T (P) v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 21 March 2006 |
| Neutral Citation | [2006] IEHC 422 |
| Court | High Court |
| Date | 21 March 2006 |
[2006] IEHC 422
THE HIGH COURT
BETWEEN
AND
CRIMINAL LAW (AMDT) ACT 1935 S6
CONSTITUTION ART 38.1
L (J) v DPP 2000 3 IR 122
C (P) v DPP 1999 2 IR 25
O'C (J) v DPP 2000 3 IR 478
S (T) v DPP & ORS UNREP SUPREME 22.6.2005 2005 IESC 43 2005/53/11168
P (P) v DPP 2000 1 IR 403
BARKER v WINGO 1972 407 US 514
Q (M) v JUDGE OF NORTHERN CIRCUIT & DPP UNREP MCKECHNIE J 14.11.2003 2003/44/10828
O'R (D) v DPP 1997 2 IR 273
BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844
W (D) v DPP UNREP SUPREME 31.10.2003 2003/48/11781
P (P) v DPP 2000 1 IR 403
W (A) v DPP UNREP HIGH COURT KEARNS J 23.11.2001 2001/24/6472
CRIMINAL LAW
Delay
Complainant delay - Right to trial with reasonable expedition -Whether reasonable in all circumstances - Whether satisfactorily explained - Post-complaint delay - Whether such as to render fair trial impossible in light of pre-complaint delay - Application to restrain further prosecution of applicant - Constitution of Ireland 1937, Article 38.1 - PC v DPP 1999] 2 IR 25, PP v DPP [2000] 1 IR 403 and T S v DPP [2005] IESC 25, [2005] 2 IR 595 applied - Relief granted (2005/13JR - Dunne J - 21/3/2007) [2007] IEHC 422
T (P) v DPP
Held by Ms Justice Dunne in granting the relief sought that the first question a court had to consider was whether the applicant had established that there was a real and serious risk of an unfair trial. In deciding that, the first test to be applied was whether the delay was such that a trial should not be allowed to proceed. Secondly, whether the delay could be traced to the actions of the accused. Thirdly, whether it could be shown that the accused had suffered actual specific prejudice. In describing the prosecutorial delay as blameworthy, it was material that there had been no difficulty in locating witnesses or ascertaining the whereabouts of the applicant. The prosecutorial delay of 28 months was unacceptable and had the effect of breaching the applicant's right to a trial with due expedition.
Reporter: P. C.
JUDGMENT delivered by Ms. Justice Dunneon the 21st day of March, 2006
This judgment is circulated in a redacted form to avoid identification of the parties
The applicant herein seeks an order of prohibition in respect of his proposed trial on twenty eight charges of indecent assault contrary to common law and s. 6 of the Criminal Law Amendment Act, 1935.
The applicant herein is a R C P. He was born on 1st November, 1920. He was returned for trial on those charges on 12th October, 2004, to the then current sitting of the Circuit Criminal Court. Twenty two of the charges allege that the applicant committed indecent assault on one M. T. Q, nee C., from 1st April, 1965, to 1st September, 1970. Some twenty two of the charges relate to what was the then residence of the applicant and the remaining six charges are alleged to have occurred at an unknown location in the calendar years 1965, 1966, 1967, 1968, 1969 and 1970. The charges are formulaic in that they refer to offences committed on a date unknown and offences are specified each quarter commencing on 1st April, 1965, and concluding on 1st September, 1970.
The complainant herein was born on 12th May, 1957. She spent her early years in an orphanage and was adopted on 9th April, 1963. The alleged abuse would have commenced when the complainant would have been almost eight years of age and continued until she was approximately thirteen years of age. Having regard to the passage of time since the matters complained of are alleged to have occurred it is not surprising that the applicant bases his application on an argument that his right to a fair trial has been compromised by virtue of the lapse of time between the date of the alleged offences and the return for trial. A number of specific points are made in this regard to the effect that the applicant has suffered prejudice:
(a) The vague and unspecific nature of the criminal charges against the applicant in the criminal proceedings the subject matter of the application,
(b) The advanced age of the applicant having been born on 1st November, 1920,
(c) The stress, anxiety and prejudice caused as a consequence of the allegations including removal from A M as a R C P.
A further complaint has been made to the effect that the applicant's right to a trial with due expedition is breached in that the respondent has been guilty of prosecutorial delay in respect of:
(a) A lapse of time of over two years between the receipt of the complaint against the applicant and the first appearance in court on foot of a valid summons on 28th September, 2004,
(b) A lapse of time of twenty one months between the questioning of the applicant in relation to the offence (on 8th December, 2002) and his first appearance in court on foot of a valid summons on 28th September, 2004.
In his affidavit grounding the application the applicant stated that to his recollection he had no contact with the complainant save on one occasion, from the year 1974 until the year 2002 when he received a letter from her solicitors. By letter dated 24th April, 2002, solicitors for the complainant indicated that between the ages of seven and a half and eleven and a half, the complainant, with the consent of her parents, lived on an irregular basis with the applicant at his home. The letter further alleges that the applicant took advantage of her vulnerability in terms of age and background and that the applicant sexually abused her. The letter went on to say:
"Our client has lived with this for nearly forty years and the same has been a blight on her life. She has instructed us to write to you for the purpose of confronting you with your wrongdoing in relation to this matter and to call upon you to acknowledge the fact that you did abuse her.
What flows therefrom remains to be determined."
The letter then requested that the applicant respond to the letter within fourteen days failing which they indicated they would take such steps as are appropriate in relation to the complaint.
Subsequently by letter dated 8th May, 2002, the applicant was removed from A M by his b in accordance with the guidelines of the R C C as a result of the said allegations. Thereafter, on 8th December, 2002, the applicant was questioned at his home by Garda J. O'F. and Sergeant J. McN. in relation to the allegations. A note or memorandum of the interview was made. On 6th June, 2003, the complainant by plenary summons of that date issued High Court proceedings against the applicant seeking damages for sexual abuse of her by the applicant. A set of twenty eight District Court summonses were served on the applicant requiring him to attend at court on 9th July, 2004. For technical reasons those summonses were struck out and the applicant had been advised in advance that the summonses would not proceed on that date. Ultimately further summonses required the applicant to attend court on 28th September, 2004. On that date the matter was adjourned until 12th October, 2004, a book of evidence was served and the matter was returned for trial as mentioned previously. The book of evidence contained two statements and listed two witnesses namely the complainant and her step-sister. The memorandum of interview referred to above was not included.
The applicant in the course of his affidavit went on to deal with a number of points relating to the information contained in the statement of the claimant herein. He deposed that the substance of the allegations contained therein was narrated in 1989 to a c in C. This is borne out by a statement from the said curate which was obtained during the course of the garda investigation but not included in the book of evidence. Subsequently the complainant narrated the substance of the allegations to her husband in the year 1993 or 1994. The allegations were also revealed to the following persons in the year 2002 approximately:
(a) Her general practitioner,
(b) A psychotherapist and
(c) Her sister.
The applicant also referred to correspondence between his solicitors and the solicitors for the respondent herein. This correspondence related to the investigation of material matters at the request of the applicant herein. He further deposed that on 6th December, 2004, he was due to have a consultation with his counsel herein for the purpose of facilitating drafting of these judicial review proceedings but he was forced to cancel this consultation due to his ill-health. He referred to the fact that the criminal prosecution, the subject matter of the proceedings, has caused him considerable stress and anxiety particularly having been removed from A M as a result of the allegations of abuse. He referred to and exhibited a medical report in support of this contention. According to the report the applicant is in generally quite poor health. He has a past history of arthritis and has had three hip replacements. He has had replacement of the aortic valve in his heart and has long standing chronic congestive cardiac failure. He suffers from a chronic anxiety state. In the year 2003 approximately he was hospitalised with severe pneumonia and remains susceptible to chest and respiratory problems. He is on long term medication. The report goes on:
"Given his general age and infirmity, it is my opinion that proceedings of this nature would be very detrimental to his overall health and wellbeing. While it is obvious necessary for these proceedings to take place, it is definitely not in his interest that they should be delayed in any manner, and any such delay could materially delay his long term health and survival."
The applicant in his affidavit points out that the lapse of time between the date of...
To continue reading
Request your trial