O'H v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns,MR JUSTICE FENNELLY
• Judgment Date: 28 March 2007
• Neutral Citation: [2007] IESC 12
• Court: Supreme Court
• Docket Number: [S.C. No. 172 of 2003]
• Date: 28 March 2007

[2007] IESC 12

THE SUPREME COURT

Murray CJ

Denham J

Hardiman J

Fennelly J

Kearns J

No. 172/03

O'H v DPP

BETWEEN/

O'H

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

O'H (M) v DPP UNREP MCKECHNIE 28.2.2003 2005/48/9984 2005 IEHC 428

M (P) v DPP 2006 2 ILRM 361 2006 IESC 22

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

CRIMINAL LAW (RAPE) ACT 1981 S10

DPP v SWEENEY 2001 4 IR 102 2002 1 ILRM 532

WARD v SPECIAL CRIMINAL COURT & DPP 1999 1 IR 77 1998 2 ILRM 493 1998 33 13031

R v BROWNE (WINSTON) 1998 AC 367

P(P) v DPP 2000 1 IR 403 1999 22 7059

H (T) v DPP & JUDGE SMITHWICK UNREP SUPREME 25.7.2006 2006 IESC 48

WORKING GROUP ON THE JURISDICTION OF THE COURTS - REPORT 2003, THE CRIMINAL JURISDICTION OF THE COURTS

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60 1998 16 6128

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001 2 351

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002 7 1645

BOWES & MCGRATH v DPP 2003 2 IR 25 2003 6 1129

SCULLY v DPP UNREP KEARNS 21.11.2003 2003/47/11429

R v BROWN (WINSTON) 1997 3 WLR 447

C (P) v DPP 1999 2 IR 25 1998 2 527

F (B) v DPP 2001 1 IR 656 2001 9 2399

DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91 1994 2 483

HEALY, STATE v DONOGHUE 1976 IR 325

DINEEN v DELAP 1994 2 IR 228

SWEENEY v BROPHY 1993 2 IR 202

SHEEHAN v O'REILLY & GOVERNOR LIMERICK PRISON 1993 2 IR 81 1993 ILRM 427 1992 13 4201

Abstract:

Criminal law - Procedure - Sexual offences - Disclosure - Prosecutorial delay - Whether the prosecution was guilty of delay, specifically in relation to its duty to provide disclosure to the applicant.

The DPP appealed against the decision of McKechnie J. in the High Court restraining the further prosecution of the applicant in respect of charges for sexual offences allegedly committed by him in the early 1980's. McKechnie J. held that there had been such delays by the prosecution in complying with its obligations to make full disclosure promptly as to amount to blameworthy delay. Essentially, the applicant alleged that notwithstanding the respondent's compliance with the undertaking given on behalf of the DPP to disclose to the applicant copies of the complainant's psychiatric reports from her doctor, the prosecution was guilty of delay in complying with its obligation of disclosure, specifically by delaying in providing the details of the authors of various notes contained in the medical reports/notes previously disclosed. The applicant received in 2001, following the collapse of his earlier trial, notes containing references to the fact that the complainant previously complained of sexual abuse by her uncle and also made a reference to the Rape Crisis Centre.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Fennelly JJ) in allowing the appeal (Kearns J. dissenting ): That the prosecution complied with their undertaking to disclose the reports of the complainant's doctor. The Chief State Solicitor endeavoured to assist the defence in tracing the identity of the authors of certain notes contained in the doctor's reports. However, even assuming that the prosecution had accepted responsibility for carrying out further inquiries, as was suggested and indeed as found by the learned trial judge, it was not clear how the prosecution was said to be in breach of that responsibility. Furthermore, it was not suggested that the information which arose in due course regarding a previous complaint of sexual abuse had been in the possession of the prosecution or that they were even aware of it. The applicant failed to make out any case for prosecutorial delay. In any event, applying the balancing test, the applicant's trial ought not to be prohibited.

Reporter: L.O'S.

1 This an appeal, by the Director of Public Prosecutions, from the judgment of the High Court (McKechnie J) date 28th February 2003, whereby he restrained the Director from further prosecuting the above-named Applicant in respect of charges for sexual offences allegedly committed in the early 1980's. In order to avoid confusion, I will refer to the Appellant as the Director and to the Respondent as "the Applicant."

2 This is, thus, yet another in the long line of cases concerning long-delayed prosecution for such offences. The Applicant had, however, failed, before O'Sullivan J, to prevent continuance of his prosecution on the ground of delay alone. The present is a second set of judicial review proceedings arising out of subsequent requests for disclosure or tracing of evidence and information by the prosecution.

3 McKechnie J held that there had been such delays by the prosecution in complying with what he held to have been its obligations to make full disclosure promptly as to amount to blameworthy delay. He held that those periods of delay were inordinate and inexcusable and could not be justified and that the rights of the applicant would be violated if he were to permit continuation of the Criminal proceedings against him.

4 Since the delivery of the High Court judgment in this case, the principles applicable to prosecutorial delay have been clarified by the unanimous judgment of this Court in PM v DPP [2006] 2 I.L.R.M. 361. Kearns J delivered that judgment. He cited with approval passages from the judgment of Keane C.J. in PM v Malone [2002] 2 I.R. 560.

5 The essence of the principles established in these cases is that culpable or blameworthy delay on the part of the prosecution does not, in itself, automatically give rise to an order preventing further prosecution. The Court should engage in a balancing operation. It should balance the public interest in prosecuting crime against the interests of the applicant. Where it is not established that there is a real risk that, due to delay, loss of evidence or the like, the applicant will not have a fair trial, the applicant is, nonetheless, entitled to rely on a number of matters outlined and considered in the case-law. One of these is any additional distress that the applicant has suffered as a result of the delay.

6 These matters will need fuller consideration in this judgment. It will be necessary to consider, in particular, whether the prosecuting authorities were, in fact, blameworthy in respect of their obligations of disclosure so as to contribute significantly to any delay. In addition, it will be necessary to consider whether an applicant, such as the Applicant in the present case, is required to place before the court evidence of any additional distress upon which he seeks to rely.

The Facts

7 The facts are outlined in great detail in the judgment of the learned trial judge. The following is a summary of the essential material.

8 The Applicant was originally charged with three counts of indecent assault contrary to common law as provided for in section 10 of the Criminal Law (Rape) Act, 1981. Those offences are alleged to have been committed between 31st July 1981 and 3rd August 1982 against the same female person who was born on 3rd August 1967. She was, therefore, approximately fifteen to sixteen years of age at the relevant times. The applicant was born in 1937. He is a priest. He has at all times denied the allegations in statements to gardaí, though he did not swear any affidavit either in the earlier judicial review proceedings heard by O'Sullivan J or in the current proceedings.

9 Subsequent to the return for trial six more charges of indecent assault, alleged to have been committed at later dates up to 1987, were added. These were later dropped by the prosecution and are now irrelevant.

10 The Applicant first learned of the complaints on or about 26th July 1995, when solicitors acting on behalf of the complainant wrote to the Applicant's religious order. The complainant made a complaint to An Garda Síochána on 21st September 1995. The Applicant was charged before the District Court on 13th June 1997 and returned for trial on 16th September 1997. The matter was transferred to the Circuit Criminal Court sitting outside Dublin on 7th October 1997. A hearing date was fixed for 9th March 1998. This date had to be vacated due to a possible conflict of interest affecting the assigned Circuit Court judge. The trial was subsequently adjourned from time to time until, as will appear later, it commenced on 4th October 2000.

11 The Applicant on 25th May 1998 obtained leave to apply, by way of judicial review (the first proceedings), for an order of prohibition or alternatively an injunction restraining the DPP from taking any further steps in the criminal proceedings against him. The Applicant complained of the generally prejudicial effect of the delay and, in addition, claimed that there was a real risk that he would not have a fair trial, due to the loss or absence of evidence.

12 The trial was postponed pending determination of those proceedings.

13 In the same proceedings, the Applicant sought an order of mandamus directing the Director to furnish all reports and records of Dr Bereen which were within his procurement. Dr Bereen had treated the complainant since 1985. The application was made in a context where the complainant had given to the prosecuting garda specific permission to obtain her psychiatric reports from Dr Bereen. The Applicant maintained in those proceedings that fair procedures and natural justice required that these reports be made available to him.

14 O'Sullivan J, in a reserved judgment dated 25th March 1999, rejected the application for orders prohibiting further prosecution.

15 O'Sullivan J also considered the request for access to Dr Bereen's report. The learned judge noted that Dr Bereen had sworn an affidavit outlining his treatment of the complainant. He concluded that "clearly the material contained in Dr Bereen's reports may be of...