W (D) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 21 March 2002
• Neutral Citation: [2002] IEHC 96
• Date: 21 March 2002
• Court: High Court

[2002] IEHC 96

THE HIGH COURT

No. 72 J.R./2001

W (D) v. DPP

JUDICIAL REVIEW

Between:

D.W.

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S62

CRIMINAL LAW (AMDT) ACT 1885 S11

F (B) V DPP 2001 1 IR 656 2001/9/2399

W (A) V DPP UNREP KEARNS 23.11.2001

O'C (J) V DPP 2000 3 IR 478 2000/13/5164

L (J) V DPP 2000 3 IR 122

V (D) & O'F (J) V DPP UNREP KEARNS 23.11.2001

C (P) V DPP 1999 2 IR 25

AG V CASEY NO 2 1963 IR 33

P (P) V DPP 2000 1 IR 403

KNOWLES V MALONE & DPP UNREP MCKECHNIE 6.4.2001 2001/13/3778

FITZPATRICK V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

Synopsis:

JUDICIAL REVIEW

Prohibition

Constitutional law - Criminal law - Injunction - Sexual offences - Delay - Issue of domination - Repressed memory - Whether real or serious risk of unfair trial - Whether order prohibiting trial should be granted - Whether actual prejudice need be proved - Bunreacht na hÉireann, 1937 Article 38.1 (2001/72JR - Caoimh J - 21/3/02)

W (D) v DPP

Facts: The applicant had been arrested and charged with sexual offences allegedly committed some years previously. The applicant brought an application seeking to prohibit his trial from proceeding. The applicant claimed that the lapse of time between the commission of the alleged offences and the date of trial was so great that it gave rise to an unavoidable and incurable presumption of prejudice against him. Furthermore it was claimed that the delay had prevented the applicant from gathering relevant evidence which would enable him to defend himself. The applicant was a teacher in the school where the complainant was a pupil. Over ten years had elapsed between the alleged commission of the offences and the making of the complaints to An Garda Síochána.

Held by Ó Caoimh J in refusing the order sought. The delay on the part of the complainant had been explained, was reasonable and was referable to the applicant’s own actions. The applicant was the complainant’s teacher and was in a position of trust. There had not been any undue delay in the criminal investigation leading to the charges being brought. The applicant had not demonstrated that there existed a degree of prejudice that would give rise to a real and serious risk of an unfair trial.

1 Mr. Justice Aindrias Ó Caoimh delivered the 21st March, 2002.

2 In this case the applicant who is charged with 14 offences being two of indecent assault contrary to s. 62 of the Offences Against the Person Act, 1861 and 14 counts of gross indecency contrary to s. 11 of the Criminal Law Amendment Act, 1885 alleged to have been committed between November 1985 and March 1988, seeks and order in the form of an injunction restraining the further prosecution by the respondent of the charges against him. At all relevant times the applicant was a teacher in a school attended by the alleged victim of the assaults in question.

3 The grounds upon which relief is sought by the applicant are:

4 (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;

5 (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 complaint's allegations. As such, therefore, the applicant will be unable to significantly raise his defence above a bare denial on oath of the said charges.

6 (c) grave concerns have arisen following upon depositions held in this case in July 2000 as to the complainant's own recollection of dates.

7 The applicant was born in 1940 and is a secondary school teacher who retired on the 28th January 1998. It is alleged by the complainant that he was a pupil at the applicant's school and that he was the victim of sexual abuse by the applicant. The offences are alleged to have taken place both at the applicant's home, where the applicant attended for grinds, and in a room in the school. The complainant did not report the alleged sexual abuse to the Gardaí until 19 June 1998. The applicant says that he first heard of the complaint when the complainant telephoned him at home in or about January 1998.

8 The applicant was interviewed by the Gardaí in August 1998 following upon his arrest and detention at his local garda station and the applicant was subsequently charged on the 24th November 1999.

9 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 16 years of age until approximately 1990. However, he does not admit to any sexual activity at a time when the complainant was under 15 years of age.

10 In July 2000 depositions were taken 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, not specifically months or days, but particularly the years in which he alleged the offending to have taken place was highly unreliable. He answered date specific questions by indicating that he was not sure or "to the best of my knowledge". 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. On this basis it is alleged that there is an inherent danger such as would significantly prejudice the applicant should this court permit the charges against the applicant to proceed.

11 The applicant states that it is extremely difficult for him to gather evidence as to specific day to day activities occurring in school (particularly the timetable of students and teachers), where those activities would have placed him and/or the complainant in the environs of the relevant room in the school where the offences are alleged to have taken place or what specific day to day usages were made of the room in question. He says that such information would enable him to test the veracity of the evidence of the complainant and to challenge it before a jury. The applicant says that given the specificity of the complainant's evidence in regard to the locus of the alleged offences at the school, the credibility of the complainant's entire account could well be seriously undermined in the eyes of the jury if he were not hindered by the lapse of time in challenging the same. The applicant says that had the trial taken place within a reasonable time of the commission of the alleged offences, there should have been little difficulty in testing the accuracy of the complainant's evidence.

12 The applicant says that there has been no adequate explanation as to why the complainant waited in excess of thirteen years before reporting the complainant. The complainant went to the United Kingdom after leaving school and remained there for some years. At the time of the bringing of this application the complainant was 29 years of age. He was 27 years of age when he first gave his statement to the gardaí and when the applicant was first interviewed by the gardaí. It is alleged that the complainant voluntarily activated continued contact with the applicant by letter and telephone and on occasions called to the applicant's home during his visits from the United Kingdom. It is complained that the delay in reporting is unreasonably long and remains totally unexplained or excused.

13 It appears that the complainant was born in April 1971 and was at the time of the alleged offences between the ages of 14 years and 16 years inclusive. In the same period the applicant would have been between 35 and 37 years of age.

14 In the statement of grounds of opposition it is pleaded that in regard to the complainant's recollection of dates that this is not a ground for relief for the applicant as the burden of proof rests with the prosecution. With regard to the delay complained of it is pleaded that the lapse of time is a consequence of the abuse perpetrated on the complainant by the applicant. It is further pleaded that the respondent will rely upon the applicant's efforts to prevent early disclosure.

15 The complainant has sworn an affidavit in which he deposes to having been contacted in May 1998 by a Detective Garda who invited him to make a statement concerning the applicant. As a result the complainant made an initial statement to the garda on 19 June 1998. He made further statements to him at his request on 17 July 1999, November 10th, 1999 and November 30th 1999. The complainant refers in his affidavit to the alleged abuse and has referred to statements made by him to the gardaí, which he says are true. He says that the applicant was at the time of the alleged offences in a position of authority over him and was a father figure. He alleges that the applicant played on his emotions like an instrument. He alleges in his statement that during his time in the school the applicant performed sexual acts on him at least 200 times.

16 The complainant states that the incidents had a huge effect on him both physically and mentally. He states that he was filled with guilt, shame and embarrassment that he could have let someone do the things that had been done to him. He states that he locked the images of what happened away because they were so disgusting to him that he could not bear to deal with them. He thought that his memories of these incidents would fade away of their own accord the less he thought of them. He says that he...