JudgeMrs. Justice McGuinness
Judgment Date30 July 2004
Neutral Citation[2004] IESC 52
CourtSupreme Court
Date30 July 2004
O'R v. DPP



[2004] IESC 52

Murray C.J.

McGuinness J.

Hardiman J.

Geoghegan J.

McCracken J.

Record No.180/2003



Criminal law - Judicial review - Delay - Right to expeditious trial - Sexual offences - Pre-trial publicity - Prejudice - Dominance - Whether order of prohibition should be granted - Whether real risk of unfair trial.

Facts: The applicant sought an order of prohibition to prevent a trial for sexual and assault offences from proceeding. The applicant claimed that there had been excessive delay in the prosecution of the offences. It was also submitted that the said delay had put the applicant at risk of an unfair trial due to publicity and arising out of his plea and sentencing in relation to similar offences. In the High Court Gilligan J refused the relief sought and the applicant appealed. The complainant had been coached by the applicant as a swimmer when the alleged abuse had occurred. There was a gap of over twenty years between the date of the alleged final offence and the complainant’s first statement to the authorities.

Held by the Supreme Court (McGuinness J delivering judgment; Murray CJ, Hardiman J, Geoghegan J and McCracken J agreeing) in dismissing the appeal. The complainant had been inhibited from making a complaint to the authorities due to the controlling and continuing nature of the applicant’s relationship with her. Delay was not a serious issue in this instance as the memory of both parties appeared to be good and the alleged incidents took place in private. There had been a large amount of publicity in this instance but given the capacity of the trial judge to give proper directions to the jury the applicant had failed to discharge the burden of proof in relation top the risk of an unfair trial.

Reporter: R.F.



D V DPP 1994 2 IR 465 1994 1 ILRM 435

Z V DPP 1994 2 IR 476 1994 2 ILRM 481

JURIES ACT 1976 S15(3)

AG V X 1992 1 IR 1

R V KRAY 1970 1 QB 125 1969 3 WLR 831 1969 AER 941 1969 53 CAR 412

R V WEST 1996 2 CAR 374

QUINLIVAN V CONROY & SREENAN 2000 3 IR 154 2000 2 ILRM 515

DPP V HAUGH 2001 1 IR 162

C (P) V DPP 1999 2 IR 25

W (A) V DPP UNREP KEARNS 23.11.2001 2001/24/6472

L (J) V DPP 2000 3 IR 122

W (D) V DPP UNREP SUPREME 31.10.2003 2003/48/11781

K (M) V GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

DPP V HAUGH 2000 1 IR 184


JUDGMENT delivered by Mrs. Justice McGuinness on the 30th day of July 2004


In these judicial review proceedings the applicant sought an order prohibiting the Director of Public Prosecutions from taking any further steps in or further proceeding with the prosecution of the applicant on foot of sixteen charges of indecent assault and three charges of rape as set out in Bill No. CC35/2000. He also sought a number of related injunctive and other reliefs. The applicant was granted leave to issue his judicial review proceedings by order of O'Higgins J. on 5 th February, 2001 and the matter was heard and decided in the High Court by Gilligan J. By judgment and order dated the 11 th April, 2003, Gilligan J. refused the relief sought. It is against this judgment and order that the applicant has now appealed.


The applicant in his judicial review proceedings sought relief on two main grounds. The first was that the delay between the date of the alleged offences and the date of his proposed trial on the charges brought against him unavoidably prejudiced his right to a fair trial. The second ground was that the said delay had put the applicant at risk of an unfair trial due to publicity arising out of his plea and sentencing in relation to similar offences in 1997/8 and in 2000.

The facts

The factual background to the proceedings is set out in detail by Gilligan J. in his careful and comprehensive judgment. The facts may be briefly summarised here. The applicant is a man in his fifties who was employed as a swimming coach in a swimming club attached to a secondary boarding school between 1971 and 1993. The complainant, who was born in 1960, was a pupil at the school between 1971 and 1977. The complainant was a very talented swimmer. In her affidavit sworn 6 th July, 2001, she states that soon after her arrival at the school as a boarder she was invited to try swimming training by the applicant. Matters progressed from there until she was in almost daily contact with him. She states that for the four years between early 1975 and later in 1977 she was the victim of repeated incidents of sexual abuse at the hands of the applicant. She exhibits with her affidavit three statements which she made to Detective Garda Sarah Keane in August, 1999, October, 2000 and April, 2001 which provide a detailed account of the relationship which the applicant developed with her and the progress of his abuse of her which, she avers, was carried out under the guise of individual training for her successful swimming career. She was a boarder at the school and isolated from her family. Her swimming training took up the majority of her free time. The applicant exercised a high degree of control over her and was in a position of trust over her.


The complainant left school in 1977 and her evidence is that the applicant's sexual abuse of her ended in or about that time. However, she continued to be coached by the applicant for competitive swimming until in or about the end of 1979 or the beginning of 1980. At that time she suddenly abandoned her swimming career, changed her employment and went to live outside this jurisdiction. She subsequently married and has three children. Her evidence is that when she left her swimming career she attempted to deal with the abuse by putting it to the back of her mind and pretending that it had never happened.


In his judgment, the learned trial judge sets out the subsequent history of the complainant as follows (at p. 17 of the judgment):

"In the mid-1990s she says that she remembered watching a television drama about sexual abuse and about the same time read a newspaper article stating that another applicant, charged with the type of offences the subject matter of the within proceedings, had won his judicial review. Both of these incidents upset her. Her husband noticed this and asked whether she was alright. She told him that she had been affected. She remembered him comforting her but now knows that he did not understand what she meant. She felt that if she recounted what had occurred with the applicant it would end up the same way as the case against the other applicant.

On the day the applicant was sentenced on charges of child sexual abuse in January 1998, her husband brought home a newspaper. It contained a full picture of the applicant and a report of his conviction. The complainant's mother telephoned her and asked her had the applicant abused her and the complainant admitted this to her without going into any detail. The complainant also told her husband. He wanted her to go straight to the police but this was not possible because she was living in (…………). Soon afterwards, she discovered she was pregnant. In March and April 1998 she attended a Miss Radford from a counselling service for counselling. She was reluctant to make any complaint until the pregnancy had been concluded against a background where that while she has three children she had a total of six pregnancies. In June 1998 she was referred by her general practitioner to Ms. Ferguson, psychiatric social worker of Home First Community Trust, and Ms. Ferguson was the second person to whom she confided details of the abuse perpetrated upon her and she refers to a copy of the report as prepared by Ms. Ferguson on November 18 th 1999."


During 1998 the complainant contacted Detective Inspector Thomas Dickson and informed him that she had been abused by the applicant. At this time, however, on account of her pregnancy she did not wish to pursue her complaint until after her baby was born. In May 1999, she was contacted by Detective Garda Sarah Keane in connection with other investigations in relation to the applicant and in August, 1999 she made a formal statement of complaint to the gardai. This was followed by a further statement made in October 2000. In addition she handed to the gardaí diaries covering the period of her connection with the applicant and also a number of letters from the applicant to her. These letters form part of the book of evidence which is exhibited in the affidavit of the applicant's solicitor, Ms. McGeever.


By arrangement with the respondent the complainant attended Domhnall Casey, a psychologist from the Institute of Psychological Medicine. Mr. Casey produced a report and swore an affidavit exhibiting this report. He was cross-examined in the High Court by counsel for the applicant and the transcript of his cross-examination has been provided to this court.


In his report he dealt in some detail with the complainantapos;s background and childhood. Her parents and in particular her father were somewhat distant figures and "had a Victorian attitude to children". The applicant was charming and attractive and became a surrogate father to her. She was a passive child and even as an adult, Mr. Casey found her to be unassertive; she was suffering from bullying in her current employment.


Mr. Casey dealt with the reasons for the complainant's delay in reporting the applicant's abuse of her as follows:

"Her way of dealing with the alleged abuse was to “walk away from the situation”. This was of a piece with, for a start, it would seem, the family's way of dealing with things. In her father's words, it was time “to put it behind you”.

It was also MC's...

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