Nolan v DPP

CourtHigh Court
JudgeMr. Justice Hanna
Judgment Date10 February 2012
Neutral Citation[2012] IEHC 98
Judgment citation (vLex)[2012] 2 JIC 1009
Date10 February 2012

[2012] IEHC 98


[No. 962 JR/2009]
Nolan v DPP





RSC O.84 r20



O'B (C) v DPP UNREP SUPREME 28.6.2010 2010/40/10144 2010 IESC 41

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

D (C) v DPP 2010 2 ILRM 49 2009/11/2494 2009 IESC 70

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11

B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 IESC 66

K (E) v JUDGE MORAN & DPP UNREP CHARLETON 5.2.2010 2010/24/6037 2010 IEHC 23

T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

K (C) v DPP UNREP SUPREME 31.1.2007 2007/30/6173 2007 IESC 5

DPP v C (C) 2006 4 IR 287 2006/17/3496 2006 IECCA 1

O'C (J) v DPP UNREP PEART 8.10.2002 2002/21/5412

R (M) v DPP UNREP O'NEILL 20.2.2009 2009/48/11910 2009 IEHC 87

O'H (M) v DPP 2007 3 IR 299 2007/49/10412 2007 IESC 12

B v DPP 1997 3 IR 140

MCFARLANE v DPP 2008 4 IR 117 2008/37/7968 2008 IESC 7



Sexual abuse - Fair trial - Complainant delay - Culpable prosecutorial delay - Offences allegedly occurring in 1970s and 1980s - Mental health condition - Ability to defend -Unavailability of potential witnesses Whether applicant prejudiced - Whether warning from trial judge sufficient to prevent unfair trial - Whether public interest favouring prosecution of allegations - SH v DPP [2006] IESC 55, [2006] 3 IR 575 applied - Criminal Law (Insanity) Act 2006 (No 11), s 4 - Application dismissed (2009/962JR - Hanna J - 10/2/2012) [2012] IEHC 98

Nolan v DPP


JUDGMENT of Mr. Justice Hanna delivered the 10th day of February, 2012


On the 23 rd of September 2009, leave was granted to the applicant by this Court (Edwards J.) to apply by way of judicial review to seek an injunction restraining the respondent from proceeding further to prosecute the applicant. The applicant seeks the following reliefs:


1. An Order restraining the respondent from continuing to prosecute the applicant in respect of the 77 offences alleged in the Statement of Charges contained at pp. 1 - 17 of the Book of Evidence, at present pending before the Circuit Criminal Court and given Bill no. 344/09.


2. Such further or other relief as to this Honourable Court will seem meet;


3. An order pursuant to Order 84, Rule 20, of the Rules of the Superior Courts staying the further prosecution of the applicant herein on the charges complained of herein until the determination of these proceedings;


4. The costs of and incidental to these proceedings.

Background facts

This case concerns the alleged sexual abuse of two persons by the applicant who is a retired member of An Garda Siochána and is a pensioner. He was born in 1938. He faces two counts of alleged sexual abuse relating to two persons as follows:


28 charges of indecent assault on dates unknown between 3 rd of June 1978 and 2 nd June 1981 be ginning when the complainant was 11 years of age, J.M. came from a troubled family, her mother having had some form of psychiatric illness and her father was an alcoholic. Witness statements by the complainant set out in detail what is alleged. It is alleged that the applicant took advantage of her unfortunate and troubled circumstances, groomed her and abused her during this period. The abuse mainly took place in her bedroom, in his car, and in his house. In or about the summer of 1980 the complainant was sent to a residential home. It is alleged that the applicant visited her there, abused her there and took her away for day trips when he would also abuse her. She alleges that the applicant remained in contact with her up until 2006, such was their relationship because he had dominance over her.

E.D. (neé C):

49 charges of indecent assault on dates unknown between 1 st of September 1980 and 23 rd August 1986. It is alleged that the accused abused her in a similar way, the abuse starting when she was in fifth class in primary school. The alleged abuse took place at two locations including the applicant's house. The alleged abuse was frequent, once to three times a week. Witness statements by the complainant set out in detail what is alleged. It is alleged that, eventually and after she met her husband, she realised that what the applicant had been doing was wrong and she eventually confided in a friend about her suffering.


There are detailed witness statements from other persons who allegedly knew the parties at the time. For the purposes of this judgment I do not propose to outline their content.

The prosecution

Complaints were made to the Gardaí in September 2006 by E.D. and in January 2007 by J.M. The applicant was charged in January 2009. The applicant met his solicitor for an initial consultation on 11 th February 2009. He had received telephone notification of the allegations in approximately 2007 and he was interviewed under caution on the 10 th April 2007 by members of the Gardaí.


The prosecution came before Dublin Circuit Criminal Court. On 16 th January 2009 the applicant was released on bail at Blanchardstown District Court to appear again on 27 th February 2009, when the Book of Evidence was served on him and he was returned for trial to the Dublin Circuit Criminal Court. It was first listed in the Dublin Circuit Criminal Court list in Court 8 on 20 th March 2009 and the Court made a s. 56 Order for videotapes and remanded the matter to a further mention date. Disclosure was sought and received by the applicant's solicitors. Further particulars on disclosure were sought in July 2009. The matter was listed on 27 th May 2009 for mention when a Legal Aid Certificate for Senior Counsel was granted and on 28 th July 2009 for mention for disclosure and other issues to be addressed and on that occasion it was further remanded for mention to 17 th November 2009. The applicant's solicitor avers that he intends to contest the charges.


The applicant submits that he now suffers from a condition which restricts his ability to properly and fully defend himself and has been prejudiced in that he has been denied his right to a fair trial.


He also submits that he is prejudiced because of a complainant delay and culpable prosecutorial delay between the making of the respective complaints in or about September 2006 (by E.D.) and January 2007 (by J.M) and being charged in January 2009, leading further to a deterioration in his condition and to further resulting prejudice he suffers in defending himself at trial.


Finally, the statement grounding the application states that he is prejudiced in the preparation and presentation of his defence by reason of the unavailability of eight named potential material witnesses. However it has now transpired that three of those eight people were available and they have provided statements which were exhibited on affidavit. Of the other people named by the applicant, four are deceased and one, J.M.'s father, has been uncooperative.


The application is grounded on the Affidavit of Dara Robinson, Solicitor, sworn on 21 st September 2009. This sets out the history of the proceedings to that date, the applicant's initial consultation with Mr. Robinson, and details how initial medical reports were obtained. He sets out reasons why he believes this application should succeed. He submits that his client is suffering from a debilitating mental condition. He identifies what the applicant considers to be the complainants' and prosecutorial delay. He refers to potential witnesses who are not available and sets out why each of their not being available prejudices his client's case.

Statement of Opposition of the Respondent

In the Statement of Opposition, the matters set out in the applicant's statement to ground the application are denied. Further, the respondent states that the matters raised by the applicant in relation to the applicant's medical condition are matters more appropriately dealt with by means of a fitness to plead application pursuant to s. 4 of the Criminal Law (Insanity) Act 2006. The respondents deny undue complainant and prosecutorial delay but also state without prejudice to the denial that the respondent relies on the recent jurisprudence of the Supreme Court in respect of sex delay cases.


I propose to deal with each matter which it is alleged contributes to a prejudice which will be suffered by the applicant because of the delay.

The hearing of this application

The hearing of this application commenced on 2 nd June 2011. The matter was part heard when it transpired that the applicant had been diagnosed as having atypical Alzheimer's disease. It appears that the applicant's legal advisors were unaware of this. A number of updated reports were provided after the hearing commenced on 2 nd June 2011, and the authors of these gave evidence on the 4 th of October 2011. Professor Brian Lawlor, Consultant Old Age Psychiatrist of St James Hospital diagnosed him as suffering from a form of Alzheimer's disease. Dr. Paul O'Connell, Consultant Forensic Psychiatrist at the Central Mental Hospital in Dundrum, Dublin who is a forensic psychiatrist, having read Prof. Lawlor's report agreed with it. Dr. Niall Pender Clinical Neuropsychologist attached to the Beaumont Private Clinic maintained his view that he is not disadvantaged. Oral submissions were heard from counsel on 5 th October 2011.

Medical evidence

On 2 nd June 2011, Dr. Anne O'Connell, Consultant Clinical Neuropsychologist, gave evidence with reference to her reports dated 27 th May 2008, 14 th July 2009 and 8 th of February 2011 and Dr. Niall...

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