T (J(S)) v President of the Circuit Court & DPP
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 10 March 2015 |
| Neutral Citation | [2015] IESC 25 |
| Court | Supreme Court |
| Date | 10 March 2015 |
and
[2015] IESC 25
Denham C.J.
Hardiman J.
Dunne J.
THE SUPREME COURT
Order of prohibition – Indecent assault – Prosecutorial delay – Appellant seeking the prohibition of his trial – Whether there had been undue prosecutorial delay
Facts: The appellant applied to the High Court in January, 2013 for the prohibition of his trial in Limerick Circuit Criminal Court on 251 counts of indecent assault on a number of pupils in a national school in Limerick between 1979 and 1981, when the appellant was a teacher at the school. The High Court refused the appellant”s application in January, 2014, holding that there had been no prosecutorial delay in bringing the prosecutions after the complaints were initially made and that even if there had been undue prosecutorial delay, the application would still have been refused because exceptional circumstances did not exist which would have rendered it unfair or unjust to put the appellant on trial. The appellant appealed to the Supreme Court from the judgment and order of the High Court. The primary ground of appeal arose from an alleged failure of the President of the High Court to conduct an overall assessment of all the circumstances in considering whether it would be unfair or unjust to put the appellant on trial. It was submitted that there had been blameworthy prosecutorial delay and that the appellant would suffer specific prejudice if the matter went to trial as his position was fatally hampered by the passage of time and the absence of witnesses. The appellant said that the adverse publicity generated in relation to other alleged offences, including the appellant”s identification in media publications, affected the emergence of further allegations. It was submitted that the existence of these newspaper articles and the emergence of civil claims against the appellant undermined the credibility of the complainants and the fairness of the trial. The appellant submitted that cumulative factors gave rise to wholly exceptional circumstances so as to render it unfair or unjust to put the appellant on trial, including the age (71) and ill-health of the appellant, and that the appellant had previously faced trial on 6 occasions in respect of similar allegations from other complainants and had not been convicted. The respondent, the DPP, submitted that a complex and detailed investigation had taken place and there had been no blameworthy prosecutorial delay in the complex circumstances of the case. It was submitted that the Court should find that the public interest in having multiple allegations prosecuted outweighs the effect of any delay.
Held by Denham CJ that, having adopted PM v Malone [2002] 2 IR 560, in all the circumstances, missing records are not a basis upon which to prohibit the trial. The Court agreed with and affirmed the approach of the President that the charges relating to the other offences had no relevance to the allegations that were the subject matter of this complaint. Further, in relation to the age and ill health of the appellant, the Court adopted the reasoning in DT v. DPP [2007] IESC 2; the Court was satisfied that the medical evidence proffered, in addition to other factors raised, fell short of that required to prohibit a trial. The Court agreed with the decision of Hanna J in the earlier case concerning the other offences, JT v DPP [2007] IEHC 309; while the leaking of information by a member or members of An Garda Siochána was a matter for concern, it was not a ground upon which to prohibit the trial of the appellant in the circumstances of the case. On the issue of prejudicial publicity, Denham CJ held that, because of the lapse of time, the fade factor applied, and it was not a basis upon which to prohibit the trial.
Denham CJ held that the Court would affirm the order of the High Court President and dismiss the appeal.
Appeal dismissed.
Judgment of the Court delivered on the 10th day of March, 2015, by Denham C.J.
Judgment delivered by Denham CJ [Nem diss]
1. This is an appeal by the applicant/appellant, J.(S).T., hereinafter referred to as "the appellant", from the judgment and order of the High Court (Kearns P.), made and perfected on the 17 th January, 2014, refusing to prohibit the trial of the appellant in Limerick Circuit Criminal Court on 251 counts of indecent assault on a number of pupils in a national school in Limerick between 1979 and 1981, when the appellant was a teacher at the school.
2. The Director of Public Prosecutions is the respondent, and is referred to as "the D.P.P".
3. This appeal is in essence a repeat of the appellant's previous unsuccessful appeal, made in relation to other prosecutions, where other complainants, other ex pupils of his, made similar complaints: J.T. v. D.P.P. [2007] IESC 270.
4. The High Court (Peart J.) on the 30 th January 2013, granted the appellant leave to apply for judicial review for the following reliefs:-
(i) An order of prohibition, or in the alternative an injunction, by way of judicial review prohibiting the D.P.P., his servants or agents, from prosecuting criminal proceedings entitled "The People (at the suit of the D.P.P) -v- J.(S).T., Bill Number 93/2010" pending before Limerick Circuit Court and comprising of 113 charges.
(ii) An order of prohibition, or in the alternative an injunction, by way of judicial review prohibiting the D.P.P., his servants or agents, from prosecuting criminal proceedings entitled "The People (at the suit of the D.P.P) -v- J.(S).T., Bill Number LK 190/12" pending before Limerick Circuit Court and comprising of 139 charges.
(iii) An order of prohibition by way of judicial review staying the trial of the appellant as an abuse of process.
(iv) A declaration that the delay in instituting the criminal proceedings and the delay in bringing the proceedings to hearing had prejudiced the appellant generally and specifically with regard to the possibility of a fair trial.
(v) A declaration that the wholly exceptional circumstances exist in the circumstances of this case that render it unfair or unjust to put the appellant on trial.
(vi) A declaration that the delay in bringing the criminal proceedings the subject matter of the application to hearing constitutes:
a) an unfair procedure within the meaning of article 40.3 of the Constitution;
b) a trial otherwise than in due course of law as required by Article 38 of the Constitution;
c) an infringement of the appellant's liberty; and
d) A breach of Article 6 of the European Convention for the Protection of Rights and Fundamental Freedoms 1950.
(vii) An order staying the criminal proceedings the subject matter of the application for relief.
(viii) An order providing for an extension of time within which to bring these proceedings.
(ix) Damages
(x) Costs.
5. The grounds for such relief sought were:-
i "i) The [appellant] is now seventy years of age and in bad health. He currently faces 251 charges of indecent assault spanning the time period 1979 to 1981 in respect of 18 complainants. Complaints were made by all but one of these complainants upon being approached by members of An Garda Siochana. The first complaint which was made by [R.K.C.] was made in or around 2005 and thereafter members of An Garda Siochana approached the other 17 complainants on dates between 2006 to 2011.
ii) These charges are currently pending before Limerick Circuit Court (Bill Number 93/2010) and Bill Number LK190/12.
iii) The [appellant] was questioned by the prosecution authorities in respect of the allegations the subject matter of Bill Number 93/2010 in May 2006 and May 2008 and was first before the court on the 11 th February 2010 in respect of these allegations. The prosecution authorities made disclosure in November 2012 after a trial date of the 5th of February 2015 had been set. An earlier trial date had been vacated on the application of the prosecution.
iv) The [appellant] was first before the court in respect of the allegations the subject matter of Bill Number LK190/12 on the 21 st June 2012 having been questioned about these matters by members of An Garda Siochana in 2011. It would seem that these complaints were received from members of An Garda Siochana after the gardai approached former pupils of the Christian Brothers in Sexton Street, Limerick on dates between 2010 and 2011. A book of evidence was served on the [appellant] in respect of these matters on the 28 th of November 2012 and he was returned for trial to Limerick Circuit Court on the same day. A provisional trial date of the 5 th of February 2013 has also been set for the trial of these matters.
v) The [appellant] has previously faced trial on 6 occasions on diverse dates between May 2009 and May 2011 before Dublin Circuit Criminal Court for similar allegations (and been in custody for a total of 4 ½ years on foot of those matters) but has never been convicted of any offence.
vi) The delay on the part of the Director of Public Prosecutions in commencing these criminal proceedings (both in terms of complainant delay and prosecutorial delay) constitutes a breach of the [appellant's] constitutional rights:
(a) to be tried on criminal charges in due course of law pursuant to Article 38.1 of the Constitution.
(b) to be tried with reasonable expedition.
(c) to fair procedures, and
(d) to fairness and justice
vii) The delay on the part of the Director of Public Prosecutions in commencing these proceedings (both in terms of complainant delay and...
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