T.C. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice White
• Judgment Date: 24 November 2017
• Neutral Citation: [2017] IEHC 839
• Docket Number: [2016 No. 338 J.R.]
• Court: High Court
• Date: 24 November 2017

BETWEEN

T.C

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2017] IEHC 839

White Michael J.

[2016 No. 338 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Crime and Sentencing – Order of prohibition – Pre-complaint and prosecutorial delay Omnibus principle – General and specific prejudice – Public interest – Exceptional circumstances

Facts: The applicant sought an order of prohibition for preventing the respondent from prosecuting the applicant in the prosecution of offences of indecent assault pending before the trial court. The applicant contended that there was pre-complaint and prosecutorial delay that caused general and specific prejudice to the applicant as his mother had died who would have been the relevant evidence. The applicant claimed for the applicability of the Omnibus principle. The respondent submitted that the Omnibus principle did not apply any longer and the Court should deal with each issue in isolation.

Mr. Justice White granted the relief sought by the applicant. The Court held that there were exceptional circumstances in the present case and the Omnibus principle was not applicable. Although the public interest weighed in continuation of the applicant's prosecution; however, the applicant was of very old age, had memory loss and was suffering from various serious diseases, and moreover, his life span was predicted to be of short number of years; therefore, the case contained exceptional circumstances for the prohibition of his trial.

JUDGMENT of Mr. Justice White delivered on 24th November, 2017

1 The Applicant sought leave to apply for judicial review on 14th June, 2016, to prevent by prohibition or injunction his prosecution on offences of indecent assault which are alleged to have occurred between the years 1964 and 1984. The application for leave was heard on 3rd, 13th and 14th June 2016, when the court refused the application for leave. On appeal, the Court of Appeal, on 21st December, 2016, granted leave and remitted the matter for mention to the High Court.

2 The original application was grounded on the affidavit of Niall O'Connor, Solicitor, of 18th May, 2016, exhibiting the charges preferred against the Applicant and the book of evidence served on him. Mr. O'Connor deposed a further supplemental affidavit on 26th May, 2016, exhibiting a medical report from the Applicant's general practitioner. The Applicant deposed an affidavit on 12th June, 2016, confirming his medical condition. The Statement of Opposition was filed and served on 20th February, 2017. Brian McLoughlin, Principal Officer of the Respondent deposed a replying affidavit on 20th February, 2017. Niall O'Connor on behalf of the Applicant deposed a further affidavit on 24th March, 2017, exhibiting up to date medical evidence.

Background to the prosecution

3 The Applicant is a bachelor who has resided all his life at a farm in the North East. He is now 80 years of age. He lived on the family farm with his mother, M.B who died on 4th July, 1994. His nephews and nieces visited regularly when they were young

4 His nephews P and F K made a complaint to An Garda Síochána in early 2011. F made two statements to An Garda Síochána, the first on 1st and 2nd March, 2011 and the second on 9th March, 2011.

5 On 17th August, 2011, a file was sent to the Director of Public Prosecutions on the investigation of allegations of indecent assault by the Applicant on P.K and F K. The Director of Public Prosecutions on 29th September, 2011 directed no prosecution.

6 Further complaints against the Applicant were made in August 2014 by members of the H family. Eight members of that family, all nephews and nieces of the Applicant gave statements to An Garda Síochána alleging that they had been sexually abused by the Applicant over a period of time.

7 The first statement of complaint was made by M.H and D. H who made statements of complaint in August 2014. Subsequent statements were made by M H on 17th September, 2014, P H on 18th September, 2014, C.B (nee H) on 20th September, 2014, A.H on 20th October, 2014, M.L(nee H) on 20th October, 2014. G H made a statement of complaint on 10th November, 2014.

8 The Applicant was first arrested on 4th May, 2011 and questioned about the allegations of P K and F K and a memo of interview was recorded on 4th May, 2011. The Applicant was arrested again on 19th December, 2014, arising from the allegations of the H family. He was interviewed about these allegations and a memo of interview was recorded.

9 On 17th April, 2015, the Respondent received a second investigation file from the gardaí in respect of the allegations of indecent assault on eight members of the H family. Brian McLoughlin, the relevant official deposed that his file also had statements from other witnesses who gave accounts which supported the surrounding details given by the complainants about a family meeting and about schools attended. The gardaí were notified by the Respondent to put the Applicant on notice that she was reviewing the decision not to prosecute on the K allegations. On 23rd September, 2015, the Applicant attended voluntarily at his local Garda Station and in the presence of a solicitor was asked some further questions which were recorded by memo of interview. On 5th November, 2015, the Respondent directed that the Applicant be tried on indictment for the alleged offences.

10 The time span of the alleged offences and their number are set out as follows:-

(i) Eight allegations of indecent assault on G.H between 1st January, 1964 and 31st December, 1965.

(ii) One allegation of indecent assault on M.L (nee H) between 1st March, 1967 and 3rd March, 1969.

(iii) Six allegations of indecent assault on P H between 1st January, 1968 and 30th September, 1973.

(iv) One allegation of indecent assault on C.B (nee H) between 1st January, 1969 and 31st December, 1970.

(v) Eight allegations of indecent assault on M H between 1st October, 1971 and 30th September, 1973.

(vi) Ten allegations of indecent assault on D H between 1st April, 1974 and 30th September, 1976.

(vii) One allegation of indecent assault on A H between 1st May, 1976 and 1st September, 1976.

(viii) 28 allegations of indecent assault on P K between 1st January, 1978 and 31st December, 1984.

(ix) Eighteen allegations of indecent assault on F.K between 1st June, 1978 and 31st December, 1982.

These complaints ranged over a period of 20 years from 1st June, 1964 to 31st December, 1984.

11 The K complaints were made on 28th February, 2011, 26 years after the last date on the charges and the H complaints were made in August 2014, approximately 30 years after the last complaint on the charges.

12 These allegations range over a substantial period of time and are very old complaints. They are very serious, alleging indecent assault on close family members, nephew and...