M M -v- Dpp, [2005] IEHC 204 (2005)

Docket Number:2003 128 JR
Party Name:M M, Dpp
Judge:Macken J.

THE HIGH COURT JUDICIAL REVIEW [Record No. 2003/128JR]BETWEEN M. M.APPLICANT ANDTHE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTJUDGMENT of Mrs. Justice Macken delivered on the 15th day of June, 2005 These are judicial review proceedings by which the applicant seeks orders of a type frequently sought in what have become known as "delay" cases that is to say in cases where the applicant seeks to restrain the respondent from taking any further steps in criminal proceedings because of alleged inordinate delay, such that the constitutional right of a defendant to an expeditious and fair trial can no longer be guaranteed. These cases often arise, as here, where an applicant has been charged with sexual assault and where a considerable period of time has elapsed from the dates when these alleged assaults took place and, in particular, the date when a complaint was first made about those assaults to the Gardaí.In the present case a complaint was made against the applicant by one person in respect of whom the applicant faces nineteen counts of indecent assault and one charge of buggery, alleged to have occurred between May, 1976 and April, 1984, at a time when the applicant was an adult and the grand uncle by marriage of the complainant who was at the time a boy between seven and fifteen years of age.On 24th February, 2003, by order of this court (O'Donovan J.) an order was made granting the applicant liberty to issue judicial review proceedings seeking an order of prohibition against the respondent in respect of the further prosecution of the applicant in the proceedings entitled "The People at the Suit of the Director of Public Prosecutions v. M. M." at present pending before Dublin Circuit Criminal Court on Bill No. DU996/2002.The grounds upon which such leave was granted are the following:1. The lapse of time in itself of approximately 19 to 27 years between the date of commission of the alleged offences and the likely date of a trial of the applicant before the Dublin Circuit Criminal Court is so great as to constitute a denial to the applicant of his right to a trial with reasonable expedition and in accordance with law as guaranteed by the Constitution and Article 6 of the European Convention on Human Rights.2. The offences alleged are nineteen charges of indecent assault and one charge of buggery of the complainant covering a period from the 1st of May, 1976 to the 14th of April, 1984. The first sixteen offences cover time spans between the 1st of May to the 30th of September of years concerned and the remaining four charges cover two month periods thereafter to the complainant's 15th Birthday.3. The lack of specificity in relation to the dates upon which it is alleged the offences complained of took place having regard to the passage of time since the date of the commission of the alleged offences imposes an unfair and oppressive burden upon the applicant in the preparation and presentation of his defence, including the tendering of possible alibi evidence, such as to render any trial of the offences alleged unfair to the applicant and in breach of his constitutional right to fair procedures. The first sixteen offences cover time spans between the 1st of May to the 30th of September of the years concerned and the remaining four charges cover two month periods thereafter.4. The complainant who was born on the 14th of April, 1969 being under no dominion by the applicant since in or around the 14th of April, 1984 when he was 15 years of age made no complaint to the Gardaí until the 21st of January, 2001 when he was 31 years old having allegedly told somebody else in 1997.5. The circumstances of the alleged offences of indecent assault which are alleged to have occurred every week over the periods alleged in the applicant's house where other people resided including the applicant's wife.6. The applicant is prejudiced in the preparation and presentation of his defence by reason of the death of his wife, B. M. who died on the 6th day of November 2002. She would have been in a position to confirm the length of time and dates when the applicant was in Ireland on holidays from his work in London up until he retired when he moved to Ireland permanently in or about 1983. She could also have commented upon the possibility or likelihood of the incidents described having occurred in their home at the times alleged by the complainant.7. By reason of the passage of time the applicant who was born on the 18th of July, 1925 and who is now in his 78th year and suffers from poor hearing and ill health is left effectively only with his plea of "Not Guilty" by way of defence to the said charges.8. The failure of the Prosecution to properly investigate the offences and in particular their failure to interview and obtain statements from the other persons who were allegedly residing in the applicant's house at the time of the alleged incidents and who could be in a position to comment on same has severely prejudiced the applicant's ability to defend himself.9. The delay by the Prosecution from when a complain was first made to An Garda Síochána on the 21st of January, 2001 until the applicant was charged with these offences on the 6th of September, 2002.10. The complainant was under no disability that would have prevented him from complaining at any earlier time.A notice of opposition was filed on 17th November, 2003. Essentially the notice of opposition pleads that there has not been any inordinate delay on the part of the complainant, but that if there had been such delay it was not of a nature to prevent the trial of the applicant proceeding, and that in the event there had been such delay, this was the responsibility of the applicant. The applicant had prevented the making of complaints by threats to and intimidation of the complainant. And it was pleaded that where, on the information available to him, the respondent does not have proper grounds for charging any person with an offence, lapse of time before he is in a position to do so, does not give rise to an entitlement to prohibit a trial on the basis of defeat of a constitutional right to an expeditious trial.The respondent also traversed the other pleas raised. Affidavits were also sworn by Detective Garda K. W., by the complainant, by a Mr. Michael O'Donoghue, a counsellor, and by Mr. Michael Dempsey, psychologist.The applicant first attended the Garda Station in relation to these matters on 24th October, 2001 and was arrested and charged on 6th September, 2002, with a return for trial date of 4th October, 2002. Leave to apply for the judicial review, the subject of these proceedings was granted on 24th February, 2003.Ms. Ring, Senior Counsel for the applicant, says that the main issues for consideration and the grounds for judicial review can be summarised as follows:a) The lapse of time which occurred in making the original complaint between the dates of the alleged abuse and the date when the complainant first attended the Gardaí in January, 2001.b) Prejudice due to the death of the wife of the applicant.c) Prejudice due to the lack of specificity in the indictment against the applicant.d) The delay in the investigation of the complaints and the charging of the applicant.e) The age and poor health of the applicant.The applicant in his affidavit having referred to the book of evidence and the counts of indecent assault and buggery on which he has been charged, draws attention to the dates upon which the alleged offences were committed as being between 1976 and 1984, a period covering eight years of his life and between nineteen to twenty seven years prior to the date when he swore the affidavit.He says that he vehemently denies the allegations and intends to plead not guilty. The applicant says that he is prejudiced in the preparation and presentation of his defence by reason of the death of his wife, who died on 6th November, 2002, given the allegations that on several dates he indecently assaulted the complainant at their house in County Dublin. The applicant states that he worked over a period of years in the United Kingdom and returned to live permanently in Ireland only in or about 1983. In the intervening period he returned only for holidays and says his deceased wife would have been able to give evidence to confirm the length of time and the dates when he was in Ireland on holidays from his work in England, and when he was at his home.In addition, he claims prejudice by reason of the passage of time because he now suffers from ill health and poor hearing and has been hospitalised for periods of time since he was charged. Because of these matters he says that he is left effectively only with a plea of "not guilty" by way of defence to the charges. He claims the prosecution failed to interview and obtain statements from all of the persons residing at the premises in Palmerston at the time of the alleged offences and who could have been in a position to comment on this matter, which has severely prejudiced his ability to defend himself.At the request of the Gardaí he attended at R. Garda Station for interview in October, 2001, and was told that he could leave but he believed that if he did so he would have been arrested. He was not told that he had a right to consult with a solicitor or anybody else. Further he recalls a statement being taken down which he signed, but denies making any admissions in that statement and intends to contest them fully at his trial if that trial proceeds.In the complainant's affidavit, dated the 7th November, 2003, he accepts that he made his first statement in January, 2001, a second one on 15th May, 2001, and a third one on 28th February, 2002, all at R. Garda Station to Garda K. W., and avers that the contents of those statements are true and accurate. He states that he was sexually assaulted by the applicant until he was fourteen or fifteen years of age when the abuse stopped. He lived with the trauma of what was done to him ever since...

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