N.S. v The Director for Public Prosecutions

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 16 October 2019
• Neutral Citation: [2019] IEHC 671
• Docket Number: 2018 No. 291 JR
• Court: High Court
• Date: 16 October 2019

[2019] IEHC 671

THE HIGH COURT

JUDICIAL REVIEW

Murphy

2018 No. 291 JR

BETWEEN:

N.S.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Order of prohibition – Prosecution – Indecent assault – Applicant seeking an order of prohibition – Whether there were instances of specific and incurable prejudice which created a real and serious risk that the applicant would not receive a fair trial

Facts: The applicant applied to the High Court for an order of prohibition, restraining the respondent, the Director of Public Prosecutions, from further prosecuting the applicant on fourteen charges of indecent assault, pending before Dublin Circuit Criminal Court on Bill No. DUDP 95/2018. The charges span the period from 1st September, 1962 to 31st October, 1963. All the charges relate to a single complainant. The applicant submitted that there were instances of specific and incurable prejudice, which created a real and serious risk that the applicant would not receive a fair trial. The applicant submitted that by reason of the lapse of time and the loss of material evidence, the prosecution would amount to bare assertion against bare denial. The applicant submitted that these were exceptional circumstances, which entitled him to an order of prohibition. The respondent submitted that a very high threshold must be reached for the court to find that there are wholly exceptional circumstances, such that it would be unfair to put the applicant on trial. The respondent submitted that this threshold had not been met by the applicant. The respondent further submitted that the issues raised by the applicant were matters for the trial judge, to be dealt with through appropriate rulings and directions.

Held by the Court that the arguments advanced by the applicant did not establish the type of exceptional circumstances which would warrant a prohibition of a trial of the accused. In coming to that conclusion, the Court was not finding that the accused was not prejudiced in the conduct of his defence, but was merely holding in line with current jurisprudence that the issue of prejudice is a matter for the trial judge.

The Court held that the application would be refused.

Application refused.

JUDGMENT of Ms. Justice Murphy delivered on the 16th day of October, 2019

1 This is an application for an order of prohibition, restraining the respondent from further prosecuting the applicant on fourteen charges of indecent assault, pending before Dublin Circuit Criminal Court on Bill No. DUDP 95/2018. The charges span the period from 1st September, 1962 to 31st October, 1963, some fifty-five years ago. All the charges relate to a single complainant.

2 The applicant submits that there are instances of specific and incurable prejudice, which create a real and serious risk that the applicant will not receive a fair trial. The applicant submits that by reason of the lapse of time and the loss of material evidence, the prosecution will amount to bare assertion against bare denial. The applicant submits that these are exceptional circumstances, which entitle him to an order of prohibition.

3 The respondent submits that a very high threshold must be reached for the court to find that there are wholly exceptional circumstances, such that it would be unfair to put the applicant on trial. The respondent submits that this threshold has not been met by the applicant. The respondent further submits that the issues raised by the applicant are matters for the trial judge, to be dealt with through appropriate rulings and directions.

Background facts

4 In order to protect the anonymity of the complainant, any reference to people or places, from which the complainant may be identified, have been excluded.

5 The complainant alleges fourteen instances of indecent assault by the applicant between 1962 and 1963 when she was aged approximately 8 years old. The applicant is a first cousin of the complainant. It is alleged that the offences were committed in the complainant's family home, on occasions when the applicant visited with his mother. It is alleged that the offences were committed at a time when a number of adults and young children were present in the house. The complainant also alleges that on one occasion in the applicant's family home in the summer of 1963 he exposed himself to her from the bathroom window while she was sitting in the garden below. While not the subject of any charge, this allegation may be of relevance in the context of assessing the credibility of the complainant.

6 In her first statement dated 14th April, 2016, made some 53 years after the offences are alleged to have been committed, the complainant states that in or around 2001, when she was in her forties, she contacted the Gardaí at Kells Garda Station, and informed a Garda that she had been sexually abused by the applicant. She also informed the Garda that she had received information from her cousin, the applicant's sister, of allegations relating to another child. She was invited to make a complaint at that time, but declined to do so. In her statement of proposed evidence, the complainant explains her failure to make complaint as being due to her unawareness of the damage that had been caused to her and her fear that she would not be listened to. She states that she informed the Garda that if the child's case progressed, or if another allegation of abuse was forthcoming, that she would make a statement. A further reason for the complainants delay in making a statement is that she did not wish to make a statement while her cousin, the applicant's sister, was alive. The complainant states that she was close to the applicant's sister, who died in April 2016. The applicant was charged on 10th November, 2017, approximately 55 years after the alleged offences.

7 Having regard to the relevant law at the time of the alleged offences, these alleged offences are not arrestable offences in respect of which the applicant could be arrested and questioned. However, In February, 2017, the applicant engaged in a voluntary interview, during which he denied the allegations. In the interview, the applicant put forward the following:-

- that from September, 1962, he was in his final year at university and spent every weekday evening studying in the library;

- that he only attended at the complainant's family home when he had a car, and would drop his mother over to the house, save for one occasion the night before he travelled to the United States with his mother;

- that he is at a disadvantage as his sister is unable to confirm that he did not attend the complainant's family home during this period;

- that the complainant did not visit the applicant's family home while he was present, and that his sister would be in a position to confirm that this was the case; and

- that as a result of an accident when he was twelve or thirteen, that he was diagnosed with erectile dysfunction by his doctor, and that his mother and sister were aware of this.

8 On 16th April, 2018, leave for judicial review was granted by Noonan J.

Submissions on behalf of the applicant

9 The applicant submits that owing to the passage of time, there are a number of instances of specific and incurable prejudice, which create a real and substantial risk that he cannot receive a fair trial. The main arguments set out by the applicant relate to the absence of witnesses who, he submits, would have been of assistance to him in making his defence. These witnesses are now deceased. The applicant also relies on missing documentation, without which, he submits, he cannot fairly be tried. The applicant also submits that the trial should not proceed, on grounds of his ill health. The applicant avers that he is a man of advanced years, having been born on 27th November, 1939. He avers that as a result of suffering a heart attack in 1988, for which he underwent quadruple by-pass surgery, that his heart function is greatly reduced and needs to be monitored, and that he is on medication.

Missing evidence

Applicant's mother

10 The applicant submits that his mother would have been in a position to attest to a number of matters that support his defence, but that she cannot do so, owing to her passing in July, 1984. The applicant submits that she would have been able to attest to the following:-

- that the applicant did not attend the complainant's house in 1962 and 1963, and that it was his sister who used to attend with her during this period;

- that the applicant was undergoing his final year of an undergraduate degree in University College Dublin from October, 1962 to May, 1963;

- that following the completion of his exams in May, 1963, the applicant travelled to London to work, as he had done the previous year in the summer of 1962. The applicant submits that his mother would have been able to attest to the fact that while in London, the applicant obtained work with a construction company from June to August, 1963;

- that owing to his travels to London, he was absent from the jurisdiction during the period of the allegations, spanning the entirety of the summer of 1963. The applicant submits that his mother would have been able to attest to the fact that he returned home from London on only one occasion, during the summer of 1963, for the purpose of attending his conferral ceremony, and that he only returned to Dublin in August, ahead of his travels to the United States in September that year;

- that the applicant lodged with a relative while in London during the summer of 1963, as he had done the previous year during the summer of 1962; and

- that his mother was one of the few people who was aware of his erectile dysfunction diagnosis, and that she would have spoken to his treating doctor.

11 The applicant avers on affidavit dated 12th April, 2018 that that his mother would have been able to give additional material evidence relating to the allegation of...