M (P) v Malone & DPP

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 07 June 2002
• Neutral Citation: [2002] IESC 46
• Court: Supreme Court
• Date: 07 June 2002

[2002] IESC 46

THE SUPREME COURT

Keane C.J.

McGuinness J.

Hardiman J.

167/01

M (P) v. MALONE & DPP

BETWEEN:

P.M.

APPLICANT/APPELLANT

AND

DISTRICT JUDGE MIRIAM MALONE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

B V DPP 1997 3 IR 140

C (P) V DPP 1999 2 IR 25

L (J) V DPP 2000 3 IR 123

P (P) V DPP 2000 IR 403

F (B) V DPP 2001 IR 656

HEALY, STATE V DONOGHUE 1976 IR 325

CONSTITUTION ART 38.1

O'CONNELL, STATE V FAWSITT 1986 IR 362

BARKER V WINGO 1972 407 US 514

DPP V BYRNE 1994 2 IR 237

BELL V DPP 1985 AC 937

O'CONNELL, STATE V FAWSITT 1986 IR 362

MILLS V THE QUEEN 1986 29 DLR 161

CANADIAN CHARTER OF RIGHTS AND FREEDOMS S11(b)

O'FLYNN V CLIFFORD & ORS 1988 1 IR 740

WATSON V CLARKE 1990 1 NZLR 715

HUGHES V POLICE 1995 3 NZLR 443

CRIMINAL LAW (RAPE) ACT 1990 S6

D V DPP 1994 1 ILRM 435

Synopsis:

- [2002] 2 IR 560

Facts: The applicant sought an order of prohibition to prevent a trial for sexual offences from proceeding. The charges related to offences allegedly committed against a family member. The applicant claimed that there had been excessive delay in the prosecution of the offences. In the High Court Ms. Justice Carroll held that no risk of an unfair trial had been shown and the application would be refused. The applicant appealed the judgment arguing that the delay between the dates of the offences and the dates of the charges was excessive and unconscionable. In addition it was contended that there was no evidence that the complainant had been psychologically inhibited from making a complaint. The delay in making a complaint to the Gardaí was due to the anticipation of problems that would arise within the family. Furthermore there was no question of dominance between the applicant and complainant which would have explained the delay in making the complaint. On behalf of the respondent it was contended that the applicant had not shown that there was a real risk that he could not obtain a fair trial. The alleged prosecutorial delay subsequent to the laying of charges was not so significant as to warrant the staying of the trial.

Held by the Supreme Court (Keane CJ delivering judgment; McGuinness J and Hardiman J agreeing) in allowing the appeal. It was not the delay in bringing a person to trial that was crucial, it was the effect of that delay. In this case there was no significant disparity in age between the complainant and the applicant and no question of dominion had arisen. The sole ground advanced for deferring the complaint was the complainant’s concern that it might cause problems within the family. This was not an appropriate ground for denying the applicant the right to a reasonably expeditious trial. A court in determining whether to grant an order of prohibition was entitled to not only to take into account the delay that had arisen subsequent to the laying of charges but also the delay that had occurred prior to being charged. A period of inordinate delay had occurred between the report of the social worker and the subsequent arrest of the applicant. The unnecessary and inordinate delay had caused the applicant unnecessary stress and anxiety. The constitutional right of the applicant to a reasonably expeditious trial outweighed any conceivable public interest there might be in the prosecution of the alleged offences. The order of prohibition sought would be granted.

Keane C.J.

[Nem Diss]

Introduction

1 This is one of a number of cases which have come before the High Court and this court in recent years in which the court has been asked to restrain the prosecution of sexual offences because of the time which has elapsed since the offences were allegedly committed. This case, however, presents two somewhat unusual features.

2 In the first place, the defendant in the proceedings (hereafter "the applicant") was not significantly older than the complainant, who is his sister, at the time the conduct is said to have begun, nor was he in a position of authority in relation to her. On the contrary, the applicant was nine years old at the time and the complainant was seven years old. It is not suggested that the conduct in question continued beyond the period when they were respectively fourteen and twelve years old.

3 In the second place, the delay in initiating the proceedings was not solely due to the inaction of the complainant: it is not in dispute that the gardaí were fully aware of the allegations in January 1992 but, for reasons which will appear shortly, did not charge the applicant with any offence until the 25th May 1999.

4 The applicant was given leave to apply by way of judicial review forinter alia an order of prohibition restraining the continuance of the prosecution on the 14th February 2000. A notice of motion claiming that relief having been served, a statement of opposition was delivered on behalf of the second named respondent. The motion having come on for hearing before Carroll J, in a written judgment on the 11th May 2001 she declined to grant the relief sought. From that judgment and order, the applicant has now appealed to this court.

The factual background

5 The factual background should now be set out in more detail. The applicant is the eldest of five children, having been born on the 14th January, 1970, the complainant being the second oldest in the family. Late in the year 1991, St. Clare's Unit in the Children's Hospital, Temple Street, was contacted by the family GP. He said that the mother had informed him that she was concerned that the youngest in the family, J, who was then aged 3, might have been sexually abused by her elder brother, the applicant.

6 An assessment was carried out by a clinical psychologist, Anne O'Flaherty, and a senior social worker, Kieran McGrath. Mr. McGrath reported their findings to Garda Catherine Moran in Malahide Garda Station in writing on the 28th January 1992. He said that the GP had reported that previous concerns had been expressed about the possibility that the applicant had abused the complainant sometime in the past but that, at that time, the family would not agree to any further action being taken. As a result, there had been no follow up.

7 Mr. McGrath said that the parents were a couple who had clearly a difficult relationship, characterised by frequent disagreements and some physical violence. The mother told him that, in approximately the year 1987, she and her husband had been approached by the two younger children - this was before J was born - who told them that the applicant and the complainant had been "wrapped up in a blanket together". She said that, thereafter, she became more conscious about the need to "supervise [the complainant]". She was concerned that she could not get into the complainant's bedroom which was locked and she suspected at the time that the applicant was getting into the bedroom through the window.

8 The mother went on to give an account of a recent incident involving J, the youngest child, which had led to her expressing her concerns to the GP and to the present investigation. Following a remark by the child in the presence of her mother and the complainant, the latter said: "Don't tell me [the applicant] is at it again." The father, for his part, while concerned about the possibility that something might have happened in the past, was inclined not to attach importance to it: his major concern was a fear of what might happen to the applicant if he was reported to the gardaí. He was adamant that the applicant had not abused J.

9 When the applicant was interviewed during the course of this inquiry, she recounted a history of sexual activity between herself and the applicant which went on for approximately two to three years while she was in primary school, from when she was aged about six or seven until she was in approximately 5th class. She said that she had participated willingly in these activities at the outset, but that the behaviour had become "more sexual" over time, culminating in full intercourse. She said that the applicant ensured her co-operation by offering her treats, money etc.

10 The complainant also said that the applicant had shown her from time to time pornographic material which, in turn, had been shown to him by his uncle and his grandfather. She said that she had no awareness of her younger sister, J, having been abused by the applicant, but displayed a protective attitude towards her and was clearly reluctant to see her unsupervised in the applicant's company.

11 The complainant made it clear, during these interviews, that she did not wish to make a formal complaint to the gardai about having been abused by the applicant. She said that she "hates [the applicant]" for what he had done but did not wish him to get into trouble and was willing to forgive him because he was a member of her family.

12 Another sister L, aged 14, also recounted incidents of sexual contact between herself and the applicant over a period of two years, beginning when she was approximately five or six years old. J, aged three, was also interviewed and a physical examination carried out. Answers given by her were described in the report as being "highly suggestive" of her having been sexually abused by the applicant and also, possibly, by a friend of his. The physical examination of the child was normal.

13 The applicant, in the course of an interview, admitted, reluctantly, that he did have sexual contact with the complainant and that he now realised that this was wrong. He was extremely worried about ending up in jail and expressed anxiety, when it was suggested to him that he might need help in this area generally, that he would be castrated. He said that he was "almost sure" that he did not have any sexual contact with L and was categorical in his denial of any sexual contact with J.

14 The report concluded by saying that it would be advisable to hold a case...