J.J.P. v DPP
|Mr. Justice Eagar
|19 January 2015
| IEHC 22
|19 January 2015
 IEHC 22
THE HIGH COURT
Judicial Review – Order of Prohibition – Relief – Prosecutorial Delay – Sexual Assault Allegations – Prejudice – Practice and Procedures – Evidence – Admission of Guilt – Inordinate Delay – Missing Statements
Facts: This case concerned an application by the applicant by way of judicial review for an order of prohibition prohibiting the respondent prosecuting the Applicant on counts 1 to 64 in Bill of Indictment Number TYP0028 of 2013 before Tipperary Circuit Criminal Court for alleged sexual assault offences. The grounds upon which this relief was sought can be summarised under the following headings: (1) The blameworthy or inexcusable or inordinate prosecutorial delay in the prosecution of the Applicant; (2) The second complainant had made a complaint to the Garda Siochana in 2001 that the Applicant had assaulted her in 2001 and the Garda file in relation to the investigation of this complainant had been lost. No prosecution was taken on foot of that complaint and there was a delay in excess of 12 years from the time when the second complainant made her original complaint.
Held by Justice Eagar in light of the applicable evidence, legislation and submissions that the application under consideration was made within the required time limits. Complaint was made of the complainant delay by each of the three complainants in respect of their Statements of Complaint in 2010. That was that in making the complaint in 2010 in relation to allegations relating back to the dates of the charges this was an inordinate delay. In determining whether the delay had resulted in prejudice to the applicant which could give rise to a real or serious risk of an unfair trial, it was reasoned that no wholly exceptional circumstances arose in the case whereby it would be unfair to put the Applicant on trial. Turning his attention to the Applicant"s complaint that his right to a fair trial had been irretrievably prejudiced on account of the failure on the part of the Respondent to maintain the original investigation file relating to that complainant in 2001, Justice Eagar found that the loss of the statement of complaint of the second complainant together with the responses of the questioning by the Applicant (at his first arrest) gave rise to a real or serious risk of an unfair trial as the statements made by that complainant together with the response made by the Applicant were not available to the defence for cross examination of the complainant. As the only complaint levelled by the Applicant in relation to the first complainant was that of the delay in her coming forward to make a Statement of Complaint, it was reasoned that that issue could not succeed on the part of the Applicant. With respects to the third complainant, there was deemed to be sufficient material available to provide for the proper cross examination by the Applicant of this complainant. Consequently, Justice Eagar determined that the Respondent would be prohibited from prosecuting the counts in the indictment 4 to 25 and he refused prohibition in relation to counts 1 to 3 and 26 to 64 in the indictment.
JUDGMENT of Mr. Justice Eagar delivered on the 19th day of January 2015
1. This is an application by the Applicant by way of Judicial Review for an order of prohibition prohibiting the Respondent from prosecuting the Applicant on counts 1 to 64 in Bill of Indictment Number TYP0028 of 2013 before Tipperary Circuit Criminal Court.
2. The grounds upon which this relief is sought can be summarised under the following headings.
i i. The blameworthy or inexcusable or inordinate prosecutorial delay in the prosecution of the Applicant
ii ii. The second complainant had made a complaint to the Garda Siochana in 2001 that the Applicant had assaulted her in 2001 and the Garda file in relation to the investigation of this complainant has been lost. No prosecution was taken on foot of that complaint and there was a delay in excess of 12 years from the time when the second complainant made her original complaint.
3. On the 13 th July 2010 the three complainants made complaints of sexual assault with regard to the alleged actions by the Applicant. The Applicant was arrested and interviewed on the 20 th April.
4. Counts 1 to 3 in this indictment refer to the first complainant alleging sexual assault on her between the 1 st September 2001 and the 30 th September 2005. Counts 4 to 25 refer to 22 counts of sexual assault between the 1 st April 1996 and the 31 st August 2001 relating to the second complainant and counts 26 to 64 relate to 39 counts of sexual assault on the third complainant between the 1 st October 1996 and the 30 th June 2006.
5. The affidavit of John Fitzgerald, Solicitor grounding the Statement of Grounds states that the Applicant entered into a relationship with the mother of the three complainants in 1994. The three complainants were respectively born on the 19 th May 1978 (first complainant), 1 st October 1984 (the second complainant) and 21 st September 1987 (the third complainant).
6. The Applicant had four children from a previous relationship, two girls and two boys. He and the mother of the complainants had two further children, both boys, between April 1996 and October 2002.
7. In August 2001 the second complainant left home and around that time made a complaint to An Garda Siochana that the Applicant had already sexually assaulted her. Garda Sergeant Frances Fitzgerald interviewed the third complainant and the Applicant was arrested and detained and interviewed. Certainly no charges were brought against the Applicant. All the documents relating to the Garda investigation appear to be missing save for a copy of the custody record. Neither the statement of complaint of the second named complainant nor the statement of the third named complainant or the interviews with the Applicant were available.
8. In July 2010 the three complainants made complaints to An Garda Siochana alleging numerous incidents of sexual assault by the Applicant. The Applicant was arrested and detained by An Garda Siochana on the 20 th April 2011. There were six interviews in the course of that detention. It is noteworthy that in the course of that detention there were certain admissions made by the Applicant in respect of sexual assaults committed on the third complainant from when she was 10 years of age.
9. The Applicant was charged with the offences in the indictment on the 5 th February 2013. The Book of Evidence was served on the 5 th March 2013 and on that date the Applicant was returned for trial to Nenagh Circuit Criminal Court.
10. On the 28 th January 2014 an application was made by counsel instructed by the Applicant's then solicitor for separate trials in respect of the three complainants. This was refused by the presiding judge, Teehan J.
11. On the 8 th October 2014 counsel for the Applicant instructed by the Applicant's then solicitor applied to have the charges prohibited from proceeding or for a direction of Teehan J directing the acquittal of the Applicant. The application was based on the missing evidence and also the delay. In the course of this application reference was made to detailed social worker notes of the Social Work Department in the Mid-Western Health Board for the periods from June 2001 to May 2003 relating to the welfare of the children living with the Applicant and the mother of the complainants and also the second complainant. These disclosed details of what the third complainant had said to social workers and to third parties however it appears from these notes that no complaint was made by the third complainant to An Garda Siochana although it is clear she made many complaints to social worker staff and others.
12. Counsel for the Applicant further indicated that the solicitors for the Applicant had sought details by way of disclosure of the arrest and detention of the Applicant in 2001 and that all that he received was the first page of the custody record relating the detention of the Applicant in 2001.
13. Counsel further indicated that the State Solicitor, Mr O'Brien, had indicated that the complaint was made to Thurles Garda Station in approximately August 2000 and that a Sergeant Frances Fitzgerald began a subsequent investigation and that no Garda investigation file had been located following searches at all the local Garda Stations and the offices of the Respondent. He also said that Sergeant Fitzgerald had been on long term illness and was now retired from An Garda Siochana.
14. Counsel for the Applicant further argued that the defence of the Applicant was prejudiced by the missing file. Further what was contained in the statement of the second complainant in the Book of Evidence appeared to contain longer and more serious incidents. He also referred that it was his instructions that this was the case. He also referred to the prejudice of not having a record of what was alleged to have happened in 2001 and that Superintendent Cogan who was the Superintendent in charge of the area was now deceased.
15. Counsel for the Respondent agreed with counsel for the Applicant in relation to the jurisdiction of the trial judge with regard to making a ruling. However he did state that it would not be appropriate or competent for...
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