J.T. -v- DPP,  IESC 20 (2008)
|Party Name:||J.T., DPP|
THE SUPREME COURT
[S.C. No. 270 of 2007]
The Director of Public Prosecutions
Judgment delivered the 17th day of April, 2008 by Denham J.
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 15th 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.
The High Court (McKechnie J.), on the 18th July, 2005, granted the applicant leave to apply for judicial review for the following reliefs:-
(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.(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.(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.(iv) Costs.
The grounds for such relief sought were:-
(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:(a) to be tried on a criminal charge in due course of law,
(b) to be tried on a criminal charge with reasonable expedition,
(c) to fair procedures, and
(d) to fairness and justice contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.(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
(b) has prejudiced the applicant contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.
(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.(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.(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.(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. 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.
The High Court, by judgment on the 15th June, 2007 and order of 24th July, 2007, refused the application.
The learned trial judge concluded:-
"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.
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.:
'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.'(See D.K. v. Director of Public Prosecutions (Unreported, Supreme Court, 3rd July, 2006 at p. 9).
This approach was since endorsed by Hardiman J. in S.B. v. Director of Public Prosecutions (Unreported, Supreme Court, 21st December, 2006)).
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.
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.
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