P.F. v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IEHC 98
• Docket Number: [2016 No. 12 J.R.]
• Date: 15 February 2016

BETWEEN

P.F.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2016] IEHC 98

[2016 No. 12 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – Offence of sexual abuse – Amendment in date of commission of offence – Prohibition of trial – Abuse of process – Inadmissibility of evidence – Risk of unfair trial

Facts: The applicant sought leave to seek an order of prohibition of his trial on the basis that the dates on which the alleged sexual offences were said to be committed by the applicant, were amended. The applicant contended that since the indictment that was furnished to him contained dates different from what was originally averred by the complainants, there existed the risk of unfair trial.

Mr. Justice Richard Humphreys refused to grant leave to seek an order of prohibition. The Court held that the prohibition was an exceptional remedy and it should be used only when there was a risk of an inevitable unfair trial. The Court observed that the appropriate place for the applicant to raise the concern in relation to the amended dates was the Trial Court and not the High Court. The Court opined that there was no risk of unfair trial as the Trial Court had been vested with ample jurisdiction and discretion to ensure fair trial. The Court held that the Trial Court possessed the jurisdiction to stop the trial, discharge the jury with retrial or deliver a directed verdict on certain counts. The Court opined that the applicant could express his objection and make a case by cross examination of the complainants, by making an application for closure of prosecution's case and an application for appropriate directions to the jury. The Court held that in criminal trial, the precise date on which the offence took place was not of the essence of the offence unless that date formed part of the offence itself. The Court found that in the present case, the core issue in the trial would be to determine whether the alleged sexual abuse occurred and not when it was occurred.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 2016

1 The applicant states that he worked on a voluntary basis in a children's home run by a religious order in Dublin from 1974 onwards. His role in that home appears to have been facilitated by a particular nun. A number of complainants, who were children in that home, have come forward making complaints of sexual abuse against the applicant, including acts which would amount to oral, anal and vaginal rape.

2 The charge sheets in this case originally charged offences dating back to August, 1968, against three complainants, who I will refer to as A, B and C.

3 The applicant was returned for trial on 31st October, 2013. On the eve of the trial an indictment was furnished in which amended dates were charged. In relation to Ms. A, the offences which were originally said to have occurred in 1968 to 1974 were now charged as having occurred in 1974 to 1975, when she was 13 to 14 years old. In relation to complainant B, offences originally have said to occur in 1974 to 1977 were now charged as occurring in 1977 when she was 14. In relation to Mr. C, there was no change in dates, and the offences concerning him do not form any part of the present application.

4 The trial commenced on 9th July, 2015. Unusually, after the jury was sworn but before the applicant was put in charge of the jury, the defence applied for certain rulings from the trial judge, Her Honour Judge Codd, arising from the indictment.

5 The application made by the defence was summarised by Ms. Caroline Biggs, S.C., (who appeared with Mr. Rory Staines, B.L.) for the applicant as follows:-

(i) to direct that the evidence of the complainants as set out in the statements in the book of evidence was inadmissible, because it referred to different dates to those in the indictment;

(ii) alternatively to direct that the D.P.P. put before the court an indictment that reflected the statements in the book of evidence; or

(iii) to make an order stopping the trial in order to protect the process of the court from abuse.

6 Those applications were refused and Judge Codd indicated that application could be sought for prohibition. The jury was discharged and a new trial date of October, 2016 was set.

Can an indictment differ from a complainant's statement?

7 Ms. Biggs submits that there is no basis for the Director to have charged offences on radically different dates to those set out expressly, or by implication, in the statements of Ms. A and Ms. B. She says that what the complainants say in their statement of evidence ‘ cannot be true’. Furthermore, the applicant says he had established that the original dates were incorrect, by reference to his not having worked in the institution until 1974, but that this defence had now been ‘ whipped away from us wholesale’.

8 That may be unfortunate from a defence point of view but as a legal objection to the indictment, it is wholly without substance. The Director is not obliged to swallow a complainant's statement whole. She is perfectly entitled and indeed required to take a view on the totality of the evidence as to what the particulars of the offending behaviour to be charged should be.

9 It is noteworthy that Keane C.J. in J. O'C. v. D.P.P. [2000] 3 I.R. 478 at 486, took the view that in a prohibition application ‘ the presumption of innocence does not apply’ and ‘ the court must proceed on the assumption that the allegations are well founded’. The allegation is that the applicant, while in a position of trust in relation to vulnerable children in a home run by a religious order, engaged in unlawful acts of sexual abuse with those children, at the ages of 13 to 14 years (and seven years in the case of Mr. C, although that does not arise in the context of these proceedings). Children in a care home are, in the nature of things, individuals with what Ms. Éilis Brennan, B.L. for the respondent, describes as a ‘ good amount of difficulties’, but this, she fairly says, is a ‘ frequent feature’ of such historic sex abuse cases. She submits that a vagueness about dates is also a common feature of such cases.

10 The really crucial aspect of this issue is that, as Fennelly J. stated in People (D.P.P.) v. Farrell [2010] IECCA 94 (Unreported. Criminal Court of Appeal, 13th October, 2010), ‘it is well established in law that the precise date on which an offence took place is not of the essence of the offence unless be it a component of the offence itself which it can be.’

11 That proposition seems to me to be fatal to this prohibition application, and indeed to any submission to the trial judge that the prosecution must be stopped because of a mere inconsistency between the dates given by a complainant (assuming they were given in evidence) and the indictment.

12 That is not to say that a submission could not be made that, following the close of the prosecution case, particular evidence was so unreliable that no reasonable jury could convict on the basis of it. Nor is it to take from any point that could be made to a jury. However, all that needs to be said at this stage is that there is no obligation, whatsoever, on the Director to frame an indictment by reference to dates given by a complainant, if the Director is of the view, that taking the evidence as a whole, that other dates should be charged.

13 Admittedly this is a more unusual situation to one where an indictment is amended after a complainant's evidence. The more normal course arises where a complainant has given slightly different dates in evidence to those originally anticipated thereby necessitating an adjustment of the dates charged and a substitution of the indictment. However, either way there is no legal basis for the Director to be held to be bound by a complainant's recollection as to dates in such a way as to override all other considerations and all other evidence. Indeed, in many cases it is almost inevitable that some inconsistency of evidence will occur as between different prosecution witnesses.

14 The core issue in the trial will be whether the sexual abuse in fact occurred. The question of when it occurred is secondary. The applicant is, of course, at liberty to contend that the uncertainty about dates undermines the evidence that the abuse occurred at all, but that is primarily a jury point. For Ms. Biggs to dismiss, for example, Ms. B's evidence as something that ‘ cannot be true’ is to significantly underestimate the capacity of a jury to distinguish between the veracity of her recollection that the abuse occurred and the accuracy of her recollection as to when it occurred.

Allegation that the evidence of the complainants was inadmissible

15 As referred to above, the first defence application to Judge Codd was for a direction that the evidence of the complainants, Ms. A and Ms. B, was inadmissible. The refusal to give such a direction was clearly correct. There is no precedent for an application of this kind. The fact that the proposed statement of evidence of the complainants suggests different dates does not make that evidence inadmissible in relation to a charge relating to other dates. It is admissible if the director intends to contend that the offence actually occurred on a date different to that recalled by the complainant. Otherwise, the entire criminal process would become a hostage to a failure in recollection by an individual complainant on a peripheral issue such as a date, as opposed to a core issue of substance, such as whether the abuse occurred.

Are there arguable grounds to contend that the Director should have been compelled to deliver an amended indictment?

16 The second application was for direction that the prosecution be required to deliver a substituted indictment that reflected the original evidence of the complainants. The court has jurisdiction...