A. W. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 01 June 2018 |
| Neutral Citation | [2018] IEHC 328 |
| Court | High Court |
| Docket Number | [2017 No. 627 J.R.] |
| Date | 01 June 2018 |
[2018] IEHC 328
THE HIGH COURT
JUDICIAL REVIEW
McDermott
[2017 No. 627 J.R.]
On 31 st July, 2017 the applicant was granted liberty to issue and serve a notice of motion seeking leave to apply by way of judicial review for a number of reliefs including an order of prohibition restraining his further prosecution in respect of offences set out on Dublin Circuit Court Bill No. 553 of 2016 presently pending for trial before that court on 17th July, 2018. The application also sought a number of related declarations. The motion was returnable before the High Court (Noonan J.) on 20 th November, 2017, which made an order granting leave to apply for those reliefs on a number of grounds the more important of which are:-
(a) the respondent in permitting the “serial prosecution” of the applicant unus post alterum (one after the other) and/or allowing historic complaints to be levelled against the applicant on a piecemeal basis had breached the applicant's right to trial in due course of law and fair procedures under Articles 38.1 and 40.3 of the Constitution;
(b) the respondent had failed in her duty to preserve evidence that may be helpful to the applicant's defence which has resulted in prejudice to the applicant in the preparation and conduct thereof thereby giving rise to a real risk of an unfair trial in circumstances where the respondent and/or the investigating gardaí were aware of the existence of this evidence in advance of its destruction and it had been sought by the applicant and the applicant was awaiting trial when the material was destroyed;
(c) a real and serious risk of an unfair trial had been created because some 34 years have passed between the date of the alleged offences and the trial of the applicant; and
(d) in the alternative, the cumulative effect of the serial prosecution of the applicant, the destruction of evidence and the passage of time since the date of the alleged offence renders it unfair and unjust to permit the applicant's trial to proceed.
The respondent denies that the applicant has been prosecuted on a piecemeal basis or serially in breach of his right to fair procedures or that she or the investigating gardaí have failed to preserve evidence that may be helpful to the applicant's defence.
The applicant is a former Roman Catholic priest who worked for many years as a curate in a Dublin city parish. During that time, he was alleged to have sexually abused a number of young boys and a young girl and was charged with offences arising from these allegations. They were alleged to have occurred in the 1970s and 1980s. He was convicted of a number of sexual assaults between 1995 and 2016 and received a number of sentences varying from one year imprisonment to sentences of six to eight years imprisonment. His current release date is the 9 th July, 2021. A number of these convictions and sentences are currently under appeal. He deposes that he has now served twelve and half years imprisonment in connection with these convictions. This is the ninth prosecution arising from the allegations made against the applicant.
The complainant in this case R.N. was the youngest of six children. On the 7 th March, 1983 the complainant's sister S.N. married D.H. at a ceremony performed by the applicant. The complainant was present at the wedding and the subsequent reception. R.N. was born on 4 th December, 1968. He was therefore 14 years and 6 months approximately at the time of the alleged offence. He alleged that having consumed alcohol at the reception he became intoxicated and was taken from the reception with his mother's consent by the applicant who volunteered to do so. He was then taken to the applicant's bedroom in the parochial house where he remained overnight and was indecently assaulted.
On 23 rd October, 2012, the complainant, then aged 44 years and 7 months made a complaint to gardaí concerning this alleged indecent assault against the applicant. In a statement provided on that date he described how he had consumed alcohol at the wedding reception. He outlined that the applicant took him from the reception to the local parochial house. The complainant awoke the following morning and describes in detail what amounts to a very serious indecent assault perpetrated by the applicant and which under modern statutory provisions might more properly be described as a s. 4 rape. He shouted at the applicant and left the house quickly. He returned home and went to bed but did not tell anyone at that time about the alleged assault.
He remained silent about the event until many years later. He described how in his twenties he attended a number of different counsellors. He did not find them to be of great assistance. However, in January 2011 he attended other counsellors and in particular, a Ms Pearl Fleming, a psychologist, who was very helpful. He states that he wrote a letter to the applicant about what he had done to him which he forwarded to the Office of the Archbishop of Dublin with a request that it be forwarded to the applicant. He received a reply from Archbishop's House.
The following are dates relevant to the applicant's claim:-
| 22 nd October 2012 | The complainant R.N. made a complaint of indecent assault against the applicant to An Garda Síochána and provided a statement on the same date. |
| 1 st November, 2012 | A statement was taken from the complainant's mother E.N. She confirmed that she knew the applicant well and that he officiated at her daughter's marriage to D.H. He was a frequent visitor to her home. He was invited to the wedding reception following the ceremony. She recalled that the applicant offered to take R.N. home for her. She first heard of the allegation approximately six weeks to 2 months prior to making her statement. |
| 15 th January, 2013 | A number of other statements were taken from other witnesses including S.H. (the bride), F.N., Y.T. and H.N. who were present at the wedding. |
| 27 th July, 2013 | The applicant was interviewed concerning the allegation under caution. The interview notes indicate that he denied the allegation. He did not know who the complainant was. He accepted that he was present in a photograph of the wedding ceremony which was produced to him. He denied that he knew the complainant's mother in the way she described. He denied receiving any letter from Archbishop's House. |
| 8 th October, 2013 | A statement was taken from R.N.'s sister E.L.N. There was a delay in doing so. A number of attempts to do so were made in the months prior to that but this was not possible because she was very ill during this period. |
| 8 th October, 2013 –20 th April, 2014 | A number of issues were investigated which resulted in a further delay including:- (i) obtaining the marriage certificate, (ii) a request was made to the prison authorities seeking the letter which the complainant had sought to have forwarded to the applicant via Archbishop's House. No reply was received from the Prison Service and in a follow up inquiry Garda Barrett was informed that the letter was no longer available, (iii) R.N.'s birth certificate was obtained. |
| 20 th April, 2014 | The completed file was sent to local garda management. |
| 8 th June, 2014 | The file was returned by local management with a number of queries concerning in particular the location of the church where the wedding took place. In addition, inquiries were made concerning the availability of maps, plans and photographs of the Parochial House. |
| Early 2015 | Garda Barrett was absent from work on sick leave due to ill heath which required him to undergo an operation. He was out of work for two months. |
| 28 th May, 2015 | The file was returned to local garda management. |
| 6 th September, 2015 | Further queries were raised by local management resulting in additional investigations the nature of which are unspecified. |
| 12 th October, 2015 | The final investigation file was forwarded to local garda management. |
| 16 th February, 2016 | The file was furnished to the Director of Public Prosecutions. |
| 20 th April, 2016 | The Director of Public Prosecutions directed that the applicant be charged with a single count of indecent assault. |
| 29 th April, 2016 | The applicant was arrested and charged with indecent assault on the complainant on the 7 th or 8 th March, 1983. |
| 24 th June, 2016 | The applicant first appeared before the Circuit Criminal Court in respect of this charge. On that date an initial date for trial was set for 31 st March, 2017. |
| 1 st July, 2016 | An earlier date for trial was set for 7 th December, 2016. |
| 11 th November, 2016 | The trial date of 7 th December, 2016 was vacated. Garda Barrett was on a course in the United States of which the parties had been unaware at the time of the setting of the date. A new trial date was set for 24 th April, 2017 though he was willing to return for the trial. |
| 5 th December, 2016 | The applicant's solicitors wrote to the respondent seeking: (i) copies of the letter from R.N. to the Archbishop of Dublin and the reply from the Office of the Archbishop to that letter referred to as Exhibits JB2 and JB3 in the interview notes exhibited in the book of evidence; (ii) any medical records, notes or reports relating to the complainant dated at about the time of the alleged offence or from the time immediately thereafter or potentially connected to the alleged offence. |
| 24 th March, 2017 | The respondent replied to this letter indicating that the prosecution was in possession of counselling records concerning the complainant from “Towards Healing” a counselling group and that this material would be disclosed on receipt of the usual acceptance of the conditions that normally apply in respect of furnishing such material. |
| 30 th March, 2017 | The |
To continue reading
Request your trial