M.S. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 17 May 2018
• Neutral Citation: [2018] IEHC 285
• Docket Number: [2017 No. 320 J.R.]
• Court: High Court
• Date: 17 May 2018

BETWEEN

M. S.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2018] IEHC 285

McDermott J.

[2017 No. 320 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Prosecution – Rape – Delay – Applicant seeking an order of prohibition or an injunction restraining his further prosecution – Whether the applicant's right to a trial with reasonable expedition or a speedy trial under Article 38.1 and 40.3 of the Constitution had been breached and seriously prejudiced

Facts: The applicant applied to the High Court seeking an order of prohibition or an injunction restraining his further prosecution on a charge of rape on Bill No. CCDP0030/2017 pending before the Central Criminal Court. The applicant complained that his right to a trial with reasonable expedition or a speedy trial under Article 38.1 and 40.3 of the Constitution had been breached and seriously prejudiced because of the failure by An Garda Síochána to investigate the case and the failure of the respondent, the Director of Public Prosecutions, to consider and prosecute the case with reasonable expedition.

Held by the Court that, having taken account of the serious nature of the alleged offence and the principles of sentencing that would be applied to the applicant as a young adult who committed an offence when under the age of eighteen years if he were to be convicted, the delay in this case was not sufficient to outweigh the public interest in allowing the charge to proceed to trial. The Court noted that there was no suggestion that there was any real risk of an unfair trial except in respect of the sentence that may be imposed if the accused was convicted. The Court held that this was a contingency that may not arise.

The Court held that it would refuse the relief sought.

Relief refused.

JUDGMENT of Mr. Justice McDermott delivered on the 17th day of May, 2018

1 The applicant seeks an order of prohibition or an injunction restraining his further prosecution on a charge of rape of M.D., a female, on 19th August, 2014 in a park near his home on Bill No. CCDP0030/2017 presently pending before the Central Criminal Court.

2 The applicant was born on 7th September, 1998 and at the time of the alleged offence was aged 15 years and 11 months. Following an investigation, he was subsequently charged before the District Court on 2nd January, 2017 when he was aged 18 years and 4 months. The complainant was his girlfriend at the time of the alleged offence. The applicant claims that there has been a substantial, unreasonable and unjustifiable delay in the investigation and prosecution of the alleged offence.

3 The following is the relevant chronology of events:-

19th August, 2014 The date of the alleged rape.

10th November, 2014 The complainant's father attended Coolock Garda Station and spoke to an unidentified garda. He informed him that he had a suspicion that his daughter had been raped and was seeking advice. He was advised to speak to his daughter and establish whether she was alleging that an assault had occurred and if so to return to the station.

3rd December, 2014 The complainant's father spoke to Garda Shane Haughney on 3rd December, 2014 when he responded to a call made in relation to a missing person at the complainant's father's residence. He was informed that the complainant had been sexually assaulted on an unknown date in August 2014. Garda Haughney was subsequently assigned as the investigating garda in respect of this allegation the following day, the 4th December.

5th December, 2014 Garda Haughney called to the complainant's father who indicated that his daughter wished to make a statement of complaint to a female garda. Her father wished to speak to the child's doctor prior to the taking of the statement to ensure that she was psychologically fit to do so.

15th January, 2015 The complainant attended at Coolock Garda Station with her father and a statement was taken by Garda Ciara Doyle in the presence of her father and Garda Haughney. The complainant made a complaint of rape and named the applicant as the alleged perpetrator of the offence. She also referred to a number of text messages which she claimed were sent by the applicant to her mobile phone. Garda Haughney sought permission from the complainant to retain her mobile phone which was given. At this stage Garda Haughney indicated to the child's father that he would need to take a statement from him and from the child's mother. The parents were separated and he was informed they wished to make their statements at the same time. The earliest date upon which they could both attend to do so was 4th March, 2015.

4th March, 2015 The parents did not attend and a further appointment was scheduled for 13th March, 2015.

13th March, 2015 Both parents attended the garda station and gave statements. Neither party was able to confirm the date of the alleged assault and it was necessary to arrange a further meeting to take an additional statement. The court was informed that the date of the alleged assault was originally given by the complainant as on or about the 20th August, 2014 which was her mother's birthday. Her father became aware of the alleged assault when her phone went off during a visit to the dentist. He scrolled through her messages and discovered what was said to be an acknowledgment by the applicant that he had sexual intercourse with the complainant without her consent and an apology for his behaviour. A later statement was required in order to confirm the date of the dental appointment.

27th April, 2015 Both parents attended at Coolock Garda Station and gave additional statements which were said to be of assistance in clarifying the date of the alleged assault. Garda Haughney indicates that a number of attempts were made to contact both parents prior to that date which had been unsuccessful. No details are given of these attempts or reasons for their lack of success.

Text Messages and Telephone Data

13th May, 2015 Garda Haughney gave the complainant's mobile phone to Garda Kevin Farrell to perform an XRY analysis. This is an uncomplicated mechanical process whereby the relevant information is downloaded and printed off. Garda Farrell was the designated mobile phone analyst at Coolock Garda station. This was an additional duty to his duties as a member of the Plain Clothes Unit at the station. Garda Haughney contacted him on numerous occasions between 15th January, 2015 and 13th May, 2015 in respect of the mobile phone. Garda Farrell was unable to carry out the relevant analysis until May when he was given the phone. He was too busy on other duties.

17th May, 2015 Four days after receiving the phone Garda Farrell conducted the XRY analysis.

25th May, 2015 A copy of the XRY analysis was furnished to Garda Haughney by Garda Farrell. On the same date Garda Farrell applied for subscriber details in respect of the numbers found as a result of this analysis. This required an application to Crime and Security at Garda Headquarters which had to be processed, approved and submitted to the relevant network operators.

15th June, 2015 Garda Farrell received the relevant information.

16th June, 2015 Garda Farrell forwarded the information to Garda Haughney. Garda Haughney states that additional investigations had to be conducted as a result. The complainant had informed the investigating gardaí that she had received a number of texts from the applicant. In the presence of another juvenile A.B. she telephoned the number from which the texts had been made and a phone in A.B.'s possession rang. Garda Haughney states that as a result he made a number of 'unsuccessful attempts' to contact A.B. Apparently the gardaí called to his residence but there was never any response. The matter was not pursued and no explanation of this sequence of events has yet emerged.

24th September, 2015 Following a number of attempts to contact the complainant which proved unsuccessful for reasons which are also unexplained an additional statement was procured from her on 24th September. This was to clarify the date of the alleged offence. Previously the complainant had indicated that it occurred on or about the 20th August, 2014 the date of her mother's birthday. However, she clarified that it occurred on the 19th August.

Interview with the accused

27th April, 2015 to

28th October, 2015 Garda Haughney said that he called to the applicant's home on at least three occasions but the door was not answered. Once again no explanation or detail is given as to why Garda Haughney wished to contact the applicant, the dates upon which he sought to contact him, or the efforts made to contact him. It is not suggested that the applicant was in any sense trying to avoid the gardaí nor is there any evidence to that effect.

29th October, 2015 Garda Haughney says that contact was made with the applicant who at all times was living at home and an appointment was made with him to attend Coolock Garda Station with his mother at 1.00pm on 10th November, 2015. Prior to that date his mother contacted the garda and informed him that 'he was not going to attend'. This averment by Garda Haughney was somewhat unfair to the applicant. It was addressed in the applicant's mother's affidavit of the 8th December, 2017 in which she states that having contacted the applicant's solicitor, Mr. Collier, to request that he attend at the station on the 10th November, Mr. Collier indicated he could not do so at 1.00pm because of prior commitments. Therefore, the appointment was rescheduled for 3rd December, 2015. Counsel for the respondent again confirmed to the court that it is not suggested that the applicant was avoiding the meeting or the gardaí in the course of their investigation. It is clear therefore that as of the 29th October the investigators were satisfied that they had made sufficient progress in the investigation to carry out a comprehensive interview with him.

3rd December,...