A (S) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 17 October 2007
• Neutral Citation: [2007] IESC 43
• Court: Supreme Court
• Date: 17 October 2007

[2007] IESC 43

THE SUPREME COURT

Hardiman J

Macken J.

Finnegan J.

424/05

A (S) v DPP

JUDCIAL REVIEW

Between:

S.A.

Applicant/Appellant

And

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

O'C (J) v DPP 2003 3 IR 478

O DOMHNAILL v MERRICK 1984 IR 151

O'KEEFFE v COMMISSIONER OF PUBLIC WORKS UNREP SUPREME 24.3.1980 1980/9/1610

B v DPP 1997 3 IR 140

D v DPP 1994 2 IR 465

Abstract:

Criminal law - Delay - Sexual offences - Judicial review - Undisputed admissions - Fair trial - Whether real risk of unfair trial

The appellant was accused of multiple offences of a sexual nature extending back to 1955. He appealed against the decision of the High Court refusing him relief. In the course of interviews with the gardaí the applicant was alleged to have made certain admissions.

Held by the Supreme Court in dismissing the appeal that the demands of justice or requirements of a fair trial did not require that the respondent be prohibited from prosecuting any of the charges against the applicant. It would be extraordinary to prohibit a trial in circumstances where the defendant admitted a significant amount of behaviour of a criminal nature.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Hardimandelivered the 17th day of October, 2007.

2 This is the appellant's appeal against the judgment and order of the High Court (O'Neill J.) of the 26th July, 2005, whereby the appellant was refused relief. The appellant is the defendant in a criminal case in which he is accused of multiple offences of a sexual nature allegedly perpetrated while he was a Christian Brother working in the former Artane Industrial School. These offences as originally framed related to seven victims, six males and a female, and extending back to 1955. However, shortly before the appellant was returned for trial the oldest allegations, relating to a Mr. W. were dropped. There are now extant eight allegations of buggery, 63 of indecent assault and one charge of attempted buggery. The oldest extant charge relates to the year 1961, forty-six years ago and the latest relates to the year 1969, thirty-eight years ago. Evidently, these are very long periods of time. Moreover, the appellant has the benefit of a finding of the learned trial judge that the delay in this case "could not rationally be considered to be anything other than inordinate". The learned trial judge also held:

"I am also satisfied that between January 1996 when a statement was taken from K.K. there was unreasonable delay on the part of An Garda Síochána in progressing the investigation into the allegation made by K.K. However I am satisfied that the applicant has not pointed to any particular prejudice be it presumptive or actual relative to the delay for that particular period and that being so I have come to the conclusion that that particular delay did not contribute in any kind of significant way to the risk of an unfair trial of the applicant in respect of the charges relative to K.K.".

3 In a number of previous cases I have outlined the acute prejudice which lapse of time can cause to a person accused of a serious criminal offence. The jurisprudence on this topic grew up in relation to civil cases: I have discussed it in the first part of my judgment in J.O'C v. DPP [2000] 3 IR 478. In O'Domhnaill v. Merrick [1984] IR 151Henchy J. held:

"While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant who has not in any material or substantial way contributed to the delay should be freed from the palpable unfairness of such a trial."

4 Henchy J. also said:

"I consider that it would be contrary to natural justice and an abuse of the process of the Court if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial and a claim for damages of which she first learnt sixteen years after the accident."

5 The aspect of this jurisprudence which I wish to emphasise here is that the Courts were prepared to infer such unfairness simply from the periods of delay. In another case cited in J.O'C, O'Keeffe v. The Commissioner of Public Works, the Supreme Court regarded as "a parody of justice" the hearing which would take place twenty-three years after an industrial accident which was the subject of the action.

6 At pages 499-500 of the report in JO'C, I have endeavoured to summarise the jurisprudence to which I refer. I continue to be of the view that these matters are of the greatest relevance in considering an application to prohibit a trial on the ground of lapse of time.

7 There is, of course, another line of authority, much developed in the cases, relating to the specific area of alleged child sexual abuse. Arising from this line of authority, it is no longer necessary for the prosecution to establish a specific reason for delay by a complainant in reporting such allegations and that, no doubt, is as it should be. There nevertheless remains the difficulty of providing a fair trial, as opposed to "a parody of justice" after very long periods of delay. In other words, the potential for delay to cause unfairness is quite unaffected by the reasonableness or otherwise of the delay, considered from the point of view of the complainant.

8 I mention these...