P.C. v DPP

• Jurisdiction: Ireland
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Docket Number: [1996 No. 176 J.R.; S.C. No. 299 of 1997]
• Court: Supreme Court

High Court

Supreme Court

[1996 No. 176 J.R.; S.C. No. 299 of 1997]

P.C. v. Director of Public Prosecutions

P.C.

Applicant

and

The Director of Public Prosecutions

Respondent

Judge Flann Brennan, Notice Party

Cases mentioned in this report:-

B. v. Director of Public Prosecutions [1997] 3 I.R. 140; [1997] 2 I.L.R.M. 118.

Barker v. Wingo (1972) 407 U.S. 514.

D. v. Director of Public Prosecutions [1994] 2 I.R. 465.

Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236; [1994] 2 I.L.R.M. 91.

Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994).

G. v. Director of Public Prosecutions [1994] 1 I.R. 374.

Harte v. Fanning [1988] I.L.R.M. 70.

Hogan v. President of the Circuit Court [1994] 2 I.R. 513.

Klopfer v. North Carolina (1967) 386 U.S. 213.

O'C v. Smith (Unreported, Supreme Court, 24th January, 1997).

B. O'R. v. Director of Public Prosecutions (Unreported, High Court, Kelly J., 27th February, 1997).

E. O'R. v. Director of Public Prosecutions [1996] 2 I.L.R.M. 128.

The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225.

Reg. v. Telford JJ., Ex p. Badhan [1991] 2 Q.B. 78; [1991] 2 W.L.R. 866; [1991] 2 All E.R. 854.

In the matter of Paul Singer (1960) 97 I.L.T.R. 130.

State (Healy) v. Donoghue [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

Z. v. Director of Public Prosecutions [1994] 2 I.R. 476.

Constitution - Right to fair trial - Reasonable expedition - Applicant alleging prejudice to right to fair trial by delay in reporting allegations - Whether real or serious risk of unfair trial established - Constitution of Ireland, 1937, Article 38.1.

Criminal law - Sexual offences - Delay in making complaints - Dominion - Whether delay between date of alleged offences and date of complaint prejudicial to fair trial of applicant - Whether any time limit in which to prosecute - Whether applicant in position of dominion over complainant.

Criminal law - Book of evidence - Contents - Statements containing hearsay - Witnesses who will not be called at trial - Whether new book of evidence required - Criminal Procedure Act, 1967 (No. 12), s. 6(1)(c) and (d).

Judicial review.

The facts are summarised in the headnote and set out in detail in the judgment of McGuinness J., infra.

The applicant applied to the High Court (Laffoy J.) on the 22nd May, 1996, and was granted leave to apply by way of judicial review for, inter alia, an order of prohibition preventing further prosecution of the applicant on five charges of indecent assault on dates unknown between the 1st September, 1982 and the 30th September, 1983 and three charges of unlawful carnal knowledge on dates unknown between the 1st September, 1983 and the 12th December, 1984 and an injunction to restrain the respondent from taking further steps to prosecute the applicant.

The application was heard by the High Court (McGuinness J.) on the 28th, 29th and 30th May, 1997.

The respondent appealed by notice of appeal dated the 3rd September, 1997. The Supreme Court (Hamilton C.J., Denham, Barrington, Keane and Lynch JJ.) heard the appeal on the 23rd April, 1998.

The applicant was a coach driver and swimming teacher at a school. He was charged on five counts of indecent assault on a pupil on dates unknown between 1982 and 1983 and three counts of unlawful carnal knowledge with her on dates unknown between 1983 and 1984. In 1986 or 1987, the complainant told a boyfriend of the alleged abuse by the applicant but did not tell her parents. In 1988, the complainant told three friends of the alleged abuse, one of whom told her father, a sergeant in the gardaí. Shortly after this, the complainant's parents and staff at her school were informed. However, no attempt was made by anyone to report the allegations to the Garda Síochána. The complainant did not make a complaint to the gardaí until 1995. The prosecution claimed that the reason for the delay in making the complaints was due to the applicant being in a position of dominance and control over the complainant. The applicant sought orders of prohibition and an injunction to restrain the respondent from taking any further steps in the prosecution of the offences alleged on the basis that the applicant was prejudiced in his defence of the proceedings and could not get a fair trial in due process of law on the grounds, inter alia, that the delay in instituting the proceedings was excessive, that there was a lack of specificity in the charges and that the book of evidence served on the applicant contained statements consisting solely of hearsay which could never be admissible at the trial.

Held by the High Court (McGuinness J.), in granting the relief sought, 1, that where a court was asked to prohibit the trial of a person on the grounds of excessive delay, it was justified in taking into account the extent to which the applicant had contributed to the delay in the reporting of the offence to the prosecution authorities.

• B. v. Director of Public Prosecutions [1997] 3 I.R. 140 applied.

2. That the factors to be taken into account were: (a) whether there was such a close personal relationship between the applicant and the complainant which might prevent the making of a complainant; (b) whether there was evidence of the applicant having a domineering personality such as might delay the making of complaint; (c) whether the applicant caused the delay; (e) whether the abuse took place in the family home; (f) whether, because the abuse took place in the family home, the applicant might be prejudiced by reason of the delay in locating witnesses; (h) whether the applicant had made an entire or partial admission of guilt.

• B. v. Director of Public Prosecutions [1997] 3 I.R. 140 applied.

3. That in delay cases warnings and directions to the jury might not be effective in avoiding the risk of an unfair trial.

4. That s. 6(1)(c) and (d) of the Criminal Procedure Act, 1967, required that the documents to be served on an accused should include a list of the witnesses whom it was proposed to call at the trial and a statement of the evidence that was proposed to be given. Where the evidence proposed to be given was hearsay, so that such witnesses could not be called, such statements should not be included in the documents.

The respondent appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Denham, Barrington, Keane and Lynch JJ.), in allowing the appeal, 1, that each case of this nature was unique and must be determined on its own circumstances.

2. Per Denham J. (Hamilton C.J. and Barrington J. concurring): that the complainant's inability to make a formal complaint until 1995, was a consequence of the alleged abuse, and was therefore not the complainant's delay. The fault for the delay lay with the alleged perpetrator of the crime and he could not profit from alleged illegal actions.

3. Per Denham J. (Hamilton C.J. and Barrington J. concurring): that although the delay was considerable, it had not altered the nature of the trial.

4. Per Lynch J. (Hamilton C.J. and Barrington J. concurring): that the onus of proving the risk of an unfair trial was on the applicant. Where a court had decided that a delay had made it more difficult for an accused to answer the charges against him, it then was to consider the case on the assumption that what the complainant had said was true and decide which party had caused the added difficulties. Where the accused was responsible, he could not validly complain.

The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225 followed.

5. Per Lynch J. (Hamilton C.J. and Barrington J. concurring): that aprima facie presumption of dominion existed in cases of child sexual abuse which involved mature adults and children under the age of fifteen.

6. Per Lynch J. (Hamilton C.J. and Barrington J. concurring): that the lack of specificity in charges in a child sexual abuse case was not a valid cause of complaint.

Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994) considered.

7. Per Keane J. (Hamilton C.J. and Barrington J. concurring): that in light of the presumption of innocence the paramount concern of the court when asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, was whether the degree of prejudice was such as to give rise to a real and serious risk of an unfair trial.

• D. v. Director of Public Prosecutions [1994] 2 I.R. 465 followed.

Cur. adv. vult.

McGuinness J. 24th July, 1997

On the 21st August, 1995, the applicant was arrested and questioned with regard to alleged sexual offences against the complainant, A.M. He was subsequently charged on five counts of indecent assault on dates unknown between the 1st September, 1982 and the 30th September, 1983 and three counts of unlawful carnal knowledge on dates unknown between the 1st September, 1983 and the 12th December, 1984. He was served with a book of evidence and the matter of his return for trial on these charges now stands adjourned before the District Court. The applicant has at all times denied each and every allegation made against him and maintains that he is innocent of all the offences charged.

On the 22nd May, 1996, the applicant was granted leave by Laffoy J. to issue judicial review proceedings seeking an order prohibiting the respondent from further dealing with the prosecution of the applicant on the various charges and an order in the nature of an injunction restraining the respondent from taking any further steps in the criminal prosecution entitled Director of Public Prosecutions v. P.C.

The grounds set out in the applicant's statement grounding his application for judicial review are as follows:-

• 1. The delay in the institution of the proceedings herein:

• (a) has prejudiced the applicant in his defence of these...