McC (P) v DPP
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 24 March 2011 |
| Neutral Citation | [2011] IESC 9 |
| Date | 24 March 2011 |
| Court | Supreme Court |
[2011] IESC 9
THE SUPREME COURT
Macken, J
O'Donnell, J.
McGovern, J
Between:
AND
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S5(1)
M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22
DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13
S (D) v JUDGES OF THE CORK CIRCUIT & DPP 2007 2 IR 298 2006/51/10810 2006 IEHC 303
S (D) v JUDGES OF THE CORK CIRCUIT & DPP 2008 4 IR 379 2009 1 ILRM 16 2008/57/11808 2008 IESC 37
MCGEALY v DPP UNREP O'NEILL 28.11.2007 2007/36/7424 2007 IEHC 472
CONSTITUTION ART 38
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91
FLOWERS v THE QUEEN 2000 1 WLR 2396
GUIHEN v DPP 2005 3 IR 23 2004/20/4569 2004 IEHC 231
CORMACK & FARRELL v DPP & JUDGES OF THE METROPOLITAN COURT 2009 2 IR 208 2008/8/1656 2008 IESC 63
DEMIROK v R 1976-77 137 CLR 20 1977 14 ALR 199 1977 HCA 21
OREGON v KENNEDY 1982 456 US 667
DPP v Z; Z v DPP 1994 2 IR 476
P (A) v DPP & JUDGES OF THE CIRCUIT COURT UNREP SUPREME 25.1.2011 2011 IESC 2
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 41
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 46
H (T) v DPP & JUDGE SMITHWICK 2006 3 IR 520 2006/27/5830 2006 IESC 48
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4(A)
CRIMINAL LAW
Delay
Appeal - Prosecutorial delay - Prohibition of trial - Right to fair trial with due expedition - Sexual offences - Juries in two previous trials discharged - Whether real or serious risk of unfair trial - Whether trial judge erred in law in failing to find cumulative period of delay presumptively prejudicial - Whether trial judge erred in law in failing to properly balance appellant's right to expeditious trial with community's right to prosecution - Whether trial judge erred in law in failing to have proper regard to evidence of serious anxiety suffered by appellant owing to delay - Whether trial judge erred in law in failing to find retrial would be violation of appellant's constitutional rights and under article 6 of the Convention on Human rights - Constitution of Ireland 1937, Article 38 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 6, 41 and 46 - PM v DPP [2006] IESC 22, [2006] 3 IR 172; Devoy v DPP [2008] IESC 13, [2008] 4 IR 235 followed - DPP v Byrne [1994] 2 IR 235 differentiated - Guihen v DPP [2005] 3 IR 23; DS v Judges of the Cork Circuit [2008] 4 IR 379 considered - Appeal dismissed (138/2008 - SC - 24/3/2011) [2011] IESC 9
McC (P) v DPP
Facts: The appellant sought to appeal the refusal by the High Court to restrain his prosecution. The appellant faced changes of sexual intercourse with a mentally impaired person contrary to s. 5(1) Criminal Law (Sexual Offences) Act 1993. The appellant was granted leave on the basis of the delay arising from the lapse between the date of the offence and the trial and the disadvantage and/ or oppression suffered by him and the real and serious risk arising from a third trial. Two previous juries had been discharged
Held by the Supreme Court per Macken J (O'Donnell, McGovern JJ. concurring), that the appellant had not established grounds that the future trial could not be guaranteed to be a fair trial by reason of the fact that it was a third trial. There were no grounds advanced for concluding that an order of prohibition ought to have been granted. The High Court judge had not misdirected himself on any aspect of the appeal and the appeal would be dismissed accordingly.
Reporter: E.F.
Judgment delivered by Macken, J. on the 24th day of March, 2011
JUDGMENT DELIVERED BY MACKEN, J. [NEM DISS]
This is the appellant's appeal from the refusal by the High Court (Hanna, J.) of his application, based on undue delay, to restrain his further prosecution before Kilkenny Circuit Criminal Court. The appellant faces a charge of sexual intercourse with a mentally impaired person, contrary to s.5(1) of the Criminal Law (Sexual Offences) Act 1993. The offence was alleged to have occurred on 1 st July, 2001. On the 21 st July, 2010 this Court, at the conclusion of the hearing, announced that the appeal was not successful. This judgment sets out the reasons therefor.
The appellant was first arrested and questioned on 2 nd July, 2001. He was rearrested and charged on 16 th September, 2002 and sent forward for trial in March, 2003. The first trial took place in March, 2006 during which the jury was discharged on the first day following evidence given by the complainant. The second trial commenced in May, 2007 and the jury was again discharged, this time on the third day of the trial, because of an apparent prejudicial notation made on a book of photographs handed to the jury. The appellant was granted leave to issue these judicial review proceedings on the 9 th July, 2007. The basis for the relief sought was: (a) delay arising from the lapse of time between the date of the alleged offence and his trial, together with (b) the disadvantage and/or oppression suffered by him on having endured two abortive trials because the jury was discharged on both occasions, together with (c) the likelihood of a real and serious risk a third trial would be unfair.
In the High Court the learned judge held that there had been excessive culpable delay, at least in respect of some periods, on the part of the prosecution. However, applying the balancing test laid down in PM v Director of Public Prosecutions [2006] 3 I.R. 172 and in Devoy v. The Director of Public Prosecutions [2008] 4 I.R. 235, he was not satisfied, on the facts of the present case, that the appellant had suffered such prejudice as would demonstrate a real and serious risk of an unfair trial. He could not glean from the evidence before him, he said, that the stress and anxiety complained of by the appellant was any greater than that which would understandably be suffered by any person facing such a serious criminal charge. Following the approach adopted by O'Neill, J. in his judgments in both D.S. v. The Director of Public Prosecutions [2007] 2 I.R. 298, as affirmed on appeal by this Court [2008] 4 I.R. 379, and in Michael McGrealy v. The Director of Public Prosecutions [2007] I.E.H.C. 472, he further found that in the absence of a completed trial on the charge, the right of the public to prosecute the crime had not been fully vindicated, and it would not therefore be appropriate to grant an order of prohibition. The learned High Court judge also considered, and rejected, the grounds advanced on behalf of the appellant pursuant to the European Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention").
In this appeal, the appellant contends that the learned trial judge erred in law on 35 separate grounds. Many of these can be combined and dealt with together. Insofar as the main grounds are concerned, they cover, in substance, the following:
The learned High Court judge erred in law:-
Grounds 1 & 2
· in failing to find that the accumulated periods of delay, that is to say, a period of six years and three months between the commission of the offence and the second trial date should be treated as presumptively prejudicial, and in failing to consider the cumulative period of delay complained of;
· in failing to examine each period of delay separately, and in finding that the only period of excessive and culpable delay was the 14.5 months between the arrest and charging of the appellant;
Grounds 6, 7, 8 & 9
· in not finding that the failure of the respondent to disjoin the appellant's trial from that of his co-accused lead to further excessive delay;
Grounds 9, 14 & 22
· in failing properly to balance the appellant's right to an expeditious trial with the right of the community to have him prosecuted;
Grounds 15, 16, 17 & 18
· in failing, while carrying out the said balancing exercise, to have regard to the uncontroverted evidence of the serious anxiety suffered by the appellant and the effect of the delay on his family, personal and employment life;
· in finding that the stress and anxiety was not deposed to by the appellant but only by his solicitor;
· in appearing to suggest or require medical evidence of anxiety in the circumstances of the present case;
· in failing to have regard to the repeated statements in case law that it is not the quality of the stress and anxiety that is of relevance but rather the duration of such anxiety that a speedy trial is designed to protect against;
Grounds 33 & 34
· in failing to find that a retrial would be in violation of the appellant's rights under article 38 of the Constitution and of article 6 of the Convention.
The major ground advanced at the hearing before this Court, and on which the appellant contends the learned High Court judge erred, is one by which counsel on his behalf argues he is entitled to an order prohibiting of any further retrial, because two earlier trials have not led to his conviction, and when combined with the culpable inordinate delay which occurred, prohibition is essential to avoid a real and serious risk of an unfair trial.. Before considering the arguments raised, it is necessary to set out the sequence of relevant dates, which are as follows:
| 2 nd July, 2001: | Appellant notified of complaint made against him. |
| 21 st December, 2001: | Order permitting respondent to retain appellant's forensic samples. |
| 16 th September, 2002: | Appellant re-arrested and formally charged. |
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