P.D v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Quirke J. |
| Judgment Date | 26 April 2006 |
| Neutral Citation | [2006] IEHC 128 |
| Court | High Court |
| Date | 26 April 2006 |
[2006] IEHC 128
THE HIGH COURT
BETWEEN
AND
OFFENCES AGAINST THE PERSON ACT 1861 S62
B (C) v DPP 1997 3 IR 140
BARKER v WINGO 1972 407 US 514
C (P) v DPP 1999 2 IR 25
O'C (P) v DPP 2000 3 IR 87
O'C (J) v DPP 2000 3 IR 478
L (P) v BUTTIMER & DPP 2004 4 IR 494
M (P) v MALONE & DPP 2002 2 IR 560
S (T) v DPP & ORS UNREP SUPREME 22.06.2005
HEALY, STATE v DONOGHUE 1976 IR 325
O'CONNELL, STATE v FAWSITT 1986 IR 362 1986 ILRM 639
CONSTITUTION ART 38.1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
F (T) v DPP & JUDGE KENNY UNREP HIGH COURT QUIRKE J 18.01.2005
P (P) v DPP 2000 1 IR 403
CRIMINAL LAW
Delay
Right to fair trial - Right to expeditious trial- Complainant delay - Prosecutorial delay -Presumptive prejudice - Actual prejudice -Witnesses not available - Prohibition granted(2002/106JR - Quirke J - 26/4/2006) [2006] IEHC 128
D(P) v DPP
Facts: The applicant sought to prohibit the prosecution of the applicant in respect of 14 charges relating to buggery and indecent assault on the grounds of the inordinate and inexcusable delay of the reporting of the offence by the complainant and the prosecution thereof.
Held by Quirke J. that the absence of key witnesses, the nature and complexity of the complainants complaints, the fact that the delay suffered was not referable to the applicant and the unexplained period of prosecutorial delay established that on the balance of probabilities that the applicant was exposed to a real and serious risk of an unfair trial.
Reporter: E.F.
JUDGMENT of the Honourable Mr. Justice Quirke J. delivered on the 26th day of April 2006
By order of the High Court (McKechnie J.) dated the 25th February, 2002, the applicant was given leave to seek relief by way of Judicial Review including an order prohibiting or restraining the respondent from proceeding further with the prosecution of the applicant in respect of fourteen criminal charges which have been preferred against him.
Six charges allege the commission of the offence of buggery contrary to the provisions of s. 62 of the Offences Against the Person Act, 1861 on unknown dates between the 1st June, 1982 and the 30th April, 1983.
The eight remaining charges allege the commission of the offence of indecent assault contrary to common law and to the provisions of s. 62 of the Offences Against the Person Act, 1861 on unknown dates between the 1st June, 1982 and the 30th April, 1983.
The applicant claims that by reason of inordinate and inexcusable delay on the part of (a), the complainant K.C. in reporting the alleged offences and, (b), the prosecuting authorities in bringing the applicant to trial before the courts he has suffered presumptive and specific prejudice in his capacity to defend himself. It is claimed, therefore, that there is a real and serious risk that the applicant will not receive a fair trial in respect of the offences alleged against him.
1. On the 7th February, 1996, K.C. called, by appointment, to Harcourt Square Garda Station. He had a conversation with Detective Garda O in relation to allegation of sexual abuse allegedly perpetrated upon him. He called periodically to the same Garda Station and had further conversations on the same subject with Detective Garda O during the succeeding three months.
2. On the 8th June, 1996, Detective Garda B.O. recorded in writing a statement of complaint made by K.C.
On 14th November, 1996, K.C. delivered typed and handwritten documents to Detective Garda B. O. comprising in excess of 300 pages.
In evidence in these proceedings K.C. described those documents as comprising a written account of incidents and events which had occurred in his life. He said that they had been prepared as part of a therapeutic process which he was then undergoing during counselling from a psychologist, Ms. Clare Moran.
3. No evidence was adduced in these proceedings indicating that any step was taken by the prosecuting authorities in relation to the complaint made by K.C. between the 14th November, 1996 and the 4th December, 1997. On that date Detective Garda D. O'B. contacted K.C. He arranged to meet him on the 12th December, 1997.
4. On 12th December, 1997, the 18th December, 1997, the 27th February, 1998, and 4th March, 1998, K.C., made statements of complaint in writing to Detective Garda O'B. at Harcourt Sq. Garda Station.
5. Between December, 1997 and November, 1999 Detective Garda O'B. worked continuously and assiduously on the detailed investigation of the complaints made by K.C.
6. On the 27th October, 1999, the applicant was arrested and charged with the offences which have given rise to these proceedings. He was not returned for trial to the Dublin Circuit Criminal Court until 7th December, 2001. He denies all the allegations made against him.
7. By order of the High Court (McKechnie J.) the applicant was on 25th February, 2002, granted leave to seek the relief sought in these proceedings.
8. On 8th May, 2002, K.C. made a statement in writing to Detective Garda D. O'B. at Harcourt Sq. Garda Station. In that statement K.C. said that the reasons why he had not complained to the prosecuting authorities until 1996 in respect of assaults allegedly committed by the applicant in 1982 and 1983 were, (a), because he felt guilty and ashamed at the nature of the abuse allegedly perpetrated upon him when he was a child and, (b), because he felt responsible for participating in the sexual activities perpetrated by the applicant and by other adults introduced to him by the applicant.
He stated that he first felt strong enough to tell an adult when he was a member of the Mormon Church which, upon learning of the abuse decided to hold a church court to consider his excommunication from that church. He had, on the advice of members of the church, told a psychologist named John McLaverty of the abuse. Mr. McLavery has no written record of the meeting which gave rise to the disclosure. His files were destroyed five years after their closure, in accordance with his agency's policy. Mr. McLavery apparently has a good recollection of the disclosure.
K.C. said that when he was a male prostitute during his teenage years and had been stopped on a number of occasions by members of An Garda Siochána. He had told them what he was doing but had not been provided with help or support from social services, from professional therapists or from his parents.
He said he had attempted suicide on a number of occasions by reason of his lifestyle. He believed that he might have disclosed the abuse whilst hospitalised on two occasions but nothing resulted from those disclosures.
9. He said that he disclosed the abuse to a clinical psychologist Clare Moran between 1994 and 1996. She was treating him in respect of gender and sexuality issues which related to the abuse.
Clare Moran informed him that, under the mandatory reporting measures adopted by the Health Board she had to inform her superiors and the Director of Public Prosecutions about the abuse.
He then suffered several breakdowns and was referred to St. James's Hospital Psychiatric Unit.
On the advice of Clare Moran he finally came forward and made a complaint to Detective Garda B. O. on 8th June, 1996.
10. In evidence in these proceedings K.C. stated that he had been "…through enough for a book…whether I decide to write one or not…". He said that was why he had reduced his thoughts to several hundred pages of text.
He said that he was first touched inappropriately when he was six years old by a priest, Father K.
He was then abused by an adult male P.J. when he was between eight and twelve years old. P.J had given him money and gifts.
He said he was abused by P.J. from the time when he was seven or eight years old until he was twelve or thirteen years old and engaged in a lot of sordid activity with others almost every week.
His relationship with P.J. ended when he started work in the Cats and Dogs home at the end of the summer of 1980/81. He was abused repeatedly and horrifically by another adult male, R.W. whilst he was working in the Cats and Dogs home. R.W. worked in the Cats and Dogs home. He abused K.C. regularly from the time when he started to work there. This continued for a period of 4 or 5 years. R.W. is now deceased.
He said that he had been introduced to prostitution by the applicant. The applicant and his acquaintances had introduced him to the Phoenix Park. He said he had frequented the Phoenix Park with a school friend and had "cruised the streets". At that time he regarded sex as being "…like a drug."
He said that he would meet the applicant in Burgh Quay and the Phoenix Park. On one occasion the applicant brought him to a clinic for Venereal Disease in Sir Patrick Dunne's hospital.
The applicant didn't know of K.C.'s abuse by R.W. although he did know that K.C. worked in the Cats and Dogs home.
He said that he met a number of other adults through his contact with the applicant. These were a group of men who frequented Burgh Quay. He said that on one occasion he made dinner for a group of men in the applicants home where they all watched pornographic films.
He said he had a difficult home life. His parents had separated. There was alcoholism and neglect and some violence in his family life
He said during his teenage years he went from one crisis to another and was suicidal on many occasions.
He said that he had sexual relationships with a number of different men until he was...
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