J (B) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 12 February 2002
• Neutral Citation: 2002 WJSC-HC 3243
• Court: High Court
• Date: 12 February 2002

2002 WJSC-HC 3243

THE HIGH COURT

[2000 No. 542JR]

J (B) v. DPP

JUDICIAL REVIEW

BETWEEN

BJ

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

CRIMINAL JUSTICE ACT 1984 S4

B V DPP 1997 3 IR 140

C(P) V DPP 1999 2 IR 25

P(P) V DPP 2000 1 IR 403

O'C (P) V DPP 2000 3 IR 87

O'C (J) V DPP 2000 3 IR 478

L (J) V DPP 2000 3 IR 122

BARTON V THE QUEEN 1980 147 CLR 75

JAGO V DISTRICT COURT OF NEW SOUTH WALES 1989 87 ALR 577

AG V C (NO 2) 1963 IR 33

O'CONNELL, STATE V FAWSITT 1986 IR 362

DPP V BYRNE 1994 2 IR 236

KNOWLES V MALONE & HUSSEY & DPP UNREP MCKECHNIE 6.4.2001 2001/13/3778

HOGAN V PRESIDENT OF CIRCUIT COURT 1994 2 IR 513

DPP V G 1994 1 IR 587

B V DPP 1997 3 IR 140

CONSTITUTION ART 38

CONSTITUTION ART 38.1

F (B) V DPP 2001 1 IR 656 2001/ 9/ 2399

W(A) V DPP UNREP KEARNS 23.11.2001

FITZPATRICK V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

Synopsis:

CRIMINAL LAW

Trial

Sexual offence - Impending prosecution for indecent assault - Right to expeditious trial - Fair procedures - Whether applicant must prove prejudice caused by delay - Whether delay excessive - Whether applicant's constitutional rights infringed - Cause of delay - Whether applicant prejudiced in defence by reason of delay - Prohibition - Whether psychological evidence adduced reliable - Whether evidence of dominion established (2000/542JR - McKechnie J - 12/2/02)

J (B) v DPP

Facts: the applicant was charged in 2000 for alleged indecent assaults on the complainant in 1989, such complaint not having been made to the Gardaí until 1998. He sought the prohibition of the continuance of the prosecution on the grounds, inter alia, that the delay in the institution and prosecution of the proceedings had been excessive and violated his right to trial with reasonable expidition and that the delay prejudiced his chances of obtaining a fair trial in that it hindered the preparation of his defence.

Held by McKechnie J in granting the relief sought that an accused has a right to have a trial with reasonable expidition which, constitutionally based, is independent of any other right which might attach to a trial of such a person on a criminal charge so that delay itself, even where no prejudice exists, can be sufficient to prohibit the prosecution of a trial. As the accused did not exercise dominion over the complainant after the incidents complained of, no excuse could be made for the complainant’s delay in making her complaint. Accordingly the accused was entitled to the relief sought on the ground of delay alone. He was not entitled to relief on the ground of any alleged prejudice as a result of delay.

1 Mr. Justice William M. McKechnie delivered the 12 day of February 2002

2 1. By order of this court (Kearns J.) dated the 23rd October, 2000, the applicant in the above entitled proceedings, was granted leave to apply by way of an application for judicial review for the reliefs set forth at para. D (i) and (ii) of the statement grounding the application and was so on the grounds specified at para. (e) (i), (ii), (iii), and (iv) thereof. At the commencement of the application however the Court was informed that ground no. (iv) of para. (e) was not being proceeded with.

3 The essence of the relief now sought is an injunction restraining the respondent from taking any further step in the prosecution of the applicant on the charges set forth in Charge Sheets 22/2000, 23/2000 and 24/2000.

4 The grounds advanced in support of this relief are as follows:-

5 (1) That the delay in the institution of the proceedings herein:-

6 (a) is oppressive, unjust and unfair to the applicant;

7 (b) violates the applicant's right to a trial with reasonable expedition, and

8 (c) violates the applicant's right to a trial with due process of law.

9 (2) That the delay in the proceedings herein has been excessive and prejudicial in that:-

10 (a) it prejudices the applicant's chances of obtaining a fair trial;

11 (b) it prejudices the applicant in the preparation and presentation of his defence, and

12 (c) the failure of the respondent herein to disclose the existence of an earlier investigation into these alleged allegations and his further failure to disclose any statements taken in the course of such investigation, including statements made by the complainant, the applicant and the applicant's wife, is an abuse of process which prejudices the applicant in the preparation of his defence and violates his right to a trial in due course of law.

13 (3) That the applicant relied upon and was entitled to rely upon a specific representation of fact made by the investigating member of An Garda Siochána to the effect that the allegations, the subject matter of these proceedings, had been fully investigated and no criminal offence had been disclosed, and accordingly that no criminal prosecution was appropriate in such circumstances.

14 2. The following facts, events and circumstances, which give rise to these proceedings are not, at least for the purposes of this case in controversy, though, should the applicant be returned for trial on any one or more of the charges standing against him, this situation may alter. Such facts are as follows:-

LAY INVOLVEMENT:-

Sept/89:-	On a date unknown in September, 1989, it is alleged by one HC
	(the complainant), whose date of birth is in August, 1973, that
	she was indecently assaulted by the applicant (born in July
	1952) in his house at County Wicklow;
Oct/89:-	On a date unknown in October, 1989, the said HC alleges that
	at Bellevue Woods, Delgany in the County of Wicklow she was
	both indecently assaulted and then raped by the said applicant;
End Nov/89:-	Ms. HC informs her mother of the alleged incident in
	September, 1989;
18 th Mar/93:-	The said HC, up to then living in Co. Wicklow, emigrates to
	the United Kingdom where to this day she continues to reside
	and work;
6 th Apr/98:-	The said HC on a visit home, informs her mother of the alleged
	incident which occurred in October, 1989;
9 th Apr/98:-	The said HC, makes her first statement to the Gardai at a Co.
	Wicklow Garda Station;
May/98:-	Her mother, Mrs. CC, also makes a statement to the Gardai;
21 st Oct/99:-	The said complainant makes a second statement to the Gardai.

3. OFFICIAL INVOLVEMENT:

22nd Mar/98:-	Detective Sergeant JF., who at all relevant times had been the
	sergeant in charge of the detective unit at a Co. Wicklow Garda
	Station, retires;
3 rd Nov/98:-	Detective Sergeant MC was appointed to this rank and as a
	replacement for the retiring Garda was assigned to some Garda Station;
End Nov/98:-	This Detective Sergeant was appraised of the statement
	taken on the 9 th April, 1998, and of the Gardai's desire to have a
	second statement, one by way of clarification, taken from the
	complainant which they had hoped to do in October, 1998:
	unfortunately this had not materialised as HC had not returned
	to Ireland;
14 th Dec/98:-	The applicant was arrested and detained for several hours under
	section 4 of the Criminal Justice Act 1984during which
	detention he was interviewed and allegedly made two
	inculpatory statements to the Gardaí;
18 th Feb/99:-	The Garda file was sent to the Director of Public Prosecutions
	seeking directions;

31 st May/99:-	The direction which issued sought clarification on a number of
	points which involved the obtaining of an additional statement
	from the complainant;
31 st Oct/99:-	On a visit home to Co. Wicklow, on this date, the complainant
	makes a second statement to the Gardai;
4 th Nov/99:-	The Garda file is re-submitted to the D.P.P;
17 th Feb/00:-	The response of the D.P.P. is communicated via the State
	Solicitor, to the Gardai; and
3 rd Mar/00:-	The accused is arrested and charged with the offences above
	mentioned, is brought to Bray District Court and is remanded
	on his own bail on the terms so fixed by that court.

15 From this said date to the date hereof, the criminal proceedings have been adjourned repeatedly in the District Court and pursuant to the above order granting leave, are now stayed pending the determination of this application.

16 4. In support of this judicial review both the applicant and his solicitor, Mr. N. M. of County Wicklow have sworn Affidavits. In opposition the respondent has filed four affidavits, one from the now retired Detective Sergeant J. F., one from the said Detective Sergeant M. C., one from the complainant HC with the fourth being from Mr. D. C., a psychotherapist and psychoanalysist. Save for the complainant, all of these deponents have been cross-examined on their respective affidavits. From this evidential material and on the basis of the submissions so made, it appears to me that the major issues in this case are as follows:-

17 (a) What discussions took place at and what resulted from the two interviews held between Detective Sergeant J. F., and the applicant and his wife, in May and June, 1990,

18 (b) What are the consequences of the delay between the date of the alleged offences and the date upon which HC first made a complaint to the Gardaí about these matters,

19 (c) Whether the reasons so advanced justify this period of approximately eight and a half years, and

20 (d) Whether the period of eight months between the 9 ^thApril, 1998 and the arrest of the accused and the further period of fifteen months between the last mentioned date and the date upon which he was charged, can be legally justified on the ground advanced therefor by the prosecutorial team.

21 5. Mr. J., in...