J.F v DPP

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date16 November 2005
Neutral Citation[2005] IEHC 382
Docket NumberRecord Number: No. 66 JR/2002
CourtHigh Court
Date16 November 2005

[2005] IEHC 382

THE HIGH COURT

Record Number: No. 66 JR/2002
J.F v The Director of Public Prosecutions
Judicial Review

Between:

JF
Applicant

And

The Director of Public Prosecutions
Respondent
Abstract:

Criminal law - Delay - Sexual offences - Judicial review - Delay in coming forward with complaint - Complainant’s age - Whether applicant’s right to expeditious trial infringed

This was an application for an injunction restraining the respondent from taking any further step against the applicant in relation to a trial on two counts of indecent assault. The alleged assault occurred in 1988 when the complainant was almost 18 years of age.

Held by Peart J. in granting the relief sought that the reasons put forward by the complainant for not coming forward with his complaint sooner were inadequate to justify the delay, given his age and circumstances generally. The applicant’s right to an expeditious trial had been infringed.

Reporter: R.W.

Judgment of
Mr Justice Michael Peart
1

This is an application by the applicant for an Order of Prohibition or injunction to restrain the respondent from taking any further step against him in relation to a trial on two counts of indecent assault arising from an alleged indecent assault upon the complainant on the 21st January 1988. The complainant was on that date a youth of almost 18 years of age. The respondent was, from September 1979 until August 1996 a curate in the parish where the complainant resided û a small rural town. The complaint to the Gardai, arising out of this one alleged incident, was not made by the complainant for a period of some twelve years and eight months after the date on which the incident is alleged to have occurred.

2

From the affidavit sworn in these proceedings by Mr Garrett Sheehan, the solicitor acting for the applicant, it appears that both the applicant and the complainant were present at a hotel where a wedding reception took place on the date of the alleged incident. It is alleged that the applicant bought some lager for the complainant at this reception even though he was still just under age at the time, and also that he gave him a lift home during the course of the night. It is alleged also that during the course of that journey the applicant caressed the complainant's thigh, and also that when they arrived at the complainant's parents” house, he stopped the car, got out and closed the gate, and that he then returned to the car, kissed the complainant, fondled him and forced him to perform oral sex on the applicant.

3

An additional important allegation, and one in particular which the applicant submits he is now prejudiced as to his ability to rebut same by virtue of the passage of time, is that after this alleged indecent incident in the car, he brought the complainant to a local public house in the town where he bought two more beers at the bar, and that it was from the back door of this public house that the complainant attempted to make his escape from the applicant's company, having told the applicant that he was going to the toilet, only to find, by the time he arrived around to the front door of the premises, that the applicant was waiting for him. It is alleged that thereafter the applicant drove the complainant home, and that he made threats to the complainant in order to prevent him disclosing what had happened. The applicant denies that he was in that public house at all that evening.

4

The complainant has sworn an affidavit in these proceedings upon which he has been cross-examined before me. He has stated on affidavit that he was frightened of the applicant on the occasion in question, and that he was afraid to tell anyone of the incident thereafter. He says also that he always tried to avoid meeting the applicant, and stopped going to Mass. He also says that whereas before this incident the applicant would call to his parents” house, this stopped following this alleged incident. The complainant has sworn that he felt ashamed after the incident, that he encountered difficulties sleeping, had difficulties concentrating in school and that his school work deteriorated as a result. He says that he failed his Leaving Certificate in due course, and later dropped out of a Technical College course during his Second Year, and that he began to drink heavily, had difficulties forming relationships with girls, had difficulties relating to friends generally and lost them, becoming something of a loner, as well as abusing alcohol, smoking cigarettes to excess, and gambling. In relation to the latter activity, he says that he ran up debts which took a long time to pay off. He blames all of this misfortune on the incident which is the subject of the charges brought against the applicant.

5

The complainant states in this affidavit also that his father died in 1993 and that this was a great blow to him, and also that he decided at that time that he would report this alleged incident to the Gardai. That would have been some five years after it had taken place. In fact, no complaint was made until September 2000. The complainant states that in due course the applicant left the parish, and that it was only then that he felt able to make the complaint. He goes on to state that in fact the applicant seemed to be in the town more often after he had left the parish than when he was actually based there, and that this made him feel worse.

6

However, the complainant says that at that point he wrote a letter to the applicant telling him that he was going to report the matter to the Gardai and that he was willing to publicise the matter in order to encourage others to come forward to complain also. He in fact wrote to Fr. Brian Darcy about these alleged complaints and his letter was published in that priest's column in the Sunday World on the 3rd December 2000. He has exhibited the relevant page from that newspaper.

7

The applicant, again through Mr Sheehan's affidavit, states that the letter written to him by the complainant, and which he later destroyed, contained a demand for money and also enclosed a bank lodgement slip. The complainant denies making any demand for money in that letter. The applicant says that he wrote a reply to that letter, but again that letter seems to have been destroyed by the complainant, and the applicant did not retain a copy of it. The complainant, in his cross-examination, stated that the reason he had destroyed the letter was that at that time he had not told his family about the alleged incident.

8

The applicant states also through Mr Sheehan that he received a second letter from the complainant demanding money and seeking assistance with getting a job, and again referring to the fact that he intended to go public about the alleged incident. The complainant during his cross-examination has denied writing any second letter. But there is another affidavit sworn by another priest who was a curate colleague of the applicant at the parish in question, and he has sworn that around September/October 1996 the applicant showed a letter to him, and that while he cannot recall the detail of the letter, he does recall that it was from a person in that parish and that it was a demand for money and that it related to some matter of a sexual nature.

9

The applicant has stated also through Mr Sheehan that there was no special relationship between him and the complainant's family beyond the normal relationship between a priest and his parishioners, and that he has had no contact besides the letters referred to with the complainant.

10

Mr Sheehan states that the applicant's ability to defend himself against the charges brought has been impaired by the passage of time, since his recollection of the events is no longer clear and that if the complaints had been brought forward sooner he might have been able to call evidence to refute the allegations made against him, and that in this regard an opportunity to explore a possible avenue of defence has been denied him unfairly.

Cross-examination of the complainant on his affidavit:
11

During his cross-examination, the complainant stated that he had started drinking to excess after the incident but before he had left school, mostly at the weekends. He had a part-time job at that time in his father's garage which was confined to putting petrol in customer's cars.

12

He also stated that he had commenced a motor mechanics course after school but that during second year he dropped out of that course. He blames that on a lack of concentration, which he in turn puts down to the incident complained of.

13

He says that he was still drinking to excess at this time and that his excessive drinking continued up to the year 2000. He was also gambling to excess on horses. He had an account in one bookies shop, where he was able to avail of credit. This habit also caused problems for him. His father died in 1993 and this was a big blow to him. His drinking and gambling also caused difficulties for him with his sister and mother. He also moved from job to job and could not settle. It appears that the family garage business had to be sold after his father's death in order to settle some outstanding matters with the Revenue Commissioners.

14

He was asked whether he put all his difficulties down to the one incident with the applicant and he said that he did, and that in 2000 he decided to write to him after the applicant had left the parish. When asked what was in the letter he stated that he told the applicant that he was then no longer afraid of him and that he was now going to get his life back on track and that the applicant would suffer for what he had done in the future. When asked whether he had indicated in the letter how the applicant might suffer, he stated that he had told him that he was then going to make a statement to the Gardai and that the applicant "would get justice in time". He stated however that he had not...

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