P. O'C -v- DPP, [2008] IESC 5 (2008)

Docket Number:140/05
Party Name:P. O'C, DPP
Judge:Finnegan J.
 
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SUPREME COURTJUDICIAL REVIEWAppeal No. 140/2005Denham J.Fennelly J.Finnegan J.BETWEEN:P. O'C.APPLICANT/RESPONDENTandTHE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENT/APPELLANTJudgment of Mr Justice Finnegan delivered on the 4th day of March 2008By Order of the 7th July 2003 the respondent was granted leave to apply for judicial review the principal relief sought being an Order of Prohibition to restrain the Director of Public Prosecutions ("the Director") from further proceeding with his prosecution on Bill No. CC121/98 in which it is alleged that the respondent on a date unknown between the 1st April 1982 and the 9th July 1982 both dates inclusive at a named primary school did assault one E, a female, contrary to common law as provided for in section 10 of the Criminal Law (Rape) Act 1981. The grounds upon which leave was granted are:1. Complainant delay between the date of the alleged offence and the making of a formal complaint on the 12th June 1998.2 .Actual prejudice which is particularised as follows:(a) Fr. D. who had charge of the school keys on non-school days is now deceased and which days include the 22nd May 1982 the date particularised by the complainant in one of her statements as being the date of the assault.(b) Mr W. the school caretaker who would have knowledge of the keys for the school on the said date is now deceased.(c) The absence of fellow athletes and/or the failure of such athletes to recall the events of Saturday the 22nd May 1982 after such a long period of time.(d) The destruction of contemporaneous training diaries of the applicant and fellow athletes for training periods including the 22nd May 1982. The statement of opposition raised as an issue delay on the part of the respondent in applying for leave to apply for judicial review and otherwise contended that the grounds relied upon were insufficient to entitle the respondent to relief. The learned trial judge (Finlay Geoghegan J.) held that there had been complainant delay and that the respondent had been prejudiced thereby and restrained his further prosecution. Her finding on the issue of prejudice was as follows:- "I have concluded, as a matter of probability, that having regard to the nature of the alleged offence i.e. one single incident, alleged obviously to have taken place in private but in a particular context i.e. at the end of a Saturday morning athletic club meeting, that by reason of the very significant lapse of time, the applicant has been prejudiced in his ability to defend this charge. If the complaint had even been made in the middle or end of the 1980s (the end of any period of delay for which the applicant should be considered responsible) I have concluded that the applicant would have been in a better position to remember and ascertain his movements on the Saturday on which the offence is alleged to have occurred and to have obtained corroborating evidence from fellow athletes. Further, a trial at that time would have avoided the difficulties necessarily inherent in giving evidence after a very lengthy period.I am satisfied on the above facts that the applicant has discharged the onus of establishing that by reason of at minimum, presumptive prejudice (as that term has been explained in P.M. v Malone [2002] 2 I.R. 560), there is a serious risk of an unfair trial. It is therefore unnecessary to consider whether the applicant on the facts herein has established actual prejudice." Against the order of the High Court the Director appeals on the following grounds:1. The learned trial judge erred in law and in fact in holding that there was good reason for extending the period within which the application for judicial review should have been made,2. The learned trial judge erred in law and in fact in holding that the right to an expeditious trial commenced on the date when the alleged offence was alleged to have taken place.3. The learned trial judge erred in law and in fact in holding that there was a breach of the right to a fair and/or expeditious trial as provided for by Article 38.1 of the Constitution.4. The learned trial judge erred in law and in fact in concluding that the reason the complainant did not make a complaint sooner was not due in whole or in part to the consequences of the sexual abuse perpetrated on her by the applicant.5. The learned trial judge failed to give adequate weight to the expert evidence of the psychiatrist.6. The learned trial judge failed to give adequate weight to the evidence of E. as deposed to in her affidavit sworn on the 10th February 2004.7. The learned trial judge erred in law and in fact in concluding that the applicant had established presumptive prejudice in relation to the impairment of his defence.8. The learned trial judge erred in law and in fact by concluding that the applicant had been prejudiced in his ability to defend the charge and/or that there was a real and substantial risk that he would face an unfair trial if the relief were not granted. The grounds of appeal may be condensed into three distinct grounds:-1. The delay on the part of the respondent in seeking leave to apply for judicial review is such as to disentitle him from seeking relief.2. The learned...

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