W (D) v DPP

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness,Mr. Justice Hardiman
• Judgment Date: 31 October 2003
• Neutral Citation: [2003] IESC 54
• Court: Supreme Court
• Date: 31 October 2003

[2003] IESC 54

The Supreme Court

Denham J.

McGuinness J.

Hardiman J.

No. 236/02

W (D) v. DPP

Between/

D.W.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S62

CRIMINAL LAW (AMDT) ACT 1885 S11

FITZPATRICK V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

W (A) V DPP UNREP KEARNS 23.11.2001 2001/24/6472

C (P) V DPP 1999 2 IR 25

BARKER V WINGO 1972 407 US 514

US V MARION 1971 404 US 307

B V DPP 1997 3 IR 140

HEALY, STATE V DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

HOGAN V PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

O'C (P) V DPP 2000 3 IR 87

K (M) V GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

SINGER, RE 97 ILTR 131

DPP V BYRNE 1994 2 IR 236

O'C (J) V DPP 2000 3 IR 478

DPP V B (R) UNREP HAUGH 12.2.2003

CRIMINAL LAW (AMDT) ACT 1935 S14

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S14

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S4

DUDGEON V UK 1981 4 EHRR 149

NORRIS V IRELAND 1991 13 EHRR 186

INTERPRETATION ACT 1937 21(2)

CRIMINAL PROCEDURE ACT 1967 S6

DOWD V KERRY CO COUNCIL 1990 IR 27

Synopsis:

CRIMINAL LAW

Sexual offences

Delay - Sexual offences - Expert evidence - Right to expeditious trial - Whether lapse of time between date of alleged offences and prosecution gave rise to presumption of prejudice - Whether delay hindered applicant's defence - Whether delay in reporting incident to Gardaí reasonable and explicable - Whether failure to assess credibility of complainant by expert witness (236/2002 - Supreme Court - 31/10/2003)

W (D) v DPP

The applicant brought an application seek leave to bring judicial review proceedings in respect of a decision by the Director of Public Prosecutions (the DPP) to prosecute the applicant on a number of alleged sexual and indecent assault offences. The applicant contended that the delay between the lapse of time between the date of the alleged offences and the present prosecution had given rise to an incurable presumption of prejudice and in addition that the delay had hindered the applicant's defence. The applicant admitted that there had been a sexual relationship between himself and the complainant but that it had been of a consensual nature. In the High Court the application was dismissed and the applicant appealed to the Supreme Court. It was submitted that the learned High Court judge had erred in law and in fact in finding that the delay was reasonable. In addition issue was taken with expert evidence given on behalf of the complainant by a clinical psychologist which, it was contended, was fatally flawed.

Held by the Supreme Court (McGuinness J delivering judgment, Denham J agreeing, Hardiman J delivering judgment) in dismissing the appeal. McGuinness J held that although the evidence given by the expert evidence had certain weaknesses the conclusion by the expert evidence that the complainant's delay in reporting the incident was reasonable was correct. The various periods of delay by the prosecution that had occurred were not unduly long and had been explained. Although the lapse of time would create difficulties for the applicant there was contemporaneous evidence available to the applicant. The degree of prejudice was not such so as to create a real and serious risk of an unfair trial. Hardiman J held that there was a real risk of an unfair trial on the indecent assault charges and the prosecution of these offences should be restrained. Apart from that the appeal should be dismissed.

1 Mrs. Justice McGuinnessdelivered the 31st day of October 2003

2 This is an appeal by the applicant against the refusal by the High Court ( Ó Caoimh J.) on the 21 ^st March, 2002 to grant the relief sought by the applicant by way of judicial review. This is one of a number of cases which have come before the High Court and this Court in recent years in which the court has been asked to restrain the prosecution ofsexual offences because of the time which has elapsed since the offences were allegedly committed.

3 On 24 ^th November, 1999 the applicant was charged with two offences of indecent assault contrary to s. 62 of the Offences Against the Person Act, 1861 alleged to have been committed between1 ^st November, 1985 and 31 ^st December, 1985. He was also charged with twelve offences of gross indecency contrary to s. 11 of the Criminal Law (Amendment) Act, 1885 alleged to have been committed between 1 ^st September, 1986 and the 31 ^st March, 1988. The offences are alleged to have taken place when the complainant was a student and the applicant was a teacher at a well known secondary school in Dublin.

4 The applicant obtained leave to bring judicial review proceedings by order of the High Court (O'Higgins J.) on 12 ^th February, 2001. The reliefs sought by the applicant were:

5 (i) an order of prohibition prohibiting the respondent from taking any further steps in the criminal proceedings the subject matter of thisapplication;

6 (ii) an injunction restraining the Director of Public Prosecutions from pursuing the proposed prosecution pursuant to section 11 of the Criminal Law (Amendment) Act, 1885 and section 62 of the Offences Against the Person Act, 1861;

7 (iii) a declaration that the provisions of section 11 of the Criminal Law (Amendment) Act, 1885 were at all times and continue to beunconstitutional.

8 In the event at the trial of these proceedings in the court below only the injunctive relief was sought, as being appropriate in the circumstances where the only respondent was the Director of Public Prosecutions. The question of the constitutionality of section 11 of the Criminal Law (Amendment) Act, 1885 was not pursued in the High Court or in this Court.

9 The grounds upon which the applicant sought injunctive relief were helpfully summarised by the learned High Court judge in his judgment (at p. 2) as follows:

10 a " (a) That the lapse of time between the date of the commission of the alleged offences and the date of trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant;

11 (b) that by reason of the delay complained of the applicant has been seriously hindered in an opportunity to properly defend himself in, for example, garnering evidence in order to establish his movements at the relevant times or securing evidence which would materially undermine relevant and crucial aspects of the complainant's allegations. As such, therefore, the applicant will be unable to significantly raised his defence above a bare denial on oath of the said charges.

12 (c) Grave concerns have arisen following upon depositions held in this case in July 2000 as to the complainant's own recollection ofdates.

The Facts

13 The applicant was born in 1940 and is a retired secondary school teacher. From 1964 to 1998 he was a teacher in a secondary school in Dublin. The complainant, who was born in 1971, was a student at the said secondary school from in or about 1983 until 1989. The complainant alleges that he was the victim of sexual abuse by the applicant. The incidents of sexual abuse are said to have occurred at the applicant's home, in two particular locations in the school, and in the applicant's car at a location in the Dublin mountains. The complainant did not report the alleged offences to the gardaí until June, 1998, and then only in response to contact made by the gardaí to him in April/May 1998. The applicant alleges that he first heard of the complaint when the complainant telephoned his home in or about January, 1998 and used the phrase " we have a problem".

14 After he left the school in question in 1989 the complainant spend some years in the United Kingdom, where he appears to have attended third level education. The applicant alleges that the complainant voluntarily continued contact with him both by letter and by telephoneduring this period and that on occasions he visited the applicant at his home during his visits from the United Kingdom. The applicant also alleges that from time to time the complainant asked him for sums of money and that he gave these to him. It appears that the applicant has handed over a number of letters and cheques to the gardaí in thisconnection.

15 The applicant exhibits with his affidavit the book of evidence which was served on him by the prosecution but he does not exhibit the alleged letters or cheques and these, therefore, do not form part of the evidential material provided to this Court in the instant case.

16 From the book of evidence it appears that the applicant has made a statement to the gardaí admitting sexual involvement with the complainant from a time when the complainant was one month short of seventeen years of age until approximately 1990. He denies any sexual activity at a time when the complainant was under fifteen years of age. In his affidavit he stresses the importance of the dates of the alleged offences, since the charges of indecent assault prior to December, 1985 are the most serious offences with which he is charged and they carry a much heavier penalty than the later charges. He alleges that his admitted sexual relationship with the complainant was of a consensualnature.

17 In July, 2000, depositions were taken in the District Court of the evidence of the complainant and his father and it is alleged that during the course of these depositions it became increasingly clear that the complainant's memory as to dates, in particular the dates of the years in which he alleged that the offences took place, was highly unreliable. It is alleged that the complainant gauged time by reference to subjects which he was studying and it is alleged that in this regard his recollection was manifestly unreliable as it is alleged that he frequently cross referenced dates with subjects which would have placed him at a much later age and seniority within the school curriculum.

18 The...