J.T. v DPP

CourtHigh Court
JudgeMr. Justice Hanna
Judgment Date15 June 2007
Neutral Citation[2007] IEHC 309
Date15 June 2007

[2007] IEHC 309


[No 774 JR/2005]
T (J) v DPP
J. T.



H v DPP UNREP SUPREME 31.7.2006 2006/27/5802 2006 IESC 55





B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 IESC 66

O'C (J) v DPP 2000 3 IR 480

M (P) v DPP 2006 2 ILRM 361

C (D) v DPP 2006 1 ILRM 348

W (A) v DPP UNREP KEARNS 23.11.2001 2001/24/6472



H (T) v DPP & JUDGE SMITHWICK 2006 3 IR 520 2006/27/5830 2006 IESC 48

BARKER v WINGO 1972 407 US 514


B (S) v DPP & JUDGE HARNETT UNREP SUPREME 21.12.2006 2006/5/852 2006 IESC 67



Right to fair trial - Sexual offences - Prohibition - Inordinate delay - Breach of constitutional rights - Breach of Convention rights - Investigative delay - Multiple complainants - Prosecutorial delay - Complainant delay - Prejudice - Effects on memory - Death of witnesses - Unavailability of documents - Media leaks - Stress and anxiety - Vilification - Risk of unfair trial - Constitution of Ireland 1937, articles 34, 38.1 and 40.3 - European Convention on Human Rights, article 8 - H v DPP [2006] IESC 55, (Unrep, SC, 31/7/2006) followed - JB v DPP [2006] IESC 66, (Unrep, SC, 29/11/2006), K(D) v DPP [2006] IESC 40, (Unrep, SC, 3/7/2006) and B(S) v DPP [2006] IESC 67, (Unrep, SC, 21/12/2006) applied; PM v DPP [2006] IESC 22, [2006] 2 ILRM 361, DC v DPP [2005] IESC 77, [2006] 1 ILRM 348, AW v DPP (Unrep, Kearns J, 23/11/2001), Barry v Ireland (Case-18273/04) (Unrep, ECHR, 15/12/2005), H(T) v DPP [2006] IESC 48 (Unrep, SC, 25/7/2006) and Barker v Wingo [1972] 407 US 514 considered; OT (C) v DPP (Unrep, Smyth J, 26/7/2005) distinguished -Relief refused (2005/774JR - Hanna J - 15/6/2007) [2007] IEHC 309

T(J) v DPP

The applicant who was charged with 104 counts of indecent assault sought by way of judicial review an order prohibiting the prosecution of him in respect of those offences on the grounds of inordinate delay. Those charges relate to matters which allegedly occurred between 35 and 38 years ago. The applicant claimed that he was prejudiced by reason of the delay in prosecuting him, namely his memory and the memory of the complainants would be affected, two potential witnesses were deceased and potentially important documents were no longer available to him.

Held by Hanna J. in refusing the relief sought: That the excessive delay by the respondent in this case did not result in sufficient prejudice to outweigh the right of the public to have the charges against the applicant prosecuted. The applicant failed to establish, as a matter of probability, that he would be exposed to an unfair trial.

Reporter: L.O’S.


Mr. Justice Hanna delivered on the 15th day of June, 2007

Background Facts

The applicant in this case is a former Christian Brother who was born on 15 th April, 1942. He presently faces 104 charges of indecent assault, allegedly committed between September, 1969 and June, 1972. All of the complainants were students at National School. Three of the complainants were in fifth class between 1970 and 1971 when they were taught by the applicant. Eleven complainants were in fifth class between 1971 and 1972 and were also, they allege, taught by the applicant. One complainant was not taught by the applicant but alleges that he was indecently assaulted by the applicant on the school playing field. The applicant vehemently denies all of the charges. It goes without saying that these are charges of the most serious nature.


The applicant sought and obtained leave to bring these judicial review proceedings by order of McKechnie J. made on 18 th July, 2005.


The applicant seeks permanently to injunct the prosecution of the offences. This prosecution has been stayed pending the determination of this application. The applicant also seeks a declaration that he is entitled to a presumption of innocence and that it should be declared that there should never be an assumption that the allegations made by any of the complainants are true. I observe in passing that, of course, there is no assumption in law as to the truth of the allegations made against the applicant. For the purposes of this case, the applicant is a man who enjoys the presumption of innocence and who is facing extremely serious charges relating to matters which allegedly occurred between thirty five and thirty eight years ago.


The applicant complains of inordinate delay in the prosecution of this matter with consequential compromise of his right to a fair and expeditious trial.


According to Detective Garda Eamon Maloney, the officer in charge of the investigation of this case, and who gave evidence both oral and on affidavit, allegations were first made by an individual on 16 th July, 1998, involving not only the applicant but several others. In his oral testimony, Detective Garda Maloney did say that there had been an allegation some years earlier involving the applicant but this had not proceeded. In the course of his enquiries, the applicant was first spoken to by the gardaí in December, 1998 and on the 31 st December, 1998, specific allegations made by the individual were put to the applicant and a memorandum was made of this interview. The applicant denied the allegations.


Matters then proceeded with Detective Garda Maloney being of the view, that it was necessary to interview as many of the past pupils of the school as possible. The school records were stored in Wheatfield Prison and were, apparently, incomplete. As the investigation continued, further allegations came to light and each of these in turn was investigated. Complainants continued to emerge up to April, 2003. On the 15 th April, 2000 the applicant was again interviewed and another memorandum was taken of that interview. In September, 2001 Detective Garda Maloney again contacted the applicant in order to interview him again, but on that occasion was informed by the applicant's solicitor that he was too unwell to be interviewed. The applicant was next interviewed on the 24 th April, 2002, his solicitor having indicated he was then well enough.


The Detective Garda says that this was an intensive, complex and highly sensitive investigation that involved trawling through school archives and trying to locate former pupils, many of whom were not at the addresses as appeared on the school books and some of whom had moved abroad. By way of demonstration of the delicacy involved, one of the persons whose name turned up during the course of the investigation and who was a pupil at the school was also member of An Garda Síochána superior in rank to the investigating garda.


The number of gardaí involved in the investigation was kept to a minimum. Garda Maloney took all of the statements himself bar one. He collated all of the statements, bound them together and prepared a report. This documentation comprised the file that was transmitted to the respondent in April, 2003. There were approximately sixty statements. There was no forensic evidence gathered. Neither were there any psychiatric or medical reports on the file. From this file, some sixteen complainants made statements which appear on the book of evidence.


The Garda investigation concluded in April, 2003 and Garda Maloney then forwarded the file to the respondent. The file remained in the Director's office without further communication from that quarter until a request for further information was thence transmitted in September, 2004. No explanation for this period of silence was tendered by the respondent at the hearing. There is no dispute that Garda Maloney responded promptly to this request. In November, 2004 directions to charge the applicant were received and he was charged on 19 th January, 2005. The applicant was returned for trial on the 23 rd March, 2005.

Applicant's Complaints

The applicant complains that he has been subjected to gross and inordinate delay by the State authorities identifying two periods of time in this respect. Firstly, a period between the 16 th July, 1998 and April, 2003, almost five years, during which the investigation by An Garda Síochána was carried out. Secondly, that period between April, 2003 and September, 2004 during which the file was retained in the office of the Director of Public Prosecutions prior to the letter seeking further information.


When leave was first granted, the reasons for complainant delay were a material factor given that there were two strands of judicial opinion as to its materiality evident from the emerging jurisprudence involving what are colloquially referred to as sex delay cases. On that aspect, the law has been clarified by the Supreme Court. (See H. v. Director of Public Prosecutions [2006] I.E.S.C. 55) and we are no longer concerned to enquire into that issue.


The applicant complains that the delay in this case constitutes a breach of his constitutional rights:-


(a) To be tried on a criminal charge in due course of law,


(b) To be tried on a criminal charge with reasonable expedition,


(c) To fair procedures, and


(d) To fairness and justice


contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.


The applicant complains that both the gardaí's delay in investigating the case and the respondent's delay in commencing the criminal proceedings constitute an inordinate and inexcusable delay and have prejudiced him contrary to the said provisions of the Constitution. Further,...

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