S.F. v DPP

• Jurisdiction: Ireland
• Judgment Date: 30 June 1999
• Date: 30 June 1999
• Docket Number: [S.C. No. 23 of 1998]
• Court: Supreme Court

S.F. v. Director of Public Prosecutions

S.F.

Applicant

and

The Director of Public Prosecutions, Respondent, and The Presiding Judge of the Circuit Criminal Court Sitting at the Town of (X) in the (Y) Circuit, Notice Party

[S.C. No. 23 of 1998]

Supreme Court

Constitution - Right to fair trial - Reasonable expedition - Applicant charged with sexual offences - Delay by alleged victim in making complaint - Whether State agencies responsible for complainant's delay - Effect of public interest - Constitution of Ireland, 1937, Article 38.1.

Criminal law - Sexual offences - Delay in making complaint - Whether prejudice to accused - Effect of psychological domination of complainant.

The applicant was a Roman Catholic curate in a county parish during the 1980's. He was replaced by a new curate, Fr. D., in 1986. In the 1990's eight young men made allegations that the applicant had sexually abused them when they were boys of 11 or 12, at which time they were serving as altar boys in the applicant's parish. The first complaint was made to the Garda Síochána in 1990. Other complaints were made in 1995, which included a complaint made by P.M.

P.M. in time developed a good relationship with Fr. D. and discussed the alleged sexual abuse with him, who advised P.M. to go to the guards or to church authorities. He later visited church authorities in Dublin and gave an account of the alleged abuse. In response he received a letter of thanks from his local Roman Catholic bishop that did not mention the allegations. At that time he also told his mother of the allegations.

In November, 1995, the applicant was arrested and charged with 66 sexual offences, of which 28 related to P.M. When he was returned for trial, the applicant sought orders ofcertiorari and prohibition in relation to the charges on the ground,inter alia, that the delay in holding a trial would infringe his constitutional right to a fair trial. The High Court (Geoghegan J.) granted an order of prohibition in respect of the charges relating to P.M., but not in respect of the other complainants.

The respondent appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Denham, Keane, Murphy and Lynch JJ.), in allowing the appeal, 1, that the complaint by P.M. to Fr. D. and the failure to report the alleged abuse to the gardaí at that time was not a novus actus interveniens.

2. That, in the absence of contrary medical or psychological evidence, the continued delay in reporting the complaints to the gardaí could not be regarded as the fault of P.M., but had to be attributed to the continuing psychological damage and/orsequelae of the applicant's alleged sexual abuse.

3. That, in civil proceedings by way of judicial review, the onus of proof was on the applicant to show such delay as would render a trial at this time unfair and in breach of his right to a trial with reasonable expedition.

4. That the delay in this case, not being attributable to some fault or free and deliberate decision of P.M., did not justify a finding of unfair procedures or a breach of the right to reasonable expedition. The applicant had failed to adduce any evidence of specific prejudice caused by the delay.

Cases mentioned in this report:-

B. v. Director of Public Prosecutions [1997] 3 I.R. 140; [1997] 2 I.L.R.M. 118.

Barker v. Wingo (1972) 407 U.S. 514.

Bell v. D.P.P. [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585.

Cahalane v. Judge Murphy [1994] 2 I.R. 262; [1994] 2 I.L.R.M. 383.

Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236; [1994] 2 I.L.R.M. 91.

G. v. Director of Public Prosecutions [1994] 1 I.R. 374.

Hogan v. President of the Circuit Court [1994] 2 I.R. 513.

P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25.

R. v. Telford JJ., ex p. Badhan [1991] 2 Q.B. 78; [1991] 2 W.L.R. 866; [1991] 2 All E.R. 854; (1991) 93 Cr. App. R. 171.

The State (Healy) v. Donoghue [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgments of Lynch and Murphy JJ., infra.

The applicant was granted leave to apply for judicial review by the High Court (Geoghegan J.) on the 11th November, 1996. Judgment was given by the High Court (Geoghegan J.) on the 17th December, 1999, which granted the applicant a limited order of prohibition. Notice of appeal dated the 3rd February, 1998, was filed by the respondent.

The appeal was heard by the Supreme Court (Hamilton C.J., Denham, Keane, Murphy and Lynch JJ.) on the 12th January, 1999. On the 12th January, 1999, the Supreme Court ordered that the respondent's appeal be allowed, with reasons to be given at a future date.

Cur. adv. vult.

Hamilton C.J. 30th June, 1999

I agree with the judgment of Lynch J.

Denham J.

I agree with the judgment of Lynch J.

Keane J.

I also agree with the judgment of Lynch J.

Murphy J.

In these proceedings an order is sought prohibiting the notice party from proceeding with the arraignment and trial of the applicant and an injunction restraining the respondent from taking any further step in the prosecution of the charges.

It is the applicant's contention that, having regard to the period of time which has elapsed since the date on which it is alleged that the criminal offences were committed, a trial would now necessarily infringe his constitutional right to a fair trial in accordance with Article 38.1 of the Constitution.

The applicant is a priest. On the 15th November, 1995, he was arrested by a member of An Garda Síochána and charged with 66 counts of indecent assault or gross indecency with eight youths on different occasions between 1981 and 1987. One of the alleged offences was reported to the gardaí in 1990 but it appears that the remainder were not reported until 1995. It was on the 23rd September, 1996, that a judge of the District Court sent the applicant forward for trial before the Circuit Criminal Court. On the 11th November, 1996, leave to apply for judicial review was granted. The application was heard on the 2nd and 3rd December, 1997, and the order was made and the judgment delivered on the 17th December, 1997. The learned trial judge granted the relief claimed in respect of the offences alleged against the applicant in respect of one of the complainants but not the others. The applicant appealed against so much of the order as refused the relief sought. The respondent cross-appealed against so much of the order as granted relief. As the applicant subsequently withdrew his appeal the proceedings before this Court were confined to the point claimed by the respondent to reinstate all of the charges brought by him against the applicant.

In his judgment the learned trial judge summarised the grounds of the application made to him in the following terms:

"1. There cannot be a fair trial having regard to the length of time between the alleged commission of the offences and the commencement of the prosecution.

• 2. There has been excessive adverse pre-trial publicity which has prejudiced the constitutional right to a fair trial.

• 3. The charging of the applicant with 66 criminal offences constitutes an abuse of the jurisdiction of the court and is oppressive and unjust in that it renders the preparation of a proper defence impossible and especially so if at a point in time close to the trial particular counts are selected to be tried to the exclusion of others."

The effect of time elapsing between the date on which a crime is alleged to have been committed and the trial of the accused thereon has been considered in numerous cases in this and other jurisdictions. In reviewing these decisions it seems to me that a clear distinction must be drawn between those cases in which a delay occurs, or is alleged to have occurred, between the date on which the prosecution is commenced (or the authorities are informed of the offence) and the date on which the accused is tried for the offence and other cases in which a period of time - perhaps a very lengthy period of time - has elapsed between the date on which the crime is alleged to have been committed and the date of the trial. An analysis of the rights and duties arising in relation to the first category of cases can be found inBarker v. Wingo (1972) 407 U.S. 514, an American decision frequently quoted in this jurisdiction; orR. v. Telford JJ., ex p. Badhan [1991] 2 Q.B. 78 (an English case likewise cited with approval in this jurisdiction);The State (O'Connell ) v. Fawsitt [1986] I.R. 362;Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 andCahalane v. Judge Murphy [1994] 2 I.R. 262. Decisions relating to the other category includeG. v. Director of Public Prosecutions [1994] 1 I.R. 374;B. v. Director of Public Prosecutions [1997] 3 I.R. 140 andP.C. v. Director of Public Prosecutions [1999] 2 I.R. 25.

In this jurisdiction the consequence of effluxion of time over whatever period falls to be considered in the context of Article 38.1 of the Constitution which provides:-

"No person shall be tried on any criminal charge save in due course of law."

That Article in turn must be read in conjunction with Articles 34 and 40 of the Constitution. The consequence of such analysis was explained by O'Higgins C.J. inThe State (Healy) v. Donoghue [1976] I.R. 325 at p. 349 in the following terms:-

"Being so considered, it is clear that the words 'due course of law' in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself."

Specific rights flowing from the requirement of justice and fair procedures had been identified by Gannon J. in his judgment in the High Court. The passage from his judgment dealing with those rights, which was...