S(T) v DPP and Others

• Jurisdiction: Ireland
• Judge: Justice Aindrias Ó Caoimh
• Judgment Date: 26 February 2004
• Neutral Citation: [2004] IEHC 50
• Docket Number: [No. 63 JR/2001]
• Court: High Court
• Date: 26 February 2004

[2004] IEHC 50

THE HIGH COURT

[No. 63 JR/2001]

S(T) v. DPP & ORS

JUDICIAL REVIEW

BETWEEN

T.S.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

FIRST NAMED RESPONDENT

AND

HIS HONOUR JUDGE HARVEY KENNY

SECOND NAMED RESPONDENT

AND

DISTRICT JUDGE ALBERT O'DEA

THIRD NAMED RESPONDENT

Abstract:

Criminal law - Delay - Judicial review - Prohibition - Sexual offences - Delay in making complaint - Complainant and prosecutorial delay - Whether defence prejudiced by delay - Dominion - Whether applicant responsible for delay - Whether real and unavoidable risk of unfair trial - Whether accused’s ability to defend himself impaired by delay - Whether further prosecution of offences should be prohibited

The applicant was granted leave by the High Court to seek to prohibit the further prosecution of various charges of sexual assault on the grounds, inter alia, of both complainant and prosecutorial delay, the nature of the delay being such that it was inherently unconscionable that the applicant have to face trial on the grounds of both presumptive and real prejudice. The offences were alleged to have occurred, on the last occasion, in 1963. The applicant was charged with the offences in 2000, complaints having been made for the first time by the three complainants in 1999.

Held by Ó Caoimh J in refusing the relief in relation to the charges pertaining to the first two complainants and granting relief in respect of the charges pertaining to the third complainant, that the passage of time was such that the applicant could be inhibited in his defence. Accordingly, it was then necessary to consider whether the prosecution was able to explain the delay complained of. That, on the evidence, the delay in reporting the abuse resulted from the effects of the abuse on the first two complainants, but not the third, and that, accordingly, the applicant had to bear responsibility for such delay. The applicant would not be prejudiced in the conduct of his defence from such defence.

Reporter: P.C.

Notice: The page breaks of this judgment may not correspond with the hard copy. These will be introduced later.

Justice Aindrias Ó Caoimh

1 delivered the 26th of February, 2004.

2 By order of this Court (O'Higgins J.) on 5^th February, 2001, the applicant was given leave to institute these proceedings for judicial review for the relief of

3 1. An order ofcertiorari quashing the order of the third named respondent made on 3^rd January, 2001, returning the applicant for trial to the Circuit Court in respect of offences referred to in the said order,

4 2. An order of prohibition prohibiting and restraining the second named respondent from proceeding with and hearing the trial of the applicant on the offences in the said order of the third named respondent, and

5 3. An injunction restraining the first named respondent from further proceeding with the prosecution on the said offences against the applicant.

6 The grounds upon which the applicant was given leave are stated to be as follows:

7 a 1. The applicant has been deprived of his right to trial with due expedition because of the delay between the alleged commission of the offences referred to in the said return for trial and the trial of the applicant;

8 b 2. The applicant has been prejudiced by the delay in his being brought to trial and would be denied a fair trial if he were to be tried in respect of the said offences having regard to the lapse of time between the alleged commission of the said offences and the trial of same.

9 The application is grounded upon an affidavit of Judith Foley, solicitor, who indicates that the applicant is a married man and a farmer living in the County of Clare. She indicates that on 20^th October, 2000, a District Court summons containing 61 charges of indecent assault was issued against the applicant. This summons was returnable to the District Court on 1^st November, 2000, and was adjourned on that date at the request of the first named respondent to the 3^rd January, 2001, for the presentation of the Book of Evidence. She indicates that a Book of Evidence was duly served on the applicant and by order of the District Court made on 3^rd January, 2001, the applicant was returned for trial to the Circuit Court commencing at Ennis on 6^th February, 2001, in respect of the 61 charges of indecent assault referred to in the said summons.

10 The charges against the applicant concern three complainants, namely B.H., her sister M.D. and their first cousin I.G. Charges 1 to 36 inclusive allege that the applicant indecently assaulted B.H. Charge no. 1 alleges that the applicant committed an offence of indecent assault on a date unknown between 1^st January, 1955 and 31^stMarch, 1955. The most recent offence alleged against the applicant is set out at charge no. 36, which alleges that on a date unknown between 1^st October, 1963 and 31^th December, 1963, the applicant committed an offence of indecent assault upon the said B.H. Charges 1 to 36 inclusive encompass dates between 1^stJanuary, 1955 and 31^st December, 1963.

11 Charges no. 37 to 60 inclusive allege that the applicant indecently assaulted M.D., a sister of the said B.H. on the dates therein referred to. The earlier offence insofar as the said M.D. is concerned alleges that the applicant assaulted her on a date unknown between 1^st January, 1958 and 31^st March, 1958. The most recent charge insofar as the said M.D. is concerned alleges that the applicant indecently assaulted her between 1^st October, 1963and 31^st December, 1963. All of the said offences are alleged to have occurred in the County of Clare.

12 Charge no. 61 is a single charge which alleges that the applicant indecently assaulted I.G., first cousin of the said M.D. and B.H., between 1^st January, 1962 and 31^st December, 1962 when the said I.G. was about ten years of age.

13 It is stated that the first occasion in which the applicant became aware of the allegations made against him was in or about the month of May 1999 when he was contacted by the gardaí. On Wednesday 2^nd June, 1999, by prior arrangement he called to the garda station at Lahinch and was interviewed by members of the gardaí. The allegations made against him were outlined and an extensive memorandum of an interview with him was recorded by members of the gardaí who interviewed him. This memorandum was signed by the applicant. In his interview the applicant denied emphatically the charges alleged against him.

14 B.H. alleges that she can remember as far back as the mid 1950s when she was approximately nine or ten years of age. She alleges that the applicant, who was a neighbour of her family, indecently assaulted her until she was about fourteen or fifteen years of age. She states that she left home when she was eighteen years of age in 1965 but returned to live at home in 1983. It is stated that the applicant set up his own home in 1973 on land adjoining the H. family farm. It is stated that this family always wished to purchase this property and it is claimed that there has been a considerable amount of unhappy differences between the H. family and the applicant since they became close neighbours. It is stated that there have been numerous difficulties between B.H. and the applicant over a period of years in the nature of property disputes. It is stated that this resulted in them being summonsed for assault on each other at the District Court on 5^th July, 2000. On this occasion the applicant was convicted of assault and fined £500 and bound to keep the peace for three years. It is stated that B.H. was subject to a similar order upon condition that she would not burn fires which would affect the applicant's property.

15 With regard to the complainant M.D., she complains that the applicant sexually abused her when she was about nine years of age until she was about thirteen years of age.

16 With regard to I.G. she alleges that when she was about ten years of age the applicant sexually interfered with her.

17 It appears that the applicant has instructed his solicitor that the complaints are brought by the complainants out of spite and malice and directed towards the applicant arising out of long standing difficulties between him and the H. family. At the time of swearing of the grounding affidavit the applicant was 73 years of age. It is stated that the applicant is obliged to take full time care of his wife who is terminally ill with multiple sclerosis. It is stated that owing to the incapacity of his wife it is difficult for him to leave her alone at any time.

18 It is stated that the applicant also suffers from medical difficulties and suffers from arthritis.

19 The applicant's solicitor says that there is no explanation as to why the complainants delayed until 1999 until they made a complaint to the gardaí. It is stated that the long lapse of time between the alleged commission of the offences and the time of bringing of same to trial greatly prejudices the applicant's prospects of defending himself in respect of the said charges and of obtaining a fair trial thereon. It is further pleaded that the applicant is greatly disadvantaged in meeting the said charges at this juncture, having regard to the fact that the applicant is not in good health himself and further having regard to the fact that his wife, who is seriously ill, is totally dependent upon him. It is alleged that the charging of the applicant after such a lapse of time causes the greatest disadvantage to him. The applicant's solicitor says that having regard to the long lapse of time it Will be difficult for the applicant to bring to court witnesses who might assist him in his defence and it is further difficult for him, having regard to such a long lapse of time, to remember specific matters in respect of the dates of the said alleged offences. It appears from the affidavit that when the order returning the applicant for trial was made it...