dr. B should be handed over.

12 6. In October of that year Messrs. McCartan and Hogan received copies of such notes and records. However it became clear on an examination thereof that the same were incomplete. Accordingly, on the 13th December, 1999 this firm of solicitors wrote to the State Solicitor and pointed out that the furnished material was defective. This appeared to be so in at least three respects. Firstly, there was a reference to certain discharge summaries which had not been enclosed (see para. 9 of Mr. McCartan's affidavit), secondly, from certain documentation disclosed it could reasonably be inferred that the Eastern Health Board could have had written material relevant to the complainant's treatment and thirdly, there was also a reference to a psychosexual evaluation having been carried out but once again there was no record of this evaluation in the notes as furnished. Accordingly, clarification of these matters was sought as well as the consent of the complainant to enable the Health Board to release such documents.

13 Reminders were sent in December, 1999 and in January 2000. On 11th of that month the State Solicitor replied by indicating that in his opinion the documentation as sought was outside the High Court order and warned that the Director of Public Prosecutions would oppose any attempt to adjourn the hearing of these charges which was then scheduled for 1st February, 2000.

14 7. On 19th January, on the matter being re-entered, the High Court directed the personal attendance of Dr. B in order to inquire as to whether or not the...