S.H. v DPP

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 31 July 2006
• Neutral Citation: [2006] IESC 55
• Court: Supreme Court
• Docket Number: [S.C. Nos. 389 & 467 of 2004]
• Date: 31 July 2006

H v DPP

Between

H.

Applicant/Appellant

-v-

The Director of Public Prosecutions

Respondent

[2006] IESC 55

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

389/2004

467/2004

THE SUPREME COURT

CRIMINAL LAW

Delay

Right to fair trial - Right to expeditious trial - Test to be applied - Allegations of indecent assault against minors in 1960s - Multiple complainants - Whether risk of unfair trial - Whether reasons for delay relevant - D v DPP [1994] 2 IR 465 and B v DPP [1997] 3 IR 140 followed; G v DPP [1994] 1 I.R. 374; Hogan v President of the Circuit Court [1994] 2 IR 513, PC v DPP [1999] 2 IR 25, PO'C v DPP [2000] 3 IR 87, PL v Buttimer [2004] 4 IR 494 and DD v DPP [2004] 3 IR 172 considered - Constitution of Ireland 1937, Articles 30 and 38 - Appeal dismissed (389 & 467/2004 - SC - 31/7/2006) [2006] IEHC 55; [2007] 1 ILRM 401

H (S) v DPP

The applicant appealed from the order of the High Court refusing to grant him an injunction restraining the respondent from taking any further steps in a number of prosecutions against him for sexual offences alleged to have been committed by him, while he was employed as a teacher on four of his pupils in the mid 1960's. The applicant alleged that there was prosecutorial delay and submitted that by virtue of the delay between the dates of the alleged offences and the date of his proposed trial there was a real risk he would not receive a fair trial. In the High Court, O Caoimh J. concluded that the delay complained of was referable to the applicant's own conduct.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan, Fennelly JJ) in dismissing the appeal: That the delay in this case did not result in prejudice to the applicant such as would give rise to a real or serious risk of an unfair trial. Furthermore, no wholly exceptional circumstances arose in this case whereby it would be unfair to allow the trial to proceed.

Reporter: L.O'S.

OFFENCES AGAINST THE PERSON ACT 1861 S62

G v DPP & KIRBY 1994 1 IR 374 1994/3/724

HOGAN v PRESIDENT OF THE CIRCUIT COURT & DPP 1994 2 IR 513 1994/10/3030

B v DPP 1997 3 IR 140

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

C (P) v DPP 1999 2 IR 25

O'C (P) v DPP 2000 3 IR 87 2000/14/5259

L (P) v BUTTIMER & DPP 2004 4 IR 494 2004/27/6186 2004 IESC 110

D (D) v DPP 2004 3 IR 172 2004/12/2597 2004 IESC 33

CONSTITUTION ART 30

1 JUDGMENT of the Court delivered on the 31st day of July, 2006 by Murray C.J.

2 In the context of the applicant's appeal the Court has considered the jurisprudence which has developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the complaint, and the preferment of charges against the accused.

3 This appeal came on for hearing before a court of three judges when an issue arose as to the significance of the plurality of complaints in the context of the delay complained of in this case. The appeal was adjourned and further written submissions were directed to be filed. The appeal was relisted for hearing on 9th February, 2006, and recommenced before a court of five judges. However, after further legal argument the appeal was relisted for the purpose of full submissions on the developing jurisprudence relating to the restraint of trials for sexual offences against children by reason of the passage of time. This judgment considers the jurisprudence which has developed and makes determinations as to the relevant principles of law to be applied in such cases.

4 This is an appeal by H., the applicant / appellant, hereinafter referred to as "the applicant", from the order of the High Court ( Ó Caoimh J.) dated 7th July, 2004, which refused his application for an injunction restraining the Director of Public Prosecutions, hereinafter referred to as "the respondent", from taking any further steps in a number of prosecutions against him for sexual offences alleged to have been committed by him on four persons (then minors) in the mid 1960's. The applicant submitted that arising from the lapse of time between the dates of the alleged offences and the date of his proposed trial that there is a real or substantial risk of an unfair trial.

5 There are two sets of criminal proceedings currently before the Circuit Criminal Court. There is a prosecution of the applicant pending on 48 separate charges of indecent assault, contrary to s. 62 of the Offences Against the Person Act, 1861. Twenty of these charges of indecent assault relate to J.M., as set out on Swords charge sheets 49, 84, and 86–103 (inclusive) of 2001. Twenty charges of indecent assault relate to S.F., as set out on Swords charge sheets 50, 67–83 (inclusive), and 86 and 104 of 2003. Eight charges of indecent assault relate to E.B., as set out on eight separate Coolock charge sheets, the numbers of which are indecipherable. There is also a prosecution of the applicant pending on two separate charges of indecent assault contrary to s. 62 of the Offences Against the Person Act, 1861, on Coolock charge sheets 42504 and 42502. Each alleges an indecent assault upon L.W.

6 By two orders of the High Court made on 11th March, 2002, and 29th July, 2002 the applicant was given leave to apply by way of judicial review for injunctions restraining prosecution of him on the fifty charges of indecent assault alleged to have been committed on the four complainants, all of whom allege that they were abused by him when they were in his care when he was a teacher at a school in Dublin. The complainants were schoolboys, and the abuse is alleged to have taken place when the complainants were between 7 and 10 years of age.

7 The High Court held that no formal complaint was made before May, 1999. In May, 1999 J.M. called to Raheny Garda Station to discuss the sexual abuse alleged. J.M. made a formal complaint on 10th March, 2000. In the case of S.F. the complaint was on 23rd March, 2000; in the case of E.B. the complaint was on 21st February, 2001, and in the case of L.W. the complaint was on 30th August, 2001.

8 In accordance with the jurisprudence as it has evolved evidence was brought before the High Court by the respondent describing the alleged sexual abuse of the children and explaining why complaints had not been made earlier. The four complainants swore affidavits in the proceedings and three of them were cross- examined on their affidavits. Each described the sexual abuse alleged against him and explained why he had not made a complaint at an earlier date.

L.W.

9 L.W. swore an affidavit in these proceedings setting out the abuse alleged and the reason why the complaint was not made earlier. L.W. was born on the 22nd January, 1959. It is alleged that the applicant assaulted L.W. on a date unknown between 1st July, 1966, and the 30th June, 1967, and once on a date unknown between the 1st July, 1967, and 30th June, 1968. L.W. first contacted An Garda Síochána when he heard of the existence of the other complaints in July, 2001. L.W. made a formal complaint on the 30th August, 2001. The applicant was interviewed for the first time in connection with these charges on the 8th November, 2001. The applicant was charged with these offences on the 18th February, 2002. L.W. was not cross-examined.

J.M.

10 J.M. swore an affidavit in these proceedings setting out the abuse alleged and the reason why a complaint was not made earlier and he was cross-examined. He set out a full history of the events he alleges and how he told others of the events. J.M. was born on 13th April, 1959, and in 1967 he was in second class. At that time the applicant taught second and third class. J.M. described his memories of the applicant including sexual assaults on himself and other members of his class. He gave explicit details of the abuse alleged, and referred to his statements to the Gardaí which set out alleged abuse in even greater detail. One particular incident deposed to in the affidavit describes a visit to a garda station. He stated:

11 2 "4. The applicant would give boys whom he had assaulted the job of collecting the Black Babies money from other pupils in the school, as a reward for which one was given money. On one occasion I was kneeling down to put this money into one of the drawers at his desk in the classroom. We were alone in the room at the time and the classroom door was locked. He pushed back his seat and placed his hand on my hand, pulling my face towards his lap. His erect penis was out of his trousers and he pulled my face towards it. I jerked my head away and knocked my mouth on a section of his desk. I damaged one of my teeth and cut my top lip, causing it to bleed. The applicant offered me a lift home in his car, a white Mini with venetian blinds fixed inside the rear window. I thought he would drive me home, but he brought me to a house at ... Avenue. As he drove the car he was laughing and he touched my lap and penis with his free hand. He introduced me as "John" to his father. He brought me into the kitchen and checked my tooth and lip. He kissed me on the cheek and lips. He began to brush my hair, gave me a 10/- note and said that everything would be alright. He then brought me back towards my parent's house in his car, dropping me off nearby.

12 5. When I arrived home my mother was very angry out of worry for me. She saw my lip and demanded to know how it had occurred. I told her what the applicant had done to me and how I got the busted lip as a result of trying to not have oral sex with him. My mother did not believe me. When I eventually persuaded her that I was telling the truth, she brought me around to a Garda Terry Gallagher whom she knew. My mother and I explained to him...