S v DPP
| Jurisdiction | Ireland |
| Judge | Mrs. Justice Catherine McGuinness |
| Judgment Date | 19 December 2000 |
| Neutral Citation | [2000] IESC 30 |
| Court | Supreme Court |
| Date | 19 December 2000 |
[2000] IESC 30
THE SUPREME COURT
Keane, C.J.
Denham, J.
Murphy, J.
Murray, J.
McGuinness, J.
BETWEEN
AND
Citations:
OFFENCES AGAINST THE PERSON ACT 1861 S62
RSC O.84 r20(7)(a)
RSC O.84 r20(7)(b)
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45
CONSTITUTION ART 38.1
EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
D V DPP 1997 3 IR 140
PETTY SESSIONS (IRL) ACT 1851 S10(4)
CRIMINAL JUSTICE ACT 1951 S7
DPP V LOGAN 1994 3 IR 254
OFFENCES AGAINST THE PERSON ACT 1861 S42
CRIMINAL JUSTICE ACT 1951 S11
O DOMHNAILL V MERRICK 1984 IR 151
TOAL V DUIGNAN 1991 ILRM 135
PETTY SESSIONS (IRL) ACT 1851 S10
COURTS OF JUSTICE 1924 S77
COURTS OF JUSTICE 1924 S77(B)
AG V CONLON 1937 IR 762
CRIMINAL JUSTICE ACT 1951 S2(2)
OFFENCES AGAINST THE PERSON ACT 1861 S47
C (P) V DPP 1999 2 IR 25
CONSTITUTION ART 40.3
O'CONNOR, STATE V FAWSITT 1986 IR 362
UNITED STATES CONSTITUTION SIXTH AMDT
HOGAN V PRESIDENT OF CIRCUIT COURT 1994 2 IR 513
G V DPP 1994 1 IR 374
B V DPP 1997 3 IR 140
AG V RYANS CAR LTD 1965 IR 642
L (J) V DPP UNREP SUPREME 6.7.2000
O'C (P) V DPP UNREP SUPREME 6.7.2000
Synopsis:
Criminal Law
Criminal; judicial review; delay; appellant, a consultant surgeon, had been charged with a number of counts of indecent assault alleged to have occurred between 1962 and 1982 in a provincial hospital and in private consultancy rooms; District Court had ordered that appellant be tried summarily and accepted jurisdiction in the matter; High Court had refused to grant order of prohibition and other reliefs directed towards prohibiting trial of appellant; whether time limits contained in Petty Sessions (Ireland) Act, 1851, applied to summary trial of indictable offences; whether trial could proceed given delays between complaints and issuing of summonses and between dates on which alleged offences said to have been committed and issuing of summonses; whether delay attributable to dominion exercised by appellant over complainants; whether there was a real and serious risk that appellant's trial would be unfair by reason of difficulties arising from lapse of time.
Held: Appeal dismissed.
S. v. D.P.P. - Supreme Court: Keane C.J., Denham J., Murphy J., Murray J., McGuinness J. - 19/12/2000
The applicant sought by way of judicial review to prohibit impending criminal proceedings on indecent assault charges. The offences were alleged to have mostly occurred between 1971 and 1979 with one dating back to 1962 or 1963 and the most recent being in 1982 The applicant claimed inter alia that he had a constitutional right to a fair trial and this included the right to an expeditious trial. The High Court refused his application and he appealed. The Supreme Court, McGuinness J delivering judgment held that the applicant’s case should not be treated differently from previous similar cases because he was to be tried summarily in the District Court. On balance the delay in reporting the alleged offences had been the result of the position of power and authority occupied by the applicant and by the continuing influence which this power and authority had over them. The applicant’s trial should not be prohibited on grounds of delay. The applicant had not discharged the onus on him to establish affirmatively that there was a real and serious risk of an unfair trial.
Mrs. Justice Catherine McGuinness delivered the 19th day of December 2000 [Nem diss]
This is an appeal by S., the applicant/appellant, against an order of the High Court (Geoghegan J.,) of the 18th February 1999 refusing the application of the applicant/appellant for an order of prohibition and other reliefs directed towards prohibiting his trial in the District Court on a number of counts of indecent assault.
The appellant was at all material times a consultant surgeon residing in a provincial town. For many years he held a post in a local hospital and in addition he carried on a private practice in consulting rooms in the town. On the 23rd December 1996 a number of summonses were issued against him alleging offences of indecent assault contrary to Section 62 of the Offences Against the Person Act 1861 relating to eleven male youths who had been his patients. The majority of the charges relate to offences which are alleged to have occurred between 1971 and 1979; one charge, however, goes back to 1962 or 1963, while the final offence is alleged to have taken place in 1982. The majority of the youths concerned were in their later teenage years at the time of the alleged offences; one was 19 years of age, one was 18, four were 17, one 16 and two 15. One of the complainants was 14 at the time of the alleged offence; the youngest complainant was between 9 and 11 years of age at the time of the alleged offence.
The appellant at all times and in particular during interviews with members of the Garda Siochana denied all the allegations made against him and he pleaded not guilty to the offences in the District Court.
An inquiry was carried out by the judge of the District Court as to whether the offences alleged against the appellant were appropriate for summary disposal. Having heard submissions from counsel for the appellant and counsel for the Director of Public Prosecutions, together with an outline of the evidence which the Director of Public Prosecutions intended to adduce in the case, the learned judge of the District Court held that the allegations were fit to be tried summarily and accepted jurisdiction in the matter. At a subsequent hearing counsel for the appellant applied to the judge of the District Court to dismiss the summary criminal proceedings on the ground that the delay between the approximate dates when the offences were said to have occurred and the date upon which the proceedings were instituted was in itself an unconscionable period of delay and that such delay had seriously prejudiced the appellant in his ability to defend himself against the allegations. The judge of the District Court, who is named as the second named respondent in the present proceedings but who has taken no part in them, refused to dismiss the summary criminal proceedings.
On 17th July 1997 the appellant issued proceedings for judicial review seeking the following reliefs:
1. A declaration that the delay in instituting the criminal proceedings the subject matter of the application for relief herein against S. constitutes an abuse of process of the criminal jurisdiction of the District Court.
2. A declaration that the delay in instituting the criminal proceedings the subject matter of the application for relief herein against S. has prejudiced him in his ability to properly defend himself in those proceedings.
3. An order prohibiting the presiding District Judge sitting in the District Court at Drogheda in the County of Louth from further proceeding with the summary criminal trial of S. on the offences the subject matter of the application for relief herein.
4. An order in the nature of an injunction restraining the Director of Public Prosecutions from further proceeding with the summary criminal prosecution of S. on the criminal offences the subject matter of the relief herein.
5. An order staying the summary criminal proceedings the subject matter of the application for relief herein, pursuant to Order 84, Rule 20(7)(a) and (b) of the Rules of the Superior Courts as amended, pending the determination of this application.
6. An order directing that the application for relief herein be heard pursuant to the provisions of Section 45 of the Courts (Supplemental Provisions) Act 1961as amended, in camera.
7. An order providing for all necessary and/or incidental directions in relation to this application for relief.
The principal ground on which the appellant sought these reliefs was the lengthy delay between the alleged commission of the offences and any possible trial of the appellant. He claimed that the institution of the criminal proceedings violated his constitutional right to be tried on criminal charges in due course of law pursuant to Article 38.1 of the Constitution and also constituted a breach of Article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms 1950. He claimed that he could not reasonably recollect either the material circumstances surrounding the alleged offences or the identity of any material witnesses who might be relevant to the allegations made against him.
The appellant also claimed that he did not exercise a position of dominance and/or exert control over any of the complainants in the criminal proceedings to the extent that they were prevented from making a prompt report of any allegation concerning him.
Leave to apply for judicial review was granted by order of Laffoy J. in the High Court on the 21st July 1997.
A Statement of Opposition was filed by the first named respondent on the 26th November 1997. This was supported by the affidavit of Detective Sergeant Patrick O'Donnell who was a member of the Garda Siochana who had been involved in the prosecution of the appellant in relation to the charges of indecent assault. In his affidavit Detective Sergeant O'Donnell sets out that the first complaint against the appellant was made in a statement to Sergeant Joseph Grennan on the 1st March 1994. The complainant alleged that he had been indecently assaulted a number of times in the course of a medical examination when he was about 14 or15 years of age in or around 1975 to 1976. A second complaint of a similar nature was made by another complainant on the 16th June 1994. These complaints were investigated by Superintendent Patrick J. O'Boyle and a file...
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