P.C. v DPP
 IEHC 103
THE HIGH COURT
2003/499JR - Finlay-Geoghegan - High - 11/03/2005 - 2005 IEHC 103 2005 8 1709
CRIMINAL LAW (RAPE) ACT 1981
RSC O.84 r21(1)
DE ROISTE v MIN DEFENCE 2001 ELR 33
S (K) v DPP UNREP GILLIGAN 26.2.2004
SOLAN v DPP
O'DONNELL v DUN LAOGHAIRE CORPORATION
CONNOLLY v DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT
CONSTITUTION ART 38.1
O'CONNELL, STATE v FAWSITT
COURTS OF JUSTICE ACT 1924 S29RSC O.84 r22
PRIMOR PLC v STOKES KENNEDY CROWLEY
C (P) v DPP
L (J) v DPP
B v DPP
D v DPP
O'C (P) v DPP & PRESIDENT OF CIRCUIT COURT
M (P) v MALONE
O'FLYNN v CLIFFORD
MILLS v THE QUEEN 1986 29 DLR 161
Right to speedy trial - Sexual offences - Pre-complaint delay - Whether delay gave rise to actual or presumed prejudice - Whether pre-complaint delay fault of applicant - Whether delay excusable - Judicial review - Delay in seeking leave - Whether absence of justification for such delay results in automatic refusal - Courts of Justice Act 1924 (No 10), s 29 - Rules of Superior Courts 1986 (SI 15/1986), O 84, rr 21 and 22 - Constitution of Ireland 1937, Article 38.1 - Prohibition granted (2003/499JR - Finlay Geoghegan J - 11/03/2005)  IEHC 103
C (P) v DPP
The applicant applied by way of judicial review for an order restraining the respondent from further proceeding with the prosecution of the applicant on alleged charges of sexual assault.
Held by Finlay Geoghegan J. in making an order restraining the prosecution that the delay in making the complaint was not excusable by reference to the nature of the alleged incident or any relationship between the complainant and the applicant. The applicant had dischared the onus of proof of establishing that, as a matter of probability, there was a serious risk of an unfair trial by reason of, at minimum, presumptive prejudice.
Judgment of Ms. Justice Finlay Geoghegan delivered on the 11th day of March 2005 .
By order of the High Court (Peart J.) of the 7th July, 2003, the applicant was granted leave to apply for reliefs by way of judicial review which seek to restrain the respondent, his servants or agents from further proceeding with the prosecution of the applicant on the alleged charge in the indictment on Bill No. CC 121/98 in which it is alleged that the applicant on a date unknown between the 1st April, 1982, and the 9th June, 1982, (both dates inclusive) at a named primary school did assault one E, a female, contrary to common law as provided for in s. 10 of the Criminal Law (Rape) Act, 1981.
Leave was granted upon the grounds set out in the statement of grounds. The primary ground is that the applicant is unable to obtain a fair trial by reason of the passage of time between the date of the alleged incident and the date of trial. At the leave date the trial had been fixed for the 7th January, 2004, which was approximately 21½ years after the date of the alleged incident.
A statement of opposition dated the 10th February, 2004, was delivered. Paragraph 1 of the statement of opposition states:-
"The book of evidence was served on the 15th day of July 1998 and on the 5th day of October, 1998, the Applicant was returned for trial to the Central Criminal Court. Accordingly, the Applicant has not moved promptly and/or within the time provided by the Rules of this Honourable Court for seeking Judicial Review. He has not explained the delay in failing to seek the relief sooner and nor has he sought an order extending the time for the bringing of these proceedings. For these reasons, this Honourable Court has no jurisdiction and/or ought not to extend the time for seeking of the relief sought."
Counsel for the respondents relied upon O. 84, r.21(1) of the Rules of the Superior Courts, 1986 and submitted that in the absence of any explanation by the applicant for the delay in commencing these proceedings this court should not extend the period within which the application may be made. Order 84, rule 21(1) of the Rules of the Superior Courts, 1986 provides:-
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months when the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which application shall be made."
As appears, the above rule relates to an application for leave to apply for judicial review. Such application was made as is permitted ex parte to Peart J. and he granted leave. The respondent did not apply to set aside the ex parte order nor to appeal same to the Supreme Court. This court is now considering the application for judicial review which has been brought pursuant to the Order made by Peart J. Accordingly this court has jurisdiction and it does not appear that the applicant requires any order of this court extending the period within which the application may be made. Order 84, rule 21 (1), in so far as it refers to an extension of time, applies to an application for leave and not to the subsequent application for judicial review where leave has been granted.
At the hearing, Counsel for the respondents also submitted that this application should not now be entertained, or in the alternative, not granted by reason of the applicant's delay in bringing same, in reliance in particular on the decision of the Supreme Court in De Róiste v. The Minister for Defence and Ors.  1 I.R. 190. In that case the Supreme Court decided that an applicant in judicial review proceedings may be precluded from pursuing his application or disentitled to relief by reason of delay in commencing same. However, the following important distinction appears to exist between considering the issue of delay by an applicant at a full hearing and at the leave stage.
On an application for leave the onus is on the applicant to show that he is applying "promptly" and within the time limit specified in Order 84, rule 21. If he is not so applying, then the onus is on him to establish that there are good reasons for which the court should extend the period within which the application for leave may be made. However, once leave is granted (without any reservation of the time point), then delay only becomes an issue if an application is made to set aside the leave or there is an appeal against same or (as has been done in this case), the respondents object to the application being pursued or the relief granted by reason of the delay by the applicant in bringing the application. Where this latter objection is made, the onus would appear to be on the respondent to establish that the delay in bringing the application is such as to disentitle the applicant to pursue the application or to obtain relief to which he might otherwise be entitled. This approach does not mean that the court ignores O. 84, r. 21 in considering the issue of delay. The court will have to have regard to the obligation under the Rules of the Superior Courts on an applicant to move promptly and within the time limits as specified. However, the court is not considering simply whether there exist reasons for which the time for making the application for leave should be extended. It is exercising a much wider discretion.
Counsel for the applicant did not dispute the applicability of the principles in De Róiste v. The Minister for Defence and Ors.  1 I.R. 190, but made submissions on the facts and invited me to follow the approach of Gilligan J. in K(S) v. Director of Public Prosecutions(Unreported, High Court, Gilligan J., 26th February, 2004).
Whilst the applicant has sought several reliefs, as the trial is before the Central Criminal Court, the relief to which the applicant may establish an entitlement is an injunction restraining the respondent from continuing with the prosecution at issue in these proceedings. No point was taken on his behalf that the approach of this court to his delay in commencing these proceedings should differ in any way by reason of the fact that the relevant relief is an injunction rather than an order of certiorari or prohibition. It appears to me to correct that no such distinction was made.
In those circumstances I consider that I am bound by the decision of the Supreme Court in De Róiste v. The Minister for Defence and Ors.  1 I.R. 190 and insofar as the approach of Gilligan J. in K(S) v. Director of Public Prosecutions(Unreported, High Court, Gilligan J., 26th February, 2004) may differ from that in De Róiste, I should not follow same.
De Róiste v. The Minister for Defence and Ors.  1 I.R. 190 had a number of special features. The decision sought to be challenged had been made 29 years ago. At the leave stage in the High Court an order was made granting leave and extending time to that date, but Geoghegan J. in the order granted "liberty to the respondents to argue the time point at the hearing of these proceedings".
The respondents in the statement of opposition alleged...
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