J. A. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 30 March 2007
• Neutral Citation: [2007] IEHC 116
• Court: High Court
• Date: 30 March 2007

[2007] IEHC 116

THE HIGH COURT

[No. 1344 J.R./2005]

A (J) v DPP

JUDICIAL REVIEW

BETWEEN

J. A.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

M (P) v DPP 2006 2 ILRM 361 2006 IESC 22

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55

K (C) v DPP UNREP SUPREME 31.1/2007 2007 IESC 5

K (M) v GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

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

O'C (P) v DPP & PRESIDENT OF CIRCUIT COURT 2000 3 IR 87 2000 14 5259

M (P) v MALONE & DPP 2002 2 IR 560 2002 16 3761

Abstract:

Judicial review - Sex delay - Prohibition - Prejudice - Whether the prejudice claimed by the applicant was sufficient to prohibit his trial on seventeen counts of indecent assault.

The applicant sought an order of prohibition by way of judicial review restraining his trial on seventeen counts of indecent assault alleged to have occurred between 1984 and 1989. The first fifteen charges were alleged to have occurred at the Christian Brothers Monastery, were the applicant was employed and the complainant was a pupil. The first formal complaint against the applicant was not made until sometime between July and November in 2002 and the applicant was arrested in March 2004 and was subsequently returned for trial in September 2005. The applicant was accused with another man, who also brought judicial review proceedings and that judgment should be read in conjunction with this judgment. The applicant claimed that by reason of the delay in prosecuting him for the alleged offences he suffered numerous specific prejudices and submitted that the monastery premises was since demolished, a number of potential witnesses were no longer available, contemporaneous records regarding the complainants school attendance were no longer available and he suffered pre-trial stress and anxiety.

Held by MacMenamin J. in ordering prohibition only in relation to fifteen of the charges:

1. That important evidence on central issues in relation to the fifteen monastery charges was unavailable due to the fact that the monastery had been demolished, and the cook, a potential witness as to the use of the relevant rooms in the monastery was deceased. Having regard to the foregoing factors and also the multiplicity of the charges and the absence of any evidence regarding the use of the rooms or the routine of the monastery, it was clear that the jury would not obtain a fair mental or physical picture of the premises and context in which it was alleged the multiplicity of offences were allegedly committed. Furthermore, out of the fifteen charges, only two of them were described in detail and it was possible that the outcome of those two charges might have a determinative effect on the remaining charges, without any opportunity for distinction, identification or the establishment of independent supporting facts, on charges, capable of discrete evaluation in evidence and verdict. There was no charge or warning that a trial judge could administer to remedy that prejudice and consequently the trial in relation to those fifteen charges ought to be prohibited. In relation to the remaining two charges, the applicant failed to establish actual prejudice in relation to one charge and the prejudice established in relation to the other charge did not go to the core of a reasonably foreseeable line of defence.

2. That notwithstanding the presence of inordinate delay in the prosecution process, there was no causal connection between the elapse of time in the prosecution and investigation and any factor found to constitute actual prejudice.

Reporter: L.O’S.

1 JUDGMENT of the Honourable Mr. Justice John MacMenamin delivered the 30th day of March, 2007 .

2 This judgment is circulated in redacted form to avoid identification of the parties

3 This judgment was delivered on the same day as that in C. O'B. v. DPP [2005 No. 1242 J.R.] and should be read with reference to that decision.

Introduction

4 1. The decisions of the Supreme Court in the cases P.M. v. The Director of Public Prosecutions, The Supreme Court (Unreported, 5th April, 2006) and H. v The Director of Public Prosecutions, The Supreme Court (Unreported, 31st July, 2006), marked a further, and significant development in the evolution of the jurisprudence relating to delay in cases involving allegations of sexual assault on young persons. These decisions, and particularly the latter, have been followed by a number of others where the principles therein identified have been applied and certain nuances of interpretation identified. The effect of both decisions however, is a marked simplification of the process in which a court of first instance must now engage in cases of this type and a refinement of much of the earlier, and more complex case law.

5 2. Consequent on these more recent authorities one area of particular focus for the courts must now be to assess the degree of prejudice alleged by an applicant accused of offences in which there has been a considerable elapse of time. The simplified test which now to be applied was set out by Murray C.J. in H. v. The Director of Public Prosecutions:

6 "…whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case".

7 The Chief Justice added:

8 "Thus the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the complainant's complaints against the applicant no longer arises. The inquiry which should be made is whether the degree of prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon the circumstances of the case".

9 He concluded:-

10 "There is no doubt that difficulties arise in defending a case many years after an event. However, the courts may not legislate, the courts may not take a policy decision that after a stated number of years an offence may not be prosecuted. Also, as the legislature has not itself established a statute of limitations that itself may be viewed as a policy of the representatives of the People. Thus each case falls to considered on its own circumstances".

11 3. Kearns J. observed in the case of C.K. v. The Director of Public Prosecutions, Supreme Court (Unreported, 31st January, 2007) that the decision in H. v. The Director of Public of Prosecutions does not establish the prohibition:

"that if any degree of prejudice is established, that a trial must automatically be prohibited, given that there is ample judicial authority for the proposition that prejudice arising in certain circumstances may be overcome or countered by means of appropriate directions or warnings from the trial judge…"

12 4. Either the ability of an accused to defend proceedings has been compromised to such a degree as to be incapable of rectification by appropriate directions or warnings of the trial judge or it has not. The weighing of this, sometimes finely balanced scale, will depend on fact and circumstance. The court must assess whether an applicant has discharged the onus of establishing, on the balance of probabilities, that he has been prejudiced by the consequences of delay to the extent that there is a real risk of an unfair trial. If that question is answered affirmatively, an applicant must further satisfy the court that such prejudice is of a degree or type which cannot be overcome or countered by appropriate directions or warnings to the jury to be given by the trial judge. As was pointed out in the decision of the Supreme Court in C.K., only if an applicant succeeds in both respects is he entitled to an order of prohibition. These evidential burdens therefore are of particular importance and lie on the applicant.

13 5. One of the factors to which the court must have regard is whether, having regard to the elapse of time, "islands of fact" can be identified and provide an evidential framework within which these issue can be tried. As a corollary however, the fundamental consideration of the presumption of innocence cannot be misapplied so as to permit any and every circumstance which has changed as a consequence of elapse of time to be identified as one of "prejudice" to the accused. Prejudice must therefore be objective, specific and actual. "Possible" prejudice cannot be elided into "probability" in a process of false taxonomy by an applicant for judicial review. It will be insufficient also for an applicant to seek prohibition of the basis of mere hypothesis, imputation or a tendentious assertion as to evidence which an absent witness might, possibly, have given without establishing a substantive evidential basis or, a demonstrable very close linkage materiality to the allegations. Changed circumstances by reason of elapse of time do not, ipso facto constitute actual prejudice. Proximity or remoteness of apprehended prejudice to the alleged 'res gestae' are considerations.

14 6. There must be a threefold identification of (i) the degree of prejudice, (ii) in the context of the right to a fair trial, and (iii) the circumstances of the case. While it may be intellectually attractive to seek to categorise prejudice into a number of discrete subdivisions (primary, secondary, tertiary) varying in gravity, the process must be essentially a practical one reliant in particular on context and circumstance. It will not always be possible to draw a "bright line" of distinction. But one fundamental dividing line, clearly mandated, is whether the prejudice is irremediable or whether it may be dealt with by warnings and...