T (J) v DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 17 April 2008
• Neutral Citation: [2008] IESC 20
• Docket Number: [S.C. No. 270 of 2007]
• Court: Supreme Court
• Date: 17 April 2008

[2008] IESC 20

THE SUPREME COURT

Denham J.

Fennelly J.

Finnegan J.

[S.C. No. 270 of 2007]

T (J) v DPP

Between/

J.T.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

CONSTITUTION ART 34

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

B (S) v DPP & JUDGE HARTNETT UNREP SUPREME 21.12.2006 2006/5/852 23006 IESC 67

O'T (C) v PRESIDENT OF THE CIRCUIT COURT OF CRIMINAL APPEAL & DPP UNREP SMYTH 26.7.2005 2005/49/10355 2005 IEHC 263

H (S) v DPP 2006 3 IR 575

M (P) v MALONE 2002 2 IR 560

M (P) v DPP UNREP SUPREME 5.4.2006 2006/37/7964 2006 IESC 22

D v DPP 1994 2 IR 465

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

BARKER v WINGO 1972 407 US 514

O TIGHEARNAIGH v PRESIDENT OF THE CIRCUIT COURT 2005 3 IR 470

Denham J.

1 This is an appeal by the applicant/appellant, J.T., hereinafter referred to as "the applicant", from the judgment of the High Court (Hanna J.), given on the 15^th June , 2007, refusing to prohibit the trial of the applicant in the Circuit Criminal Court on 104 charges of indecent assault on a number of pupils in a national school.

2 The High Court (McKechnie J.), on the 18^th July, 2005, granted the applicant leave to apply for judicial review for the following reliefs:-

3 (i) An order granting a permanent injunction restraining the Director of Public Prosecutions, his servants or agents, from further prosecuting the applicant on the charges currently pending before the Dublin Circuit Criminal Court and comprising 104 charges of indecent assault.

4 (ii) A declaration that the applicant is entitled to the benefit of the constitutional right to be presumed innocent, at all times, in all proceedings (criminal and civil; interim and interlocutory; injunctive and final) and in all tests or parts of tests that are applied by the Court therein, unless and until he is convicted in a criminal court.

5 (iii) A declaration that there should never be an assumption that the allegations made by the complainants herein are true at any stage, of any proceedings (Criminal and civil; interim and interlocutory; injunctive and final) or in any tests or parts of tests that are applied by the Court therein, unless and until the applicant is convicted of such allegations in a criminal court.

6 (iv) Costs.

3. The grounds for such relief sought were:-

7 (i) 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 applicant's constitutional rights:

8 (a) to be tried on a criminal charge in due course of law,

9 (b) to be tried on a criminal charge with reasonable expedition,

(c) to fair procedures, and

10 (d) to fairness and justice contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.

11 (ii) 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):

(a) constitutes an inordinate and inexcusable delay, and

12 (b) has prejudiced the applicant contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.

13 (iii) 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) is contrary to the provisions of Article 6 of the European Convention on Human Rights.

14 (iv) The trial of the applicant on these offences at such a remote time from the date of the alleged offences amounts to an abuse of the process of the Courts.

15 (v) The leaking by the Gardaí of information about the investigation to the media has contributed to the pre-trial anxiety suffered by the applicant and makes a fair trial impossible.

16 (vi) The leaking by the Gardaí of information about the investigation to the media has contributed to the vilification of the applicant and makes a fair trial impossible.

17 Thus the grounds raise issues of complainant delay, prosecutorial delay, article 6 of the European Convention on Human Rights, that the length of the delay is itself an abuse of process, that the leaking by the Gardaí of the information about the investigation to the media contributed to the pre-trial anxiety suffered by the applicant, and that the vilification of the applicant has made a fair trial impossible.

18 4. The High Court, by judgment on the 15^th June, 2007 and order of 24^th July, 2007, refused the application.

"For the reasons above stated I am satisfied that there has been blameworthy prosecutorial delay in processing these criminal proceedings. That, of itself, is not sufficient to halt this criminal trial. The applicant must bring something more to the overall picture to give rise to those most exceptional circumstances which could prohibit it and he seeks,inter alia, to introduce prejudice to meet this requirement. I am not persuaded that prejudice has been established."

5. The learned trial judge concluded:-

19 Although I am not satisfied that any of the grounds of prejudice raised of themselves constitute a sufficient basis upon which to prohibit this trial nevertheless I must step back, as it were, and survey the composite vista applying what is referred to as the omnibus principle. In the words of McCracken J.:

20 'It may well be that none of these matters individually would justify prohibiting the trial, but the court must view the matter with regard to the cumulative effect of these concerns.' (SeeD.K. v. Director of Public Prosecutions (Unreported, Supreme Court, 3^rd July, 2006 at p. 9).

21 This approach was since endorsed by Hardiman J. inS.B. v. Director of Public Prosecutions (Unreported, Supreme Court, 21^st December, 2006)).

22 This is a case with a multiplicity of complainants. They complain of acts of sexual abuse perpetrated on them by the applicant. Some allege that they witnessed him do likewise to others. These are allegations of considerable antiquity. There is no doubt but that the passage of time will have a significant impact in this case. Necessarily memories will be dimmed. Were this trial to proceed it would , no doubt, be a complex and difficult one for the applicant, the complainants, the lawyers involved and ultimately the trial judge who must ensure that the matter is put with utter fairness before the jury.

23 But the fact that a trial of this nature presents a great challenge to all concerned is not a ground to prohibit. The applicant has not convinced me, as a matter of probability, that he would be exposed to an unfair trial. One must presume (and I believe properly so) that any such trial would be conducted with impeccable fairness by the trial judge. The applicant has at all times maintained his innocence and it is a matter for a jury to judge whether they believe him or the complainants.

24 Is it fair that the applicant be put on trial? The delay, both excusable and inexcusable, allied to the vilification to which the applicant was exposed by the printed media was undoubtedly highly unpleasant and distressing to a man presumed by law to be innocent. However, the vilification, such as it was, stopped in 2004. Such is the evidence before me. If it is repeated subsequent to this judgment but prior to the trial presumably further questions may arise for this Court or the trial judge.

25 The applicant has available to him all of the witnesses who were discovered in the course of the detailed investigation. The passage of time has seen the deaths of witnesses of at best peripheral significance in the context of the complaints brought by multiple complainants.

26 Insofar as the applicant's rights have to some extent been compromised in this matter such regrettable circumstance does not, in my view, overpower the public's right to have these multiple, serious charges prosecuted. On balance I am not satisfied that it is either unfair that this trial should proceed or that it is unfair that the applicant meet the charges laid against him.

I refuse the relief sought."

27 6. The applicant filed eighteen grounds of appeal, being that the learned High Court judge erred in law or in fact or on a mixed question of law and fact as follows:-

28 1. In holding that the prosecution which the applicant faces should not be injuncted.

29 2. In failing to hold that the combination of the following factors was a sufficient basis on which the prosecution should be injuncted:

30 i The case involves charges that relate to events which allegedly occurred between 35 and 38 years ago.

31 i ii. The finding at page 3 of his judgment that the Garda investigation concluded in April 2003 and the file was then sent to the D.P.P.'s Office where it remained until a request for further information was transmitted in September 2004 and that "no explanation for this period of silence was tendered by the respondent at the hearing".

32 ii iii. The finding that there was blameworthy delay on the part of the prosecuting authorities.

33 iii iv. The finding that part at least of the information that the media used to vilify the applicant came from Garda sources.

34 iv v. The finding that the Gardaí involved in the leaking were guilty of gross irresponsibility and possible criminality.

35 3. In failing to give due weight and effect to his statement at page 3 of his judgment that "It is imperative that investigations such as this must proceed with due despatch".

36 4. In failing to injunct the charges in circumstances where the learned High Court judge found at page 17 of his judgment that there was blameworthy delay on the part of the prosecuting authorities.

37 5. In holding that the applicant was not prejudiced by the death of Brother D...