J. C. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 16 June 2016
• Neutral Citation: [2016] IECA 183
• Docket Number: Appeal No.: 2016/46
• Court: Court of Appeal (Ireland)
• Date: 16 June 2016

Sheehan J

Mahon J.

Edwards J.

J. C.

Appellant

- and -

The People at the suit of the Director of Public Prosecutions

Respondent

[2016] IECA 183

Appeal No.: 2016/46

THE COURT OF APPEAL

(CIVIL)

Judicial review – Right to fair trial – Indecent assault – Appellant seeking judicial review – Whether the facts averred in the affidavit of the appellant?s solicitor were sufficient to support a stateable ground

Facts: The appellant allegedly sexually assaulted the complainant, his sister, between 1st and 31st January 1972. The appellant accepted that only one incident of sexual abuse occurred, the subject of count 1. Counts 2 and 3 related to alleged separate sexual assaults, and were vehemently denied by the appellant. On 5th May 2015 the appellant wrote to the respondent, the DPP, seeking disclosure. Disclosure was initially made by the respondent on 18th September 2015, and again on 22nd December 2015. Included in this disclosure was a statement from the complainant?s mother who maintained that complaints that been made against the complainant?s father, which were denied, and that a doctor had examined the complainant in the early 1970?s contemporaneous with the complaint being made by her, and that she had attended with a psychiatrist in the presence of the complainant when further disclosures were made. It appeared to the appellant from what his mother had stated that she did not believe the complaints made by his sister to be valid. Furthermore, on the 6th January 2016 additional evidence was served in the form of a statement from the complainant?s other brother. It was contended by the appellant that it appears from this documentation that the complainant has a psychiatric history, has displayed attention seeking behaviour in the past, has made allegations against her father, and has shown psychotic systemology. It was also claimed by the appellant that proper disclosure in respect of a previous rape allegation involving another party was not made, nor had there been full disclosure in relation to a rape allegation by the complainant against her brother which, it was suggested, was proved to be false by a medical examination. On 26th January 2016, the appellant wrote again to the respondent requesting that she either confirm that full disclosure would be made within one week or alternatively provide a reason as to why it would not be made, and in circumstances where it cannot be made, seeking confirmation that a?nolle prosequi?would be entered in respect of the two contested counts on the indictment. No response was received to this correspondence within the time indicated. The appellant contended that because of deficiencies in disclosure on the part of the respondent he was prejudiced and hampered in his ability to defend himself, and was therefore being denied a fair trial, in contravention of his rights pursuant to Article 38.1 of the Constitution, and Article 6 of the ECHR. The grounds for relief for consideration by the High Court related to disclosure of documentation, on fairness of trial, the duty to seek out and preserve all potentially relevant material, delay, the right to an expeditious trial, a breach of the ECHR and other exceptional circumstances. The application for leave to apply for judicial review sought an order restraining the respondent from continuing to prosecute the appellant on counts 2 and 3. On 1st February 2016 the High Court refused leave to seek judicial review. The appellant appealed to the Court of Appeal against that order and judgment.

Held by Mahon J that on the basis of the grounds presented to the High Court, he was satisfied that the appellant satisfied the matters identified by Finlay CJ in G v DPP?[1994] 1 I.R. and which must be?prima facie?established before leave is granted. In particular, he was satisfied that: (i) the facts averred in the affidavit of the appellant?s solicitor would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review; and (ii) that on those facts an arguable case in law can be made that the appellant is entitled to the relief which he sought. Mahon J held that the grounds for leave, as originally relied on, were sufficient in themselves for leave to be granted irrespective of the extent to which they were subsequently added to.

Mahon J held that he would allow the appeal.

Appeal allowed.

Judgment of Mr. Justice Mahon delivered on the 16th day of June 2016

1 This is an appeal against the order and judgment of the High Court (Humphreys J.) dated the 1st February 2016 (and perfected on 2nd February 2016) refusing leave to seek judicial review in relation to the decision of the respondent to prosecute the appellant for the offence of indecently assaulting a female, E. C., contrary to Common Law.

2 The application for leave to apply for judicial review sought the following reliefs:-

(i) An order restraining the respondent herein from continuing to prosecute the applicant on Bill No. DUDP0375/2015, count numbers 2 and 3 of the Indictment filed in Dublin Circuit Court;

(ii) in furtherance to the relief sought in para. (i) above and without prejudice thereto, an injunction (including interim and/or interlocutory injunction pending the determination of these judicial review proceedings), restraining the respondent from prosecuting and/or further prosecuting the applicants upon count numbers 2 and 3 of the Indictment on Bill Number DUPDP0375/2015 filed in Dublin Circuit Court;

(iii) an interim order pursuant to O. 84, r. 20(8)(b) of the Rules of the Superior Courts staying the further prosecution of the appellant on Bill No. DUDP0375/2015 until the determination of these proceedings;

(iv) if necessary an order pursuant to O. 84, r. 21(3) of the Rules of the Superior Courts extending time for the bringing of the within judicial review proceedings;

(v) such further relief as to this honourable court deems fit;

(vi) costs.

3 In relation to the appellant's costs in the High Court, the learned High Court judge recommended their payment by the State, including two counsel, in accordance with the Legal Aid Scheme – Custody Issues.

Background facts

4 It is alleged that the appellant sexually assaulted his sister, E. C., between 1st January 1972 and 31st January 1972. The appellant accepts that one (and only one) incident of sexual abuse occurred, and this incident is the subject of count number 1 namely, that on a date unknown between 1st January 1972 and 31st December 1972, both dates inclusive, on an occasion other than referred to in charge number 15459364, at 55 Carrickmount Drive, Rathfarnham, Dublin 14 in said District Court Area of Dublin Metropolitan District, the appellant did indecently assault E. C. contrary to Common Law. The similarly worded counts numbered 2 and 3 relate to the alleged separate sexual assaults, and are vehemently denied by the appellant.

5 The case was set down for trial on 15th May 2015. On 18th June 2015, the appellant indicated his intention to plead guilty to the count admitted by him, count 1. The remaining two counts were then scheduled for trial on 9th February 2016.

6 On 5th May 2015 the appellant's solicitors wrote to the Respondent seeking disclosure for the first time. Disclosure was initially made by the Respondent on 18th September 2015, and again on 22nd December 2015. Included in this disclosure was a statement from the complainant's mother who maintained that complaints that been made against the complainant's father, which were denied, and that a doctor had examined the complainant in the early 1970's contemporaneous with the complaint being made by her, and that she had attended with a psychiatrist in the presence of the complainant when further disclosures were made. It appears to the appellant from what his mother had stated that she did not believe the complaints made by his sister to be valid. Furthermore, on the 6th January 2016 additional evidence was served in the form of a statement from the complainant's other brother.

7 It is contended by the complainant that it appears from this documentation that the complainant has a psychiatric history, has displayed attention seeking behaviour in the past, has made allegations against her father, and has shown psychotic systemology. These difficulties, the appellant contends, are compounded by the fact that the complainant is also suffering deficits associated with a brain haemorrhage and/or alcoholism.

8 It is also claimed by the appellant that proper disclosure in respect of a previous rape allegation involving another party was not made, nor has there been full disclosure in relation to a rape allegation by the complainant against her brother which, it is suggested, was proved to be false by a medical examination. It would further seem that the complainant has made allegations of a sexual nature against her father which seemingly were denied by him. The appellant's father is deceased since 2004.

9 It also would appear that disclosure to the complainant's former husband had allegedly been made by the complainant but no statement had been disclosed from him, or from the other persons she identified in her statement namely, Linda, Marie, Irene and Ester, all of whom are said by the complainant to be now deceased.

10 The appellant's solicitors sought additional disclosure of identifiable medical records on 13th January 2016. There has been no response from the respondent to this letter.

11 On 26th January 2016, the appellant's solicitors wrote again to the respondent requesting that she either confirm that full disclosure would be made within one week or alternatively provide a reason as to why it would not be made, and in circumstances where it cannot be made, seeking confirmation that a nolle prosequi...