E. O'R v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 01 January 1996
• Neutral Citation: 1996 WJSC-HC 2102
• Court: High Court
• Docket Number: No. 16 J.R./1994
• Date: 01 January 1996

O'R (E) v. DPP

BETWEEN

E. O'R.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

HIS HONOUR JUDGE DAVID SHEEHY

NOTICE PARTY

1996 WJSC-HC 2102

No. 16 J.R./1994

THE HIGH COURT

Synopsis:

CONSTITUTION

Personal rights

Accused - Trial - Commencement - Expedition - Requirement - Entitlement to trial in due course of law - Alleged sexual assaults on young children - Time lapse since dates of offences - Accused a minor at dates of offences - (1994/16 JR - Keane J. - 21/12/95) - [1996] 2 ILRM 128

|O'R. v. Director of Public Prosecutions|

CONSTITUTION

Trial of offences

Accused - Offence - Trial - Expedition - Requirement - Entitlement to trial in due course of law - Alleged sexual assaults on young children - Time lapse since dates of offences - Accused a minor at dates of offences - (1994/16 JR - Keane J. - 21/12/95) - [1996] 2 ILRM 128

|O'R. v. Director of Public Prosecutions|

CRIMINAL LAW

Offence

Prosecution - Restraint - Application - Grounds - Delay - Indictment - Sexual assault on young children - Nieces of accused - Absence of particulars of charge - Most alleged offences occurred while accused was a minor - Accused informed of complaints 14 years after first and 6 years after last offence - Prosecution restrained - Constitution of Ireland, 1937, Article 38 - (1994/16 JR - Keane J. - 21/12/95) - [1996] 2 ILRM 128

|O'R. v. Director of Public Prosecutions|

DELAY

Trial

Commencement - Indictment - Children - Sexual assaults - Time lapse since dates of offences - Accused a minor at dates of offences - (1994/16 JR - Keane J. - 21/12/95) - [1996] 2 ILRM 128

|O'R. v. Director of Public Prosecutions|

Citations:

CONSTITUTION ART 38.1

EUROPEAN CONVENTION FOR THE PROTECTION OF FUNDAMENTAL RIGHTS & FREEDOMS ART 6

CRIMINAL JUSTICE ACT 1984 S20

FINUCANE V MCMAHON 1990 1 IR 165

G V DPP 1994 1 IR 374

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

DPP V BYRNE 1992 2 IR 236

R V TELFORD JUSTICES EX PARTE BADHAM 1991 2 QB 854

B (C) V DPP UNREP BUDD 9.10.95

DPP V EL UNREP SUPREME 24.2.94

SINGER, IN RE 97 ILTR 325

COURTS OF JUSTICE ACT 1924

HEALY, STATE V DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

LAW REFORM COMMISSION PAPER ON SENTENCING (1993) 82–108

HOGAN V PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 514

DPP V BYRNE 1994 2 IR 236

BARKER V WINGO 1972 407 US 514

BELL V DPP 1985 AC 937

LPB, IN RE 1990 91 CAR 359

JAGO V DISTRICT COURT OF NEW SOUTH WALES 1989 168 CLR 23

CONSTITUTION ART 38

1 Judgment of Mr. Justice Keane delivered the 21st day of December, 1995

THE FACTS

2 The applicant was returned for trial on the 18th June, 1993 by a District Judge on a number of counts of indecent assault and one count of unlawful carnal knowledge. On the day before his trial was due to commence in the Circuit Court an application was made to the learned Circuit Court Judge by Counsel on his behalf for an order declining jurisdiction on the ground that he could not obtain a fair trial because of the delay which was alleged to have taken place in the bringing of the prosecution. The application was refused but the trial was adjourned in order to enable an application to be made to the High Court for an order of prohibition. On the 24th January, 1994, Lavan J. gave leave to the applicant to apply inter alia for an order prohibiting the respondent from taking any further steps in the prosecution. A Notice of Opposition having been filed on behalf of the respondent a Notice of Motion seeking the same relief was served and came on for hearing before me. The grounds on which leave was granted which were relied on by the applicant at the hearing can be summarised as follows:

3 1. That the delay in the institution of the proceedings had prejudiced the applicant in his defence of those proceedings, was unfair and unjust to him and violated his right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution.

4 2. That the delay violated the applicant's right to the expeditious institution of criminal proceedings against him in breach of Article 38.1 of the Constitution and Article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms.

5 3. That the institution of the proceedings was an abuse of the process of the courts.

6 The applicant is now aged twenty-nine, having been born on the 25th February, 1966, and lives in a country area where the offences are alleged to have been committed. The alleged victims are three young women, who are nieces of the applicant, and were born on the 1st February, 1971, the 13th August, 1975 and the 7th April. 1977. I will refer to them in this judgment as D., T. and F. The applicant was charged with the offences on the 21st March, 1993, and no complaint is made on his behalf of any undue delay in the subsequent prosecution of the proceedings.

7 The indictment preferred against the applicant contains eight counts of indecent assault allegedly committed on dates unknown between the 1st February, 1978 and the 8th April, 1986 and one count of unlawful carnal knowledge allegedly committed on a date unknown between the 31st December, 1982 and the 1st January, 1986. Counsel for the Applicant, Mr. Gageby S.C., produced at the hearing the following helpful table which indicates the ages of both the applicant and D., T. and F. at the times the offences were alleged to have been committed.

E.O'R. -v- D.P.P.

	Count 1	Count 2	Count 3	Count 4	Count 5	Count 6	Count 7	Count 8
Charge	Unlawful carnal knowledge girl under 15.	Indecent assault	Indecent assault	Indecent assault	Indecent assault	Indecent assault	Indecent assault	Indecent assault
Date	31-12-82 to 1-1-86	1-1-83 to 31-12-83	1-1-84 to 31-12-84	1-1-85 to 31-1-85	1-2-78 to 31-1-79	1-2-79 to 31-1-80	1-2-80 to 31-1-81	7-4-84 to 6-4-86
Injured Party	T.	T.	T.	T.	D.	D.	D.	E.
D.O.B.	13-8-75				1-2-71			7-4-77
Age	7-10	7-8	8-9	9-10	7-8	8-9	9-10	7-9
Age or Accused	16-19	16-17	17-18	18	11-12	12-13	13-14	18-20

8 Mr. Aindrias O'Caoimh S.C. on behalf of the respondent accepted that this was an accurate statement of the facts, with the qualification that, in the case of D., the age of the applicant might be more correctly stated as being 12/13, 13/14 and 14/15.

9 It will be seen that the earliest of the offences with which the applicant is charged are alleged to have occurred more than fifteen years before the time he was charged when he was a child aged between twelve and thirteen.

10 In an affidavit, the applicant deposed that the first he knew of the allegations was when he was questioned by Sergeant M., the investigating Garda, on 31st July, 1992, and that he had at all times denied the allegations. He said that, at the time he was returned for trial, the District Judge warned him of the legal obligation imposed on him by s. 20 of the Criminal Justice Act, 1984, to notify the prosecution of the names of any alibi witness or witnesses and an outline of the nature of the evidence such witness or witnesses were in a position to give. He said that despite the efforts of his parents, with whom he resided, and his solicitor he had been unable at that stage or at any time to reconstruct accurately or with any degree of precision the circumstances of his whereabouts during the period. He was unable to identify any witness who might have material evidence concerning his presence or conduct during the relevant period. He said that he had been advised by his solicitor that the allegations were so broad, covered so extensive a period of time and were so lacking in precision and of such antiquity that he (the applicant) was not in a position properly to prepare a defence to the allegations.

11 The applicant also deposed that the complainants were children of his sister M.M., that her marriage to E.M. had broken down, that there were serious matrimonial difficulties between her and her husband and that his (the applicant's) family did not enjoy a good relationship with E.M.

12 The Book of Documents served on the applicant was exhibited in his affidavit, as were the depositions on oath of the three complainants who were required to give evidence before the District Judge. T. in her deposition said that when her parents separated she went to live with her mother, her sisters F. and D., her brother and her mother's boyfriend. She said that between the years 1983 and 1985 when she was seven to nine years old, she used regularly to visit her maternal grandmother's house with one of her sisters and her brother. She said that on those occasions, the applicant, who was living in the house, used to bring her to his bedroom and invite her to play a game which involved her taking an item of clothing off if she failed to answer a question correctly. She said that on these occasions the applicant used to tell her to get into a tent which he had in the room after which he fondled her and had complete vaginal intercourse and, on one occasion, oral intercourse with her. She said that he threatened her, saying that if she ever told anyone, he would break her neck.

13 D. in her deposition said that she also played a game with the applicant where she had to take an item of clothing off for failing to answer a question and that this used to happen when she visited her grandmother's house at the age of seven. She said that he got her to feel his penis and he felt her vagina. On about three occasions, he put his penis beside her vagina. Similar incidents occurred when they went swimming together. They stopped when she was about nine.

14 F. in her deposition said that on one occasion when she was visiting her grandmother's house, the applicant brought her to his bedroom and got her to go into a tent where she also had to...