F v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] IEHC 3 |
| Court | High Court |
| Docket Number | [2019-817 JR] |
[2023] IEHC 3
[2019-817 JR]
THE HIGH COURT
Criminal prosecution – Indecent assault – Unfair trial – Applicant seeking certiorari and declaratory relief preventing a criminal prosecution – Whether delay and the manner in which the case had been prosecuted created a real risk of an unfair trial
Facts: The applicant was a 75-year-old man charged with five counts of indecent assault said to have been committed between June 1981 and May 1986 on the complainant when she was between 14 and 19 years of age. The applicant applied to the High Court for certiorari and declaratory relief preventing a criminal prosecution on grounds of delay and the manner in which the case had been prosecuted, which the applicant said created a real risk of an unfair trial and on grounds of the exceptional reasons that he said arose from his health and memory issues. The applicant contended he could not get a fair trial due firstly to specific prejudice caused by delay and secondly to his memory and cognition difficulties which he said compounded the delay and constituted exceptional circumstances. He said the delay had compromised his ability to mount a defence. He said that the evidence relied on by the prosecution amounted to a bare allegation which could only be challenged by a mere denial in the absence of independent or objective factual evidence, which endangered his right to a fair trial. The applicant asserted specific prejudice firstly from the absence of three witnesses who had passed away and secondly from missing documentary evidence including records from the factory where the complainant worked at weekends and from where she said she visited the applicant. The applicant said he was diagnosed with memory and cognitive issues in 2002. The applicant also relied on the cumulative effect of the issues on which he relied individually, which he said created a separate real and serious risk of an unfair trial.
Held by the Court that the applicant had not satisfied it that he had suffered irreparable prejudice, whether specifically or cumulatively, by the lapse of time, his health or memory issues, the manner in which the charges were being prosecuted or the absence of oral or documentary evidence. Neither had he satisfied the Court that those matters amounted to exceptional circumstances rendering the continuation of the prosecution unfair or unjust. The Court found that any issues that may arise at the trial due to any delay, the absence of evidence and/or the applicant’s medical condition, could be safely and adequately addressed by the trial judge and, if necessary or appropriate, by directions to the jury or any other steps that the trial judge may consider appropriate in ensuring the applicant’s constitutional right to a fair trial in accordance with law.
The Court refused the application.
Application refused.
JUDGMENT of Ms. Justice Bolger delivered on the 11th day of January, 2022
This is an application for certiorari and declaratory relief preventing a criminal prosecution arising from events alleged to have occurred between 1981 and 1985, on grounds of delay and the manner in which the case has been prosecuted, which the applicant says creates a real risk of an unfair trial and on grounds of the exceptional reasons that he says arise from his current health and memory issues.
The applicant is a 75-year-old man charged with five counts of indecent assault said to have been committed between June 1981 and May 1986 on the complainant when she was between 14 and 19 years of age.
For the reasons outlined below I am refusing this application.
The applicant contends he cannot get a fair trial due firstly to specific prejudice caused by delay and secondly to his memory and cognition difficulties which he says compound the delay and constitute exceptional circumstances. He relies on the test of “a real or serious risk” of an unfair trial formulated by Murray C.J. in SH v DPP [2006] 3 IR 575 which he submits is fact specific; PT v DPP [2008] 1 IR 701. He says the delay has compromised his ability to mount a defence and relies on Hardiman J.'s criticism in JO'C v DPP [2000] 3 IR 478 of a trial consisting of assertion countered by bare denial. He says that the evidence relied on by the prosecution amounts to a bare allegation which can only be challenged by a mere denial in the absence of independent or objective factual evidence, which endangers his right to a fair trial; Hardiman J. in PO'C.
The applicant asserts specific prejudice firstly from the absence of three witnesses who have passed away and secondly from missing documentary evidence including records from the factory where the complainant worked at weekends and from where she says she visited the applicant. He relies on DPP v CC [2019] IESC 94 where O'Donnell J. held there is a point “at which the deficiencies are of such significance and reality in the context of the particular case that it can be said that it is no longer just to proceed”.
The applicant says he was diagnosed with memory and cognitive issues in 2002 and relies on TC v DPP [2017] IEHC 839 where White J. found that the applicant's terminal medical difficulties gave rise to exceptional circumstances that prohibited the criminal trial.
The applicant also relies on the cumulative effect of the issues on which he relies individually, which he says creates a separate real and serious risk of an unfair trial: McCracken J. in the Supreme Court in DK v DPP [2006] IESC 40, MacMenamin J. in JD v DPP [2009] IEHC 48 and more recently Kennedy J in MS v DPP [2021] IECA 193
The Director sets out the following as the standards for the court to determine whether there is a real risk to an accused's right to a fair trial:
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a. Whether the applicant has engaged with the facts and demonstrated the materiality of unavailable evidence, and whether the evidence can be obtained elsewhere or can be dealt with by warnings from the trial judge (MacMenamin J. in MU v DPP [2010] IEHC 156).
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b. If certain witnesses are absent, does that absence give rise to irremediable prejudice on the basis that their presence was “demonstrated to be essential in order to assist the applicant's defence in respect of the charges” (Dunne J. in KD v DPP [2011] IEHC 384).
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c. An applicant must be able to point to a “real possibility that the witnesses or evidence would have been of assistance to the defence” as opposed to a theoretical possibility that the evidence of an unavailable witness might contradict the complainant's account or that of other witnesses (O'Malley J. in Ó'C v DPP [2014] IEHC 65).
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d. Whether the evidence which is no longer available is “no more than a missed opportunity” or whether the applicant has “lost the real possibility of an obviously useful line of defence” (Hardiman J. in SB v DPP [2006] IESC 67) and that the prejudice complained of is “manifest, unavoidable and of such significance as to give rise to a real risk or serious risk of an unfair trial” (Baker J. in RB v DPP [2019] IECA 48).
The Director disputes any culpable prosecutorial delay, but any that may have occurred is insufficient in and of itself to warrant prohibiting the prosecution. On the applicant's claimed medical problems, the respondent says the evidence indicates that he has always had memory problems so even if the trial had commenced closer in time to the alleged incidents, it is likely the same problems would have existed.
The absence of employment records does not establish prejudice. The complainant's employer had no legal obligation to maintain records in 1987 and in any event, two witnesses who worked with the complainant, as well as the complainant herself, are...
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