R (M) v DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 20 February 2009
• Neutral Citation: [2009] IEHC 87
• Court: High Court
• Date: 20 February 2009

[2009] IEHC 87

THE HIGH COURT

[No. 449 J.R./2008]

R (M) v DPP

M.R.

Applicant

And

Director of Public Prosecutions

Respondent

BRADDISH v DPP 2001 3 IR 127

DUNNE v DPP 2002 2 IR 305O.84 r21(1)

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190

B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797

C (D) v DPP 2006 1 ILRM 348 2006 2005 15 3034 2005 IEHC 112

O'FLYNN v CLIFFORD 1988 1 IR 740

BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844 2005 IESC 8

D (D) v DPP 2004 3 IR 172

H (S) v DPP 2006 2 IR 575

O'DOMHNAILL v MERRICK 1984 1 IR 151

O'KEEFE v CMRS OF PUBLIC WORKS UNREP SUPREME 24.3.1980 1980/9/1610

T (P) v DPP UNREP SUPREME 31.7.2007 2007/58/1243

D (D) v DPP UNREP SUPREME 23.7.2008 2008 IESC 47

CRIMINAL LAW

Delay

Fair trial - Sexual offence - Defence request that statements be taken from relatives of complainant as to collateral matters - Statement not taken from complainant's mother because of her age and circumstances - Applicant elderly and in ill health - "Omnibus test" - Whether respondent delayed in prosecuting offence - Whether delay in seeking relief - Whether time in which to seek relief ran from date of being sent forward - Whether applicant could impugn prosecutorial delay where he had sought to have further statements taken - Whether applicant entitled to await outcome of request for further investigations before seeking relief - Whether age of applicant relevant in considering delay - Whether respondent conducted proper inquiry into offence - Whether failure to ensure testimony of all necessary witnesses obtained - Whether failure on part of prosecution to identify "islands of fact" - Whether real risk of unfair trial - D v DPP [2004] 3 IR 172 applied; H(S) v DPP [2006] IESC 55 [2006] 2 IR 575, Braddish v DPP [2001] 3 IR 127, Dunne v DPP [2002] 2 IR 305, B(J) v DPP [2006] IESC 66 (Unrep, Supreme Court, 29/11/2006), De Roiste v Minster for Defence [2001] 1 IR 190, C(D) v DPP [2006] 1 ILRM 348, O'Flynn v Clifford [1988] 1 IR 740, Blood v DPP [2005] IESC 8 (Unrep, Supreme Court, 2/3/2005), O'Domhnaill v Merrick [1984] 1 IR 151, O'Keeffe v Commissioners of Public Works (Unrep, Supreme Court, 24/3/1980) and T(P) v DPP [2008] IESC 47 [2008] 1 IR 701 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Prohibition granted (2008/449JR - O'Neill J - 20/12/2009) [2009] IEHC 87

R(M) v DPP

Facts: The applicant sought by way of judicial review an injunction, restraining the respondent from proceeding further to prosecute the applicant in respect of charges of indecent assault alleged to have occurred over thirty years ago. The applicant, who was 83 years old at the time of this application and was suffering from medical difficulties, claimed that he could not receive a fair trial having regard to the passage of time since the date of the alleged offenses, the delay by the respondent in the investigation and prosecution of the charges and the failure of the respondents to conduct a proper investigation into the allegations. Following complaints from the applicant’s solicitor further statements were taken from the complainant’s friends and were served as additional evidence. It was argued on behalf of the applicant that no attempt was made to seek out those persons named in the complainant’s statements as persons with whom she had discussed the alleged incidents in order to ascertain the consistency of the allegations. Specifically, the applicant submitted that the lack of any statement by the complainant’s mother created a real risk of an unfair trial as the complainant’s mother could have dealt with a number of matters relevant to the complainant’s credibility.

Held by O’Neill J. in granting the application: That the complaints made by the complainant in this case were unusually bereft of relevant detail and the witness statements from the complainant’s friends and family members were for the most part vague and wanting in detail also. Due to the lapse of time it would be very difficult for certain relevant witnesses to have a clear or reliable recollection of matters pertaining to the complainant’s credibility and the loss of that evidence resulted in a real risk of an unfair trial for the applicant. Furthermore, the refusal by the respondent to obtain a witness statement from the complainant’s mother was extraordinary and wholly unjustifiable. That factor taken in conjunction with the other factors of the case, including the applicant’s age, his health, cumulatively warranted the prohibition of the trial on the ground that there was a real risk of an unfair trial.

Reporter: L.O’S.

1 Judgment of O'Neill J. delivered the 20th day of February, 2009.

2 On the 21 ^st April, 2008, leave was granted to the applicant by this Court (McGovern J.) to apply by way of an application for judicial review to seek an injunction, restraining the respondent from proceeding further to prosecute the applicant in respect of the charges upon which the applicant has been returned for trial to the Dublin Circuit Criminal Court on bill no. DU 476/2007 on the following grounds, as set out at paragraph (e) of the statement of grounds:-

3 (1) The applicant cannot receive a fair trial in due course of law by reason of the passage of time since the date of the offences alleged in the said charges to have been committed by him.

4 (2) The applicant cannot receive a fair trial in due course of law by reason of the delay on the part of the respondent, his servants or agents, in the investigation and prosecution of the said charges.

5 (3) The applicant cannot receive a fair trial in due course of law by reason of the failure of the respondent, his servants or agents to conduct any or proper or adequate investigation of the allegations made against the applicant and/or the failure of the respondent, his servants or agents, to ensure that such investigation had taken place.

6 (4) The applicant cannot receive a fair trial in due course of law by reason of the failure of the respondent, his servants or agents, to ensure that the testimony of all necessary witnesses, having regard to the lapse of time since the date of the alleged offences, will be available to the court and jury trying the allegations against the applicant.

7 (5) Without prejudice to the generality of the foregoing, the applicant cannot receive a fair trial in due course of law by reason of the failure and refusal of the respondent, his servants or agents, to seek a statement from the mother of the complainant.

8 (6) By reason of his advanced years and state of health and of the effect of the allegations made and of the delayed and inadequate investigation of the said allegations and for all of the preceding matters or circumstances, it would be unfair and unjust to put the applicant on trial.

9 A stay was granted on the further prosecution of the applicant pending the determination of these proceedings.

Facts

10 The applicant is a Roman Catholic priest who is now retired from active ministry. He was born in 1925 and is 83 years old. He was ordained as a priest of the Archdiocese of Dublin in May of 1951. He was the parish priest in a Dublin parish from 1977 to 1981.

11 The complainant was born in 1966. She is one of a family of six children. On the 27 ^th February, 2006, she met with Mr. Philip Garland, Director of the Child Protection Service of the Dublin Archdiocese and alleged that on three occasions between the 1 ^st March, 1977, and the 30 ^th September, 1978, before she went to secondary school, that the applicant indecently assaulted her. The complainant alleges that these incidents, which allegedly involved indecent touching and attempted intercourse, took place at the applicant's house when she was alone with him. The applicant was aged eleven to twelve years old and the applicant was in his early fifties at the time of these alleged offences.

12 In the account of the complainant to Mr. Garland, which is contained in a statement exhibited at "MR2" in the affidavit of the applicant sworn on the 18 ^th April, 2008, she recounts that her family was involved in the church and that the applicant was a trusted friend of her family. She recalled that she was a member of the church choir and helped with the church collection. She said that she was also a member of the Legion of Mary and, as such, used to do housework in the applicant's house. Her recollection of the three incidents, in her statement of the 27 ^th February, 2006, to Mr. Garland, may be summarised as follows:-

13 One Friday night she and the applicant visited the D. family in South County Dublin, who were friends of the applicant. They played cards at this house. The applicant drove her back to his house. She believes the applicant entered the house via the side entrance but she stated that she could not be sure on which occasion this occurred. She has no memory of how she got upstairs into the applicant's bedroom or how she became semi undressed. She said that the applicant was also naked from the waist down. She recalled that she was lying on the bed. She alleges that the applicant began to touch her breasts and attempted intercourse a couple of times but did not succeed. She said that the applicant asked her not to tell anyone. She does not recall getting dressed but she remembers that the applicant drove her home afterwards. She recalled returning to her house at about 11pm or 11.30pm.

14 A few weeks later the complainant said that she and the applicant were in the applicant's bedroom and that he said that they would try this again. She thinks that she undressed herself at the lower level. The applicant began to touch her breasts and told her that her mother would be bringing her for a bra soon. The applicant attempted penetration but was unsuccessful. She recalled a cross hanging over the...