R.B. v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Coffey
• Judgment Date: 14 May 2018
• Neutral Citation: [2018] IEHC 326
• Docket Number: [RECORD NO. 2017 196 JR]
• Date: 14 May 2018

BETWEEN

R.B.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2018] IEHC 326

Coffey J.

[RECORD NO. 2017 196 JR]

THE HIGH COURT

JUDICIAL REVIEW

Prohibition of prosecution – Sexual assault – Delay – Applicant seeking prohibition of prosecution – Whether the hypothetical relevance of a missing witness was a sufficient ground for granting prohibition

Facts: The applicant was granted leave on 6 March 2017 to seek prohibition of the prosecution against him on a single count of sexual assault, alleged to have been committed between 1 January 1992 and 31 December 1993. The applicant sought prohibition on the following grounds: 1) there was a pre-complaint delay of 20 to 22 years approximately, which the applicant contended was inordinate and inexcusable having regard to the fact that the complainant first reported the alleged incident on the day it was alleged to have occurred; 2) there was inordinate and inexcusable delay on the part of the Gardaí in investigating the matter and in charging the applicant; 3) as a result of the delay, the applicant's mother was no longer available to assist his defence by reason of the fact that she died on 15 November 2015; 4) the applicant was suffering from a severe psychological illness.

Held by the High Court that the hypothetical relevance of a missing witness was not a sufficient ground for granting prohibition in a case of this nature, referring to S. O'C. v DPP & Ors [2014] IEHC 65. The Court was satisfied that the evidential context in this case was such that the issue of prejudice was one that could only be decided by the trial judge with knowledge of the actual evidence that was to go to the jury. It was the view of the Court that the applicant's psychological complaints and symptoms were of no relevance by reason of the fact that there was no medical evidence to suggest that his illness or its severity had in any way been caused or contributed to by any culpable delay on the part of the respondent, the DPP; moreover, it was common case that whatever they were, his psychological difficulties were not of such severity as to deprive the applicant of his capacity to plead.

The Court held that it would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr Justice Coffey delivered on the 14th day of May, 2018

1 The applicant was granted leave, by order of Noonan J. on the 6 March 2017, to seek prohibition of the prosecution against him on a single count of sexual assault, alleged to have been committed between the 1 January 1992 and the 31 December 1993.

Factual summary

2 The applicant was born on the 4 November 1973 and is ten years older than the complainant who was born on the 17 April 1983. The complainant alleges that when he was about eight or nine years old he stayed overnight in a mobile home in which the applicant and his family were then living. He alleges that he fell asleep on a couch beside the applicant who was fully clothed. His complaint is that when he awoke he discovered the applicant both touching his genitalia and using the complainant's hand to touch his own genitalia.

3 Following the alleged incident, the complainant alleges that he went to the bedroom of the applicant's mother and told her that the applicant had been touching him. He alleges that the applicant's mother shouted at him to get out of the house.

4 The complainant further alleges that shortly afterwards, he told his own mother about the incident. The proposed evidence of the complainant's mother, however, is merely to the effect that the complainant told her that the applicant had put his hand on him 'above' his genitals and that he denied that there had been any contact between the applicant and his pants.

5 The complainant's mother further alleges that in 1994 the complainant spoke to her at a christening and told her that he was going to 'summons' the applicant. She alleges that the complainant told her that the applicant was 'getting money' (he had apparently issued proceedings seeking damages for sexual abuse against his former school) and asked 'why not me?' She alleges that it was in that context that the complainant told her that the applicant had touched him years previously.

6 On the 25 February 2014, the complainant made a statement of complaint to the Gardaí in Monaghan Garda Station. On the 6 March 2014, a file was forwarded to the Superintendent in Trim, County Meath. Between the 21 March 2014 and the 7 August 2014, the Gardaí took statements from persons who were of potential relevance to the case. Amongst these persons were the complainant's mother, the complainant's wife and the applicant's step-brother, all of whom were living in locations at some distance from each other. On the 27 August 2014, the Gardaí visited the mother of the applicant and invited her to make a statement in relation to the allegations that had been made against her son but she declined to do so.

7 On the 23 of September 2014, the Gardaí interviewed the applicant and made him aware of the allegations that had been made against him. There is no evidence as to whether the applicant thereafter discussed the allegations with his mother who subsequently died on the 15 November 2015.

8 Prior to this on the 19 February 2015, the Director of Public Prosecutions issued a direction that the applicant should be charged with a single count of sexual assault. On the 2 March 2015 the Gardaí contacted the applicant by telephone in order to arrest him by...