J.B. -v DPP

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Hardiman
• Judgment Date: 29 November 2006
• Neutral Citation: [2006] IESC 66
• Court: Supreme Court
• Date: 29 November 2006

[2006] IESC 66

THE SUPREME COURT

Denham J.

Hardiman J.

Macken J.

Appeal No. 36/04

B (J) v DPP

Between/

J.B.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55

DPP v O'C (P) UNREP SUPREME 27.7.2006 2006 IESC 54

M (P) v MALONE & DPP 2002 2 IR 560 2002 16 3761

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

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

BARRY v IRELAND 2005 ECHR 865

O'KEEFFE v COMMISSIONERS OF PUBLIC WORKS UNREP SUPREME 24.3.1980 1980/9/1610

O'CONNELL, STATE v FAWSITT 1986 ILRM 639, 1986 IR 362

G v DPP 1994 1 IR 374 1994 3 724

C (P) v DPP 1999 2 IR 25

J (B) v DPP 2003 4 IR 525 2003 28 6503 2004 IEHC 147

DPP v C (E) UNREP CCA 29.5.2006 2006 IECCA 69

DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871

AG, PEOPLE v CASEY (NO 2) 1963 IR 33

MIN FOR JUSTICE v STAPLETON UNREP PEART 23.11.2005 2005/38/7944 2005 IEHC 386

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 RECITAL 13

B v DPP 1997 3 IR 140

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

CRIMINAL LAW: Delay

Right to fair trial - Right to trial with reasonable expedition - Sexual offences -Prejudice - Whether real and substantial risk of unfair trial - SH v DPP [2006] IESC 55, [2006] 3 IR 575; [2007] 1 ILRM 401 applied - Appeal dismissed (36/2004 - SC -29/11/2006) [2006] IESC 66 B(J) v DPP

1 Judgment delivered the 29th day of November, 2006, by Denham J.

2 1. At issue in this case is whether the criminal trial of the applicant should be prohibited. J.B., the applicant/appellant, hereinafter referred to as 'the applicant', who described himself as a retired policeman, farmer and businessman, has sought an order in the High Court prohibiting proceedings pending against him in the Circuit Criminal Court. The applicant has been returned for trial on 14 charges of indecent assault on five nieces on dates between March 1971 and March 1987. He has sought a declaration that by reason of the lapse of time in the institution and prosecution of the criminal proceedings he has been deprived of his right to a trial with due expedition, and that he would suffer serious and irreversible prejudice in the defence of the proceedings, in consequence of which he has been denied his right to a fair trial. The Director of Public Prosecutions is, and is referred to as, 'the respondent'.

3 2. The grounds upon which the applicant sought leave for judicial review were as follows:

4 i On the 20 ^th June, 2000, the applicant was returned for trial to the Clonmel Circuit Court on fourteen counts of indecent assault in respect of five of his nieces, on various dates between the 29 ^th March, 1971 and the 9 ^th March, 1987.

5 ii The applicant has been deprived of his right to a trial in respect of the said alleged offences with due expedition because of the lapse of time between the alleged commission of the offences and the trial.

6 iii The lapse of time since the alleged commission of the offences is such as to give to an unavoidable and incurable presumption of prejudice against the applicant.

7 iv The State, and in particular, the Garda and prosecuting authorities, has been guilty of inordinate and inexcusable delay in the prosecution of the alleged offences. The first statement of complaint giving rise to the proceedings was made by T.M. on the 7 ^th day of September, 1996, whereas the applicant was not returned for trial until the 20 ^th day of June, 2000.

8 3. On the 14 ^th November, 2003, the High Court ordered that the respondent be restrained from further prosecuting the applicant in the proceedings relating to the charges pertaining to M.K., and the application in relation to the balance of the motion was refused. It was ordered that the applicant pay the respondent half of the costs of the proceedings when taxed and ascertained.

9 Ó Caoimh J. dealt in detail with the reasons for the delay and the psychologist's reports. The learned trial judge considered the facts in relation to each of the complainants and the reasons for their delay in making a complaint. He found that in each case, except M.K., that there was an appropriate reason for their delay.

10 The learned trial judge then considered the issue of whether there was a real or serious risk of an unfair trial and found that such a risk did not exist.

11 4. The applicant has appealed against the said judgment and filed fourteen grounds of appeal, as follows: that the learned High Court judge erred in:-

12 (i) holding that the applicant had not been deprived of his right to a trial with due expedition by reason of the lapse of time in the institution and prosecution of the said criminal proceedings;

13 (ii) holding that the applicant had not suffered and would not suffer serious and irreversible prejudice in the defence of the said proceedings by reason of the said lapse of time;

14 (iii) failing to hold that the applicant had been denied his right to a fair trial in respect of the said charges;

15 (iv) holding that the applicant had not been able to point to any clear case of prejudice in the context of defending himself at any trial for the charges preferred against him;

16 (v) finding that the complainants in respect of the said charges and each of them had suffered any psychological disorder on the evidence adduced capable of explaining the inordinate delay in making their complaints;

17 (vi) finding that factors of low self esteem in any or all of the said complaints was an inhibitory factor preventing any or all of the said complainants from coming forward with a complaint;

18 (vii) finding that there was any psychological basis sufficient on an objective basis to explain or justify the delay in making the said complaints;

19 (viii) in respect of the complainant E.K., coming to the conclusion that the delay on her part in reporting the alleged offences was reasonable and understandable, notwithstanding the absence of any evidence by way of psychological opinion or conclusion that the alleged offences had had either a significant psychological impact on the said complainant or had contributed to the delay in reporting the alleged offences;

20 (ix) failing to engage in any or any proper or critical evaluation of the evidence in the action, including the Affidavits sworn and filed in Court and the oral evidence of Mr. Paul Gilligan, Clinical Psychologist;

21 (x) failing to find that the psychological evaluation of Mr. Gilligan in respect of complainants and each of them was inadequate, cursory and did not address the appropriate criteria relevant to the issues before the Court;

22 (xi) failing to find that the real reason for the said complainants delay in making their complaints was not due to any psychological factors attributable to the alleged conduct of the applicant but was due to a variety of other factors as set out in the report of Mr. Gilligan including but not limited to circumstances within the complainants own family;

23 (xii) failing to take into account all of the circumstances relating to the making of the said complaints including the particular circumstances of the complainants own family and the prior unsubstantiated allegation against the application by another member of that family;

24 (xiii) failing to take into account the effects of the delay in reporting and subsequent prosecution upon the health (both psychological and physical) of the applicant;

25 (xiv) such further or other grounds as may be advanced at the hearing of the appeal.

26 5. The respondent brought a cross appeal in relation to the order prohibiting the proceedings in respect of M.K.

27 6. This case commenced before this Court (Denham J., Hardiman J., McCracken J.) on 26 ^th January, 2006, but legal argument was not concluded on that day. The matter was adjourned to be resumed on another day. However, the jurisprudence on delay in cases where sexual abuse of children is alleged was under review by this Court in another case and this case (as were others) was adjourned pending the outcome of that review.

28 7. In H. v. Director of Public Prosecutions (Unreported, Supreme Court, 31 ^st July, 2006) this Court considered the jurisprudence which has developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the complaint and the preferment of charges against the accused. The Court held that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making a complaint. It was stated that the issue for the court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court did not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial. The test to be applied was stated to be:

"The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case."

29 8. This case was relisted before the Court on 12 ^th October, 2006. Written submissions were received and oral submissions made on behalf of the applicant and the respondent.

30 Mr. Michael Counihan, S.C., counsel for the applicant, submitted that this was an exceptional case to which H. v. Director of Public Prosecutions (Unreported. Supreme Court, 31 ^st July, 2006) does not apply. The principle grounds of appeal identified were:

31 (a) The finding by the trial judge that in respect of four out of the five complainants there was an adequate explanation of the delay in coming...