P.G. v Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Hardiman,Mr Justice Fennelly
• Judgment Date: 29 March 2006
• Neutral Citation: [2006] IESC 19
• Docket Number: [S.C. No. 325 of 2004]
• Date: 29 March 2006

G (P) v DPP

BETWEEN

P.G.

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

[2006] IESC 19

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

No 325/04

THE SUPREME COURT

CRIMINAL LAW:

Delay

Sexual offences - Delay in making complaints - Dominion - Whether delay explicable by reference to alleged crime - Whether real risk of unfair trial - Disclosure - Failure to disclose material evidence - Fair procedures - Whether failure to disclose material evidence prejudicial to fair trial - G v DPP [1994] 1 IR 374; Hogan v President of the Circuit Court [1994] 2 IR 513; B v DPP [1997] 3 IR 140; PC v DPP [1999] 2 IR 25; PO'C v DPP [2000] 3 IR 87 and JO'C v DPP [2000] 3 IR 478 followed - DH v Groarke [2002] 3 IR 522 considered - Appeal dismissed (325/2004 - SC - 29/3/2006) [2006] IESC 19 G(P) v DPP

the plaintiff sought an injunction restraining the continued prosecution of charges of sexual abuse of minors against him. He alleged that the delay in making the complaint entitled him to the relief sought and further that the non-disclosure of various reports in relation to the complainants prejudiced his defence. The High Court refused the relief sought by the plaintiff. The plaintiff appealed to the Supreme Court.

Held by the Supreme Court, in dismissing the appeal that the accused could not rely on general prejudice due to delay and had not disclosed any specific prejudice. That as the trial judge was bound to arrange the progress of a trial so as to render justice and guarantee fair procedures, matters of disclosure were within the province of the trial judge and were not matters for judicial review except to the extent that an accused could show that, having taken all reasonable steps to obtain disclosure, necessary material was being withheld to such an extent as to give rise to a real risk of an unfair trial.

Reporter: P.C.

CRIMINAL JURISDICTION OF THE COURTS REPORT OF THE JURISDICTION OF COURTS WORKING GROUP 2003

DPP v WALL UNREP CCA 16.12.2005

G v DPP 1994 1 IR 374

HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

B v DPP 1997 3 IR 140

C (P) v DPP 1999 2 IR 25

O'C (P) v DPP & PRESIDENT OF CIRCUIT COURT 2000 3 IR 87

O'C (J)V DPP 2000 3 IR 478

H (D) v GROARKE 2002 3 IR 522

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

BOWES & MCGRATH v DPP 2003 2 IR 25

MCKEOWN v JUDGES OF THE DUBLIN METROPOLITAN DISTRICT COURT UNREP SUPREME 9.4.2003 2003 41 9855

1 JUDGMENT of Mr Justice Fennelly delivered on the 29th day of March, 2006.

2 In these proceedings, the Appellant seeks an injunction restraining the Respondent from continuing with his prosecution for sexual offences allegedly committed by him more than twenty years ago. There are two distinct prosecutions: the first, where the complainant is his niece and where the proceedings are in the Central Criminal Court; the second, where the complainant is his nephew, and where the proceedings are in the Circuit Criminal Court.

3 The Appellant's niece was born on 25th June 1972. She has complained that the Appellant raped her on three occasions between June 1981 and June1985 and that he sexually assaulted her on six occasions between June 1980 and June 1985.

4 The Appellant's nephew was born on 16th July 1973. He has complained of two incidents of sexual assault on dates unknown between December 1979 and July 1982.

5 In all cases, the offences are alleged to have occurred on unknown dates over specified periods of several months or up to two years. The offences against the niece are alleged to have committed when she was from eight to thirteen years of age; the nephew was aged from six to nine. The Appellant was born on 29th June 1950. Hence he was aged twenty nine at the date of the first offence alleged against his nephew and thirty five at the date of the last offence against his niece.

6 A book of evidence was served in each case and returns for trial were made respectively to the Central Criminal Court and the Circuit Criminal Court in each case on 11th September 2001.

7 On 11th February 2002, O'Caoimh J made an order granting the Appellant leave to apply by way of judicial review for an injunction restraining the Respondent from prosecuting him in respect of each of these two sets of charges. The grounds for the application are essentially twofold:

8 1. delay by the complainant in each case thus depriving the Appellant of his constitutional right to a trial in due course of law and/or with reasonable expedition;

9 2. failure of the Respondent to disclose certain evidence, principally the notes of psychological or other experts attending the complainants, thus depriving the Appellant of his right to fair procedures and natural justice and, hence, to a fair trial in due course of law.

10 Murphy J refused the application for an injunction. His judgment is dated 11th June 2004. The Appellant appeals to this Court.

11 Each of these complaints needs to be considered separately in respect of each applicant. I propose, in the first instance to deal with the issue of delay.

Delay

12 From even the brief account of ages dates set out above, it is clear that these cases fall to be considered as cases of complaints of sexual offences alleged to have been committed, many years ago, by a close adult family member against children of tender years. In such cases, the courts may infer from elements such as the youth of the complainant, family relationship and age difference that the alleged perpetrator is in such a relationship of dominance or authority vis à vis the complainant that the delay in making the complaint is attributable to the accused person. For that purpose, the facts alleged by the complainant are assumed to be true. The history of the making of complaints and the explanations offered for the delay in making them must be considered against that background.

13 The legal principles governing the approach which the court should adopt in a case such as the present are well settled. This development can be traced from judgments of Finlay C.J. in G. v Director of Public Prosecutions [1994] I.R. 374 (see reference to "the extent to which the applicant had contributed to the delay" at page 380); Hogan v President of the Circuit Court [1994] 2 I.R. 513 ( "...cases consisting of charges by young children......involve wholly different considerations..." at page 521). The entire problem was considered comprehensively by Denham J, speaking for this Court in B. v Director of Public Prosecutions [1997] 3 I.R. 140. This last judgment formed the basis of what has been definitively stated in two judgments of the former Chief Justice, Keane C.J. In P.C. v Director of Public Prosecutions [1999] 2 I.R. 25, Keane J, as he then was, stated at page 68:

"Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial "in due course of law". The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.

If that stage has been reached, the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

14 He restated this analysis in slightly more extensive form two years later in P.O'C. v Director of Public Prosecutions [2000] 3 I.R. 87, stating at page 93:

"There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious crimes. However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge "save in due course of law" entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children and particularly in cases where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent, teacher or religious. In cases coming within the last named category, the inquiry conducted by the court which is asked to...