McC v DPP

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 19 July 2007
• Neutral Citation: [2007] IESC 29
• Judgment citation (vLex): [2007] 7 JIC 1902
• Court: Supreme Court
• Date: 19 July 2007

[2007] IESC 29

THE SUPREME COURT

Denham J.

Fennelly J.

Finnegan J.

S.C. No. 64/05

MCC (R) v DPP

BETWEEN

R.McC.

Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55

CRIMINAL JUSTICE ACT 1984 S4

D (C) v DPP 2005 4 IR 281

PEOPLE (DPP) v Z 1994 2 IR 476

D v DPP 1994 2 IR 465

Abstract:

Criminal law - Delay - Judicial review - Sexual offences - Appeal - Whether delay by complainant and prosecution

This was an appeal from an order of the High Court refusing the appellant's application for judicial review by way of prohibition restraining the respondent from continuing with his prosecution for certain sexual offences. The appellant ascribed undue delay both to the complainant and to the prosecution.

Held by the Supreme Court (Denham, Fennelly and Finnegan JJ) in dismissing the appeal that there was no causal link between the complainant's alleged delay and the loss of a piece of evidence. There was no delay by the prosecution.

Reporter: R.W.

1 1. When this Court delivered its judgment on 31st July 2006 in H v Director of Public Prosecutions [2006] IESC 55, a number of cases in the appeal pipeline were necessarily affected by the change in the law which that case involved. This is one of those cases. It is an appeal from an order made in the High Court on 1st February 2005 refusing the Appellant's application for judicial review by way of prohibition restraining the Respondent from continuing with his prosecution for certain sexual offences. Quirke J in an ex tempore gave his reasons for that order.

2 2. The application is based essentially on alleged delay combined with prejudice to the Appellant's right to a fair trial by reason of the death of a potential defence witness.

3 3. The appellant has been charged with eight counts of sexual assault alleged to have been committed against the complainant, who is his daughter, on various dates between June 1, 1993 and December 31, 1995, and with one count of unlawful carnal knowledge alleged to have been committed against the same complainant on a date unknown in 1993. The complainant was born on 9th June 1982. She was thus between eleven and thirteen years of age during the period of the alleged abuse.

4 4. The complainant first made a complaint to her first boyfriend about 1997, but asked him not to tell anyone. She told her mother in the year 2000. Her mother reported the matter to social workers in the area of Dublin where she lived. On 3rd October 2000, the social workers referred the matter in writing to the gardaí. After a number of unsuccessful attempts, a garda made contact with the complainant on 11th November 2000. She indicated that she did not wish to make a formal complaint. On 2nd September 2001 she sent a note to the garda to contact her. That garda (a male) and a female garda met the complainant and her mother at a Dublin garda station. She made a formal complaint of the alleged sexual abuse against the Appellant on 18th October 2001. She told the female garda that she wanted to do something about it, as the Appellant had become the father of a young child. She made further statements in writing on 19th and 27th October 2001.

5 5. On 5th November 2001, the Appellant was arrested, detained and questioned pursuant to section 4 of the Criminal Justice Act, 1984. He was released without charge. The gardaí have explained on affidavit that it was considered important (as was directed by the Director) and only fair to the Appellant to have a statement from the complainant's first boyfriend referred to earlier. This proved difficult, as that witness had moved to the country. When he was ultimately contacted, he made a statement on 1st February 2003. On 8th May 2003, the gardaí received directions from the Director as to the charges to be preferred. The Appellant was arrested and charged on 18th June 2003. He was sent forward for trial on 14th October 2003.

6 6. On 26th January 2004, the Appellant obtained leave to bring the present proceedings from de Valera J, who also made an order extending the time.

7 7. The substantive hearing took place before Quirke J, who, as already stated, dismissed the application. That was prior to the decision in H v Director of Public Prosecutions. Since that decision, there is no question of making a provisional assumption of the truth of the allegations. It is unnecessary to discuss the admittedly mistaken reference in the High Court judgment to the delay in reporting being "referable to [the Appellant's] own conduct." The presumption of innocence applies at all stages of the process.

8 8. The Court must now consider the case in the light of the law as explained in H v Director of Public Prosecutions.

9 9. The case for the Appellant is based entirely on the prejudice alleged to arise from one piece of alleged missing evidence. Although the Appellant's own affidavit was, to say the least, laconic on the point, the relevant piece of evidence emerges from his own answers as recorded by the gardaí to questions put to him during the period of his detention. The Appellant told the gardaí that in April or May 2001, he spoke to the complainant while he was in his car in O'Connell Street. The conversation took place in the presence of the Appellant's brother, Vincent, to whom I will refer by that name, who died in the month of August 2002. The alleged conversation began with discussion concerning the Appellant's right to see his grandchild (the complainant's child). The Appellant then asked her why she said "those things" about him. The complainant replied: "I know it's not true, the mother keeps telling me to go to the police or she'll put me out of the flat..."

10 10. The gardaí asked the Appellant whether Vincent would be able to make a statement. The Appellant replied: "Yeah." In fact, Vincent did not make any statement, when approached by the gardaí. The gardaí have no notes of any interview with him.

11 11. Counsel points out that the Appellant referred to this matter, though very briefly and indirectly, in his grounding affidavit in these proceedings, whereas the complainant made no reference to it in her own replying affidavit, while reiterating her complaints against him. Consequently, the Appellant's written submissions describe this evidence as "unchallenged." Nonetheless, counsel argued at the hearing of the appeal that it must be assumed that the complainant would deny this conversation at trial. It must be observed that no application was made to cross-examine the complainant. The burden of proof was on the Appellant. Before the evidence of the Appellant in respect of the alleged conversation could be described as "unchallenged," he would have had to take some steps to resolve this matter of fact in his favour.

12 12. The Appellant claims that the death of Vincent is likely to give rise to a real and serious risk that he will not have a fair trial. He accepts that, following H v Director of Public Prosecutions, he cannot complain of the delay in making the complaint on its own, but says that the...