P.H. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 01 June 2018
• Neutral Citation: [2018] IEHC 329
• Docket Number: [2017 No. 581 J.R.]
• Court: High Court
• Date: 01 June 2018

[2018] IEHC 329

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2017 No. 581 J.R.]

BETWEEN

P. H.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judicial review – Indecent assault – Order of prohibition – Applicant seeking an order of prohibition or an injunction restraining his further prosecution – Whether exceptional circumstances existed which would render it unfair and unjust to allow the prosecution to proceed

Facts: The applicant, a retired school teacher formerly employed in a Dublin south city primary school, faced 16 charges of indecent assault involving nine complainants the subject matter of indictment Bill No. DUDP0464/2017 pending before Dublin Circuit Criminal Court. Eight of the complainants were pupils in the same class 3C in the school and each alleged an offence or offences said to have occurred between 1st September, 1968 and 1st June, 1969. The ninth complainant alleged indecent assault said to have occurred between 1st September, 1970 and 30th June, 1971 when a pupil in Class 5C at the same school. The applicant accepted that he taught classes 3C and 5C during the relevant periods within which the offences were alleged to have been committed. Leave to apply by way of judicial review was granted on 17th July, 2017 for an order of prohibition or an injunction restraining the further prosecution of the offences or a declaration that the delay in instituting criminal proceedings against the applicant had prejudiced a fair trial and/or that exceptional circumstances existed which would render it unfair and unjust to allow the prosecution to proceed.

Held by the High Court that, in the circumstances of the case, the deaths of the named persons over the years did not give rise to a real or serious risk of an unfair trial. The Court held that the applicant had not established that the absence of a roll book for Class 3C gave rise to a real or serious risk of an unfair trial. The Court was not satisfied on the evidence adduced having regard to the applicant's age or ill health that there was a real and serious risk of an unfair trial. The Court was not satisfied that relief should be granted on the basis of "wholly exceptional circumstances" based on cumulative factors as considered and applied in P.T. v Director of Public Prosecutions [2008] 1 IR 701.

The Court held that the application should be refused.

Application refused.

JUDGMENT of Mr. Justice McDermott delivered on the 1st day of June, 2018

1 The applicant, a retired school teacher, was born on 9th January, 1942 and is aged 76. He was employed in a Dublin south city primary school and faces 16 charges of indecent assault involving nine complainants the subject matter of indictment Bill No. DUDP0464/2017 presently pending before Dublin Circuit Criminal Court. Eight of the complainants were pupils in the same class 3C in the school and each alleges an offence or offences alleged to have occurred between 1st September, 1968 and 1st June, 1969. The ninth complainant alleges indecent assault said to have occurred between 1st September, 1970 and 30th June, 1971 when a pupil in Class 5C at the same school.

2 The applicant accepts that he taught classes 3C and 5C during the relevant periods within which the offences are alleged to have been committed.

3 Leave to apply by way of judicial review was granted (Heneghan J.) on 17th July, 2017 for an order of prohibition or an injunction restraining the further prosecution of the offences or a declaration that the delay in instituting criminal proceedings against the applicant has prejudiced a fair trial and/or that exceptional circumstances exist which would render it unfair and unjust to allow the prosecution to proceed.

4 It is claimed on behalf of the applicant that the delay in commencing these criminal proceedings constitutes a breach of his constitutional rights to be tried on criminal charges in due course of law pursuant to Article 38.1 of the Constitution and in particular to be tried with reasonable expedition and due regard to his right to fair procedures under Article 40.3 thereof. In particular, it is claimed that exceptional and specific circumstances exist which would render it unfair to put the applicant on trial namely:-

'(a) The charges relate to events which are alleged to have occurred 45 to 48 years ago,

(b) save for one complaint the gardaí appear to have first approached the complainants,

(c) the applicant is now 76 years of age and in bad health,

(d) the applicant was previously charged with 25 counts of indecent assault and has not been convicted.'

5 The eight complainants from Class 3C and the number of indecent assault charges laid in respect of each against the applicant are:-

Name of Complainant No. of Charges

T.C. 3

D.D. 2

L.W. 1

F.T. 1

T.O'B. 2

P.K. 1

K B. 1

A.P. 3

The applicant is charged with two charges of indecent assault against the ninth complainant D.H which allegedly occurred when he was in Class 5C.

The Investigation

6 Detective Garda Garvan Ware received a file on 5th August, 2013 concerning an allegation of historical sexual and physical abuse from the Domestic Violence/Sexual Assault Unit of An Garda Síochána as a result of allegations made by T.C. On 29th August he took a statement of complaint from T.C in which he alleged that the applicant had sexually and physically abused him when he was teaching him in the school in 3rd and 5th classes during the school years 1968 to 1969 and 1970 to 1971. He described in his statement which was furnished to Garda Ware on 29th August, 2013 how the applicant had indecently assaulted him during the course of the school year in Class 3C and had also physically abused him when he was in classes 3C and 5C: he could not recall sexual abuse during his year in Class 5C.

7 Detective Garda Ware then commenced his investigation by contacting the acting principal of the national school on 15th October, 2013. He was given access to the school records as a result of which he confirmed that T.C. had been a pupil in the school from 1967 to 1972 and that the applicant had been a teacher during those years. It was also confirmed that T.C. had been in Class 3C from 1968 to 1969 and in Class 5C from 1970 to 1971. He was provided with the roll books for Class 5C for the relevant period and a roll book for Class 2C for the year preceding the year during which the offending occurred in Class 3C. The prosecution claim that most pupils from Class 2C went on to Class 3C and were the applicant's pupils for the school year 1968 to 1969. The roll book for Class 3C for 1968 to 1969 was not available as it was in the possession of another garda investigation team which had obtained it during the course of a previous investigation concerning alleged abuse by the applicant.

8 In addition Detective Garda Ware was given access to the Clárleabhar, a registration book which detailed the date of entry into the school of each pupil, the class in which a pupil was entered for each year thereafter and the date of his departure from the school. He identified 63 former pupils from Classes 3C and 5C including the complainant for the relevant period. He attempted to contact as many of them as he could. In total 47 pupils were contacted including the complainant.

9 Twenty-seven former pupils made statements in respect of the alleged offences. Ten of those also made allegations of abuse against the applicant. One of those complainants is now dead. In addition, nineteen former pupils were contacted from whom statements were not taken but the contact was documented. Detective Garda Ware did not succeed in contacting sixteen people – nine of whom had died and two of whom he believed to be abroad: five could not be traced. This process took until the end of 2014. All of these statements were disclosed to the applicant's solicitor.

10 In his affidavit Detective Garda Ware states that seventeen of those interviewed who provided statements are in a position to give evidence relating to the general atmosphere in the class and the layout of the classroom. Some state that they did not witness any inappropriate behaviour in the classroom. This may be of relevance to the defence having regard to the repeated and public nature of the allegations made.

11 A number of statements of complaint were taken from former pupils who were interviewed in the course of the investigation during 2014. Statements were taken from D.D. on 3rd April, L.W. on 4th June, F.T. on 3rd July, D.H. on 4th August, T.O'B. on 14th August, D.C. on 8th September (now deceased), P.K. on 10th September, K.B. on 22nd September and A.P. on 20th November, 2014. Detective Garda Ware also provided the details of nineteen other pupils who were contacted from whom statements were not taken. The contact, however, was recorded. Some or all of these it is claimed may also be able to assist the applicant in relation to any evidence he may wish to adduce regarding the layout of the classroom, visitors to the classroom or the atmosphere prevailing in class.

12 On 10th January, 2015 Detective Garda Ware spoke with the applicant at his home concerning the complaints with a view to arranging an interview. Subsequently, he dealt with the applicant through his solicitor. He became aware of the applicant's health issues from a letter received from Dr. Peter Quigley consultant cardiologist. Detective Garda Ware states that eight interviews were conducted with the applicant between 18th May and 5th December, 2015. The allegations were denied: various issues were addressed in the course of the interviews.

13 An investigation file was prepared and forwarded to the Office of the Director of Public Prosecutions in January 2016. Directions were given on 3rd August, 2016. It was agreed with the applicant's solicitor that the matter would proceed by the issuing of summonses which were applied for in November 2016. These were returnable before...