X v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 03 April 2019
• Neutral Citation: [2019] IEHC 221
• Docket Number: 2018 No. 910 JR
• Court: High Court
• Date: 03 April 2019

Between:

X

Applicant

- and -

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

[2019] IEHC 221

Max Barrett

2018 No. 910 JR

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 3rd April, 2019.

I. BACKGROUND

1 The applicant is facing trial for 105 charges of historical sexual abuse, which abuse is alleged to have occurred between 1971 and 1982, and to have been committed against a relative who was between 6 and 18 years of age at the time of the alleged offences. The offences are alleged to have occurred in the applicant's home, in outdoor locations in and around that home, and in various motor vehicles owned by the applicant. The charges are drawn from what are claimed to be thousands of instances of abuse over the period aforesaid.

2 The complainant made three statements to An Garda Síochána one on 12.12.2016 and two on 22.12.2016. In one of the latter statements he touches on why he took the time he did to complain about the alleged abuse:

“About three to four years ago, through [a named counselling service]… I spoke to their Child Protection Officer. … I told her about the abuse but that I wasn't ready to report it officially. I think [the Child Protection Officer]. … put through a report without my name about [the applicant]. … I found out about [that] a year or so ago. I found out that my cousin brings her son up there [to the applicant's house], he's about 5 or 6. I contacted [the Child Protection Officer] and told her about my cousin's child being up there. I then contacted [a named staff member of another domestic abuse support service] … and told her about my cousin's child being up there. [That staff member] … said she would have to report it. I decided at this stage to make a complaint. I was afraid to report… before. I had so much going on in my life. I'm only two years out of a very abusive marriage. This is the final part of the jigsaw and I keep thinking of that young lad being up there. I think if somebody had to do something like that for me … I mighten [ sic, presumably ‘mightn't’] have … suffered the abuse. I have told my sisters … about 2 years ago. … what [the applicant] did to me. I also told two friends of mine. … I didn't go into details with them. … I attend Dr [ A], my GP., I think I told him about the sexual abuse. I did attend a counsellor, [named ] … I saw her for three years but I haven't seen her in the last two years. I have also confided in [the Child Protection Officer and the domestic abuse support service staff member referred to above]”.

3 So, on his account, the complainant came forwards as a result of a sequence of events that transpired after he became concerned about what he perceived to be a risk of sexual abuse to a young child. The court of course makes no finding as to whether or not this evidence is true and/or whether or not such risk in fact presented.

4 Returning to the chronology of alleged events, the complainant alleges that when he was 6 or 7 years of age, the applicant engaged in unlawful behaviour with him for the first time. The complainant states that this alleged incident took place in the applicant's then motor-car. The complainant claims that alleged unlawful behaviours occurred more than once in the said motor-car, as well as in other motor-cars owned by the applicant. The complainant claims to recall certain details of the various motor-cars.

5 The complainant alleges that the applicant would also bring the complainant to the applicant's bedroom, in the applicant's family home. The complainant claims that at the time of such occurrences, his grandmother would be in the house or out at a social event. He alleges that his aunt would be present in the house or visiting neighbours. His statements to the gardaí include a description of the applicant's bedroom and certain alleged unlawful behaviours that transpired there.

6 The complainant alleges that if the applicant was driving him home, he (the applicant) would pull into a gateway on a roadway leading to a named location and allegedly engage in further unlawful behaviour. The complainant alleges that these alleged unlawful incidents occurred once a week during school terms and were more frequent during school holidays, when the alleged abuse would occur every day.

7 The second statement of the complainant refers to the alleged unlawful behaviour as having continued until he was 17 or 18 years of age. The complainant states that he began working for the applicant on leaving secondary school, that he would be picked up from home and dropped off by the applicant each night, which could often be late. The complainant states that a number of people worked for the applicant, including named persons B, C, D and E.

8 The complainant, in his second statement, also alleges that the applicant engaged in unlawful behaviour with him at the back of the applicant's house, the alleged abuse taking place in a particular room on an almost daily basis from the time that the applicant was 15½ years of age until he was 17 or 18 years of age. He also repeats his claim that the alleged incidents occurred in the applicant's motor vehicle, bedroom and the particular room aforesaid. The complainant maintains that the applicant also drove the complainant down a country road, a short distance from the applicant's home, passing a house that had either been burnt down or was never completed, and would there engage in unlawful behaviour with the complainant. The complainant alleges that this happened numerous times.

9 The applicant, who would have been a minor himself for a portion of the alleged period of offending, denies that he committed the alleged offences.

II. RELIEFS SOUGHT

10 The applicant seeks the following principal reliefs: (1) an injunction restraining the respondent from prosecuting the applicant for the alleged offences with which he has been charged; (2) an order of certiorari of the District Court order sending the applicant forward for trial in the Circuit Court; (3) a declaration that the respondent's prosecution of the applicant for the alleged offences with which he has been charged, after a period of between 37 to 48 years has elapsed amounts to a disproportionate interference with the applicant's rights, as guaranteed by the Constitution and the ECHR; (4) a declaration that given the inordinate, inexcusable and unjustifiable delay in the prosecution of the alleged offences, the further prosecution of the applicant would involve a breach of his right to an expeditious trial and right to a fair trial, as guaranteed by the Constitution and the ECHR; and (5) an order pursuant to 0.84, r.21, of the Rules of the Superior Courts, granting the applicant an extension of time for the purposes of bringing his application for judicial review.

III. GROUNDS FOR RELIEF SOUGHT

11 Delay. The applicant maintains, inter alia, that: (i) the prosecution of the alleged offences should be prohibited on the grounds that the respondent has not brought the prosecution against the applicant with reasonable expedition; (ii) unless the prosecution is stopped, his constitutionally protected right to an expeditious trial and his right to a fair trial will be breached; (iii) the delay presenting renders the applicant's case a very old one, yielding a serious and fundamental risk of an unfair trial; (iv) the delay between the alleged commission of the offences and the prosecution of the applicant diminishes the public interest in prosecuting the applicant; (v) specific prejudice is caused to the applicant by the delay in the making of the complaint, due to the difficulty in establishing what was referred to at hearing as an ‘island of fact’ surrounding the allegations; and (vi) the alleged failure by the respondent to take all necessary steps to ensure that the charges and trial were progressed with expedition, once the complainant made his statements, breached the heightened duty cast upon the respondent to ensure a speedy trial, where there has been preexisting complainant delay.

12 Identifiable Prejudice. The applicant points to the fact that:

(i) charges 8-31 in the book of evidence are alleged to have occurred at unknown locations between 1976-77. The applicant claims that the absence of date specificity and location hinders his ability to mount a defence to the allegations made and that his right to fair procedures consequently cannot be guaranteed if he is prosecuted for such offences. He maintains that the absence of adequate detail in this regard creates unavoidable prejudice to him as he is prevented from challenging the veracity of the allegations, due to the minimal detail offered.

(ii) the complainant maintains that he was the subject of unlawful behaviour in the applicant's home at a named place; however, this residence was shared by the applicant with his parents (deceased) and a sister (deceased), with the result, the applicant claims, that he is prejudiced by the loss of evidence that those witnesses might have given. The applicant likewise points to no statement having been obtained from a surviving sister, who also lived in the said home for a portion of the period during which the alleged offences occurred.

(iii) emphasis is placed throughout the book of evidence on various motor-vehicles that the applicant is alleged to have possessed between 1971-82, with certain of the alleged offences claimed to have taken place in such vehicles. The alleged prejudice facing the applicant in challenging the credibility of the complainant's allegations in this regard is complicated, the applicant claims, by his having difficulty in identifying what vehicles he possessed on the said dates (the nature of his trade being such that he had many motor vehicles over the years). It appears to be common case that there are no State records available indicating what vehicles were owned and when.

(iv) a number of people (B, C, D and E) were employed by him...