O'R (D) v DPP

JurisdictionIreland
JudgeMr. Justice Kelly
Judgment Date27 February 1997
Neutral Citation[1997] IEHC 41
Docket NumberNo. 210/1995
CourtHigh Court
Date27 February 1997
O'R (D) v. DPP
JUDICIAL REVIEW

BETWEEN

D.O'R.
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

[1997] IEHC 41

No. 210/1995

THE HIGH COURT

Synopsis:

[1997] 2 IR 273

Citations:

CONSTITUTION ART 38.1

GIBBS V PRESIDENT OF DUBLIN CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 16.5.96 1996/11/3587

HEALY, STATE V DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

CUDDY, STATE V MANGAN 1988 ILRM 720

DPP V BYRNE 1994 2 IR 236

CAHALANE V MURPHY 1994 2 IR 262

HOGAN V PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

FITZPATRICK V SHIELDS UNREP CARROLL 27.11.87 1989/5/1494

D V DPP 1994 2 IR 465

G V DPP 1994 1 IR 374

Z V DPP 1994 2 IR 476

R V TELFORD JJ 1991 2 AER 854

B (C) V DPP UNREP BUDD 9.10.95

O'R V DPP & SHEEHY 1996 2 ILRM 128

LPB, IN RE 1990–1991 CAR 359

JAGO V NEW SOUTH WALES DISTRICT COURT 1989 63 ALJR 640 1989 168 CLR 23

DPP V F (E) UNREP SUPREME 24.2.94 1994/2/557

Mr. Justice Kelly
1

The Applicant is charged with 90 offences. These charges are at present pending in the District Court. He was served with a Book of Evidence in respect of them on the 10th July, 1995.

2

The offences alleged against the Applicant involve unlawful carnal knowledge, indecent assault and sexual assault. They are alleged to have been committed between the 1st January, 1976 and the 31st December, 1992.

3

The offences are alleged to have taken place during a period when the Applicant was a swimming coach at a swimming club attached to a school.

4

The Applicant has exhibited the Book of Evidence which has been served upon him. The information set forth therein demonstrates allegations of systematic sexual abuse of young girls all of whom were swimmers in the club to which the Applicant was attached as a swimming coach.

5

Charges 1 to 68 inclusive and 81 to 90 inclusive are alleged to have been committed between the years 1976 and 1984. The remainder of the charges relate to offences alleged to have been committed between 1991 and 1992.

6

In these proceedings, the Applicant seeks an Order of Prohibition restraining the Respondent from proceeding with charges 1 to 68 inclusive and 81 to 90 inclusive. The Applicant was given leave to make this application by Order of this Court (Carney J.) dated the 28th July, 1995 on the following grounds:-

7

i "(i) Having regard to the time when the offences are alleged to have been committed and the inadequately specific description of the occasions of the offences, the Applicant is prejudiced from securing a fair trial.

8

(ii) The Applicant is prejudiced by the delay.

9

(iii) Justice delayed is justice denied.

10

(iv) It is in breach of the Applicant's right to fair procedures and/or constitutional justice.

11

(v) The delay has resulted in making it impossible for the Applicant to garner evidence for his defence of the charges.

12

(vi) The Applicant has been denied the right to a trial in due process of law."

13

The charges which have been made against the Applicant concern 9 different individuals. I will identify them by their initials.

14

Twenty-eight charges relate to C.B. Twelve are of unlawful carnal knowledge of the between the 1st January, 1976 and the 31st December, 1978. Sixteen are of indecent assault between the 1st January, 1976 and the 31st December, 1979.

15

Eight charges of indecent assault have been preferred concerning L.K. These assaults are alleged to have taken place between the 1st September, 1978 and the 30th June, 1979.

16

In the case of D.M., twenty-five charges are set forth. Twenty-four are in respect of indecent assault between the 1st January, 1978 and the 31st December, 1983. One charge of unlawful carnal knowledge between the 1st January, 1983 and the 31st December of that year is the 25th charge.

17

There are three charges of indecent assault alleged in respect of A.C. between the 1st April, 1981 and the 31st July, 1981.

18

A single charge of indecent assault on P.O'C. between the 1st January, 1983 and the 31st December, 1983 is the 65th charge in the Book of Evidence.

19

Three indecent assaults are alleged on G. O'C, between the 1st August, 1982, and the 30th June, 1983.

20

There is a single charge of sexual assault on S. McG. on the 3rd November, 1992.

21

Three charges of sexual assault on R.L. on the 15th September, 1992, the 20th October, 1992, and the 22nd December, 1992 respectively are included in the Book of Evidence.

22

There are eight charges of sexual assault on S.D. between the 18th January, 1991 and the 31st December, 1992.

23

Finally, there are ten charges of indecent assault on A. McE. between the 1st July, 1982 and the 31st December, 1984.

24

In his Affidavit grounding this application, the Applicant avers that he did not commit any of the offences with which he has been charged and, furthermore, swears that if returned for trial he intends to plead not guilty to all of the charges.

25

He makes a number of complaints concerning the charges in respect of which this application is brought.

26

First, he alleges that none of the charges are laid with adequate specificity as to the date when any of them are alleged to have been committed.

27

Secondly, he alleges that the facts alleged against him occurred so long ago that it would be unjust and unreasonable that he should be required to answer the charges or any of them.

28

Thirdly, he says that he is at a material and substantial disadvantage in meeting the charges because he cannot now hope to find witnesses who could reasonably be expected to give evidence as to his whereabouts or activities in the years 1976 to 1984 or for virtually every hour of each and every day during the entirety of the alleged periods. He furthermore says under this heading that he has been unable, despite lengthy considerations, to identify such witnesses. He says that he is not able to account for his whereabouts or activities during the entirely of the periods covered by the charges in suit. In this regard, he draws attention to the fact that one of the witnesses in the Book of Evidence alleges that one of the complainants, namely L.K., made complaints to him in 1980 or 1981 that she was being abused by the Applicant. That witness is a teacher at the school in question. The witness in turn alleges that he reported this matter to another person in authority in the school. The Applicant alleges that he was never confronted with this complaint either by the person in authority or the principal of the school or indeed anyone else in the school. Had he been confronted at that time, he said he would at least have been in a position to defend himself against allegations then rather than now, some fifteen years later.

29

Finally, he says that he has no diary or other document which would assist him in recalling his whereabouts or activities during the period in question. The only evidence he says that would be available to him if the charges go to trial would be a simple and unsupported and, in the circumstances, uncorroborated denial.

30

Detective Garda Sarah Keane, in an Affidavit sworn by her on the 24th April, 1996, avers that the complaints concerning the Applicant allegedly sexual abusing each of the complainants were received by her between the 16th January, 1993 and the 15th June, 1995. She interviewed each of the complainants and took written statements from them. In addition, during that time, the Applicant himself was interviewed on three separate occasions concerning the allegations made against him. The file was forwarded to the Office of the Chief State Solicitor on the 18th December, 1994. On an unspecified date, directions were received from the Office of the Director of Public Prosecutions and the Applicant was arrested on the 10th July, 1995 and charged. From her Affidavit, it would appear that the file was forwarded to the Chief State Solicitor while there were still a number of complaints which had not yet been made.

31

From Garda Keane's Affidavit, it is clear that the bulk of the delay in respect of which complaint has been made arose from the failure on the part of the alleged victims to report the matters in question to the Gardai.

32

Six of the seven complainants who have alleged offences between 1976 and 1984 had psychological assessments carried out upon them by Mr. Alex Carroll who is a Senior Clinical Psychologist in the employment of the Midland Health Board. He has held that position since 1993. Prior to that, he was a Clinical Psychologist with the North Eastern Health Board and the Midland Health Board respectively. His work includes the investigation and validation of complaints of child sexual abuse and he was in the past the leader of a term in the Midland Health Board area which provided for the treatment and rehabilitation of victims of sexual assaults and their families.

33

In the course of the Affidavit sworn by Mr. Carroll (which is not controverted), he avers that child sexual abuse is a sexual act imposed on a child who lacks emotional, maturational and cognitive development. He says that the ability to lure a child into a sexual relationship is based upon the all powerful and dominant position of the adult, which is in sharp contrast with the child's age, dependency and subordinate position. Authority and power, he says, enable the perpetrator implicitly or directly to coerce the child into sexual compliance. In his experience, the dynamics of sexual abuse most often include a known adult who is in a legitimate position over a child and who exploits accepted societal patterns of dominance and authority to engage the child in sexual activity. He says it is not possible to over-emphasise the significance of the exploitation and misuse of accepted power relationships when assessing the impact of sexual abuse on a child, including the failure or otherwise of the child to disclose the fact of the abuse at the time it was taking...

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