E R v DPP
| Jurisdiction | Ireland |
| Judge | Quirke J. |
| Judgment Date | 27 July 2005 |
| Neutral Citation | [2005] IEHC 290 |
| Court | High Court |
| Docket Number | [No. 495 JR/2003] |
| Date | 27 July 2005 |
[2005] IEHC 290
THE HIGH COURT
BETWEEN
AND
Judicial review - Prohibition - Delay - Sexual offences - Whether the delay in prosecuting the applicant resulted in a real and serious risk that he would not receive a fair trial.
Facts: The applicant who was charged with numerous sex offences relating to alleged incidents, which occurred between 1969 and 1982 sought by way of an application for judicial review an order prohibiting the respondent from further prosecuting the application in relation to those offences. The applicant claimed that the delay in reporting the offences was inordinate and of such duration that, of itself, it warranted the prohibition of his trial. The applicant alleged that by reason of the delay in prosecuting him, including a period in excess of eight months on the part of the prosecuting authorities, he suffered both specific prejudice and presumed prejudice. Specifically the applicant claimed that he would suffer prejudice because his wife was now deceased and accordingly would not be able to testify at his trial.
Held by Quirke J. in refusing the relief sought:
1. That the delay by the prosecuting authorities was substantial but was not excessive and not sufficient of itself to warrant the prohibition of the trial. The applicant did not suffer any presumptive or actual prejudice as a result of that delay.
2. That the applicant occupied a position of dominion over the complainant and accordingly the delay in complaining was explicable and excusable in the circumstances.
3. That the applicant was unable to identify any relevant testimony, which his deceased wife would have been in a position to adduce and the written statement provided by his wife wholly supported the complainant’s account. Consequently, the evidence was so uncertain and speculative in nature that its absence would not amount to specific prejudice sufficient to warrant the prohibition of the trial.
Reporter: L.O’S.
By order of the High Court (Peart J.) dated 7th July, 2003, the applicant was granted leave to apply by way of judicial review for an order of prohibition restraining the respondent from proceeding further with the prosecution of the applicant on 93 counts alleging offences of unlawful sexual conduct between the applicant and his daughter A.R.
He was also granted leave to seek additional declaratory and other ancillary reliefs against the respondent.
The offences are alleged to have been committed between the 1st November, 1969, and the 31st October, 1982. They include indecent assault, buggery, incest and rape.
1. The applicant has been charged with 93 counts alleging sexual offences committed against his daughter A.R. The offences are alleged to have occurred between 1st November, 1973 and 31st October, 1982.
The applicant was born on the 12th July, 1945, and was aged between 28 years and 37 years at the time of the alleged offences. The complainant was born on 1st November, 1969. She was aged between four years and twelve years at the time of the alleged offences.
2. All of the offences are alleged to have occurred at the applicant's (then) family home in K., Dublin. There were three additional children of the marriage, namely, two girls, (younger than A.R.) and an elder boy who died in 1984 aged seventeen years.
In 1984 the applicant separated from his wife and left the family home. The applicant has averred in evidence that he had no contact"of any meaningful nature" with his late wife or with his children after that date.
His wife recently contracted a serious illness and is now deceased.
3. On 13th May, 1999, A.R. made a statement of complaint to Garda O'C. at B. Garda Station. She alleged that sexual offences had been committed against her by the applicant and by her two uncles, (the applicant's two brothers), between 1973 and 1982. In 1973 the applicant's brothers were aged eleven and fifteen years respectively.
4. Between the 15th June, 1999, and the 7th August, 1999, Detective Garda C. W. conducted interviews and took a number of statements in writing from A.R., her mother and her two sisters. The statements detailed facts relevant to the charges which have been preferred against the applicant.
5. On 18th September, 1999, the applicant was arrested and detained under s. 4 of the Criminal Justice Act, 1984 at R. Garda Station. He was released on the same day.
6. Between the 18th October, 1999, and 21st January, 2000, further investigations were carried out by the Gardaí. They included interviews with the applicant's brothers and investigations involving the Rape Crisis Centre.
On 21st January, 2000, three Garda investigation files were forwarded to the Chief State Solicitors office. The files contained certain documents and written statements together with directions in relation to the detention and prosecution of three persons.
7. On 10th September, 2000, Detective Garda W. received directions in writing from the respondent.
On 16th October, she swore an information in the District Court for an arrest warrant in respect of the applicant.
On 22nd October, 2000, the applicant was arrested, conveyed to R. Garda Station and charged with the offences which are the subject of these proceedings.
On 30th March, 2001, the applicant was returned for trial to the Central Criminal Court.
8. A notice of motion dated 27th September, 2001, was lodged in the Central Criminal Court on 28th September, 2001, which notified that Court of the intention of the applicant to seek an order of prohibition and an order quashing the indictment of the applicant on the ground of delay.
In 2001 a practice was adopted by the courts which required applicants for relief of the kind which has been sought in these proceedings to seek such relief from the Central Criminal Court immediately prior to the trial of the offences. The Central Criminal Court treated those applications as motions to quash indictments on grounds of delay
On 27th January, 2003, the Court of Criminal Appeal delivered its judgment in the case ofDirector of Public Prosecutions v. P.O'C. In that case the court decided that the practice was inappropriate and that relief of the kind sought herein must be sought by way of judicial review.
On 16th July, 2003, a Notice of Motion seeking the relief sought herein was issued and served on behalf of the applicant upon the respondent.
9. In evidence the applicant averred that he has at all times denied the complaint made against him by the complainant. He stated that he was taken by surprise when arrested and interviewed in connection with the allegations in 1999.
He claims that he will be irrevocably prejudiced by the fact that his wife is now deceased and will, consequently, be unable to testify at his trial.
10. In evidence A.R. averred that she lived in the family home until she was seventeen or eighteen years old. She said she lived in rental accommodation after that and spent a lot of time with her grandmother with whom she felt safe.
11. She described the abuse to which she was allegedly subjected in detail. She said that on some occasions the applicant had put his tongue into her mouth in front of people. She said that on other occasions he would surreptitiously abuse her in the presence of others. However, she said, most of the abuse occurred in private.
She said that she when she was twelve or thirteen years old in 1981 or 1982, she was suspended from school. She said that, at that time, she refused to allow the applicant to abuse her. She said that he never abused her again after that.
She said that the applicant was violent and had beaten her mother. That was the reason why they separated. The applicant had threatened to kill her if she told anyone of the abuse. She was frightened of him.
She said that she told her mother about the abuse in 1984. Her mother took her to the Rape Crisis Centre the following day.
She received some counselling but not much. She still goes back to the Rape Crisis Centre from time to time.
She said she complained to the Gardaí in 1999 because she was living in B. and was attending a Mental Health Clinic there.
She said that she wanted to have the applicant punished for what he had taken away from his family. She said that she didn't feel afraid anymore. She was then living in B. and she said that she knew that the applicant wouldn't know where she was and wouldn't be able to find her.
12. Dr. M. D. testified. She stated that she had two meetings with the complainant A.R. (on the 4th, and 20th November, 2003).
She said that A.R. had been referred to her in September, 2003, by the respondent. She had been asked to report upon:
(a) the reported and observed effects of the abuse upon A.R;
(c) her view as to whether the delay in reporting was reasonable in the light of her circumstances;
(d) her view as to the extent to which the effects of the alleged abuse could be said to have operated to inhibit disclosure and;
(e) her view as to whether there were other factors inhibiting A.R. from making a full disclosure until the time when it was made.
Dealing with the effects of the alleged offences, Dr. D. concluded that throughout her adult life A.R. had struggled with the effects of the alleged abuse. She had attended counselling for a number of years and had two treatment phases in psychiatric hospitals. In consequence she currently suffers from sleep disruption and takes medication to assist sleeping. She finds it difficult to trust people.
Dealing with the delay in reporting the alleged offences, Dr. D. said that it was reasonable that A.R....
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