L (P) v DPP & Buttimer

JurisdictionIreland
JudgeMr. Justice Herbert
Judgment Date16 April 2002
Neutral Citation[2002] IEHC 25
CourtHigh Court
Date16 April 2002

[2002] IEHC 25

THE HIGH COURT

No 442 JR/1999
L (P) v. DPP & BUTTIMER
PATRICK L
-V-
THE DIRECTOR OF PUBLIC PROSECUTIONS AND HER HONOURJUDGE
OLIVE BUTTIMER

Citations:

CONSTITUTION ART 38.1

RSC O.84 r21(1)

RSC O.122 r5

RSC O.125 r1

AHERN V MIN FOR INDUSTRY 1990 I IR 55

FUREY, STATE V MIN FOR DEFENCE 1988 ILRM 89

DPP V JUDGE WINDLE & ANOR 2000 1 ILRM 75

RSC O.118 r1

RSC O.118 r2

RSC O.124 r1

RSC O.84 r21(1)

DPP V JOHNSON 1988 ILRM 747

FUREY, STATE V MIN FOR JUSTICE 1988 ILRM 89

CUSSEN, STATE V BRENNAN & ORS 1981 IR 181

DAVIE V EDINBURGH MAGISTRATE 1953 SC 34

FITZPATRICK V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

W(A) V DPP UNREP KEARNS 23.11.2001

L(J) V DPP 2000 3 IR 122

O'C(J) V DPP 2000 3 IR 478

C(P) V DPP 1999 2 IR 25

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

DPP V BYRNE 1994 2 IR 236

RSC O.84 r20(2)

SUPREME COURT PRACTICE 1985 VOL 1 764

RSC O.84 r22

RSC O.84 r23

RSC O.84 r23(3)

RSC O.84 r23(2)

Synopsis:

CRIMINAL LAW

Judicial review

Constitutional law -Prohibition - Practice and procedure - Right to fair trial - Delay - Duty of expert witness - Evidence - Sexual offences - Whether applicant prejudiced by delay - Whether delay in making complaints due to dominance of alleged perpetrator - Bunreacht na hÉireann, 1937 Article 38.1 (1999/442JR - Herbert J - 16/4/2002)

L v DPP

Facts: The applicant had been charged with a number of sexual offences allegedly committed against a number of people. The applicant initiated judicial review proceedings seeking an order of prohibition against his trial from proceeding. The applicant claimed that the delay in prosecuting the offences (the offences allegedly began in 1965) was such to cause the applicant irreparable prejudice in his defence. The applicant had been a teacher and the alleged victims had all been pupils.

Held by the Herbert J in making the following order. The Court could not give any weight to the opinion of the medical expert who interviewed each of the complainants. There was an absence of verifiable scientific tests carried out in order to properly assess each of the complainants. In regard to one of the complainants the court was satisfied that the delay in making the complaint was as a result of the offending conduct in question. In relation to the other two complainants it had not been shown that the reason for the delay in making the complaints was due to the alleged actions of the applicant and the court would grant the order of prohibition sought in regard to these complaints. The relief sought would be refused in relation to the complaints made by the other complainant.

1

JUDGMENT of Mr. Justice Herbertdelivered on the 16th day of April 2002

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By Order of the High Court made the 29th November, 1999 the Applicant was given leave to apply by way of Judicial Review for:-

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1. A declaration that by reason of delay in the institution of the criminal proceedings currently pending against the Applicant herein before the Circuit Criminal Court at Kilkenny in the County of Kilkenny there is a real risk that the Applicant will suffer prejudice in making a defence at the trial of the said charges against him and in consequence that the Applicant has been denied his right to a fair trial in respect thereof; and

4

2. An Order restraining the Respondents from taking any further steps in the said Criminal Proceedings the subject matter of this application currently pending before the Circuit Criminal Court at Kilkenny in the County of Kilkenny

5

The Applicant was given leave to seek Judicial Review upon the followinggrounds:-

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1. That the delay and lapse of time between the dates of the alleged offences, (commencing July 1965), and the prosecution thereof commencing in 1999, the delay being such that of itself and in all the circumstances will as a matter ofprobability cause the Applicant irreparable prejudice in his defence of these proceedings.

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2. That to proceed with a criminal trial would be unfair and unjust to the Applicant.

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3. That to proceed with a criminal trial would be a violation of the Applicant's right to a criminal trial in due course of law pursuant to Article 38 sub-article 1 of the Constitution.

9

The relief sought is in the nature of an Order of Prohibition and it is provided by Order 84 Rule 21(1) of the Rules of the Superior Courts 1986 that in these circumstances the Application must be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall bemade.

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In my judgment the grounds for making this application first arose on the 13th May, 1999 when the Applicant was sent forward for Trial by the District Judge and not, as alleged by the Respondents, on the 2nd January, 1999 when the Applicant was charged with the particularoffences.

11

In these circumstances the latest date for the making of this application was the 13th August, 1999. As the ex parte application for leave to apply by way of Application for Judicial Review was not moved until the 29th November, 1999 there was a delay on the part of the Applicant in seeking this relief of six months and sixteen days or four months and twelve days depending upon whether the period of the long vacation, - from the 31st July, 1999 to the 4th October, in that year, - is taken into account. By Order 122 Rule 5 of the Rules of the Superior Courts 1986 it is provided that the time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by the Rules for amending or delivering any pleading unless otherwise directed by the Court. In Order 125 Rule 1 of theRules of the Superior Courts 1986, "pleading" is defined as including an originating summons, statement of claim, defence, counterclaim, reply, petition or answer. A statement of grounds in support of an application for leave to seek Judicial Review is not a "pleading" and in my judgment the provisions of Order 122 Rule 5 have no relevance to the time limit imposed by Order 84 Rule 21(1) or to the calculation of the delay on the part of the Applicant in seeking relief [vide: Ahern -v- Minister for Industry &Commerce (No. 2) (1990) 1 IR 55 per Blayney J.]. The Court is given a discretion by Order 84 Rule 21(1) to extend the period within which the application may be made provided the Court considers that there is good reason for so doing. The onus is on the Applicant to explain and excuse why the application was not brought promptly and in any event within the period of three months allowed by Order 84 Rule 21(1) [see State (Furey) -v- Minister forDefence (1988) ILRM p. 89]. In the present case no explanation or excuse for the delay has been offered by the applicant on Affidavit. Leading Counsel for the Applicant in addressing the Court submitted that there had been a total change in Counsel representing the Applicant in September, 1999. He referred without objection to correspondence in September and October, 1999 between the Solicitors for the Applicant and the Prosecuting Authorities with respect to the evidence in the Criminal Trial. Counsel further contended, relying upon the authority of the case of Director of Public Prosecutions -v- Judge Windle and Anor [2000] 1 ILRM 75 p. 80), that the Court takes a more lenient view of delay when this occurs during a long vacation.

12

It was contended on behalf of the Respondents that as no Affidavit had been filed by or on behalf of the Applicant seeking to excuse and explain the delay these submissions by Counsel should not be entertained and accordingly no occasion had arisen for the Court to consider whether there was a good reason for extending the period in which the application might be made. This argument might have considerable merit if the facts upon which the submission was based were complex or extensive or matters of dispute or matterswithin the sole knowledge of the Applicant. In this case there is no dispute between the parties as to the date upon which the Applicant was charged with the offences, or the date when he was sent forward for trial, or the date when the ex parte application pursuant to Order 84 Rule 21(1) was moved before the Court. The dates of the long vacation in 1999 are ascertainable by reference to the provisions of Order 118 Rules 1 and 2 of the Rules of the Superior Courts 1986 and a calendar for the year 1999. As I have already remarked no objection was taken to the introduction of the correspondence in September and October, 1999 between the Solicitors for the Applicant and the Prosecuting Authorities relating to the evidence in the Criminal Trial. In these circumstances despite the absence of an Affidavit sworn by or on behalf of the Applicant I consider this to be an appropriate case to be dealt with under the provisions of Order 124 Rule (1) and one where the Court should have regard to Counsel's submissions on the merits as seeking to excuse and explain the delay in making the application for leave to seek Judicial Review.

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I consider that there is good reason why the Court should extend the time in this case. The delay, as Counsel for the Respondents properly admitted, has not resulted in any prejudice to the Respondents. In such cases in my Judgment the Court should not lightly on procedural grounds alone decline to consider an application which discloses an arguable case that a citizen may be deprived of a right guaranteed by the Constitution; in this case the right to a trial in due course of law guaranteed by Article 38 subsection 1 of the Constitution. The overwhelming concern of the Court in determining in each individual case whether to exercise its jurisdiction under Order 84 Rule 21(1) must be to best advance the interests of justice. The overall delay in bringing the charges against the Applicant in these cases is between 30 and 34 years. In this context,...

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