J (B) v DPP

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Hardiman,Mrs Justice McGuinness
Judgment Date19 Dec 2003
Neutral Citation[2003] IESC 69

[2003] IESC 69

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

McCracken J.

77/02 & 190/03
J (B) v. DPP

BETWEEN

J.
Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent/Appellant
Abstract:

Judicial review - Delay - Prejudice - Trial in due course of law - Sexual offences - Whether the delay in prosecuting the case against the applicant was sufficient to amount to a real risk that the applicant would not receive a fair trial.

Facts: The applicant was first arrested on 29 September, 1997 and was detained pursuant to section 4 of the Criminal Justice Act, 1984 and was questioned about offences alleged by one C.M. However no charges were preferred against the applicant on that date. The applicant was subsequently arrested on 16 October, 1998 on suspicion of having committed the offence of unlawful carnal knowledge contrary to the Criminal Law (Amendment) Act, 1935, against C.M. The applicant was charged with a number of offences of a sexual nature alleged to have taken place between 1 January, 1979 and 30 June, 1983 against C.M. The applicant was admitted to bail on his own bond and remanded to appear before Bray District Court on 27 November, 1998. The matter was adjourned from time to time and on 19 February, 1999 the charge sheets were amended by the District Court by deleting certain words appearing therein. It subsequently became apparent to the Gardai investigating the matter that the rape charges had not been preferred against the applicant by reason of an unfortunate omission. Accordingly, on 19 November, 1999 the charge sheets were withdrawn and the applicant was arrested on that same date for the rape, unlawful carnal knowledge and indecent assault of C.M. The applicant was charged with eighteen counts of rape, eleven counts of unlawful carnal knowledge and nineteen counts of indecent assault against C.M. at various dates between January, 1979 and July, 1983 as set out in Charge Sheets 55-102 of 1999 inclusive.

On 21 February, 2000 the applicant was granted leave by Smyth J. for the relief of an injunction restraining the respondent from proceeding with the aforementioned criminal prosecution pending at the District Court in the District Court area of Bray, District No. 16, entitled the Director of Public Prosecutions v. B.J. The applicant was given leave on the grounds that the delay in the institution of the proceedings prejudiced him, was unfair and unjust and had violated his right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution. The second ground was that there had been an unjustifiable delay by the prosecution authorities in the preparation, initiation and prosecution of the proceedings against the applicant which was unfair and unjust to him and had thereby violated his constitutional right to a criminal trial in due course of law. The applicant stated that in late 1991 he attended the Garda Station in order to discuss a complaint made by one S.H. to the effect that she was being harassed by him. The applicant submitted that during the course of an interview with Sergeant Farrell, he was asked about C.M. He further stated that Sergeant Farrell informed him by telephone, just before Christmas of 1991 that no charges were to be preferred against him. The applicant submitted that he was seriously disadvantaged in not having sight of the statements, documents and memoranda prepared in connection with the complaint(s) made in 1991. Furthermore, he stated that a number of witnesses who would have been beneficial to his defence had died between the date of the alleged offences and the time of the swearing of the affidavit in support of the application by him.

A statement of opposition was filed on behalf of the D.P.P. in which it was pleaded that the applicant had not been prejudiced by the alleged delay in the bringing of the charges against him. It was also submitted that the factual basis for the charges currently laid against the applicant were disclosed to the prosecuting authorities for the first time in 1997. An affidavit was sworn by the complainant, C.M. which detailed the allegations. The complainant stated that subsequent to telephoning the Domestic Violence and Sexual Assault Unit of An Garda Siochana on 11 August, 1997, she made a statement to the Guards on 12 September, 1997. An affidavit was submitted dealing with the delay by the complainant in reporting the alleged offences by Mr. Domhnall Casey, Psychotherapist who had assessed the complainant on 20 April 2000.

The applicant submitted that the appropriate test in considering whether or not the criminal proceedings should be prohibited was set out in

P.C. v. Director of Public Prosecutions

[1999] 2 I.R. 25 at p. 68 in the judgment of Keane J. and that the overriding consideration of the court was to ascertain whether or not the applicant could obtain a fair trial. It was submitted on behalf of the applicant that the delay was prima facie excessive and was not brought about by any cause attributable to the applicant himself and accordingly he was entitled to the relief sought as after such an elapse of time, prejudice necessarily arose. The applicant submitted that there were no alleged circumstances which rendered explicable, the inaction of the alleged victim from the time of the alleged offences until the initiation of the prosecution. It was also submitted that the psychological evidence was inadequate.

Held by O Caoimh J. in refusing the application:

1. That the applicable law was as set out in

P.C. v DPP

. Due to the passage of time between the date of the alleged commission of the offences and the date when the applicant was charged with the offences, the applicant had established a prima facie case calling for an explanation on the part of the respondent for the delay.

2. That the evidence of Mr Casey established that the delay in reporting the alleged instances of child sexual abuse was reasonable in the instant case. The evidence of Mr. Casey indicated that the effect on the complainant of the alleged abuse was the factor which contributed to the delay in her making her complaint, which she first made in 1997 to An Garda Siochana.

3. That the Garda's version of events concerning the issues discussed in 1991 was probably more true than the applicant's version. The Garda's evidence was that there was no report of the incident in question made by C.M. prior to 1997 and accordingly same could not have been mentioned to the applicant in 1991. The complainant herself gave unchallenged evidence that the first person she complained to was her boyfriend in 1997.

4. That the delay on the part of the complainant in making a complaint to the Gardai was clearly explained by her and, as was indicated by the psychologist, was reasonable in the circumstances. Accordingly, the applicant was required to bear responsibility for that period of delay.

5. That the prosecutorial delay essentially related to the confusion on the part of the prosecuting Garda regarding the directions that had issued from the DPP and his failure to include the rape charges on the charge sheet. The relevant period of delay amounted to at most twelve months. However, that delay was explained and it was clear that it had not resulted from any general lack of attention to furthering the prosecution in the case. The delay was not such as to render the applicant's trial unfair or to entitle him to the relief sought. Evidence of gross or inordinate delay does not of itself require the court to intervene and stop a trial proceeding

McKenna v Presiding Jude of the Dublin Circuit Court and DPP (High Court, Kelly J., 14 January, 2000) affirmed by the Supreme Court, 7 December, 2000 followed.

6. That the applicant was not prejudiced by the absence of certain witnesses to give evidence. The involvement of the persons concerned can at best have been peripheral in the overall picture, insofar as the abuse alleged was alleged to have taken place in private. This was not a case of an isolated event where crucial evidence was absent in relation to same. The allegation was one of continual sexual abuse perpetrated on the complainant when she was a child.

7. That as a general probability 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. However, the judge conducting the trial can give appropriate directions to a jury such as to minimise any limited prejudice that may exist in that regard. Any prejudice that may have been occasioned by reason of the passage of time, was not such as to give rise to a real of substantial risk that the applicant could not obtain a fair trial in the circumstances.

Reporter: L.O'S.

1

Mr. Justice Hardimandelivered on the 19th day of December,2003.

2

This is the Director's appeal against the order of the High Court madethe 12 th February, 2002 whereby McKechnie J. granted aninjunction restraining the Director from taking any further steps in theprosecution of the applicant on three specified charges.

Factual Background and Conflicts.
3

On the 3 rd March, 2000 the applicant was arrested and chargedwith three offences. One of these alleged indecent assault against oneHMcC on a date unknown in September, 1989. Another alleged a furtheroffence of indecent assault on a date unknown in October, 1989. Thethird alleged that, on the same date, the applicant had raped the saidHMcC.

4

The applicant's claim for relief was grounded on quite a detailedaffidavit in which he made a number of very specific allegations. Hesaid that in May or June of 1990 a named detective sergeant fromGreystones Garda Station telephoned him and asked Mm to call to thestation. When he did so, he was asked whether he knew HMcC and he...

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