McC (P) v DPP

JudgeMr. Justice Hanna
Judgment Date11 April 2008
Neutral Citation[2008] IEHC 232
Date11 April 2008
CourtHigh Court

[2008] IEHC 232


RECORD NO. No. 848 JR/2007
McC (P) v DPP


P. Mc C.





M (P) v DPP 2006 3 IR 172


GUIHEN v DPP 2005 3 IR 23 2004/20/4569

DPP v BYRNE 1994 2 IR 236

S (D) v JUDGES OF THE CORK CIRCUIT & DPP UNREP O'NEILL 16.10.2006 2006/51/10810 2006 IEHC 303




Sexual offences - Right to fair trial - Reasonable expedition - Prosecutorial delay - Prejudice - Nature of prejudice - Application to restrain further prosecution of offence - Whether blameworthy delay on part of prosecution - Balance of justice - Risk of unfair trial - Whether balance of justice in favour of restraint of further prosecution of offence - PM v DPP [2006] 3 IR 172 and Devoy v DPP [2008] IESC 13 (Unrep, SC, 7/4/2008) applied; Guihen v DPP [2005] 3 IR 23 and DS v DPP (Unrep, O'Neill J, 16/10/2006) distinguished - Application for relief refused (2007/848JR - Hanna J - 11/4/2008) [2008] IEHC 232

McC(P) v DPP


Mr. Justice Hanna delivered on Friday 11th day of April 2008


MR. JUSTICE HANNA: The applicant P. Mc C. is charged with a very serious offence, namely, having sexual intercourse with a mentally impaired person, contrary to Section 5(1) of the Criminal Law (Sexual Offences Act) 1993. The alleged offence was committed on or about the first day of July 2001. If convicted, the person so convicted faces a term of imprisonment of up to ten years.


The alleged offence occurred when the applicant and the co-accused person were in Thomastown in the County of Kilkenny in connection with visiting a fun-fair or carnival. The relevant timeframe is, as follows. On the 2nd of July, 2001, that is the day after the alleged offence, the accused was arrested and interviewed by An Garda Síochána. He made a statement and voluntarily gave DNA samples.


In the statement, he admitted engaging in an act of sexual intercourse with the alleged victim. It should be observed and for the purpose of this judgment, the parties should note, that I am making no assumptions as to what might have happened had this matter proceeded to trial. It may well be that the applicant would have attempted to resile from that particular statement. As it happens, we don't know because of the events that came to pass.


On the 21st December 2001, pursuant to Section 4(5) of the Criminal Justice (Forensic Evidence) Act 1990, an order was made to preserve certain material. On the 16th September, 2002, that is some 14 and a half months after the Applicant made his statement, he was rearrested and formally charged. By the 4th November 2002, the case had reached a stage where the book of evidence was served. The matter came before the court on the 20th of January, 2003. The Applicant was not in court on that occasion, his mother was, sadly, in extremis at the time. A bench warrant was issued and this was executed on the 3rd March, 2003.


He was then sent forward for trial to the Circuit Criminal Court, sitting in Kilkenny. On the 11th March, 2003 he was remanded on bail until the 15th July 2003. The case was then adjourned. On the 4th November 2003, the case was listed for trial but it was adjourned on that occasion due to its position in the list and the unlikelihood of it being reached. Between March and July 2004, again, the case was adjourned as being unlikely to be reached. During this time the co-accused launched Judicial Review proceedings. Between the months of October 2004 and June 2004 the matter was adjourned in light of the Judicial Review proceedings taken by the co-accused.


In 2006, various applications were made on behalf of the applicant seeking to have the criminal case proceeded with separately, in other words, to sever the indictment. These applications were unsuccessful.


On the 22nd March, 2006, a trial of this particular charge commenced. However, the trial had to be aborted as a result of an extraneous matter which was introduced by the alleged victim and which was irrelevant and possibly prejudicial in light of the charge which the applicant was facing.


On the 25th April, 2006, the matter was again adjourned. This was on the application of the co-accused, Mr Dunne, due to the non availability of a defence witness. On the 7th November, the matter was again adjourned due to the absence of Dr Jennifer Ryan, a forensic scientist, called on behalf of the prosecution.


On the 23rd January, 2007 the absence of the transcript of the previous proceedings, caused a further adjournment. A trial commenced on the 1st May, 2007. It transpired that a juror knew the family of one of the parties. An application to discharge was unsuccessful but it transpired that a copy booklet, which had been given to the jury, contained potentially prejudicial matter and this caused the trial to be aborted yet again. I should observe that, at this point, I'm satisfied that both these cessations of the trial were caused, and I accept Ms. Phelan's argument, by a mishap rather than any wanton act on the part of the prosecution or indeed the defence. None of the parties were aware, for example, of the material which had gone into the jury and in that sense I don't think any great fault is to be attached to anyone.


These proceedings were commenced following an application for leave on the 9th July, 2007 and they were grounded on the affidavit of Ms. Niamh Moriarty, the solicitor for the applicant, sworn on 5th July, 2007. A short affidavit supportive of what the applicant's solicitor says was sworn by the applicant. It is terse and goes into little or no detail as to the state of mind of the applicant. A statement of opposition was filed on the 27th November, 2007 and subsequent to that an affidavit was sworn by Mr Gerard Meaney, the State Solicitor for County Kilkenny and duly filed.


The law in this area has been visited on a number of occasions by the Supreme Court and one is indeed grateful that matters have been clarified. One thinks in particular of the seminal judgment of Kearns J. in P.M. v. DPP [2006] 3 I.R. 172 and as good fortune would have it a decision, was handed down only this week, by the Supreme Court in the case of Devoy v. The Director of Public Prosecutions [2008] I.E.S.C. 13. The matter has again been clarified and this is of great assistance to this court in approaching this type of case.


Referring to P.M. v. The Director of Public Prosecutions, Kearns J. summarises the material principles in his decision in Devoy v. The Director of Public Prosecutions and at page 14 of his judgment and he says as follows:

"The principles governing prosecutorial delay in Irish Law have been laid down in a number of Irish cases including P.M v. Malone [2002] 2 I.R. 560 and P.M. v. The Director of Public Prosecutions [2006] 3 I.R. 172 and may be summarised as follows:-"


a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant's constitutional entitlement to a trial with reasonable expedition.


b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition.


c) Where there is a period of significant blameworthy prosecutorial delay less than envisaged at (b) and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community's entitlement to see crimes prosecuted and the applicant's right to an expeditious trial but will not direct prohibition unless one or more of the elements referred to in P.M. v. Malone [2002] 2 I.R. 560 and P.M. v. The Director of Public Prosecutions [2006] 3 I.R. 172 are demonstrated.


d) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition."


It seems to me that there are a number of features in this case to which one must attend. In the first instance, some fourteen and a half months passed from the date of the complained of act and the initial arrest of the applicant and the laying of the against him of the charge. Nearly five years elapsed from the date of the alleged incident and the commencement of the first aborted trial. Nearly six years elapsed when we get to the time at which the second attempted trial had to be abandoned. We now stand at a remove of almost seven years from the date of the alleged offence and apart from the incident brought about by the unfortunate illness of the applicant's mother, none of the delay in this case can be laid at the...

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