Maurice Connolly v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCarthy |
| Judgment Date | 02 December 2009 |
| Neutral Citation | [2009] IEHC 526 |
| Court | High Court |
| Date | 02 December 2009 |
[2009] IEHC 526
THE HIGH COURT
BETWEEN
CRIMINAL LAW AMENDMENT ACT 1935 S6
C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77
BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351
DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645
MURPHY v DPP 1989 ILRM 71
DILLON v O'BRIEN & DAVIS 1887 20 LRI 300
MCC (R) v DPP UNREP SUPREME 19.2.2007 2007/35/7267 2007 IESC 29
M (P) v JUDGE MALONE & DPP 2002 2 IR 560 2002/16/3761
M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22
CORMACK & FARRELL v DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT UNREP SUPREME 2.12.2008 2008/8/1656 2008 IESC 63
O'H v DPP UNREP SUPREME 28.3.2007 2007/49/10412 2007 IESC 12
MCFARLANE v DPP 2008 4 IR 117 2008/37/7968 2008 IESC 7
D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372
B v DPP 1997 3 IR 140
Z v DPP 1994 2 IR 476 1994 2 ILRM 481
O'C (P) v DPP 2000 3 IR 87 2000/14/5259
G v DPP & JUDGE KIRBY 1994 1 IR 374 1994/3/724
C (P) v DPP 1999 2 IR 25
L (P) v JUDGE BUTTIMER & DPP 2004 4 IR 494 2004/27/6186 2004 IESC 110
B (S) v DPP & DISTRICT JUDGE HARNETT UNREP SUPREME 21.12.2006 2006/5/852 2006 IESC 67
MCC (R) v DPP UNREP SUPREME 19.2.2007 2007/35/7267 2007 IESC 29
J (B) v DPP UNREP SUPREME 1.5.2007 2007/29/6043 2007 IESC 18
D (P) v DPP UNREP SUPREME 23.4.2008 2008/11/2163 2008 IESC 22
D (T) v DPP UNREP SUPREME 23.4.2008 (EX TEMPORE)
T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39
H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
CRIMINAL LAW
Delay
Right to fair trial - Sexual offences - Prohibition - Investigative delay - Prosecutorial delay - Prejudice - Unavailability of medical records about psychiatric treatment - Whether real or serious risk of unfair trial - Whether delay in revealing unavailability of documents amounted to breach of right to trial with due expedition - Stress and anxiety - Exceptional circumstances rending continued prosecution unjust or unfair - Non-availability of witnesses - DC v DPP [2005] IESC 77, [2005] 4 IR 281; Braddish v DPP [2001] 3 IR 127; Dunne v DPP [2002] 2 ILRM 241; Murphy v DPP [1989] ILRM 71; Dillon v O'Brien and Davis [1887] 20 LR Ir 300; D v DPP [2004] IEHC 245 (Unrep, Ó Caoimh J, 18/4/2004); People (DPP) v RMcC [2008] 2 IR 92; PM v Malone [2002] 2 IR 560; PM v DPP [2006] IESC 22, [2006] 2 IR 172; Cormack and Farrell v DPP [2008] IESC 63, (Unrep, SC, 2/12/2008); MO'H v DPP [2007] 3 IR 299; McFarlane v DPP [2006] IESC 11 [2007] IR 134; D v DPP [1994] 2 IR 465; B v DPP [1997] 3 IR 140; Z v DPP [1994] 2 IR 476; PO'C v DPP [2000] 3 IR 87; G v DPP [1994] 1 IR 374; PC v DPP [1999] 2 IR 25; PL v Judge Buttimer [2004] 4 IR 494; SB v DPP [2006] IESC 67 (Unrep, SC, 21/12/2006); DD v DPP [2008] IESC 47 (Unrep, SC, 23/7/2008); BJ v DPP [2007] IESC 18 (Unrep, SC, 1/5/2007); PD v DPP [2008] IESC 22 (Unrep, SC 23/4/2008) and PT v DPP [2007] IESC 39, [2008] 1 IR 701 considered - Relief refused (2008/683JR - McCarthy J - 2/12/2009) [2009] IEHC 526
Connolly v DPP
Facts the applicant applied to the High Court by way of judicial review to restrain the prosecution of criminal charges against him alleging indecent assault. He complained, firstly, that medical or other records of the complainants alleged treatment for psychiatric disorders should have been sought out by the prosecution and proffered to the defence. The applicant himself did not see fit to seek out such records himself despite being aware that it was an issue but rather contended that the duty lay solely on the prosecution in this regard. He also complained of prosecutorial delay.
Held by Mr. Justice McCarthy in refusing the relief sought that, before the prosecution could be in breach of its duty to seek out evidence, its relevance would have to be shown together with a strong probability that it was available and that it would, in reality, have a bearing on the guilt or innocence of the accused as well as the necessity to demonstrate that its absence created a real risk of an unfair trial. The applicant's failure to seek out such alleged records himself were but one indicia of their probative value. The duty of the Garda had been amply fulfilled in the terms of the inquiries made by them, arriving at a dead end.
That, applying the well established principles in P.M. v. D.P.P. [2006] 3 I.R. 173, there had been no significant prosecutorial delay which was blameworthy or culpable such that his prosecution should be restrained. The circumstances of the case were not so exceptional as to warrant restraint of continuation of the proceedings under the head of "exceptional circumstances" even when there were issues pertaining to non-availability of witnesses.
D.C. v. D.P.P., [2005] 4 I.R. 281, P.M. v. D.P.P. [2006] 3 I.R. 173 and P.T. v. D.P.P. [2008] 1 I.R. 701 applied.
Reporter: P.C.
Mr. Justice McCarthy delivered the 2 day of December 2009
1. This is an application to restrain by prohibition or injunction the prosecution of certain proceedings entitled D.P.P. v. Maurice Connolly now pending before Dublin Circuit Criminal Court and with the Bill number DU401/07. The applicant was initially charged on the 26 th October, 2007 with seven counts of indecent assault, contrary to common law and as provided for in s. 6 of the Criminal Law (Amendment) Act, 1935on divers dates between 1 st June, 1966 and 1 st December, 1969: it appears that summonses were also issued on the 18 th December, 2006 but, whether or which, one assumes the matter proceeded on foot of the charges laid. In the events that occurred three of the seven charges, at the request of Mr. Garrett Sheehan, on behalf of the applicant, withdrawn on 20 th March, 2007. These pertained to events which allegedly occurred between 1 st June, 1966 and 1 st December, 1967 inclusive.
2. The complainant, Bernadette Frost (formerly Larkin) made statements on the 16 th November, 2005, the 21 st January, 2006 and the 24 th August, 2006. Two only witnesses were contemplated by the prosecution, at least at the time of the return for trial, being Mrs. Frost and one Fr. Aquinas Duffy who made a statement on 28 th July, 2006: he was "priest delegate" with the Child Protection Service of the Archdiocese of Dublin. Much in his statement is irrelevant to the prosecution or to the present proceedings. The crucial part is that his statement indicates that he would give evidence of the fact of the applicant's service as curate at St. Michael's Church, Inchicore, from 2 nd December, 1967 to 15 th September, 1972, in circumstances where Mrs. Frost's evidence would have been to the effect that indecent assaults occurred at the applicant's residence at 15A Bulfin Road, whilst he was resident there as curate in the parish. It was because of Fr. Duffy's statement that, plainly, the request to abandon three of the seven charges was granted
3. Prior to the trial, under cover of a notice of additional evidence, the respondent indicated that there would be called also on his behalf one Fr. Brian Power who lived in the same house as the applicant during what was conceived to be a relevant period (he having made a statement dated 30 th August, 2006) and statements of a sister and brother of Mrs. Frost, being Marian White (who made a statement on 22 nd November, 2005) and James Larkin (who made statements on 29 th July, 2006 and the 31 st July, 2007), respectively. By further such notice the director indicated that there would be called on his behalf one D. Garda Anne McGowan who appears to have the been the senior investigating member of An Garda Síochána, being that pertaining to what was said at a certain interview of the applicant on 7 th June, 2006 and to prove a memorandum thereof. She had at that time made a statement on the 1 st February, 2008.
4. The matter came on for hearing on 18 th February, 2008 and was adjoumed to the following day, apparently due to the exigencies of the lists. On that day the solicitors for the applicant were furnished with a statement of one D. Garda Brian Murray (which was undated) to the effect that Fr. Power was too ill to appear as a witness and it was indicated by letter that it was proposed to serve such statement under cover of a notice of additional evidence.
5. The matter had proceeded, thus far, in a relatively commonplace manner and needless to say all statements of a substantive nature ultimately the subject of notices of additional evidence as aforesaid had been disclosed to the solicitors for the applicant in advance of the trial, such that, in practice, there was no element of surprise by their service under cover of such notices at or shortly before the trial D. Garda Murray's first statement excepted. In any event before the commencement of business hours on 19 th February, 2008, the accused's solicitors requested, by letter, the following information or documents:-
a "(a) The identity of the child psychiatrist referred to in the statement in the book of evidence of Ms. Bernadette Frost and copies of her hospital records from St. James' Hospital where she attended.
(b) Copy of the psychiatric report of Dr. Anne Leader, who has been retained by O'Neill and Quinn, solicitors for the personal injuries action that has been initiated by Ms. Frost against Maurice Connolly.
(c) Copy of the original complaint made to Philip Garland, Director of the Child Protection Service referred to in the statement of Fr. ????? Duffy of the Child Protection Services made on 28 th July, 2006.
(d) Copies of the original complaint made to Ms. Pauline Fahy, social worker of the HSE care of Our Lady's Clinic Patrick Street, Dunlaoghaire, in which Ms. Bernadette Frost alleges that she was abused by Maurice...
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