S.B. -v - DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 21 December 2006
• Neutral Citation: [2006] IESC 67
• Court: Supreme Court
• Date: 21 December 2006

B (S) v DPP & DISTRICT JUDGE HARNETT

JUDICIAL REVIEW

Between:

S.B.

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and DISTRICT JUDGE HARNETT

Respondents/Appellants

[2006] IESC 67

Hardiman J.

Kearns J.

Macken J.

29/05

85/05

THE SUPREME COURT

Abstract:

Criminal law - Delay - Judicial review - Injunctive relief - Whether real risk of unfair trial -- Certiorari - Preliminary examination and depositions

The High Court restrained the DPP from further prosecuting the applicant in respect of 32 charges against him because of excessive delay. The DPP appealed to the Supreme Court. An issue also arose as to a refusal to permit a deposition to be taken as part of the preliminary examination process.

Held by the Supreme Court (Hardiman, Kearns and Macken JJ) in dismissing the appeal in relation to 30 counts that a real risk of an unfair trial arose from the absence of records. The applicant had not, however, shown a real of risk if unfairness in relation to the remaining 2 counts. The order returning for trial was vitiated by the failure to permit the defendant to exercise his statutory right to call a witness on deposition and in the ordinary way an order of certiorari would follow.

Reporter: R.W.

Mr. Justice Hardiman

1 This is substantially the Director's appeal against the judgment and order of the High Court, (Smyth J.), made the 21st day of December, 2004. The effect of this order was to restrain the Director from further prosecuting the applicant in respect of any of the 32 charges against him. It is a feature of the case that the judgment of the learned trial judge proceeded entirely on the basis of an excessive delay and did not (except very incidentally) consider the question of prejudice. Moreover, another of the applicant's claims, for an order of certiorari quashing the order returning him for trial was refused in circumstances where, because of the disposition of the other aspects of the case, it did not appear to be relevant.

2 The learned trial judge's method of disposition of the case could not be faulted on the law as it then stood. However, subsequent to the hearing of the appeal this Court gave its judgment inH. v. DPP (Supreme Court, unreported, 31st July, 2006). In that case this Court formulated the test to be applied in a case of this nature as follows:

"The issue for the Court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court would thus restate the test as:"

3 “The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in the light of the circumstance of the case”".

4 It is obvious, therefore, that, through no fault of the learned High Court judge, his approach to the case has been somewhat superceded by the developing jurisprudence.

5 After the judgment inH., each of the parties here was afforded the opportunity to make further submissions to this Court and each did so, both orally and in writing. In the changed circumstances, the appellant placed in the forefront of his case certain submissions as to the risk (or, as he would say, the demonstrated fact) that any trial would now be unfair. This gave rise to a difficulty in that the learned trial judge had not made any substantial findings in relation to the submissions on the risk of prejudice, because it was unnecessary to do so having regard to his findings on delay. Both sides, however, requested that this Court deal with the matter on the basis of the evidence available, as opposed to remitting the matter for further hearing, and findings, in the High Court.

The charges.

6 Having regard to the submissions made, considerable importance attaches to the detail of the charges preferred against the applicant, and in particular the times at which the offences are alleged to have occurred.

7 The applicant faces thirty charges of indecent assault on one J.R., and it is proposed to deal with these first. The applicant is a nurse, both a registered general nurse and a psychiatric nurse, and the complainant was, at the material times, a patient in a named hospital. This fact is important: there is no allegation in these charges of any assault outside the hospital. The complainant says that during the nights there would only be one nurse on the Ward and that he was first abused when he was awoken about 2am while sleeping on the Ward and was taken to the office of the Ward where he was assaulted. He said that he made a complaint after the first occasion this occurred to two named nurses. He says that they gave him an injection and put him to sleep, having told him they would talk to a named doctor. All three, the doctor and the two nurses, are deceased. The complainant alleges that "Every night that [the applicant] was on duty he would take me into the office and sexually abuse me.

8 The complainant said that he complained to one of the named nurses on a second occasion and was again given an injection and put to sleep. In the fullness of time he left the hospital and alleges that he "had forgotten all about it [the applicant] until a recent visit to [the hospital] brought it all back to me. I started going to a social club there a couple of weeks ago. When I saw the stairs going up to the Ward I felt hurt, everything started coming back to me. I was very upset".

9 The complaint was eventually made in 1999.

10 Originally, the applicant faced a total of 78 charges. In circumstances which are the subject of some controversy, this was reduced to 30 charges. These are as follows:

11 (a) Charges 1 – 14 each allege the offence of indecent assault by the applicant against the complainant on dates between the 29th April, 1975, and the 4th June, 1976, a period of fourteen months.

12 (b) Charges 15 – 17 each allege an indecent assault in different time periods between the 7th October, 1977, and the 25th October, 1977, a period of eighteen days.

13 (c) Charges 18 – 22 each alleges a separate indecent assault in different, short, time periods between the 25th June, 1978, and the 31st July, 1978, a period of thirty-five days.

14 (d) Charges 23 and 24 each alleges separate indecent assault in different time periods between the 11th December, 1978, and the 29th December, 1978, a period of eighteen days.

15 (e) Charges 25 – 30 each alleges a separate indecent assault at weekly intervals between the 1st June, 1979, and the 26th July, 1979, a period of fifty-six days.

16 For this summary it will be seen that the charges in relation to the complainant J.R. relate to a period between 31 and 27 years ago.

Other features of the alleged offences.

17 The complainant J.R. also alleged two things of considerable potential significance. Firstly he claimed that at a time which external evidence places in 1973 or 1974 he attempted suicide and was hospitalised, as a result of the sexual assaults he alleged against the applicant. This is inconsistent with the charges laid, which, as has been seen, did not start until 1975. Secondly, he alleged that he had never been abused by any other person. Some 2½ years later, however, he made and then withdrew multiple complaints of the same nature against another nurse whose name it is unnecessary to mention here.

18 It would appear that part of the reason for the attribution of the suicide attempt and hospitalisation to the applicant's actions stems from a misapprehension amongst the Health Board staff who were assisting the gardaí with their inquiries to the effect that the applicant would have been in the named hospital, and in a position to assault the complainant at nights during a period earlier than those to which the present charges relate. It was known that, at the relevant time, he was doing some form of post-graduate diploma in general, rather than in psychiatric, nursing. It was thought that he was doing this in the named hospital but in fact he did it in a hospital in another county over a period of more than a year. This was a mistake of a very serious character.

19 It should be added, indeed, that the applicant seemed a very enthusiastic nurse, keen to develop his skills: in addition to qualifying in both general and psychiatric nursing, he appears from the papers to have studied for and received no fewer than eight post-graduate certificates and diplomas, some of which involved of taking leave for study or exams.

Records and information.

20 I have set out at some, perhaps at excessive length, the time periods to which the charges relate. This is because those periods are of great significance in any potential defence to the prosecution. The applicant has always denied that he is guilty as charged. It was not suggested on the hearing of this appeal that any of the assaults took place otherwise than as described above: waking up the alleged victim in the middle of the night and bringing him to a room off the Ward where he was assaulted. It is the prosecution case that each Ward nurse would have up to thirty-five patients in his or her care and would, during the night, be alone with the patients except for occasional visits by nursing supervisors. It also emerged (tortuously and very much more later than it should have), in the third statement of a hospital employee, Mr. K., that:

21 (1) "The normal practice for nurses at that time was that they worked four months night duty per year which in effect [meant] that they worked seven nights every fortnight for a period of four months. They worked days for the remainder of the year apart from annual leave or sick periods",

22 (2) "There are no precise records of the actual nights worked by [the applicant] or other...