S(J) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Higgins |
| Judgment Date | 02 April 2004 |
| Neutral Citation | [2004] IEHC 100 |
| Date | 02 April 2004 |
| Court | High Court |
| Docket Number | [No. 766 J.R./2001] |
[2004] IEHC 100
THE HIGH COURT
BETWEEN
AND
Citations:
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6
CONSTITUTION
C (P) V DPP 1999 2 IR 25
G V DPP 1994 1 IR 374
D V DPP 1994 2 IR 465
M (P) V MALONE 2002 2 IR 561
DPP V J (P) 2004 1 ILRM 220 2003/17/3710
B V DPP 1997 3 IR 140
FITZPATRICK (F (M)) V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057
O'C (J) V DPP 2000 3 IR 479
Judicial review - Sexual offences - Delay - Risk of unfair trial - Prohibition - Whether the complainant’s delay in reporting the abuse resulted in a risk of an unfair trial for the applicant.
The applicant was charged with seventeen counts of indecent assault. There was a delay of between sixteen and seventeen years from the date of the alleged abuse and the date the complainant first complained to the Gardai. The applicant was granted leave to issue judicial review proceedings to prohibit the respondent from further prosecuting him pending the outcome of the determination of the prohibition proceedings. The respondent conceded that the delay was prima facie inordinate.
Held by O’Higgins J. in granting the order of prohibition:
1. That the respondent failed to satisfy the court that the delay was explicable in all the circumstances. It was accepted that the delay was such as to require such an explanation. The evidence given by an experienced clinical psychologist was unreliable for a number of reasons and accordingly the complainant failed to demonstrate her reasons for delaying making the complaints.
2. That the right of the applicant to a trial with reasonable expedition had been violated. The combination of the difficulties in recollection, the lack of specificity in the charges and the fact that the trial would take place more than twenty years from the date of the offences were all factors which, when taken together in the absence of proof of specific prejudice to the applicant demonstrated that there was a serious risk of an unfair trial.
LOS
delivered the 2nd day of April 2004 .
On the 12th November, 1999, the applicant was arrested and charged with seventeen counts of indecent assault. All charges relate to a period between the 1st July, 1982, and the 31stNovember, 1983. All the offences are alleged to have taken place at the applicant's home in County Westmeath, during which time the complainant was under his care.
On the 19th November, 2001, the President of the High Court granted leave to the applicant to issue Judicial Review proceedings to prohibit the respondent from further prosecuting the applicant in relation to the various counts on which he was returned for trial within the proceedings pending "the outcome of the determination of the prohibition proceedings. Leave to apply was granted in respect of grounds 1 to 7 and 9 in the grounds of relief. Those grounds are as follows:
1. The lapse of time in itself of approximately 19 years between the date of commission of the alleged offences and the likely date of a trial of the applicant before the Mullingar Circuit Court is so great as to constitute a denial to the applicant of his right to a trial with reasonable expedition and in accordance with the law as guaranteed by the constitution and as further protected by Article 6 of the EuropeanConvention on Human Rights.
2. The lack of specificity in relation to the dates upon which it is alleged the offence complained of took place having regard to the passage of time since the date of the commission of the alleged offences imposes an unfair and oppressive burden upon the applicant in the preparation and presentation of his defence and further hampers, injures and effects the applicant in instructing his solicitors in relation to his defence as he is unable to nominate dates, times or places where he might have been when the offences are alleged to have occurred or locate persons who he might have been with or point to other circumstances tending to show the unlikelihood of the commission of such an offence in such a place at such a time and further renders the allegations incapable of rebuttal by fact or inference to be derived from any provable collateral fact, and renders it practically impossible to produce any alibi evidence such as to render any trial of the offences alleged unfair to the applicant and in breach of his constitutional right to fair procedures.
3. The applicant is prejudiced in the preparation and presentation of his defence by reason of the death of the following potential witnesses who in the case ofS(a) above, lived with the applicant at the time the offences occurred, and, in the case of3(b) above regularly attended upon the complainant as her nurse. The references are to M S and M S, the parents of the applicant, and to A R who was, at the date of the alleged offence, a District Nurse who visited with the complainant.
4. The locations where the offences are alleged to have occurred have changed substantially and in some cases are np longer in existence so that enquiries or investigations into the physical circumstances in which they are alleged to have occurred are not possible, and nor is it possible to check if any of the factual or collateral matters relating to the alleged offences actually existed or were improbable.
5. By reason of the passage of time the applicant herein is left only with his denial of the allegations contained in the Book of Evidence served upon him and his plea of not guilty by way of defence to the charges.
6. The complainant who was under no disability and who was under no continuing dominion by the applicant, failed to make any complaint to the Gardai until she was twenty-eight years of age having allegedly told other people years earlier.
7. The failure of the prosecution to fully investigate the offences and in particular their failure to interview and obtain statements from anybody else who could corroborate any of the evidence of the complainant. The prosecution is proceeding on the basis that all matters in controversy can be resolved by calling the complainant.
Leave was refused to seek Judicial Review on Ground No. 8 (prosecutorial delay), and Ground No. 9 was specifically abandoned by counsel at the hearing of the action.
A Statement of Opposition was filed on the 20th November, 2002. The relevant grounds of opposition are the following:
3. It is denied that the lapse of time between the commission of the alleged offence and the date of trial is so great as to constitute a denial to the applicant of his right to a trial with reasonable expedition and in accordance with law and it is denied that there is a breach of the Constitution or of Article 6 of the Convention of Human Rights.
4. The lack of specificity in relation to the dates is usual in offences alleging the abuse of young persons.
5. The lack of specificity also often occurs where the alleged abuse took place in private. It is denied that the lack of specificity prejudices the applicant in preparation and presentation of his defence.
6. It is further denied that the lack of specificity and the recall of a minor would be something which would have been greatly remedied by a complaint made closer to the time of the alleged offence.
7. It is denied there is an unfair or oppressive burden upon the applicant in the preparation or presentation of his defence, and it is denied that this hampers, injures and affects the applicant in instructing his solicitors in relation to his defence, and the other difficulties which the applicant alleges he experiences in paragraph 2 of the statement of grounds are denied as if set out herein and traversed seriatim. So far as the applicant has encountered difficulties attributable solely to the elapse of time, such difficulties are not such as to warrant the prohibition of the trial.
8. It is denied that the allegations are capable of rebuttal by fact or inference of fact to be derived from provable collateral fact. It is denied that it is practically possible to produce alibi evidence, if any was truly available to the applicant, and no indication of the same has been given. It is denied that the trial of the offences alleged would be unfair to the applicant as a breach of his constitutional right to fair procedures.
9. It is denied that the applicant is prejudiced in the preparation and presentation of his defence, and it, is further denied that paragraph 3 is pleaded with accurate particularity or with the identification of the alleged potential material witnesses, to allow rebuttal.
10. It is denied that the locations where the offences are alleged to have occurred have changed substantially or are no longer in existence.
11. It is denied that enquiries into the physical circumstances are not possible and it is denied that it is not possible to check factual or collateral matters relating to the alleged offences.
12. It is denied that the applicant is left only with his denial of the allegations and his plea of not guilty.
13. It is denied that the complainant was under no disability and was under no continuing dominion by the applicant. It is accepted that the complainant did inform other persons previously.
14. The delay in making the complaint is attributable, wholly or in part, to the actions of the applicant and to the effects of the alleged abuse on the complainant, including effects of inhibition and dominion.
15. It is denied that the prosecution has failed fully to investigate the offences, and it is denied that the prosecution has failed to interview or obtain statements from anyone who could corroborate the evidence with the complainant. The applicant has not indicated to the prosecution...
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