A.T. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 24 January 2020
• Neutral Citation: [2020] IECA 6
• Docket Number: Record No: 2019/92
• Court: Court of Appeal (Ireland)
• Date: 24 January 2020

A.T.

APPLICANT/RESPONDENT

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

[2020] IECA 6

Edwards J.

Whelan J.

Kennedy J.

Record No: 2019/92

THE COURT OF APPEAL

Criminal proceedings – Prosecution – Prohibition – Appellant seeking to appeal from the judgment and order of the High Court prohibiting the appellant from further prosecuting criminal proceedings – Whether the High Court was in error in prohibiting the continuation of the prosecution

Facts: The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal from the judgment and order of the High Court of the 1st of February 2019 prohibiting the appellant, her servants or agents, from further prosecuting the criminal proceedings entitled “The People (at the suit of the Director of Public Prosecutions) v A.T. [full name redacted], Bill No CCDP 0035/2018” pending before the Central Criminal Court and comprising thirty seven charges, and also from relevant ancillary orders. In her notice of appeal the appellant complained that: (i) the High Court judge erred in law in that he misinterpreted and/or misapplied established legal principles and precedent in prohibiting the appellant from taking any further steps in the criminal proceedings against the respondent; (ii) the judge erred in law in his determination that the facts advanced by the respondent were sufficient to meet the threshold of exceptionality that is required as a matter of law to justify relief by way of prohibition; (iii) the High Court erred in granting relief by way of prohibition in circumstances where the respondent did not adequately or at all engage with the facts of the prosecution case and where the prejudice that he alleged was speculative; (iv) the judge failed to have proper regard to sentence legal principles that require applicants for judicial review, including those who seek to prohibit criminal trials, even where they are accused, to engage with the proceedings and to adduce appropriate evidence; (v) the judge failed to take appropriate judicial notice of the frequently duplicitous and secretive nature of sexual assaults and the judge further failed to properly appreciate that such formed part of the complaint in this case and the fact that the complainant in this case herself specifically cited that as being an aspect of the abuse she suffered; (vi) the judge incorrectly considered, found and, in his decision to grant prohibition, attached significance to, the finding that the jury might attach weight to the inability of the prosecution to lead evidence from the other members of the household to the effect that they had witnessed suspicious activity and/or that the complainant had disclosed the ongoing sexual abuse to any other member of the household, and that this might go to the credibility of the complainant in the eyes of the jury; (vii) such a finding was contradictory and/or invited speculation and/or in any event was negated by the judge’s further determination that the witnesses might have given evidence to contrary effect that would have been of assistance to the prosecution; (viii) although the judge adverted to the panoply of powers available to the trial judge in the Central Criminal Court, up to and including a power to withdraw the prosecution case from the jury and to direct an acquittal, he appeared to have been unduly influenced by his perception that he was obliged in the judicial review to seek to do what he could to ensure a fair trial and then fell into legal error in preventing any trial by way of prohibition, either on the basis that the trial would become a “swearing match” between the complainant and the respondent, or at all.

Held by the Court that there was no gain saying that after a delay of more than forty years that if the matter were permitted to be tried the respondent would face challenges in defending the charges that had been brought against him. While conceding that there were few islands of fact in the sense of independently verifiable facts to assist in a forensic testing of the complainant’s evidence, the Court held that it was not the case that the complainant’s evidence was incapable of being tested at all. The Court was satisfied that the absence of the potential witnesses who had died, while perhaps inconvenient, would not prevent issues from being explored. In the Court’s judgment, the High Court was in error in prohibiting the continuation of this prosecution.

The Court held that the appeal would be allowed.

Appeal allowed.

JUDGMENT of Mr. Justice Edwards delivered on the 24th day of January 2020.

Introduction

1 For convenience, it is proposed to refer to Mr A.T. hereinafter simply as “the respondent”, and to the Director of Public Prosecutions simply as “the appellant”.

2 This is an appeal from the judgment and order of the High Court (Simons J.) of the 1st of February 2019 prohibiting the appellant, her servants or agents, from further prosecuting the criminal proceedings entitled “ The People (at the suit of the Director of Public Prosecutions) v A.T. [full name redacted], Bill No CCDP 0035/2018” currently pending before the Central Criminal Court and comprising thirty seven charges; and also from relevant ancillary orders.

Background to the matter

3 The respondent stood indicted in the Central Criminal Court with one count of rape and with thirty-six counts of sexual assault in respect of the complainant, which he is alleged to have committed over a three-year period between the 1st of March 1976 and the 28th of February 1979. The complainant, the younger sister of his wife, was aged nine years when the first incident is alleged to have occurred. The alleged offences were said to have occurred at a family home which consisted of a small three-bedroom house shared, inter alia, by the complainant and the respondent. Also resident at that address during the period in question were the respondent's wife “AB” (i.e., a sibling of the complainant); two other siblings of the complainant (a sister “CD”, and a brother “EF” who is now deceased); two infant children of the respondent and his wife, “GH” and “IJ”, respectively; the respondent's in-laws (Mr) “KL” and (Mrs) “MN” respectively (i.e., AB's parents, both of whom are now deceased), and “OP” a grandmother (also now deceased) of the complainant and her siblings, making a total of ten people.

4 The complainant made a statement to gardaí on the 8th of December 2016, alleging that she was sexually abused by the respondent in the said family home on an almost daily basis, certainly at least a couple of times a week, during the relevant period.

5 Following this complaint, the respondent was charged; and on the 29th of January 2018 he was sent forward to the Central Criminal Court for trial. He appeared there on the 12th of March 2018, and the 11th February 2019 was fixed as the date for the commencement of his trial. However, on the 25th of June 2018 he sought and was granted leave to seek to prohibit his trial by way of judicial review.

6 The Book of Evidence on foot of which the respondent was sent forward for trial contains the statements of four witnesses.

7 The statement of witness no 1 on the Book of Evidence represents a lengthy and detailed statement of the complainant describing how she was the victim of persistent sexual abuse by the respondent in the period at issue, as well as describing a single occasion on which she claims to have been raped by the respondent. The complainant's statement in the Book of Evidence is a composite of a number of separate and shorter statements made by the complainant to An Garda Síochána.

8 The statement of witness no 2 is from a medical practitioner to whom the complainant allegedly made a disclosure about being abused by the respondent.

9 The statement of witness no 3 is by the complainant's sibling CD. In her statement CD describes, inter alia, an incident in 1978 when the respondent is alleged to have grabbed her breasts on an occasion when she was walking from the kitchen to the front sitting room of the family home. CD maintains that on the evening of the same day she told her mother MN what the respondent had done to her. CD also relates, inter alia, that the complainant informed her, when she (i.e., the complainant) was 16, that the respondent had tried to sexually assault her on an occasion when she was babysitting; and further describes another occasion in 2014, when their mother (i.e., MN) was ill in hospital, during which the complainant disclosed to her that she had been sexually assaulted and raped by the respondent.

10 The fourth and final statement on the Book of Evidence is a statement of the principal investigating Garda, who was involved in the taking of the statements from the complainant which comprise her composite statement as included in the Book of Evidence. Her statement also covers the interviewing of the respondent and exhibits a memorandum of interview with him. In that interview the respondent denies all of the complainant's allegations, and specifically that he raped or sexually assaulted her at any time. He acknowledges one occasion on which he had sexual intercourse with the complainant in 1983 but maintains that that was consensual.

11 In seeking prohibition, the respondent alleged inordinate and inexcusable delay and contended that he has been generally and specifically prejudiced to the extent that his prosecution constituted an abuse of process and a breach of his right to be tried in due course of law. He suggested that due to the deaths over the years of several family members, including both of his parents-in-law, the grandmother, and a brother of the complainant, who might otherwise have been available to give evidence on his behalf, and in that event, who may have had something pertinent to say, there was a real risk of an unfair trial occurring at this remove.

12 In particular, in an...