J.T. v The Director of Public Prosecutions
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 07 November 2023 |
| Neutral Citation | [2023] IEHC 724 |
| Court | High Court |
| Docket Number | Record No. 2021/ 1023 JR |
[2023] IEHC 724
Record No. 2021/ 1023 JR
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered on 7 th day of November 2023.
. The applicant was born in Q1 of 1952. He is currently 71 years of age. He stands charged with two counts of indecent assault contrary to common law, against the complainant, alleged to have occurred between 23 rd September 1974 and 23 rd September 1976.
. The complainant was born in Q2 of 1962. At the time of the alleged assaults, he was between the ages of 12 years and 14 years. He was a member of a soccer team in a club in Dublin. The applicant was the coach of the team.
. The first assault is alleged to have occurred when the applicant was treating the complainant for a groin strain in the building that was used by the team as a clubhouse. It is alleged that while administering treatment to the complainant, the applicant put his hand inside the complainant's underpants and masturbated him. The second assault is alleged to have occurred when the team had gone on a tour to Co. Kerry. It is alleged that complainant and other boys were sleeping in a caravan. It is alleged that the applicant and the complainant were sharing a sofa bed in the caravan, in a room in which there were other boys present. It is alleged that during the night, the applicant rubbed his penis against the complainant's bottom. It is alleged that that assault ceased, when the complainant sat up in bed and shouted “stop.”
. In these proceedings, the applicant seeks an order of prohibition in respect of his trial, which is due to take place in the Circuit Criminal Court on 7 th May 2024. In summary, the applicant submits that due to the delay part of the complainant in making his complaint to the gardaí in 2017, coupled with prosecutorial delay thereafter, which resulted in the applicant not being charged until 9 th June 2021; having regard to the fact that he is of advanced years; is in poor health; and that relevant witnesses and documents are no longer available; it is not possible for him to obtain a fair trial at this remove.
. As the applicant has alleged that there was significant prosecutorial delay in this case, it will be necessary to set out the relevant chronology of events in some detail.
. An account of the history of the garda investigation was set out in the affidavit sworn by D/Garda Bambrick on 5 th May 2022 in the following terms: As already noted, the events giving rise to this prosecution are alleged to have occurred between 23 rd September 1974 and 23 rd September 1976. On 31 st May 2017, an initial complaint was made by the complainant to D/Garda Brady at a Garda station in Dublin. On 26 th June 2017, the complainant made a statement of complaint to the gardaí.
. On 13 th October 2017, the first witness statement was obtained by D/Garda Brady. Between 13 th October 2017 and 28 th November 2017, another potential witness was approached in relation to giving a statement, but was unable to assist the investigation. D/Garda Brady attempted to obtain records from the soccer club, but these were not available. On 28 th November 2017, a further witness statement was obtained by D/Garda Brady.
. On 7 th January 2018, D/Garda Brady made enquiries with the relevant soccer authorities in relation to obtaining records from the soccer club; however, no records were available. On 7 th March 2018, a further witness statement was obtained by D/Garda Brady. A further witness statement was obtained by him on 29 th March 2018.
. The investigating garda also approached another potential witness in relation to giving a statement, but the witness stated that he was unable to assist the investigation. In May 2018, the Garda approached a further potential witness, but he was likewise unable to assist the investigation.
. In June 2018, D/Garda Brady transferred to another unit; whereupon D/Garda Brennan took over the investigation. In early 2019, D/Garda Brennan was transferred to a different unit; thereafter, D/Garda Bambrick was appointed as the investigating officer.
. Between early 2019 and July 2019, D/Garda Bambrick stated that he made a number of enquiries in respect of witnesses, whom he hoped might be able to assist the investigation. He also stated that at that time, the gardaí at Mountjoy Garda station were heavily involved in murder investigations arising from the Hutch/Kinahan feud; he outlined the relevant murder investigations in his affidavit.
. In June/July 2019, D/Garda Bambrick spoke with two potential witnesses; who were not able to assist the investigation. He stated that he also spoke to two further potential witnesses at that time, but he did not have exact dates in relation to those conversations.
. In July 2019, D/Garda Bambrick attended at a caravan park in Co. Meath, which was the listed address for the applicant. He was informed that the applicant was no longer residing there. In August 2019, D/Garda Bambrick attended at a further address in Co. Meath, where he was informed that the applicant was not residing there any longer and was possibly resident in the UK.
. In his affidavit, D/Garda Bambrick stated that between August and December 2019, he attempted to ascertain where the applicant was residing. He stated that he obtained information in December 2019, that the applicant was in fact residing at the house in Co. Meath, that he had visited the previous August.
. In June 2020, D/Garda Bambrick spoke with the applicant by telephone. He invited the applicant to attend at the Garda station for the purpose of conducting an interview with him. An arrangement was made to meet the applicant at the Garda station on 16 th June 2020. On 12 th June 2020, the applicant contacted D/Garda Bambrick and informed him that he could not attend the appointment scheduled for 16 th June 2020; the appointment was rearranged for 20 th June 2020.
. On 19 th June 2020, the applicant's solicitor sent an email to the D/Garda Bambrick, to inform him that he had been instructed in the matter. The Garda responded on the following day by email, outlining the nature of the investigation. The applicant's solicitor indicated that he required time to speak with his client and the meeting, which had been arranged for 20 th June 2020, was cancelled. On 23 rd June 2020, the applicant's solicitor contacted D/Garda Bambrick and informed him that he was due to meet the applicant on 1 st July 2020. On 2 nd July 2020, the applicant's solicitor informed the Garda that the applicant was not going to attend at the Garda station and was not prepared to give a voluntary statement.
. On 10 th November 2020, D/Garda Bambrick took an additional statement from the complainant, wherein he gave permission to the gardaí to access his medical records. On 11 th November 2020, D/Garda Bambrick contacted the Rape Crisis Centre to request any records that they had relating to the complainant.
. On 14 th March 2021, D/Garda Bambrick completed the investigation file and submitted same to D/Sgt O'Sullivan for recommendations. Between 15 th February 2021 and 4 th April 2021, D/Garda Bambrick made numerous enquiries with the Courts Service to ascertain the prior convictions of the applicant; as the PULSE system contained no records in respect of same.
. On 6 th April 2021, the Garda file was submitted to the respondent for directions. On 30 th May 2021, the respondent directed a prosecution. On 31 st May 2021, D/Garda Bambrick made contact with the applicant's solicitor to arrange to meet the applicant for the purpose of arrest and charge.
. On 9 th June 2021, the applicant was arrested and charged by appointment. On 13 th September 2021, the applicant was returned for trial to Dublin Circuit Criminal Court. The trial has been fixed to commence on 7 th May 2024.
. On behalf of the applicant, Mr McGillicuddy SC, submitted that while the applicant was not making the case that he had suffered any specific prejudice due to delay in the prosecution of the matter, which would be sufficient to prevent him obtaining a fair trial; it was submitted that he had suffered a significant prejudice, which, coupled with other relevant factors in the case, meant that cumulatively, he would be unable to obtain a fair trial such that it was appropriate for this court to make an order prohibiting the further prosecution of the matter.
. It was submitted that the applicant had been prejudiced due to the significant delay on the part of the complainant in making his first statement to the gardaí in May 2017. It was submitted that where there had been delay by a complainant in making allegations of historical sex abuse, there was a particular burden on the investigating gardaí to proceed with their investigation in a timely manner. It was submitted that in this case, there had been significant prosecutorial delay on the part of the gardaí investigating the allegations made by the complainant in his statement to them and in submitting a file to the DPP for directions.
. It was submitted that a period of almost 4 years had elapsed between the date of the initial statement by the complainant to the gardaí in May 2017, and the charging of the applicant with the offences on 9 th June 2021. It was submitted that within that four-year period, there had been blameworthy delay on the part of the gardaí. It was submitted that the complaint made by the complainant had not given rise to a particularly complex investigation. At the end of the day, the file that was sent to the respondent at the conclusion of the Garda investigation, had only contained a small number of witness statements, as follows: two statements from the complainant and two statements from two other men, who had been named in...
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