PM v Malone

Judgment Date07 June 2002
Date07 June 2002
Docket Number[S.C. No. 167 of 2001]
CourtSupreme Court
P.M. v. Malone
District Judge Miriam Malone and The Director of Public Prosecutions
[S.C. No. 167 of 2001]

Supreme Court

Constitution - Right to trial - Reasonable expedition - Delay - Delay not referable to conduct of accused - No prejudice alleged - Right of accused to protection from stress and anxiety caused by delay - Public interest - Conflicting rights - Whether permissible consideration stress and anxiety caused by delay prior to formal charge - Constitution of Ireland, 1937, Article 38.1.

Criminal law - Sexual offences - Delay in making complaint - Whether delay explicable.

The applicant, who was born in 1970, was charged on multiple counts of incest and indecent assault on his sister further to a complaint made by her in 1998. These allegations first came to the attention of the gardaí when the findings of a report prepared by a clinical psychologist and senior social worker were presented to them in 1992. The complainant had made it clear during the course of these interviews that she did not wish to make a formal complaint to the gardaí.

The applicant made a written statement to the gardaí in 1998 in which he admitted having had sexual relations with the complainant up until she was about 19 years of age. Despite this evidence, a file was not sent to the second respondent until the 22nd February, 1999. The applicant was arrested on the 25th May, 1999. It was, however, only at the hearing of the present proceedings in the High Court on the 22nd February, 2000, that the applicant was informed that the second respondent was not proceeding with any of the charges relating to the period prior to the applicant reaching the age of fourteen or charges after 1985.

The applicant sought an order of prohibition on account of the inordinate delay in bringing his case to trial. At no point did the applicant allege either actual or presumptive prejudice by reason of the delay.

In the High Court (Carroll J.), having refused to prohibit his continuing prosecution, the applicant appealed to the Supreme Court.

Held by the Supreme Court (Keane C.J., McGuinness and Hardiman JJ.) in allowing appeal, 1, that, where inordinate delay did not jeopardise the accused's right to a fair trial but had caused unnecessary stress and anxiety, the court had to engage in a balancing process between the accused's right to be protected from such stress and anxiety and the public interest in the prosecution and conviction of those guilty of criminal offences.

2. That, in determining whether the concern and anxiety caused to an accused person was such as to justify the prohibition of his trial, the court, depending on the circumstances of the case, might be entitled to take into account not merely delay subsequent to the accused being charged and brought to trial, but also any delay prior to the formal charge.

O'Flynn v. District Justice Clifford [1988] I.R. 740;Mills v. The Queen (1986) 29 D.L.R. 161, Watson v. Clarke [1990] 1 N.Z.L.R. 715; Hughes v. The Police [1995] 3 N.Z.L.R. 443 considered.

3. That no special factors, such as a significant disparity in age nor dominion exercised by the applicant over the complainant, were present in this case to bring it within the exceptional category of cases where the court would be entitled to regard the delay as not merely explicable, but referable to the accused's own conduct.

4. That the complainant's conscious decision, as an adult, not to proceed with her complaint for reasons which seemed good to her at the time but which were not the result of dominion exercised over her by the applicant did not constitute an appropriate ground for denying the applicant his right to a reasonably expeditious trial.

5. That delay of itself, even where neither actual nor presumptive prejudice to the accused was demonstrated may be a ground for restraining the continuance of the trial.

O'Flynn v. District Justice Clifford [1988] I.R. 740 andDirector of Public Prosecutions v. Byrne[1994] 2 I.R. 236 considered.

Obiter dictum: That the supposed existence of unexpressed suspicion of criminality could not confer rights cognisable by the law on the suspect.

O'Flynn v. District Justice Clifford [1988] I.R. 740approved.

Cases mentioned in this report:-

B. v. Director of Public Prosecutions [1997] 3 I.R. 140; [1997] 2 I.L.R.M. 118.

Barker v. Wingo (1972) 407 U.S. 514.

Bell v. D.P.P. [1985] A.C 937; [1985] W.L.R. 73; [1985] 2 All E.R. 585.

P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25.

B.F. v. Director of Public Prosecutions [2001] 1 I.R. 656.

Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236; [1994] 2 I.L.R.M. 91.

D. v. Director of Public Prosecutions [1994] 2 I.R. 465; [1994] I I.L.R.M. 435.

Hughes v. The Police [1995] 3 N.Z.L.R. 443.

J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122.

Mills v. The Queen (1986) 29 D.L.R. 161.

O'Flynn v. District Justice Clifford [1988] I.R. 740.

P.P. v. Director of Public Prosecutions [2000] 1 I.R. 403.

State (Healy) v. Donoghue [1976] I.R. 325; (1976) 110 I.L.T.R. 9.

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

Watson v. Clarke [1990] 1 N.Z.L.R. 715.

Appeal from the High Court.

The facts have been summarised in the headnote and are more fully set out in the judgment of Keane C.J., infra.

By notice of appeal dated the 19th June, 2001, the applicant appealed against the order of the High Court (Carroll. J.) made on the 11th May, 2001, refusing his application for an order of prohibition restraining the respondent from proceeding with the prosecution of the remaining charges in the case.

The appeal was heard by the Supreme Court (Keane C.J., McGuinness and Hardiman JJ.) on the 2nd May, 2002.

Cur. adv. vult.

Keane C.J.

7th June, 2002


This is one of a number of cases which have come before the High Court and this court in recent years in which the court has been asked to restrain the prosecution of sexual offences because of the time which has elapsed since the offences were allegedly committed. This case, however, presents two somewhat unusual features.

In the first place, the defendant in the proceedings (hereafter"the applicant") was not significantly older than the complainant, who is his sister, at the time the conduct is said to have begun, nor was he in a position of authority in relation to her. On the contrary, the applicant was nine years old at the time and the complainant was seven years old. It is not suggested that the conduct in question continued beyond the period when they were respectively fourteen and twelve years old.

In the second place, the delay in initiating the proceedings was not solely due to the inaction of the complainant: it is not in dispute that the gardaí were fully aware of the allegations in January, 1992 but, for reasons which will appear shortly, did not charge the applicant with any offence until the 25th May, 1999.

The applicant was given leave to apply by way of judicial review forinter alia an order of prohibition restraining the continuance of the prosecution on the 14th February, 2000. A notice of motion claiming that relief having been served, a statement of opposition was delivered on behalf of the second respondent. The motion having come on for hearing before the High Court (Carroll J.), in a written judgment on the 11th May, 2001, the court declined to grant the relief sought. From that judgment and order, the applicant has now appealed to this court.

The factual background

The factual background should now be set out in more detail. The applicant is the eldest of five children, having been born on the 14th January, 1970, the complainant being the second oldest in the family. Late in the year 1991, St. Clare's Unit in the Children's Hospital, Temple Street, was contacted by the family's general practitioner. He said that the mother had informed him that she was concerned that the youngest in the family, J., who was then aged three, might have been sexually abused by her elder brother, the applicant.

An assessment was carried out by a clinical psychologist, Anne O'Flaherty, and a senior social worker, Kieran McGrath. Mr. McGrath reported their findings to Garda Catherine Moran in Malahide Garda Station in writing on the 28th January, 1992. He said that the general practitioner had reported that previous concerns had been expressed about the possibility that the applicant had abused the complainant sometime in the past but that, at that time, the family would not agree to any further action being taken. As a result, there had been no follow up.

Mr. McGrath said that the parents were a couple who had clearly a difficult relationship, characterised by frequent disagreements and sometimes physical violence. The mother told him that, around the year 1987, she and her husband had been approached by the two younger children - this was before J. was born - who told them that the applicant and the complainant had been "wrapped up in a blanket together". She said that, thereafter, she became more conscious about the need to "supervise [the complainant]". She was concerned that she could not get into the complainant's bedroom which was locked and she suspected at the time that the applicant was getting into the bedroom through the window.

The mother went on to give an account of a recent incident involving J., the youngest child, which had led to her expressing her concerns to the general practitioner and to the present investigation. Following a remark by the child in the presence of her mother and the complainant, the latter said: "Don't tell me [the applicant] is at it again." The father, for his part, while concerned about the possibility that something might have happened in the past, was inclined not to attach importance to it: his major concern was a fear of what might happen to the applicant if he was reported to the gardaí. He was adamant that the applicant had not abused...

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