J (B) v DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 01 May 2007
• Neutral Citation: [2007] IESC 18
• Court: Supreme Court
• Date: 01 May 2007

[2007] IESC 18

THE SUPREME COURT

Denham J.

Geoghegan J.

Fennelly J.

[S.C. No: 067 of 2004]

J (B) v DPP

Between/

B.J.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judge Thomas Ballagh

Notice Party

H v DPP 2007 1 ILRM 401 2006 IESC 55

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (AMDT) ACT 1935 S1(1)

CRIMINAL LAW (AMDT) ACT 1935 S6

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

MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006 IESC 11

1 Judgment delivered the 1st day of May 2007 by Denham J.

2 1. The issues in this appeal relate to the lapse of time prior to the proposed trial of B.J., the applicant/appellant, hereinafter referred to as 'the applicant', who is currently before the District Court on charges of rape, of unlawful carnal knowledge of a girl under fifteen years of age, and of indecent assault, allegedly committed against one complainant, between the 1st January, 1979, and the 3rd June, 1983. The applicant has sought an order prohibiting his trial.

3 2. This is an appeal by the applicant from the order and judgment of the High Court ( Ó Caoimh J.) made on the 19th day of December, 2003, refusing the application to prohibit the trial.

4 3. The history of this judicial review application commenced with the order of the High Court (Smyth J.) made on the 21st February, 2000, when the applicant was given leave to apply by way of an application for judicial review for an order of prohibition or injunction prohibiting the Director of Public Prosecutions from proceeding in the criminal prosecution pending in the District Court entitled 'The Director of Public Prosecutions v. B.J'. The criminal prosecution was stayed pending the outcome of these proceedings.

5 4. The grounds for review were:-

6 (i) That the delay in the institution of the proceedings has prejudiced the applicant; is unfair and unjust to the applicant and has violated the applicant's right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution;

7 (ii) That there has been an unjustifiable delay by the prosecution authorities in the preparation, initiation and prosecution of the proceedings against the applicant which is unfair and unjust to him and has violated his right to a criminal trial in due course of law pursuant to provisions of the aforesaid Article of the Constitution.

8 5. On the 19th December, 2003, the High Court refused the application. There were three principal issues before the High Court.

9 (i) A very considerable part of the judgment of the High Court related to the reasons for the delay, and reference was made to case law which has now been superseded. In essence the learned trial judge held that the applicant bore responsibility for the delay because of the nature of the offences.

10 (ii) The learned High Court judge considered the issue of prosecutorial delay and held:

"Dealing with the issue of prosecutorial delay, I am satisfied that such delay as is referred to is essentially the delay relating to the confusion on the part of the prosecuting Garda, Detective Garda O'Connor, in relation to the directions that had issued from the Director of Public Prosecutions. It is clear that this has resulted in some delay in the instant case and that this is at most a period of twelve months. I am satisfied that, while this is a delay for which the applicant bears no responsibility, the same has been explained and has not been the result of any general lack of attention to furthering the prosecution in the case. Detective Garda O'Connor, has with some frankness indicated that he must bear some responsibility for the delay in question. I am, however, satisfied that the delay, such as it is, is not such as to render the applicant's trial unfair or to entitle him to the relief which he seeks. In this regard I am satisfied on the authority of McKenna v. Presiding Judge of the Dublin Circuit Court and the Director of Public Prosecutions (High Court, Kelly, J., 14th January, 2000), affirmed by the Supreme Court, 7th December, 2000, that even where there has been some gross or inordinate delay that the same does not of itself give rise to the court intervening to stop a trial proceeding. I am satisfied that the circumstances of the instant case can be clearly contrasted with the facts of the case of P.P. v. Director of Public Prosecutions [2000] 1 I.R. 403 where there was a clear delay occasioned by the Gardaí in relation to their failure to address the investigation of the charges in that particular case."

11 (iii) The High Court addressed the issue of prejudice, as follows:-

"With regard to the issue of prejudice, I am satisfied that the facts put forward on the part of the applicant to show prejudice, are such that the absence of the persons identified by him are unlikely as such to give rise to the clear absence of material evidence in the prosecution against him. The involvement of the persons concerned can at best have been peripheral in the overall picture, insofar as the abuse alleged is in this case, as in most other cases, alleged to have taken place in private. This is not a case of an isolated event where crucial evidence is absent in relation to same. The allegation is one of continual sexual abuse perpetrated on the complainant when she was a child. In this regard I am satisfied that such difficulties as might be occasioned by the absence of these witnesses falls very far short of showing that it is such as to give rise to a real and substantial risk that the applicant will not obtain a fair trial. I am prepared to accept as a general probability that the passage of time, together with the absence of some evidence relating to the surrounding physical circumstances, is such as to give rise to a situation where some greater difficulty may be encountered by the applicant in defending the charges in question. I am satisfied, however, that a judge conducting a trial of the applicant can give appropriate directions to a jury such as to minimise any limited prejudice that may exist in this regard. I am satisfied, in conclusion, that any prejudice that may have been occasioned by reason of the passage of time, is not such as to give rise to a real or substantial risk that the applicant cannot obtain a fair trial in the circumstances. In light of this conclusion I am satisfied that I must refuse the applicant the relief which he seeks."

12 6. The applicant has filed a notice of appeal, with twelve grounds of appeal. The initial grounds relate to the reasons for the delay - which aspect of the law has been clarified by this Court in H. v. Director of Public Prosecutions [2006] I.E.S.C. 55. The second major ground of appeal relates to prosecutorial delay. And, thirdly, the applicant has claimed prejudice.

13 7. The basic facts of the case are that the applicant is accused of committing sexual offences against C.M., between the 1st of January, 1979 and the 30th of June, 1983, when she was aged between 12 and 16 years of age. The complainant worked on a part-time basis for the applicant in his shop and the offences are alleged to have taken place after work. The applicant denies the charges.

14 The complainant made a statement of complaint to the Gardaí on the 12th of September, 1997 and the applicant was arrested and questioned in relation to the complaint on the 29th of September, 1997. On the 16th of October, 1998, the applicant was again arrested and was charged with eleven...