M (P) v DPP
THE HIGH COURT
2002 39 JR
Judicial review - Injunction - Delay - Whether the delay in proceeding with prosecuting against the applicant was such as to entitle the applicant to an injunction restraining the prosecution.
Facts: The applicant stood charged before the Dublin Circuit Criminal Court with having committed three acts of gross indecency between 1982 and 1985. The applicant sought an injunction restraining the respondent from prosecuting the charges against him on the grounds of the delay in bringing the prosecution and also the delay by the prosecuting authorities in proceeding with the prosecution.
Held by O’Caoimh J. in granting the relief sought:
1. That the complainant had explained the reason for his delay in complaining and that was referable to the accused’s own actions. Furthermore, there was no particular prejudice established on the evidence. The applicant’s ability to defend himself was not impaired by the delay on the part of the complainant in complaining to such a degree that the trial should not proceed.
2. That despite the fact that the applicant failed to establish any prejudice, the delay by the prosecuting authorities was such that the proceedings should not be permitted to proceed.
JUDGMENT WAS GIVEN AS FOLLOWS BY MR. JUSTICE O’CAOIMH ON FRIDAY, 7TH MAY 2004:
MR JUSTICE O’CAOIMH: By order of this court made on 28th February 2002 the Applicant was given leave to seek an injunction restraining the Respondent from prosecuting the Applicant on Bill Number DU939/01 presently pending before Dublin Circuit Criminal Court. The grounds upon which leave was granted are at paragraphs E(1) to (4) of the statement grounding the application for judicial review, are as follows:
“1. That the delay in bringing the said prosecution against the Applicant amounts to a bread of the Applicant’s constitutional rights to trim in due course of law and/or trial with reasonable expedition.
2. That the delay by the prosecuting authorities in proceeding with the said prosecution against the Applicant amounts to a reach of the Applicant’s constitutional rights to trim in due course of law and or to trial with reasonable expedition.
3. That the said prosecution of the Applicant amounts to a breach of the Applicant’s constitutional right to a fair trial in due course of law, in that the Applicant is unable to properly defend himself.
4. That the prosecution of the Applicant on the charges stated in the said prosecution amounts to a breach of the Applicant’s right to fairness of procedures and natural justice.”
These grounds raise in essence the issue of general delay and prosecutorial delay in the prosecution of the Applicant.
Now, with regard to the issue of general delay the Applicant currently stands charged before the Dublin Circuit Criminal Court with having committed three acts of gross indecency contrary to Section 11 of the Criminal Law Amendment Act 1885 on the complainant who is a nephew of the Applicant and a male person.
These acts are alleged to have been perpetrated between 1st August 1982 and 30th June 1985 in the first instance, secondly between 1st July and 31st July 1985, and, thirdly, between 1st August and 31st December 1985 respectively.
At the time when the offences are alleged to have been committed the Applicant, who was born on 9th September 1941, was aged between 40 and 44 years of age; while the complainant who was born on 3rd May 1969 was between 13 and 16 years of age.
It appears from the evidence that the complainant lived with his parents in the house next door to that of the Applicant. It appears that of the three offences alleged, the earliest was committed some 16 years or thereabouts before he was approached by
the Gardaí and the latest was committed in or about 12 years before he was approached by the Gardaí.
The Applicant indicates that the allegations were first outlined to him by the Gardaí when the Gardaí called to his house in June 1998. He indicates that at the time he told the Gardaí that he would cooperate with the Gardaí but wished to take advice from his solicitor. The Applicant has sworn an affidavit in these proceedings, which is largely in the form of a submission on the material in the Book of Evidence and refers to matters which are suggested to be contradictory in nature in the context of the Book of Evidence. He does, however, deal with the sequence of events to which I will refer later.
The complainant’s affidavit details the abuse alleged and refers to the fact that in 1987 he was sent for assessment to Dr. Patrick McGrath at St. Loman’s Hospital. The complainant indicates that he told his parents of the abuse immediately before he saw the doctor. He told the doctor of the abuse and indicated to the doctor that he would deal with his uncle in his own manner. However, he says that he was unable to confront the Applicant about the matter in any way. He indicates that he attended a clinic at Tallaght for some time thereafter, but matters deteriorated. When his father found a suicide note that he had written he was re-admitted to
St. Loman’s Hospital at his parents’ request.
The complainant was ultimately discharged from hospital one month later on the basis of attending as a day patient. He indicates that when he was about 21 years of age in 1990, he encountered the Applicant and he alleges that on about ten occasions sexual activity took place between them. He uses the word “abuse” in this regard and indicates that he felt trapped, very isolated and confused. He indicates that:
“The Applicant ceased his behaviour towards [the complainant] in 1993 for some reason unknown to me.”
He indicates that he continued to have psychiatric difficulties and he was re-admitted to St. Lomans in 1997 on a number of occasions. He says that he felt depressed about the sexual abuse that he had suffered at the Applicant’s hands. He adds:
“I felt I wanted to make a complaint against the Applicant but I felt I could not bring myself to do so. In addition to my own inhibitions and inability to come forward, I felt that I was under pressure from my family not to make any complaint.”
He indicates that he was referred for counselling in 1997 and received counselling between September 1997 and 1998.
He then states:
“For the first time I felt as if I was able to speak openly about what I had suffered at the Applicant’s hands.”
He adds that between March 1999 and April 2001 he also attended at the Granada Institute in Shankill in County Dublin for the purpose of receiving psycho-therapeutic treatment. He confirms that in the first week of February 1998 he contacted the Garda Síochána with a view to making a complaint against the applicant. He confirms having made statements on 6th, 9th and 10th February 1998 to Garda Brendan Kelly of Tallaght Garda Station, who asked him if he could be more specific as to the dates and circumstances of the matters complained of. On 4th February 1998 he was interviewed by Garda Kelly.
The complainant has exhibited statements made to the Gardaí which elaborate on his affidavit. He confirms as true the contents of these statements. In the latest of these statements, which is dated 20th February 2002, he states inter alia as follows:
“After doing the Inter Certificate in 1985 I was suspended from school. I was disruptive and hostile to anyone in authority. At the same time the sexual abuse was becoming more persistent. After being suspended I dropped my friends, stayed at home more and more and relations with all family
members began to deteriorate. I felt very isolated and alone. My parents continually urged me to go to the Eastern Health Board Clinic at Millbrook Lawns in Tallaght, and eventually I went to keep them happy. These visits to the clinic were of no benefit to myself. The treatment was tablets with little discussion. In 1989 I remember leaving a suicide note. At that time I remember feeling nothing for anyone. When I first mentioned sexual abuse to anyone in St. Loman’s Hospital, going to the Gardaí was never mentioned. At the time I just didn’t feel well enough or strong enough to report the abuse. After going home from St. Loman’s relations improved with the family but I did not feel able to discuss the abuse with any of them. I didn’t feel I would be believed. I had no confidence in myself. I was trying to block out of my mind the abuse that was happening to me. I eventually took up work but I would keep my distance from men. I felt I couldn’t allow myself to be in a one-to-one situation with a man because I didn’t trust them. I didn’t accept what was happening to me. Between 1990 and 1997 I wasn’t aware of anywhere to go in relation to talking about or getting help for the sexual abuse. Prior to going into St. Loman’s Hospital in 1997 events started to come in on top of me. By “events” I mean the sexual abuse. I Just couldn’t get it out of my mind. I think I had a breakdown. In St. Loman’s Hospital I was asked about sexual abuse, as it had already been mentioned in 1989, and I just started to tell them about it. I was referred to the Laragh Counselling Service and in February 1998 I went to the Gardaí in Tallaght.”
An affidavit has been sworn by Melissa Dermody, who is a psychologist and who describes herself as a registered psychologist in private practice. She states her qualifications and indicates that she is a registered psychologist with the Psychological
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