SO'C v The Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 August 2023
• Neutral Citation: [2023] IEHC 502
• Court: High Court
• Docket Number: [Record No. 2022/683JR]

Between:-

So'C

Applicant

and

The Director of Public Prosecutions

Respondent

[2023] IEHC 502

[Record No. 2022/683JR]

THE HIGH COURT

Prosecution – Indecent assault – Delay – Applicant seeking to prohibit his prosecution – Whether the cumulative effect of wholly exceptional circumstances due to the delay that arose in the case rendered it unfair or unjust to try the applicant

Facts: The applicant applied to the High Court seeking to prohibit his prosecution before the Dublin Circuit Criminal Court on 151 counts of indecent assault, that he was alleged to have perpetrated against nine different complainants, between 1 September 1974 and 31 December 1983, while the complainants were students in a primary school in Dublin, where the applicant taught. The applicant’s trial was due to commence on 22 January 2024. The applicant sought to prohibit his trial on two grounds. First, he submitted that the cumulative effect of wholly exceptional circumstances due to the delay that arose in the case rendered it unfair or unjust to try him for any of the offences in Bill No. DUDP 99/2022. Secondly, it was submitted that the respondent, the Director of Public Prosecutions, unfairly and unlawfully used the nolle prosequi procedure, on 12 May 2021, to halt the applicant’s initial trial in relation to the allegations made by three of the complainants, so as to bring fresh proceedings, whereby those allegations would be included with the allegations made by six other complainants. It was submitted that in those circumstances, the procedure was used so as to gain an unfair advantage for the prosecution as against the applicant.

Held by the Court that, having taking into account the overall lapse of time since the date of the events alleged to constitute the criminal offences and the likely date of the trial in January 2024, coupled with such evidence as had been forthcoming in relation to the applicant’s age and state of health, combined with the fact that he had faced previous trials for similar offences, it was not persuaded that those circumstances cumulatively gave rise to a situation where it could be said that the applicant was at risk of receiving an unfair trial in January 2024. The Court held that if the applicant, or his legal team, were of the view that an application could be made, in light of the evidence that was led at the trial, that the applicant’s right to a fair trial had been impaired, the appropriate application could be made to the trial judge at that stage. The Court held that the trial judge was the person who was best placed to deal with the matter, either by giving the appropriate warnings or directions to the jury, or in extreme cases, by withdrawing the case from the jury. The Court was satisfied that there was nothing underhand or unfair in the respondent electing to enter a nolle prosequi in respect of the charges in bill 103/2020 and electing to proceed with all charges in the one set of proceedings in bill 99/2022. Insofar as the applicant complained of “piecemeal” prosecutions, arising out of broadly similar complaints, the Court held that it was in his interest to dispose of all charges in the one trial. The Court accepted that on one view, it could be argued that his position was more onerous in the trial that was extant, in that he had to face nine complainants, rather than three complainants. However, the Court held that this was not sufficient to warrant an order prohibiting the trial proceeding. While the applicant complained that some of the charges that were in the extant bill could have been included at the time of his previous trials in 2015 and 2021, the Court held that there was no evidence that that was not done, as a means of securing any unfair advantage to the prosecution as against the applicant. Accordingly, the Court did not regard that as being a sufficient ground to prohibit his trial on foot of bill 99/2022. The Court held that if the applicant wished to make the case that he could not get a fair trial due to the number of complainants, or the multiplicity of charges on the indictment, he could apply to the trial judge to sever the indictment. The Court held that, in that way, his right to a fair hearing had been protected.

The Court refused the reliefs sought at para. 1 of the applicant’s notice of motion dated 17 January 2023.

Application refused.

JUDGMENT of Mr. Justice Barr delivered on the 16 ^th August 2023.

Introduction.

1 . In this application, the applicant seeks to prohibit his prosecution before the Dublin Circuit Criminal Court on 151 counts of indecent assault, that he is alleged to have perpetrated against nine different complainants, between 1 September 1974 and 31 December 1983, while the complainants were students in a primary school in Dublin, where the applicant taught. The applicant's trial is due to commence on 22 January 2024.

2 . In summary, the applicant seeks to prohibit his trial on two grounds: first, he submits that the cumulative effect of wholly exceptional circumstances due to the delay that arose in the case, render it unfair or unjust to try him for any of the offences in Bill No. DUDP 99/2022.

3 . Secondly, it is submitted that the respondent unfairly and unlawfully used the nolle prosequi procedure, on 12 May 2021, to halt the applicant's initial trial in relation to the allegations made by three of the complainants, so as to bring fresh proceedings, whereby those allegations would be included with the allegations made by six other complainants. It was submitted that in these circumstances, the procedure was used so as to gain an unfair advantage for the prosecution as against the applicant.

4 . For reasons that will be outlined later in the judgment, the respondent resists the order of prohibition that is sought by the applicant in his proceedings herein.

Background.

5 . The applicant is a retired teacher. He is currently 71 years of age. At present, he is serving a sentence of imprisonment as a consequence of convictions for other sexual offending. On 19 December 2014, he was sentenced by the Central Criminal Court to a total of nine years imprisonment for rape and sexual assault offences. At Dublin Circuit Criminal Court, on 1 July 2015, he was convicted and sentenced to a total of three years imprisonment for separate indecent and sexual assault offences; that sentence to run consecutively to the sentence imposed by the Central Criminal Court. The applicant was sentenced to seventeen months imprisonment for sexual assault at Galway Circuit Criminal Court on 21 July 2021; that sentence to be served consecutively to the sentence imposed at the Dublin Circuit Criminal Court.

6 . In these proceedings, the applicant seeks to prohibit his trial on 151 charges outlined in the indictment on bill 99/2022, that relate to three different tranches of charges, each involving three complainants. The first tranche of charges in the indictment, concerns allegations by DG, BB and SD, following a request by DG in 2019, that the first respondent review the decision taken in 2001, not to prosecute the applicant in respect of a complaint that DG had made in 1999.

7 . The first respondent reviewed that complaint, together with the complaint made by SD in 2012 and the complaint made by BB in 2013. In light of all of the circumstances, as they were then known, including the factual similarities in those complaints, with the particulars of the charges in respect of which the applicant had been convicted before the Central Criminal Court, together with similarities with other complaints, that had been made against him; on 13 August 2020 the respondent decided that a prosecution was warranted. She directed that the relevant charges should be preferred against the applicant in relation to the allegations made by these three complainants.

8 . The second tranche of charges in the impugned indictment, concerns 89 charges that arise from complaints made by DC, KM and DH. DC made his statement of complaint to the Gardaí on 9 March 2015; KM made his complaint on 22 November 2017; and DH made his complaint on 8 August 2016. The applicant was interviewed in 2017/2018. The respondent received the Garda file in respect of all three complainants on 11 December 2018. She directed a prosecution in all three cases on 27 February 2019. The applicant was duly charged and returned for trial on bill 103/2020. Thereafter, the matter was before the courts.

9 . On 12 May 2021, the respondent entered a nolle prosequi on the express basis, which had been communicated in advance to the applicant's solicitors, that it was intended to prosecute the applicant for the offences alleged by DC, KM and DH, in a new indictment, and to do so in conjunction with other offences, including those alleged by DG, BB and SD, the subject of the August 2020 Direction. The applicant, having been informed about the purpose of the application, made his objections known to the court at that time.

10 . The third tranche of charges, concern SB, BP and TC. SB made his statement of complaint to the Gardaí on 27 February 2020; BP made statements on 8 ^th and 19 ^th October 2020; and TC made his statement on 9 December 2020. The Garda file was submitted to the respondent on 15 April 2021. The relevant charges were directed on 9 August 2021. The director decided that these and other pending charges should all be contained in one book of evidence.

Submissions on behalf of the Applicant.

11 . On behalf of the applicant, Mr. Rahn SC, submitted that there were two independent grounds on which the applicant's trial on bill 99/2022 should be prohibited. First, it is submitted that there had been very considerable delay in bringing this matter to trial. While the applicant did not allege that he had suffered any specific prejudice as a result of this delay, such as loss of relevant witnesses or relevant documentary or other evidence, it was the...