S.O'C. v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards,McCarthy J.,Kennedy J.
• Judgment Date: 23 January 2024
• Neutral Citation: [2024] IECA 38
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 270/2023

Between/

S.O'C.

Appellant

and

Director of Public Prosecutions

Respondent

[2024] IECA 38

Edwards J.

McCarthy J.

Kennedy J.

Record No. 270/2023

THE COURT OF APPEAL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Edwards delivered on the 23 ^rd of January 2024 .

Introduction

1 . The present appeal has been brought by Mr. S.O'C. (i.e., “the appellant”) against the refusal by the High Court (Barr J.) of certain reliefs sought by way of judicial review, most significantly an Order prohibiting the Director of Public Prosecutions (i.e., “the respondent”, or “the Director”) from further prosecuting the appellant on 151 counts of indecent assault on Bill No. DUDP 99/2022. The said counts allege that the appellant perpetrated indecent assaults against nine different complainants at various points in time between the 1 ^st of September 1974 and the 31 ^st of December 1983. The appellant had sought to prohibit his trial on this indictment on two grounds: (1) that the cumulative effect of wholly exceptional circumstances which were said to obtain in his case rendered it unfair or unjust to try him for any of the offences alleged in Bill No. DUDP 99/2022; and (2) that the Director had unfairly and unlawfully used the nolle prosequi procedure on the 12 ^th of May 2021 to halt the appellant's initial trial in relation to the allegations made by three of the complainants so as to bring fresh proceedings whereby those allegations would be included with the allegations made by the six other complainants, and specifically that this use of the nolle prosequi procedure, which was detrimental to the appellant's position, had enured to the benefit of the Director and had conferred an unfair advantage on the prosecution.

2 . By Notice of Appeal (bearing Court of Appeal stamp dated the 20 ^th of October 2023) the appellant advanced a number of grounds in support of his appeal. These grounds will be described in greater detail later in this judgment. For the purposes of this introductory section, it suffices to summarise them as follows:

• 1. That the High Court judge erred in law and fact in refusing to prohibit the respondent from further prosecuting the appellant on Bill No. DUDP 99/2022.

• 2. That the High Court judge erred in refusing to prohibit the further prosecution of the appellant on said indictment on the basis that it would be unfair or unjust to try him based on the cumulative effect of wholly exceptional circumstances. (This alleged error is particularised in greater detail later in this judgment.)

• 3. That the High Court judge erred in refusing to prohibit the further prosecution of the appellant on the said indictment on the basis that the current prosecution of the offences relating to certain three complainants is the result of an unlawful deployment of the nolle prosequi procedure. (Again, this alleged error is particularised in greater detail later in this judgment.)

• 4. That the High Court judge erred in all the circumstances in refusing the reliefs sought by the appellant.

• 5. That the High Court judge erred in making an Order for costs against the appellant. This ground relates in particular to the operation of the Legal Aid (Custody Issues) Scheme (of which the appellant had availed), and to a departure by the High Court judge from his previous approach to costs in similar circumstances in A.H. v. DPP [2021] IEHC 308.

Factual Background

3 . The factual background to the present appeal has been set out at length in the High Court judgment (see judgment of Barr J. dated the 16 ^th of August 2023, bearing neutral citation [2023] IEHC 502). For the purposes of the present judgment, it suffices to provide the following precis of relevant facts.

4 . The appellant is currently aged 71 years and is serving a sentence of imprisonment in respect of previous convictions for other sexual offending. He is a retired teacher, and it is in the course of his employment as a teacher at a primary school that the appellant encountered the various nine complainants, former pupils at that school, whom he is alleged, on Bill No. DUDP 99/2022, to have indecently assaulted on various dates between the 1 ^st of September 1974 and the 31 ^st of December 1983.

5 . As the High Court judge described in his judgment, the 151 charges outlined in the indictment on Bill No. DUDP 99/2022 relate to three different “ tranches”, each involving three complainants. The names of each of the nine total complainants have been redacted, and in the interests of consistency the letters assigned to each respective complainant by the High Court judge have been retained for the purposes of the present judgment.

6 . The tranches, as identified by the High Court judge, are described as follows:

The First Tranche:

7 . The first tranche comprises count nos. 90 to 102, inclusive, which relate to indecent assaults alleged to have been perpetrated by the appellant on the following complainants:

• (i) DG (count nos. 90 and 91), who made a statement to An Garda Síochána on the 8 ^th of May 1999 regarding offences which he alleged to have occurred between the 1 ^st of September 1974 and the 30 ^th of June 1975. The appellant was interviewed by gardaí regarding DG's complaint in or about the year 2000. The date on which a file in respect of DG's complaint was initially submitted to the Director was the 6 ^th of November 2000. A decision not to prosecute was made by the Director on the 18 ^th of January 2001. For reasons which will be described shortly, this decision was revisited. The Garda file in respect of DG was later submitted to the Director again on the 13 ^th of August 2018, and shortly thereafter, in 2019, there was a request for a review of the original decision not to prosecute, the outcome of this review being a direction to prosecute which was given on 12 ^th of May 2021;

• (ii) BB (count nos. 92 and 93), who made a statement to An Garda Síochána on the 6 ^th of August 2013 regarding offences which he alleged to have occurred between the 1 ^st of September 1979 and the 30 ^th of June 1981. The appellant was interviewed by gardaí in respect of BB's complaint on the 23 ^rd of October 2013. The date on which a file in respect of BB's complaint was submitted to the Director was the 3 ^rd of February 2014. A decision not to prosecute was made by the Director on the 27 ^th of May 2014. A review of this decision was requested in 2019 and this resulted a direction to prosecute which was given on 12 ^th of May 2021;

• (iii) SD (count nos. 94 to 102, inclusive), who made a statement to An Garda Síochána on the 27 ^th of December 2012 regarding offences which are alleged to have occurred between the 1 ^st of November 1980 and the 1 ^st of March 1981. The appellant was first interviewed by gardaí in respect of this complaint in or about 1994 – 1996. The date on which a file in respect of SD's complaint was submitted to the Director was the 3 ^rd of February 2014. A decision not to prosecute was made by the Director on the 27 ^th of May 2014. A review of this decision was requested in 2019 and this resulted a direction to prosecute which was given on 12 ^th of May 2021;

8 . As will be apparent from the chronology just set out, the position in summary is that Director had originally declined on the 18 ^th of January 2001 to prosecute the appellant in respect of DG's complaint. However, following a request by DG in 2019, and in the light of complaints which were subsequently made by BB and SD, respectively, which complaints bore factual similarities to that made by DG, and to other complaints made against the appellant, the Director agreed to review her previous decision not to prosecute. Ultimately, the Director reversed her previous decision, and directed that relevant charges in relation to the allegations made by DG, BB, and SD, respectively, be preferred against the appellant, which direction was made on the 12 ^th of May 2021.

The Second Tranche

9 . The second tranche comprises count nos. 1 to 89, inclusive, which counts relate to indecent assaults alleged to have been perpetrated by the appellant on the following complainants:

• (i) DC (count nos. 1 to 43, inclusive), who made a statement to An Garda Síochána on the 9 ^th of March 2015 regarding offences which are alleged to have occurred between the 1 ^st of January 1980 and the 31 ^st of December 1982. The appellant was interviewed by gardaí in respect of DC's complaint on the 27 ^th of September 2017. The date on which a file in respect of DC's complaint was submitted to the Director was the 10th of December 2018. A direction to prosecute was given on the 27 ^th of February 2019;

• (ii) KM (count nos. 44 to 88, inclusive), who made a statement to An Garda Síochána on the 22 ^nd of November 2017 regarding offences which are alleged to have occurred between the 1 ^st of September 1979 and the 31 ^st of December 1982. The appellant was interviewed by gardaí in respect of KM's complaint on the 24 ^th of May 2018. The date on which a file in respect of KM's complaint was submitted to the Director was the 10th of December 2018. A direction to prosecute was given on the 27 ^th of February 2019;

• (iii) DH (count no. 89), who made a statement to An Garda Síochána on the 8 ^th of August 2016 regarding an offence which he alleged had occurred between the 1 ^st of January 1981 and the 31 ^st of December 1983. The appellant was interviewed by gardaí in respect of DH's complaint on the 27 ^th of September 2017. The date on which a file in respect of DH's complaint was submitted to the Director was the 10th of December 2018. A direction to prosecute was given on the 27 ^th of February 2019.

10 . Following the Director's direction to prosecute in relation to all three cases on the 27 ^th of February 2019, and the appellant having been duly charged, he was then returned for trial on Bill No. 103/2020. However, on the 12 ^th of May 2021, a nolle prosequi was entered in respect...