W v District Justice Flannan Brennan
| Jurisdiction | Ireland |
| Judge | Mrs. Justice Macken |
| Judgment Date | 14 April 2005 |
| Neutral Citation | [2005] IEHC 165 |
| Docket Number | [Record No. 167 JR/2003] |
| Court | High Court |
| Date | 14 April 2005 |
[2005] IEHC 165
THE HIGH COURT
BETWEEN
AND
AND
CONSTITUTION ART 38
B v DPP 1997 3 IR 140 1997 2 ILRM 118
DPP v BROPHY 1992 ILRM 709 1992/2/246
L (J) v DPP 2000 3 IR 122 2000/12/4389
W (D) v DPP UNREP SUPREME 31.10.2003 2003/4/11781
HEALY, STATE v DONOGHUE & ORS 1976 IR 325
O'FLYNN & HANNIGAN v DISTRICT JUSTICE CLIFFORD & ORS 1988 IR 740 1988/10/2792
DPP v BYRNE 1994 2 IR 236
CAHALANE v JUDGE MURPHY & DPP 1994 2 IR 262
HOGAN v PRESIDENT OF THE CIRCUIT COURT & DPP 1994 2 IR 513 1994/10/3030
M (P) v JUDGE MALONE & DPP 2002 2 IR 560 2002/16/3761
K (M) v JUDGE GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322
W (T) v DPP UNREP SUPREME 28.7.2004 2004/49/11228
G v DPP & JUDGE KIRBY 1994 1 IR 374 1994/3/724
C (P) v DPP 1999 2 IR 25
CRIMINAL LAW
Delay
Right to speedy trial - Sexual offences - Date of complaint - Prosecutorial delay - Real and serious risk of an unfair trial - Dominion - Return for trial - Hogan v President of the Circuit Court [1994] 2 IR 513, State (Healy) v Donoghue [1976] IR 325, DW v DPP (Unreported, Supreme Court, 31/10/2003) and TW v DPP [2004] IESC 48 (Unreported, Supreme Court, 28/7/2004) followed - Prohibition refused - (2003/167JR - Macken J - 14/4/2005) [2005] IEHC 165
W v Judge Brennan
Facts: the applicant sought to restrain the further prosecution of charges of sexual assault against a minor allegedly committed 20 years prior to his being charged proffered against him by the second respondent on the grounds that his constitutional right to a fair trial could not be guaranteed due to inordinate delay.
Held by Ms Justice Macken in refusing the relief sought that the jurisprudence in child sexual abuse cases was not rigidly fixed given the nature of the cases and the evolving nature of the psychology in matters of child sexual abuse. That the delay in making a complaint will be rendered explicable and therefore excusable if there was evidence that the alleged sexual abuse prevented the complainant from making a complaint earlier because of trauma or other adverse consequences resulting from the abuse which can be attributed to the accused’s own behaviour. That, in relation to prosecutorial delay, if all appropriate enquiries that ought to be made were being made, and/or proper grounds upon which to charge a person with an offence did not yet exist, an accused did not have a right to prohibit a trial on the basis of a breach of a right to an expeditious trial. That length of time may, if it was of so long a duration that it was clear that a fair trial could not be assured, give rise to presumed prejudice but that mere lapse of time, even if inordinate, did not automatically equate to presumed prejudice.
Reporter: PC
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 taking of any further steps in criminal proceedings because of alleged inordinate delay in one or other respect, such that his constitutional right to a fair trial cannot be guaranteed. The applicant also seeks relief in respect of allegedly unlawful returns for trial.
The subject matter of the charges in the trial are sexual offences allegedly committed by the applicant against a complainant at a time when the complainant was a minor of 12 or 13, between 1980 and 1982.
By Order of O'Donovan J. made on 10th March, 2003, this court granted the applicant liberty to issue judicial review proceedings as against the first named respondent, for an order of certiorari quashing the return of the applicant for trial dated 26th February, 2003, and as against the second named respondent, for an order prohibiting him from taking any further steps in those proceedings or in respect of the charges specified in the returns for trial.
The two series of grounds are quite separate, save in one aspect as will become clear from the summary which I set out below.
Although the applicant set forth in his statement to ground his application for judicial review dated 10th March, 2003 the background facts and matters upon which he claims to be entitled to ground his application, in reality his claim may be summarised as follows
a) As to the relief sought against the first named respondent, the applicant was returned for trial by the District Court on 19th December, 2001 on the basis of signed pleas of guilty which the applicant had not executed.
b) The High Court, on 16th December, 2002, granted an order of certiorari in respect of the returns for trial dated 19th December, 2001, and ordered that the returns for trial be sent to the High Court so as to be formally quashed without the need for further order, but this had not been done.
c) The applicant had subsequently pleaded not guilty to the charges pursuant to returns for trial dated 26th February, 2003 but was nevertheless returned for trial on the basis of fresh returns for trial dated 11th March, 2003 and accordingly there were in existence more than one set of documents purporting to be valid returns against the applicant for trial in respect of the same offences.
d) The applicant claims that the return for trial dated 26th February, 2003 are invalid on the ground that he has now been returned for trial on the basis of three separate returns.
e) As against the second named respondent, the applicant claims that he has wrongfully proceeded with the prosecution of the applicant in respect of the charges notwithstanding inordinate and inexcusable delay on the part of the complainant in making a complaint against him since the offences were allegedly committed, and the applicant claims to be is thereby impaired in his defence to such an extent that there is a real and serious risk of an unfair trial.
f) The applicant also pleads that the complainant had disclosed the alleged abuse to a member of An Garda Síochána in 1985, but while he had made no formal statement, this was not acted upon, giving rise also to inexcusable delay, which impaired his defence to such an extent that there was a real and serious risk of an unfair trial, or making it impossible to afford the applicant a trial in due course of law.
g) In addition, the applicant complains that although the complainant made formal complaint to An Garda Síochána in or around the month of August, 1988 in respect of the alleged sexual abuse, nevertheless the applicant was not arrested or questioned until January, 1999, which the applicant pleads exacerbated the prejudice to him previously existing.
h) Finally, the applicant pleads that although the investigation into the allegations was allegedly completed between the months of August, 1998 and January, 1999, there was a further inexcusable delay in charging the applicant who was not charged until the month of October, 2001, which delay, cannot be justified. In relation to this latter delay, the applicant pleads that his ability to raise a defence of delay has been further impeded, by reason also of the faulty returns for trial mentioned above.
On behalf of the applicant, Mr. Giblin, S.C., submitted that Article 38 of the Constitution guarantees a fair trial and within that guarantee, a right to an expeditious trial. He argued that it is part of our law that although specific prejudice may not exist, prejudice may be presumed to exist if the period of time which has elapsed is such that there is a real risk of an unfair trial.
He further submitted that the offences in this case relate only to a period between 1980 and 1982, and that the applicant was not charged until 2001. He argued that this period of time is too long, that there is no adequate explanation for the delay and that the circumstances are not such that the complainant can bring himself within the ambit of any special rule relating to delay cases. Mr. Giblin contended that there was no formal dominion by the applicant over the complainant but only a common bond of friendship, and that there was no question of any intimidation by the applicant of the complainant at any time.
He submitted that the evidence clearly shows that the existence of an alleged offence was mentioned in 1985 to a member of An Garda Síochána. The Garda to whom this information was disclosed had claimed it was disclosed in confidence. However, Mr. Giblin argued that, taken with the delays which existed, it is clear that since the complainant was able to bring the alleged offence to the notice of that Garda, in 1985, there was no reason why a formal complaint could not also have been made by him at that time.
He also invoked the Supreme Court decision inB v. D.P.P. [1997] 2 ILRM 118, and in particular the judgment of Denham, J. in which she set out the factors to be analysed and applied in cases such as this, as follows:
(c) The accused's action in relation to the events in issue
(g) Length of time of pre-trial anxiety and concern of the accused
(i) The circumstances which may render the case into a special category
(j) The community's right to have the offence prosecuted.
Mr. Giblin referred the test laid down by Denham, J. in that judgment namely "whether there is a real risk thatB, by reason of the delay, would not obtain a fair trial and that the trial would be unfair as a consequence of...
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