J. O'C. v DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.,Mr. Justice Francis D Murphy,Hardiman J.
• Judgment Date: 19 May 2000
• Neutral Citation: [2000] IESC 58
• Court: Supreme Court
• Docket Number: [S.C. Nos. 349 and 351 of 1998]
• Date: 19 May 2000

O'C (J) v. DPP

BETWEEN:

J. O'C.

Respondent/Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant/Respondent

[2000] IESC 58

Keane C.J.

Denham J.

Murphy J.

Barron J.

Hardiman J.

349 & 351/98

THE SUPREME COURT

Synopsis

Criminal Law

Criminal; delay; sexual offences; fair trial; due course of law; presumption of innocence; applicant had been charged with a number of counts of indecent assault between 1974 and 1978; applicant had sought and obtained in High Court order of prohibition restraining continuance of proceedings against him; it had been held that alleged victim's delay in reporting case had been caused directly or indirectly by actions of applicant, but that effect of delay would result in applicant being deprived of a fair trial; respondent seeks to appeal against finding that delay would result in applicant being deprived of a fair trial; applicant on cross-appeal seeks to challenge finding that alleged victim's delay in reporting case had been caused directly or indirectly by actions of applicant; whether mere lapse of time is of itself a bar to a prosecution; whether delay has been such that, with regard to nature of charges, a trial should not be allowed to proceed; whether, as a matter of probability, assuming the complaint be truthful, delay in making it had been referable to actions of applicant; whether degree of prejudice owing to delay suffered by applicant in instant case had been such as to give rise to a real and serious risk of an unfair trial; whether, in the absence of delay on part of those responsible for investigation and prosecution of crime, onus of defendant to prove affirmatively that fair trial is impossible; whether in the context of these specific civil proceedings, the court must proceed on assumption that allegations are well founded and, to that extent only, presumption of innocence does not apply; whether, where complaint is of a repeated pattern of sexual abuse stretching over a relatively lengthy period, lack of detail as to dates on which abuse had allegedly occurred unduly prejudices applicant's ability to defend himself; whether applicants state of health will unduly affect his ability to defend himself; whether absence of applicant's deceased wife as a witness unduly prejudices his ability to defend himself; Art. 38.1 of the Constitution.

Held: Appeal allowed; cross-appeal allowed; order substituted refusing application for an order of prohibition.

O'C (J) v. D.P.P. - Supreme Court: Keane C.J. Denham J., Murphy J., Barron J*., Hardiman J.* (*dissenting) - 19/05/2000

- [2000] 3 IR 478

The applicant had applied by way of judicial review for an order of prohibition to prohibit the prosecution of the applicant in relation to certain offences. The applicant claimed that he was prejudiced in his defence of the proceedings. The delay in the prosecution of the alleged offences case amounted to a period of 23 years. Morris P in the High Court acceded to the application and granted the order sought. The Director of Public Prosecutions appealed. The Supreme Court, Keane CJ, Murphy J delivering judgments (Hardiman J delivering a dissenting judgment), held that it had not been established that there was a real and serious risk that the applicant would suffer an unfair trial. The appeal would be allowed and the order of prohibition would be set aside. Hardiman J delivered a dissenting judgment with which Barron J agreed.

1 19th day of May 2000byKeane C.J.

Keane C.J.

2 The applicant is a retired member of an Garda Siochána, now aged 69, who has been charged with 16 counts of indecent assault of C.O'S over a period of time between 20th October 1947 and the 19th October 1978. C.O'S was at the time of the alleged offences a girl aged between 10 and 13 years of age. Her father is a retired sergeant of An GardaSiochána who was a next door neighbour of the applicant. Both her parents were said by her to be very friendly with the applicant.

3 This case is one of a number which have come before the High Court and the Supreme Court in recent times in which persons charged with offences of this naturehave sought orders of prohibition restraining the continuance of the proceedings against them on the ground that, having regard to the lapse of time since the offences are alleged to have been committed, it would be difficult or impossible for them to be afforded a trial in due course of law. In the present case, the President of the High Court acceded to the application and from his judgment and order an appeal has now been brought to this court.

4 The statement of the evidence to be given by C.O'S contained in the book of documents served on the applicant pursuant to s. 6(1)(d) of the Criminal Procedure Act, 1967is as follows:

"I am 31 years old, single and living at the above address. I am employed as a secretary in [firm named]. My father, M. is a retired sergeant in An Garda Siochána. When I was about 5 or 6 years old, I moved from B. to S. My father and four other Gardaí built a number of houses beside each other on [B] Road. My next door neighbour was Garda J.O'C., No. 6 B. Road. We lived at No. 4. J.O'C. is now retired. There were 5 children in my family. I had one sister M. (aged 35 years) and three brothers, D. (36 years), P. (22 years). My other brother N. died 4 years ago in a traffic accident. He would have been 33 years old now. My parents were very friendly with Garda J.O'C. and his wife M. My mother used to visit M. regularly and I was often in their house. I used to play with the O'C children, one, who was 2 years older than me and one who was about 2 years younger than me. When I was about 9 or 10 years old Mr. O'C. started to molest me. It started when I was in 5th Class in National School. Mr. O'C always tickled me and played with me and I liked him. I cannot remember the first time he molested but be he used to bring me into his garage and put his hand up my skirt and rubbed my chest. He then used to put his hand down my pants and touched my vagina. He used to rub himself up against my back. I didn't know what he was doing but I could feel his penis against me and it was hard. He did this about once a month for years until I was 14 or 15 years old. He told me never to tell anyone what he was doing or I would be put in jail or sent away for being bad. As I grew older he used to comment that my breasts were growing and he used to comment on my public hair when it started to grow. He used to make crude remarks about it being spiky. He always started off playing a game and then he would start rubbing and feeling me. He always stuck his finger into my vagina. This used to hurt me. This always happened in the Garage. I can remember when I was about 12 years old, I was in his house. He was by himself. He took me into the sittingroom. He lay down on the couch and pulled me onto it with him. He kissed me on the neck. He took down my trousers and pants and started feeling me. He took out his penis and I could see it. He started rubbing it against my bum. He didn't enter me. I don't know if he ejaculated. This went on for about 10 minutes but I can't be sure. He continued to molest me on a regular basis. I remember when I was thirteen, he took me into his Garage again and put his finger into finger into my vagina. That night I got my first period and I thought I was bleeding because of what he had done. I remember when I started wearing a bra, he used to pull it up at the front to feel my breasts. I never told anybody what he was doing. When I was 14 or15 years old, I knew that what he was doing was wrong. I avoided him and ran off if I saw him coming near me. As the years went on he never said anything to me but he always gave me a look as if he was sneering at me. In 1985 when I was 21 years old, my family moved back to B. I have seen J.O'C a few times since then but I have never spoken to him except to sympathise with him when his wife died in 1993. As a teenager I became very disruptive at home. I started to drink a lot when I was 17 years old. I found it very hard to have a relationship with fellows and I have never really had a proper relationship with a man. I blame this on what J.O'C did to me. About six months ago I took a lot of drink and overdosed on 40 anti-depressant tablets. My brother, P. found me the next morning and I was taken to Hospital. I was placed on a life-support machine for a few hours. I have received counselling and during the counselling, I told the Counsellor what J.O'C did to me when I was young. The first time I told anybody what had happened was when I was 24 years old. I returned home from America after working there for 3 years and I told my mother. She was very upset. I later told all my family and my sister."

5 I was sexually assaulted by J.O'C approximately 40 or 50 times over the years 1974 to 1979 or 1980.

6 In answer to your question why didn't I report the abuse earlier I can only say that Mr. J.O'C was a neighbour and friend of my parents and for many years I felt I was to blame and was filled with shame and anguish. Through counselling I realised that the abuse was not my fault and that the actual damage it had caused me had been destructive to me in later life. Thechild living next door to Mr. O'C was turning 10 or 11 years old at the time I reported the abuse, and as my conscience could not leave this matter rest, I felt I had to protect this child from him. I feel I am now a much stronger person and looking back with hindsight realise that I should have reported him years ago but unfortunately the effects that the abuser holds on the "child within" even after all this time still sends a shiver down my spine."

7 The applicant was interviewed by the Gardaí on 17th November 1996 and denied the allegations. In his grounding affidavit in these proceedings, he says that his wife died on 12th March 1993 and that if she were alive she would have been able to...