P.J. (Aka) P.J.C v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice MacMenamin
• Judgment Date: 11 February 2005
• Neutral Citation: [2005] IEHC 98
• Date: 11 February 2005
• Court: High Court

[2005] IEHC 98

THE HIGH COURT

No. 231 JR/2002

J (P) (ORSE C (P J)) v DPP

JUDICIAL REVIEW

BETWEEN

P.J. (aka) P.J.C

APPLICANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

ZAMBRA v MCNULTY & DPP 2002 2 IR 351 2002 2 ILRM 506

CRIMINAL JUSTICE ACT 1999 S42

CRIMINAL JUSTICE ACT 1984 S4

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

L (J) v DPP 2000 3 IR 122

J (B) v DPP 2003 4 IR 525

C (P) v DPP 1999 2 IR 25

S v DPP & CONNELLAN UNREP SUPREME 19.12.2000 2000/16/6203

BARRY v DPP & ORS UNREP SUPREME 17.12.2003 2003/5/993

CRIMINAL LAW

delay

Trial - Right to trial with reasonable expedition - Indecent assault - Complainant delay - Dominion - Prejudice -Whether delay inordinate and excessive - S v. DPP (Unrep, SC, 19/12/2000) and Barry v DPP

The applicant was charged with offences of indecent assault. He applied by way of judicial review for an order of prohibition on the grounds inter alia that if his prosecution proceeded he would be deprived of a trial in due course of law and with due expedition.

Held by McMenamin J. in refusing the application that because of the applicant’s conduct he was not entitled to rely on delay per se. There was no basis for a contention of prosecutorial delay. There was ample evidence of conduct on part of the applicant vis-à-vis the complainants which was tantamount to pressure and intimidation.

Reporter: R.W.

1 JUDGMENT of Mr. Justice MacMenamin delivered the 11th day of February, 2005

2 The applicant in these proceedings was born on 27 January, 1928. He is married to J.M.C. He is retired and has four children. It is accepted and deposed to in the affidavit sworn by the applicant's solicitor that he is currently serving a nine year sentence in respect of other charges of rape and indecent assault on family members. The applicant received this sentence on 26 January, 2001. It was back-dated to 12 May 1999. The applicant was convicted on these offences on 7 December, 2000.

3 The applicant was returned for trial in relation to the present alleged offences on 20 December, 2001. It was found on the basis of the authority of Zambra v. McNulty and the D.P.P. [2002] 2 I.R. 351 that the return for trial was defective and the respondent herein obtained an order on 20 December, 2002, quashing the return for trial and remitting the matter to the District Court. However, the applicant has again been returned for trial on 30 June, 2003.

4 As against the applicant there are in the Book of Evidence two charges of indecent assault in relation to Mrs. M.C. and twenty-one charges alleging offences of indecent assault on K.N.C. K.N.C. is a daughter of Mrs. M.C. Mrs. M.C. is married to the applicant's brother, R.C., also an applicant in these proceedings. The allegations therefore refer to Mrs. M.C., the applicant's sister-in-law and K.N.C., his niece.

First complainant - Mrs. M.C.

5 Mrs. M.C. was born on 7 December, 1943. As indicated above, she is the applicant's sister-in-law. She is married to R.C. Senior (hereinafter “R.C.”) who is also one of the applicants. The complaint on foot of which this charge proceeded was made to the Gardaí on 10 June, 1999. It relates to an allegation of indecent assault between 1 July and 30 September, 1972.

6 The applicant apparently first became aware of the allegation on 20 July 2000, when the Gardaí sought his arrest in respect of the allegations made by Mrs. M.C. and then proceeded to interview him in respect of the allegations made by her; and also a complaint made by K.N.C. on 28th September, 1999.

Earlier complaints:

7 The complaints in question and now the subject of these charges were not the first complaints Mrs. M.C. had made to the Gardaí regarding sexual abuse. The evidence disclosed that on 19 December, 1986, Mrs M.C. visited the Gardaí in her locality. On that occasion she made allegations against her brother-in-law, F.C., also one of the applicants. These allegations related to two of her children, W.C. and R.C. Junior (hereinafter “R.C. Jnr.”). These children were sons of Mrs. M.C. and R.C. W.C. was born on 23 January, 1978 and R.C. Jnr. was born on 29 March, 1975. This complaint was withdrawn on 25 February, 1987, little more than two months after it was made.

8 There is no evidence of any earlier complaints made in relation to the applicant by this complainant.

9 The complaint at issue (i.e. that relating to Mrs. M.C.) states that on a date unknown between 1 July, 1972 and 30 September, 1972, the applicant indecently assaulted Mrs. M.C. The complainant describes as follows an incident occurring in 1972 when her daughter, K.N.C. was four. It was, she alleges, in or around the month of August. She was able to identify the date because she had given birth to her daughter, M. in July of 1972.

10 She (M.C.) states that on a Saturday night she was in their mobile home with her two children. Her husband (R.C.) was in the pub. At around 12 o'clock or 12.30am, the door of the mobile home was flung open. She states that there was a person there with a gun. She was lying in the bed with K.N.C. and M.C., her children. The man with the gun came into the mobile home. She describes the gun as being long, like a rifle. She says she had seen this man in a local village before but did not know his name. He stated he was looking for her husband (R.C.) . She asked him what it was about but she said that he would not tell her, and that he just wanted to get her husband. She grabbed the two children and ran past him. She ran over to R.C.'s mother's house to get them out of bed. When they came to the door she asked them to mind the children and that she wanted to run up and get P.J.C., that is the applicant herein.

11 She went running up the road for P.J.C. who lived nearby. He got dressed and was walking back down the road with her. The complainant states that P.J.C. was sort of running and kept saying "hold on, girlie". When they got down somewhere between his house and a local public house, which she identified, she alleges that P.J.C. grabbed her and threw her onto the ditch. She was wearing a skirt. It is alleged that P.J. stated to her "you are too good for my brother [R.] ". He held her down. He then tried to take off her pants. He had her dress up around her waist. She was screaming, sometimes in abusive terms. She knew the applicant was trying to rape her. She punched him in the mouth and bit him in the arm. Then she broke free and ran away. She continued to run until she went back down to her mother in law's house. She then describes the applicant allegedly strolling down as if nothing had happened. She went into Mrs. C. Senior's house and he (the applicant) followed her in. At this point the man with the gun had gone. She states that her husband, R.C., came home at around half past two. P.J.C. allegedly asked him what he had done for a fellow with a gun to be looking for him. He, that is R.C., replied he did not know what he was looking for. She stated that she did not tell R.C., her husband, what P.J.C. had done to her because "you can't talk to him about things like that" and because "he wouldn't believe me if I said anything against his family". She went on to state: "we never reported to the police about the man and the gun because when you lived up there (referring to the area in which she was then living with her family) you didn't involve the police in anything."

12 Mrs. M.C. is now 58 years of age. At the time of the alleged offence in 1972, she was 26 years of age. At the time she provided the statement, on 10th June, 1999, she was 53 years of age at which point a period in excess of twenty-five years had elapsed since the alleged offence took place.

13 I will mention at this juncture the applicant's comment that it is inexplicable that, when Mrs. M.C. took her daughter K.N.C. to the Garda station in 1986, she made no complaint in relation to any offences committed against herself and that apparently she only made up her mind to talk to the Gardaí after one of her sisters-in-law, Je.C., made a statement to the Gardaí in 1999. Je.C. is the wife of the applicant herein (P.J.C.). However, the statement in question relates to previous proceedings brought against R.C. and is not part of the evidence herein. The applicant further points out that Mrs. M.C. had previously informed one P.D. and his wife E.D. that another individual (i.e. not the applicant) was abusing their son. Mrs. M.C. also states in her affidavit that when K.N.C. was about 4 years of age she (Mrs. M.C.) questioned her (K.N.C.) in relation to the actions of her grandfather, and K.N.C. reported to her what amounted to an indecent assault by him. Mrs. M.C. told her mother-in-law at that point that she would get the police. I will return to these issues later.

Second complainant - K.N.C.

14 K.N.C. is the second complainant. She was born on 23rd July, 1968. She is a daughter of Mrs. M.C. and R.C. Snr. The applicant in these proceedings faces twenty one charges alleging indecent assault in relation to K.N.C. between the dates 1978 and 1983, at which point the complainant was aged between 10 and 15 years.

15 K.N.C. describes a number of assaults which allegedly took place while she was in bed in her home. P.J.C. allegedly put his hand inside her pants and put his fingers inside her vagina. At the same time he was sexually stimulating himself. These occasions occurred four or five times a year. On one occasion she recollects being downstairs as a child and P.J.C. saying to her "someday I will get you up in my house and I will show you what a real man is". She describes the applicant allegedly fondling her breasts and her sexual organs. She stated "he used to say never to tell anybody because I would get hurt if I did, that he knew people in the I.R.A. and that they would come and blow my head off if I upset him or...