O'H -v- DPP, (2007)

Docket Number:172/03
Party Name:O'H, DPP
Judge:Kearns J. / Fennelly J.
 
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JUDGMENT BY: Kearns J.

The Supreme Court

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Kearns J.Appeal Number [172/2003]

Judicial Review Between

m. o' h.

applicant

and

the director of public prosecutions

respondent/appeLlant

JUDGMENT of Mr. Justice Kearns delivered the 28th day of March, 2007

This is an appeal brought by the respondent from the order of the High Court (McKechnie J.) dated 28 February, 2003 whereby the trial of the applicant was prohibited in respect of various sexual offences alleged to have occurred between July, 1981 and August, 1982. As appears from the comprehensive judgment delivered by McKechnie J., the order of prohibition was made on the grounds of prosecutorial delay, although the learned trial judge also found that the applicant had been seriously prejudiced by the respondent's failure to make full disclosure either in accordance with law or on foot of an undertaking given in the case by him in that regard.

As the two matters are, to a large degree, overlapping, it is necessary to set out the factual background in some considerable detail.

The complainant is a woman who was born on 3rd August, 1967 and is thus aged 39 years. The applicant is a Franciscan priest who is now aged some 70 years having been born on 29th January, 1937. The complainant lived in a country town and when she was 13 years old she was part of a choir in the local Franciscan church. She used to sing at the 12 o'clock mass each Sunday and the applicant used to say the mass. They met after mass on one occasion and the following week she went to confession to the applicant. He recognised her and asked her how things were. She talked about her father's drinking, got upset, and he her took around the screen, put her sitting on his knee and started to embrace and kiss her. He then locked the door and abused her sexually.

After this incident, the complainant alleges that she started to drink alcohol and drank continuously every weekend thereafter. Further alleged sexual abuses occurred in a room at the front of the Friary. This abuse is alleged to have continued periodically until she left the choir when she was fifteen years old. According to the complainant, the applicant also called round to the family home and befriended her parents. She alleges that he abused her in the family home on occasions when her parents would be out. She did not tell her parents because they held a high opinion of the applicant. On another occasion, the complainant alleges that the applicant took her swimming to a local beach and there abused her again at a quiet part of the beach in the sand dunes. On another occasion, while the applicant was recuperating from an operation, the complainant alleges that he asked her to go swimming in a pool located at the venue where he was convalescing. She claimed that he tried to have intercourse with her in the swimming pool but she pushed him away and left the pool.

The complainant had a nervous breakdown in 1989 when she was approximately 21. Her breakdown was precipitated by her disclosure of the alleged abuse to her then boyfriend. At that time it seems she had both a drink problem and a skin disorder. She also suffered from anorexia. Her boyfriend suggested that she report the matter but she was unwilling to do so at that stage. Eventually she reported it to the Franciscan Friars in April, 1995 but only after her boyfriend had first reported it to them. Subsequently, she took legal advice from solicitors in Dublin who advised her to report the abuse to the Garda Síochána which she did on the 21 September, 1995.

The complainant had been seeing a psychiatrist, Dr. B, at St Brigid's hospital within the North Eastern Health Board area since 1985, some four years before she divulged the fact of abuse to her boyfriend. She was treated as an inpatient in St Brigid's hospital in 1985, 1989 and 1994 with complaints of a cyclothymic mood disorder accompanied by alcohol abuse and obsessive behaviour.

The applicant was out of the jurisdiction in 1995, but on his return he was interviewed by the gardaí on the 26 June, 1996. He appeared, by way of summons, before the local District Court on three charges of indecent assault in June, 1997. Having been served with a book of evidence, he was returned for trial on the 16th September, 1997 for the next sittings of the local Circuit Court scheduled for the 7th October, 1997. Subsequent to his return for trial, he was arraigned on nine additional counts of indecent assault ranging in dates from the 31st July, 1981 to 31st December, 1987.

His first trial date, namely, the 9th March, 1998 had to be vacated when it transpired that the presiding judge had formerly been a solicitor in the same practice as the firm which represented the applicant in those criminal proceedings. Immediately prior to that date, Messrs McCartan and Hogan solicitors, who were acting on behalf of the applicant, wrote to the local State solicitor on the 17th February, 1998 and requested sight of the psychiatric reports or records which Dr B had in his possession in relation to the complainant. This request was refused and as a result the applicant sought and obtained leave of the High Court on the 25th May, 1998 to seek firstly, an order prohibiting the respondent from taking any further step in these criminal proceedings on the grounds of delay in the institution of same and secondly, an order of mandamus directing the respondent to furnish the medical reports and records which previously had been sought. On the 25th March, 1999 O'Sullivan J. delivered judgment in those judicial review proceedings. He refused any relief on the grounds of delay up to that point but held in favour of the applicant on the issue of documentation. The learned High Court judge noted that the complainant had given explicit written authority to the prosecuting gardaí to procure relevant reports from her treating psychiatrist, Dr. B., and held that in such circumstances there was an obligation on the respondent to procure same and to make them available to the applicant's legal advisors. However, prior to making any order, the court was satisfied to accept an undertaking given on behalf of the Director of Public Prosecutions that his office would obtain and furnish the required reports and records.

However, it then transpired that Dr. B. was unwilling to hand over the records in relation to the complainant as he took the view it would breach patient confidentiality. The matter was accordingly referred back to the High Court by the respondent on 27th July, 1999. On that date, O'Sullivan J. clarified that the intent of his judgment was that all such medical reports in the possession of Dr. B. should be handed over.

On 8th October, 1999, those notes and records were made available to the applicant's solicitors. Much of the material related to the complainant's history of depression and alcohol abuse. One note referred to her "obsessive thoughts of her childhood sexual abuse" without mentioning the name of any alleged perpetrator. Amongst the documents handed over was a medical report from Dr B. dated 7th July, 1995 in which he recorded that the complainant experienced "two bouts of sexual abuse aged between 13 and 15 years and again at 17 - 18 years. This was perpetrated by a priest." Also handed over was a letter dated 16th July, 1994 from a social worker attached to Drogheda Community Services Centre which was addressed to Dr B. and which stated:-"I understand from the letter of referral that your main concern is with D's ability to care adequately for her child. The Social Work Service in the Community Services Centre is an adult centred service and we have no statutory responsibility in issues of child care. I feel that this case is more appropriate to Community Care and I have referred D to Margaret O'Sullivan who is a Social Worker with the Community Care team in Ballsgrove Health Centre, Drogheda." The date of this letter is important because a separate letter (the existence of which only became known at a later point) was sent that same day by Mary McDonald to Margaret O'Sullivan which alluded to the fact that the complainant was from "an alcoholic background and there are allegations of physical and sexual abuse within the extended family".

The applicant's solicitors took the view that this discovery, although extensive and running to more than sixty pages of clinical and hospital notes and records, was incomplete. Firstly, there was a reference to certain discharge summaries which had not been enclosed. Secondly, from certain documentation which was disclosed it could be reasonably be inferred that the North Eastern Health Board could have further written material relevant to the complainant's treatment. Thirdly, there was also a reference to psychosexual evaluations having been carried out on the complainant by Dr B, but no report of any such evaluation appeared in the notes as furnished.

The applicant's solicitors continued to seek clarification of these matters in correspondence and reminders were sent to the State solicitor in December, 1999 and in January 2000. At this point, the adjourned trial was scheduled to take place on 1st February, 2000.

On 19th January, 2000, the High Court directed the personal attendance before it of Dr. B. to enquire whether or not the direction of the court given in March, 1999 had been complied with. Dr. B. attended in court on the 17th February, 2000 and gave evidence on oath that all notes in his possession had been handed over. However, it then became clear that there were other documents in existence, although not in Dr. B.'s possession, which had been created by doctors, nurses or other staff of St. Brigid's which were both potentially relevant and material.

On being requested to make an order for third party discovery against the Health Board in question, O'Sullivan J. took the view that in the first instance such an application should be made in the court...

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