P.T. v DPP

• Jurisdiction: Ireland
• Judge: Denham J
• Judgment Date: 31 July 2007
• Neutral Citation: [2007] IESC 39
• Court: Supreme Court
• Docket Number: [S.C. Nos. 179 and 188 of 2006]
• Date: 31 July 2007

T (P) v DPP

Between/

P.T.

Applicant/Respondent

and

The Director of Public Prosecutions

Respondent/Appellant

[2007] IESC 39

Denham J.

Geoghegan J.

Macken J.

[S.C. No: 179/2006]

THE SUPREME COURT

CRIMINAL LAW

Delay

Right to fair trial - Reasonable expedition - Prosecutorial delay - Whether blameworthy delay on part of prosecuting authorities - Balancing exercise - Risk of unfair trial - Interests protected by right to expeditious trial - Public interest - Exceptional circumstances - Whether exceptional circumstances making it unfair to put applicant on trial - DC v DPP [2005] IESC 77, [2005] 4 IR 281, D v DPP [1994] 2 IR 465, PM v Malone [2002] 2 IR 560, PM v DPP [2006] IESC 22, [2006] 3 IR 172 and SH v DPP [2006] IESC 55, [2006] 3 IR 575 followed - Respondent's appeal dismissed (179 & 188/2006 - SC - 31/7/007) [2007] IESC 39

T(P) v DPP

Facts: The applicant, an elderly former priest, had sought successfully to prohibit his trial on sexual offences by reason of a serious risk of an unfair trial arising from inter alia delay and a failure to disclose evidence to the applicant. The DPP appealed against the decision. The issue arose as to whether the applicant could come within the exceptional circumstances of the H v DPP ruling so as to prohibit his trial.

Held by Supreme Court per Denham J. that the Court had to engage in a balancing exercise. The applicant was elderly, a significant period of time had elapsed since the incidents the subject of the allegations and the trial would have a detrimental impact on him. There was no prosecutorial delay but the case had taken time to mount. The trial would be restrained.

Reporter: E.F

CRIMINAL LAW AMDT ACT 1935 S6

S (H) v DPP 2006 3 IR 575

P (M) v DPP 2006 3 IR 172

O'B v DPP UNREP SUPREME 5.2.2007 (EX TEMPORE)

K (J) v DPP UNREP SUPREME 27.10.2006 2006 IESC 56

M (P) v MALONE & DPP 2002 2 IR 560 2002 16 3761

D (C) v DPP 2005 4 IR 281

1 Judgment delivered the 31st day of July, 2007 by Denham J.

2 1. This is an appeal by the Director of Public Prosecutions, the respondent/appellant, hereinafter referred to as 'the D.P.P.', from a judgment of the High Court (Dunne J.) delivered on the 21st day of March, 2006.

3 2. P.T., the applicant/respondent, and hereinafter referred to as 'the applicant', was born on 1st November, 1920. He was returned for trial on twenty eight charges of indecent assault contrary to common law and to s.6 of the Criminal Law Amendment Act, 1935. The offences alleged were committed many years ago.

4 3. The applicant obtained leave from the High Court on 10th January, 2005 to apply by way of judicial review for an order of prohibition, or injunction, restraining the D.P.P. from taking any further steps in the proceedings. The grounds upon which such leave was granted were:-

5 1. There has been a breach of the constitutional right of the applicant to a trial with due course of law in that the D.P.P. is continuing a prosecution in which there is a serious risk of an unfair trial, for a number of reasons:

6 (a) The lapse of time between the dates of the alleged offences (said to have occurred between 1st April, 1965 and 1st September, 1970) and the return for trial of the 12th October, 2004 is more than 34 years and up to 39 years.

7 (b) The D.P.P. has breached the constitutional rights of the applicant to fair procedures in that the D.P.P. has failed or refused, in respect of the criminal proceedings the subject matter of this application:

8 (i) to disclose material information to the applicant.

9 (ii) to furnish material documents to the applicant.

10 (iii) to investigate material matters or cause them to be investigated.

11 there being a duty to do same arising from the obligations of fair procedures. The D.P.P. refuses and has failed to reply to requests made by the applicant in a letter dated the 2nd November, 2004 to Mr John Brosnan, State Solicitor, Friar St, Youghal, Cork seeking such disclosures and investigations.

12 2. The constitutional right of the applicant to trial in accordance with law is breached in that his liability to properly defend himself has been severely prejudiced by virtue of lapse of time between the date of the alleged offences and the return for trial of the applicant in respect of those alleged offences. He has suffered prejudice as a result of a number of factors:

13 (a) the vague and unspecific nature of the criminal charges against the applicant in the criminal proceedings the subject matter of this application;

14 (b) the advanced age of the applicant who is 84 years of age having been born on the 1st November, 1920.

15 (c) the stress, anxiety and prejudice caused as a consequence of the within allegations, including removal from active ministry as a Roman Catholic priest.

16 3. The constitutional right of the applicant to trial with due expedition is breached in that the D.P.P. has been guilty of prosecutorial delay in that he delayed in a number of respects:

17 (a) caused and/or permitted a lapse of time of over 2 years between the apparent reception of the complaint against the applicant of the alleged victim and the first appearance of the applicant in court on foot of a valid summons to answer the charge on the 28th September, 2004.

18 (b) caused and/or permitted a lapse of time of 21 months between the questioning of the applicant in relation to the offence (8th December, 2002) and his first appearance in court on foot of a valid summons on the 28th September, 2004).

19 3. The High Court judgment was given prior to several important decisions of this Court which developed the relevant jurisprudence. Consequently, this appeal, as has happened in several other cases, arises after the applicable law has been clarified.

20 4. The High Court considered the delay prior to the making of the complaint. The High Court held that there was a reasonable explanation for the delay by the complainant prior to making the complaint. This finding reflected the earlier jurisprudence.

21 5. The High Court proceeded to consider delay subsequent to the making of the complaint. The submitted delay ranged from 29th May, 2002, when the complaint was notified to An Garda Siochána by the church authorities, and 28th September, 2004, approximately 28 months later. The learned High Court judge stated that it seemed there had been a lack of urgency in bringing matters to a stage when the applicant could be charged with the alleged offences. The High Court held:-

"Ultimately, this case, were it to proceed to trial, is one in which the prosecution will be based on the statement of the complainant and her sister. The prosecution relies on no other evidence. This is not a case in which there was any difficulty in locating witnesses or, indeed, ascertaining the whereabouts of the applicant. Sergeant McN in his affidavit carefully set out the various steps taken in the course of the prosecution of this matter but I cannot understand, notwithstanding the matters he sets out at length, why it took so long for this matter to reach court from the date when the complaint was first received, 29th May, 2002, until the date when the applicant was brought before the court on 28th September, 2004. In the written submissions furnished on behalf of the applicant, reference is made to unexplained delays in the steps taken by State authorities in this case. To cite just one example, it took from the 1st March 2004 when the direction to prosecute was received by the Gardai until the 28th September 2004 to bring the applicant properly before a court. There is no explanation for the delays which occurred throughout the process of investigation and the receipt of directions from the office of the respondent leading ultimately to the charges being brought against the applicant. The timescale involved seems to me to be such as to attract the description "blameworthy". This is particularly so in the context of a case where the earliest of the offences is alleged to have occurred over 41 years ago and the most recent, some 36 years ago. It also seems to me that as a matter of common sense, in a case such as this where the applicant is of such advanced years it behoves the State authorities to act expeditiously once a complaint is received. The applicant in this case is now 85 and in less than perfect health according to the letter from his doctor exhibited in the applicant's affidavit.

In the circumstances, it seems to me that I have to accept the submission that the delay of 28 months post complaint is unacceptable and that it has had the effect of breaching the applicant's right to a trial with due expedition. In the circumstances, I have no option but to grant the relief sought herein."

22 6. The D.P.P. has appealed against the judgment of the High Court on the following grounds:-

23 1. The learned trial judge erred in law and in fact holding that there had been blameworthy prosecutorial delay on the part of the prosecuting authorities in bringing the applicant to trial.

24 2. The learned trial judge erred in law and in fact in holding that blameworthy prosecutorial delay of its own entitled the applicant to the relief sought.

25 3. The learned trial judge erred in law and in fact in holding that there had been a breach of the applicant's right to an expeditious trial.

26 7. In a cross-appeal the applicant filed grounds relating to the issue of pre-complaint delay. However, these grounds were, correctly, not advanced on this appeal in light of the developed jurisprudence.

27 8. The Court, as it has done in similar cases where the jurisprudence was re-stated during the time between the delivery of the High Court judgment and the hearing of the appeal, took a flexible approach to the issues argued. This approach was...