S.F. v DPP
| Jurisdiction | Ireland |
| Judge | Quirke J. |
| Judgment Date | 23 November 2005 |
| Neutral Citation | [2005] IEHC 410 |
| Date | 23 November 2005 |
| Court | High Court |
| Docket Number | 742JR/2003 |
[2005] IEHC 410
THE HIGH COURT
BETWEEN
AND
Judicial review - Delay - Indecent assault - Prohibition - Whether the applicant established that there was a real and serious risk that he would not receive a fair trial due to the delay in bringing proceedings against him.
Facts: The applicant sought by way of an application for judicial review an order of prohibition restraining the respondent from proceeding further with the prosecution of him in respect of 3 charges of indecent assault alleged to have occurred between 1973 and 1983. The complainant first reported those offences to her parents in 1983. She informed her husband of the incidents prior to their marriage and they moved to England in 1988. The complainant also reported the alleged incidents to the applicant’s wife in 1994 and subsequently to the Gardai in 2002. The applicant alleged that his right to a trial with reasonable expedition was violated by virtue of the inordinate and inexcusable delay on the part of the complainant in reporting the offences to the prosecuting authorities and also by the delay of 11 months on the part of the prosecuting authorities between the date when the applicant was first interviewed and the date he was returned for trial. The applicant contended that the delay resulted in both presumptive and express prejudice and consequently there was a real and serious risk that he would not receive a fair trial.
Held by Quirke J. in granting the order of prohibition:
1. That the prosecuting authorities were not guilty of any inordinate or other delay in the prosecution of the applicant in respect of these offences.
2. That the evidence of prejudice alleged by the applicant was of a general nature directed towards undermining the credibility of the complainant. Consequently, the applicant failed to establish that he suffered specific prejudice so grave that, of itself, it warranted the prohibition of his trial.
3. That the applicant did not occupy a position of dominion over the complainant after the time when she departed Ireland in 1988 and moved to England. Consequently, the delay in reporting the abuse until 2002 was prima facie excessive and inordinate in the circumstances. Furthermore, there was no good reason to justify the delay.
Reporter: L .O’S.
EX TEMPORE JUDGMENT of Quirke J. delivered on the 23rd day of November, 2005
By order of the High Court (O'Donovan J.) dated 20th October, 2003, the applicant was given leave to seek relief by way of judicial review comprising an order of prohibition restraining the respondent from proceeding further with the prosecution of the applicant in respect of three charges of indecent assault contrary to the provisions of s. 6 of the Criminal Law (Amendment) Act,1935.
Two of the offences are alleged to have been committed on unknown dates between 1st March, 1973 and 1st March, 1974 and a further offence is alleged to have been committed on an unknown date between the 1st January, 1983 and 31st December, 1983.
All three of the offences are alleged to have been committed at S. B. P., Navan in the County of Meath.
The facts which are relevant to these proceedings are as follows;
1. The applicant is an uncle, (by marriage), of R.S. who is now 40 years old. R.S is married and is the mother of three children. Her eldest child is now eight years old.
2. On 10th June, 2002, R.S. made a statement to the Garda Síochána at Slane Garda Station. She complained that almost 30 years earlier, when she was approximately eight years old, the applicant had entered her bedroom and had indecently assaulted her with his finger for a period of approximately five minutes. She said that a number of other similar incidents took place around this time but these incidents then stopped.
3. She stated that approximately ten years later in 1983 while she was babysitting at the applicant's home the applicant entered her bedroom where she lay in bed, lay on the blankets on top of her and made simulated sexual movements. She said that he then placed his hand on her breasts inside the blankets.
She said that this continued for "a few minutes". The applicant's wife then called him and he immediately got up and went away.
4. An investigation was commenced by the Garda Síochána and on the 8th August, 2002, statements were taken from F.McK. who is the applicant's mother and M.S. who is now the applicant's husband.
On 11th September, 2002, the Gardaí obtained a statement from Fr. P.G.
5. On 10th October, 2002, the applicant was interviewed after caution in his home by Sergeant M.T. He made a statement in which he denied the assaults complained of.
In his statement the applicant denied having inappropriately touched the applicant on any occasion but stated that he could have done so accidentally and was prepared to apologise to the applicant for any harm or grief caused to her over the years.
6. On 15th October, 2002, a statement was made in the investigation by Sergeant M.T. This was followed on 15th November, 2002 by a statement made by Garda V.S.
7. On 26th November, 2002, a file was forwarded to the Director of Public Prosecutions for his consideration.
On 16th January, 2003, and on 19th February, 2003, further statements were made by R.S. to Garda S. On 20th and 21st February, 2003, further statements were made by F.McK. and Garda V.S.
On 22nd February, 2003, the file was returned by the Garda Síochána to the State Solicitor. The Gardaí were seeking directions from the Director of Public Prosecutions.
8. On the 15th July, 2003, the Garda Síochána received instructions from the Director of Public Prosecutions to prosecute the applicant in respect of the offences alleged and on 23rd July, 2003, the applicant was arrested, cautioned and brought before Navan District Court.
After remand in the District Court from time to time, the applicant was returned for trial on 3rd September, 2003, to the Circuit Court at Trim in the County of Meath.
2 9.In evidence R.S. stated that on an unidentified date not long after the incidents which are alleged to have occurred in 1973, she was in a field on her father's farm with her cousin J.D. when she heard a shot and the sound of a pellet passing her left ear.
She said that when she looked around she saw her father with the applicant.
The applicant had a pellet gun in his hand. She concluded that the gun had just been discharged by the applicant. She interpreted the discharge of the firearm as a threat intended to keep her silent about the applicant's offences.
10. Shortly after the offence which is alleged to have been committed in 1983 the applicant reported all of the incidents to her mother and father. She said that her mother and father went to the applicant's house and confronted the applicant and his wife. She said that when they returned home her father told her that she had lied about the incidents. She said that her mother believed her but seemed ambivalent on the issue.
11. The applicant told her present husband M.S. about the incidents when both were teenagers before they were married. M.S. believed her fully and has, at all material times, been supportive of her.
On 31st January, 1988, M.S. and R.S. went to live in London where they both worked for some time.
12. In October 1988, R.S. met Fr. P.G. in London. She told Fr. P.G. about the incidents which are the subject of these proceedings. He believed her and was shocked.
3 13.In 1994, R.S. told the applicant's wife, T.F., about the incidents. T.F. believed the applicant and confronted her husband who denied the incidents.
14. In the statement of evidence of R.S. which was adduced in evidence in these proceedings she stated inter alia that:-
"In March, 1997 and March, 1998 there were family celebrations. …( S.F). ..was not invited by me. ( Father P)… approached me on two occasions to ask if I would forgive…( S.F..) and allow him to attend. I refused. In December, 1998 I returned home with my family. I informed T.F. not to allow (S.F.) to come near my family home as I was there."
15. R.S. has never suffered from any kind of psychiatric illness, learning disability or adverse psychological symptoms. She has never received or sought treatment or advice or counselling in respect of any matter which arises out of the alleged offences.
16. In evidence, the applicant stated that she had not reported the incidents between 1988 and 2003 because:
(a) Her father had not believed her when she first reported the matter to her parents,
a (b)she feared the applicant by reason of the incident shortly after the incidents in 1973 when he appeared to discharge a gun as a warning to her and
(c) because she believed that the Garda Sergeant in Slane Garda Station (Sergeant C.) was friendly with the applicant and, for that reason, would not believe her complaints.
17. Mr. Michael Dempsey who is a senior clinical psychologist interviewed R.S. on 30th January, 2004 and on 11th February, 2004, for the purpose of assessing:-
(b) the reasons for the delay in reporting the offences and
(c) whether the delay in reporting the offences was reasonable in the circumstances.
In his report, which was adduced in evidence, Mr. Dempsey was of the opinion that the applicant exercised dominion over R.S. from the time of the alleged offences until she reported the abuse to her parents at the age of 18.
He said that when she did so her father did not believe her. This would have inhibited her from making the complaint to the Gardaí.
He said that R.S feared the applicant and did not want to cause hurt to his wife who...
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