P. O'C. v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 04 March 2008
• Neutral Citation: [2008] IESC 5
• Court: Supreme Court
• Docket Number: [S.C. No. 140 of 2005]
• Date: 04 March 2008

[2008] IESC 5

SUPREME COURT

Denham J.

Fennelly J.

Finnegan J.

Appeal No. 140/2005

O'C (P) v DPP

JUDICIAL REVIEW

BETWEEN:

P. O'C.

APPLICANT/RESPONDENT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

CRIMINAL LAW (RAPE) ACT 1981 S10

H (S) v DPP 2006 3 IR 575

L (P) v BUTTIMER & DPP 2004 4 IR 494

PEOPLE (DPP) v O'C (P) 2006 3 IR 238

MCFARLANE v DPP 2007 1 IR 134

K (J) v DPP UNREP SUPREME 27.10.2006 2006 30 6512 2006 IESC 56

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

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

CRIMINAL LAW

Delay

Sexual offences - Right to fair trial - Right to expeditious trial - Complainant delay - Prejudice - Delay in making complaint - Whether inquiry into reasons for delay necessary - Whether real and serious risk of unfair trial - Whether reasons for delay relevant - Whether delay resulted in prejudice to accused - Actual prejudice required to be established - SH v. DPP [2006] IESC 55, [2006] 3 IR 575, DC v DPP [2005] IESC 77, [2005] 4 IR 281, McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134 and Z v DPP [1994] 2 IR 476 and PL v Buttimer [2004] IESC 110, [2004] 4 IR 494 applied - Constitution of Ireland, Article 38.1 - Prosecutor's appeal allowed (140/2005 - SC - 4/3/2008) [2008] IESC 5

O'C (P) v DPP

1 Mr Justice Finnegandelivered on the 4th day of March 2008

2 By Order of the 7th July 2003 the respondent was granted leave to apply for judicial review the principal relief sought being an Order of Prohibition to restrain the Director of Public Prosecutions ("the Director") from further proceeding with his prosecution on Bill No. CC121/98 in which it is alleged that the respondent on a date unknown between the 1st April 1982 and the 9th July 1982 both dates inclusive at a named primary school did assault one E, a female, contrary to common law as provided for in section 10 of the Criminal Law (Rape) Act 1981. The grounds upon which leave was granted are:

3 1. Complainant delay between the date of the alleged offence and the making of a formal complaint on the 12th June 1998.

4 2 .Actual prejudice which is particularised as follows:

5 (a) Fr. D. who had charge of the school keys on non-school days is now deceased and which days include the 22nd May 1982 the date particularised by the complainant in one of her statements as being the date of the assault.

6 (b) Mr W. the school caretaker who would have knowledge of the keys for the school on the said date is now deceased.

7 (c) The absence of fellow athletes and/or the failure of such athletes to recall the events of Saturday the 22nd May 1982 after such a long period of time.

8 (d) The destruction of contemporaneous training diaries of the applicant and fellow athletes for training periods including the 22nd May 1982.

9 The statement of opposition raised as an issue delay on the part of the respondent in applying for leave to apply for judicial review and otherwise contended that the grounds relied upon were insufficient to entitle the respondent to relief. The learned trial judge (Finlay Geoghegan J.) held that there had been complainant delay and that the respondent had been prejudiced thereby and restrained his further prosecution. Her finding on the issue of prejudice was as follows:-

"I have concluded, as a matter of probability, that having regard to the nature of the alleged offence i.e. one single incident, alleged obviously to have taken place in private but in a particular context i.e. at the end of a Saturday morning athletic club meeting, that by reason of the very significant lapse of time, the applicant has been prejudiced in his ability to defend this charge. If the complaint had even been made in the middle or end of the 1980s (the end of any period of delay for which the applicant should be considered responsible) I have concluded that the applicant would have been in a better position to remember and ascertain his movements on the Saturday on which the offence is alleged to have occurred and to have obtained corroborating evidence from fellow athletes. Further, a trial at that time would have avoided the difficulties necessarily inherent in giving evidence after a very lengthy period.

I am satisfied on the above facts that the applicant has discharged the onus of establishing that by reason of at minimum, presumptive prejudice (as that term has been explained in P.M. v Malone [2002] 2 I.R. 560), there is a serious risk of an unfair trial. It is therefore unnecessary to consider whether the applicant on the facts herein has established actual prejudice."

10 Against the order of the High Court the Director appeals on the following grounds:

11 1. The learned trial judge erred in law and in fact in holding that there was good reason for extending the period within which the application for judicial review should have been made,

12 2. The learned trial judge erred in law and in fact in holding that the right to an expeditious trial commenced on the date when the alleged offence was alleged to have taken place.

13 3. The learned trial judge erred in law and in fact in holding that there was a breach of the right to a fair and/or expeditious trial as provided for by Article 38.1 of the Constitution.

14 4. The learned trial judge erred in law and in fact in concluding that the reason the complainant did not make a complaint sooner was not due in whole or in part to the consequences of the sexual abuse perpetrated on her by the applicant.

15 5. The learned trial judge failed to give adequate weight to the expert evidence of the psychiatrist.

16 6. The learned trial judge failed to give adequate weight to the evidence of E. as deposed to in her affidavit sworn on the 10th February 2004.

17 7. The learned trial judge erred in law and in fact in concluding that the applicant had established presumptive prejudice in relation to the impairment of his defence.

18 8. The learned trial judge erred in law and in fact by concluding that the applicant had been prejudiced in his ability to defend the charge and/or that there was a real and substantial risk that he would face an unfair trial if the relief were not granted.

19 The grounds of appeal may be condensed into three distinct grounds:-

20 1. The delay on the part of the respondent in seeking leave to apply for judicial review is such as to disentitle him from seeking relief.

21 2. The learned trial judge erred in law and in fact in holding that the complainant delay was not due to the consequences of the alleged sexual abuse perpetrated on her by the respondent.

22 3. That the learned trial judge erred in law and in fact in concluding that the respondent had established presumptive prejudice and that there was actual prejudice.

23 I propose dealing with the second and third grounds as so condensed before turning to the first ground.

Complainant Delay

24 In the indictment the offence is alleged to have taken place between the 1st day of April 1982 and 9th day of June 1982. Complaint was made on 12th June 1998. The respondent was charged on 15th July 1998. A book of evidence was served upon him on the 5th October 1998. The complainant was born on 17th July 1969 and at the date of the alleged offence was 12 years and 10 months of age.

25 As a result of the decision of this court in S.H v. Director of Public Prosecutions [2006] 3 I.R. 575, in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in the making of a complaint. The issue for the court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial save in only exceptional circumstances where it would be unfair or unjust to put an accused on trial.

26 The rationale for the judgment of the court in S.H. appears from the following passage at page 618 in the same:-

"Over the last decade the courts have had extensive experience of cases where complaints are made of alleged sexual abuse which is stated to have taken place many, many years ago. It is an unfortunate truth that such cases are routinely part of the list in criminal courts today.

At issue in each case is the constitutional right to a fair trial. The Court has found that in reality the core enquiry is not so much the reason for a delay in making a complaint by a complainant but rather whether the accused will receive a fair trial or whether there is a real or serious risk of an unfair trial. In practice this has invariably been the essential and ultimate question for the Court. In other words it is the consequences of delay rather than the delay itself which has concerned the Court.

The Court approaches such cases with knowledge incrementally assimilated over the last decade in some of which different views were expressed as to how these issues should be approached. In such cases when information was presented concerning the reasons for the delay it was invariably a preliminary point to the ultimate and critical issue as to whether the accused could obtain a fair trial. In all events, having regard to the courts knowledge and insight into these cases it considers that there is no longer a necessity to enquire into the reason for a delay in making a complaint. In all the circumstances now prevailing such a preliminary issue is no longer necessary.

This particular case illustrates the extensive affidavits and oral evidence along with psychological and medical reports which have come before the Court for the purpose of explaining the reason for an elapse of time between the alleged offence and the making of a complaint. Yet, in the end, what concerns the court is whether an accused will receive a fair trial or whether there is a real or serious risk of an unfair trial.

These cases have come before the...