CourtHigh Court
JudgeMs. Justice Baker
Judgment Date28 March 2017
Neutral Citation[2017] IEHC 213
Docket Number[2016 No. 64 JR]
Date28 March 2017

[2017] IEHC 213



Baker J.

[2016 No. 64 JR]


Crime & Sentencing – Indecent assault – Prosecution – Delay – Prejudice – Multiple addiction and psychiatric problems – Fair trial – Fitness to stand trial pre-hearings – Prohibition

Facts: The applicant sought an order for prohibition of his trial for two counts of indecent assault. The applicant claimed that he had suffered from irreversible cognitive impairment and thus, he was unable to engage further with his criminal trial. The applicant further submitted that the key witnesses of the alleged incident were not available and thus, he would not face a fair trial.

Ms. Justice Baker granted an order for prohibition of the trial. The Court held that the unavailability of the witnesses and the documentary evidence would not be a ground to make an order of prohibition. The Court observed that there must be some exceptional circumstances to suggest that the accused was an unfit person to stand the trial. The Court found that it was clear from the evidence of the medical experts that the applicant was no longer a fit person who could face the trial. The Court opined that due to the delay in the trial, old age and loss of memory, the applicant was not even in a position to instruct his solicitor concerning the presence or loss of the evidence. The Court held that the delay caused by the complainant's unwillingness to pursue the matter initially had caused the loss of ability of the applicant to fully defend himself and raised doubts over the complainant's credibility.

JUDGMENT of Ms. Justice Baker delivered on the 28th day of March, 2017.

The applicant seeks judicial review by way of prohibition to restrain the respondent from continuing to prosecute him on two counts of indecent assault. The applicant is has pleaded guilty in respect of one these following his arraignment on the three counts on the indictment on 18th June, 2015. The incidents are alleged to have occurred between 1st January, 1972 and 31st December, 1972.


The application raises an argument of delay, lost and unavailable evidence, and general unfairness.


The applicant was born in 1955, and is one of a family of eight children of whom the complainant was the only girl. There is an eight year age gap between the applicant and his sister. It is fair to say that the family was troubled, and both the complainant and the applicant have had difficult lives. The applicant has no permanent place of residence and in recent years has been accommodated in homeless hostel accommodation on a permanent or semi-permanent basis.


Both the applicant and complainant have multiple addiction and psychiatric problems.


The applicant claims general prejudice arising from delay and specific prejudice having regard to the non-availability of certain key witnesses, and relevant documents.


An argument is also made that the applicant is showing signs of an early dementing condition of an irreversible type, and he is unable to stand trial.


On 14th April, 2016 leave was granted by the Court of Appeal on appeal from an order of Humphreys J. of 1st February, 2016, in respect of all of the grounds set forth in the statement of amended grounds dated 3rd March, 2016. Mahon J. delivered a written judgment on behalf of the Court of Appeal on 16th June, 2016, [2016] IECA 183.


The grounds on which judicial review is sought may be broken down into the following categories:

a. The disclosure grounds, and the allegation is that disclosure has been piecemeal, unjustifiably delayed and incomplete.

b. The fairness of process ground, that the right to a fair trial has been irretrievably prejudiced having regard to the loss of certain evidence including the death of a number of witnesses the applicant asserts would have either undermined the credibility of the complainant or otherwise assisted him in defending the charges.

c. Exceptional circumstances in the form of a general unfairness in the light of all of the circumstances including delay, absence of disclosure and the present state of mind of the applicant and the complainant.


Details of the factual basis and arguments in respect of each these grounds will appear in the course of this judgment.

Sequence of court appearances

On 6th July, 2011 the complainant made a statement to Garda Patrick Tarrant at Rathfarnham Garda Station, wherein she set out the details of her background, family information and specifically, extensive details of three of episodes of sexual abuse allegedly perpetrated by her brother, the applicant.


The complainant having made this initial complaint later indicated on the 15th July, 2011 she no longer wished to pursue the matter. The matter was then in abeyance for a period of two and a half years when, on 16th January, 2014 the complainant attended at a garda station and made a further statement.


The applicant made a cautioned statement at a Garda station in Dublin city on 31st January, 2014 in the presence of two members of An Garda Síochána. At this interview he accepted that one incident had occurred when he was seventeen and his sister was about nine.


One year later, on 8th February, 2015 the applicant was arrested and charged, and on 20th April, 2015 was served with the book of evidence and sent forward for trial to Dublin Circuit Criminal Court on all three charges. The indictment came before the Dublin Circuit Criminal Court for the first time on 15th May, 2015 and on 18th June, 2015 the applicant pleaded guilty to one of the three counts. The remaining two counts were set down for trial for 9th February, 2016. Sentence was adjourned on the single count to which the guilty plea was entered pending the outcome of the trial.


When the appeal of the refusal of leave was listed in the Court of Appeal on 5th February, 2016 the DPP indicated that it was not proposed that the trial would proceed on the 9th February, 2016, having regard to the acceptance by the DPP that disclosure was still outstanding.

The request for documents

The solicitor for the applicant first wrote to the respondent seeking disclosure by letter of 5th May, 2015. That request in broad terms sought disclosure of all documents in relation to the investigation and prosecution of the alleged offences, including documents relating to the complainant in the hands of the psychiatrist referred to in her statements, documents of the HSE in relation to any counselling undergone by the complainant, records and reports in relation to the assessment of the mental capacity of the complainant and details of any other allegations of physical abuse made by her. It was noted in that letter that many of the documents might not be in the possession of the DPP or the gardaí and attention was drawn to a Memorandum of Understanding between the DPP and the HSE of 15th May, 2013 in relation to disclosure of relevant material in the hands of the HSE. Attention was also drawn to the obligation of the respondent to seek out and preserve evidence generally.


A reply was received to this letter some four months later, on 18th September, 2015, by which were enclosed twelve statements, four Garda statements, four statements of the complainant, of her mother, of a brother of the complainant, CC, Noel Casey and Captain Paul O'Callaghan.


Further disclosure of records concerning the complainant was made by letter of 22nd December, 2015 comprising notes or records of counselling, a social work report, and a report by a senior clinical psychologist from the National Rehabilitation Hospital dated 7th May, 2014 outlining the details of treatment of the complainant when she was a patient on the brain injury programme at that hospital between July and November, 2013. There were also furnished three further documents from the National Rehabilitation Hospital, and notes from 1991 from the psychiatric unit at St. Brendan's Hospital, Dublin to which the complainant was referred. There is an entry that the complainant suffered from alcohol abuse and a ‘personality disorder’, and had a ‘long history of disturbed behaviour’. There is also an entry indicating that the complainant was ‘sexually abused in past by brother from age nine to fourteen years’.


A notice of additional evidence, attaching the statement of CC, referred to at para. 16, was furnished on 6th January, 2016. In this statement he describes conversations in 2002 between himself, the applicant and the complainant.


The solicitor for the applicant was concerned that the documents disclosed identified that the complainant had made an allegation of rape in 1990 against a third party, that she had made allegations of a sexual nature against her father, and that a doctor's examination carried out in or around the time of the alleged incident or incidents the subject matter of the indictment had not established the complaint.


The solicitor sought additional disclosure by letter of 13th January, 2016, identifying in particular details of the records of a Doctor Taylor and/or Doctor Ormond, and records from the psychologist in Dun Laoghaire to whom disclosure was made by the complainant.


No response was received to this letter and a reminder was sent on 26th January, 2016, which, in addition, sought further information, specifically details regarding the four female friends identified by the complainant as persons to whom disclosures were made over the years, details regarding the former husband of the complainant, B, and details of care facilities in Athy and Carlow where the complainant had attended for treatment.


It was at that point that application for leave to bring judicial review was made and having regard to the appeal to the Court of Appeal the matter moved with less expedition...

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2 cases
  • Cullen v DPP`
    • Ireland
    • High Court
    • 6 December 2018
    ...basis that he was unable by reason of a mental disorder to understand the nature and course of criminal proceedings. (iv) In J.C. v. DPP [2017] IEHC 213, Baker J. granted an order of prohibition on cumulative grounds giving rise to exceptional circumstances although followed Charleton J. i......
  • M.H. v DPP
    • Ireland
    • High Court
    • 31 July 2018
    ...authorities where orders of prohibition were granted – the first being a decision of Baker J. in J.C. v. Director of Public Prosecutions [2017] IEHC 213, and the second, a decision of White J. in T.C. v. Director of Public Prosecutions [2017] IEHC 839. The applicant also opened to the Court......

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