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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'S. (C.) v. D.P.P. [2005] IEHC 6 (18 January 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H6.html Cite as: [2005] IEHC 6

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Neutral Citation No: [2005] IEHC 6

THE HIGH COURT

[2003 No. 370 J.R.]

BETWEEN

C.O'S

APPLICANT

AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EX-TEMPORE JUDGMENT of the Honourable Mr. Justice Quirke delivered the 18^th day of January, 2005.

By order of the High Court (O'Donovan J.) dated the 26^th May, 2003, the applicant was given liberty to seek relief by way of judicial review. The relief sought is an order prohibiting the respondent from prosecuting the applicant in respect of various offences including (a), indecent assault contrary to the provisions of common law and to the provisions of s. 10 of the Criminal Law (Rape) Act 1981 and (b), rape contrary to the provisions of s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.

The offences are alleged to have occurred between 4^th August, 1988 and an unknown day in May, 1992.

FACTUAL BACKGROUND

The facts which are relevant to these proceedings are as follows:

1. On 8^th September, 1992 the applicant's daughter C who was then aged ten years made a complaint to Dr. Mary Kiernan who was the area medical officers of the family centre in St. Finbar's Hospital in Cork. Arising out of the complaint the applicant's daughter was interviewed on the 8^th and 14^th day of September, 1992. Both interviews were videotaped. During the course of the interview the applicant's daughter made the allegations which have given rise to the charges which have been preferred against the applicant.

2. Following interviews with Dr. Kiernan the applicant himself made two statements under caution to An Garda Siochána on 11^th September, 1992 and 13^th January, 1992. He denied the allegations which were made against him.

3. On 31^st July, 1993, the applicant received a letter from the Director of Public Prosecutions informing him that no prosecution would be brought in relation to a complaint made against him by his daughter. It was indicated that this was because there was no evidence available to the respondent to substantiate the complaints.

On 12^th October, 1996, the applicant's son S who was then sixteen years old complained to An Garda Síochána that he had been sexually abused by the applicant.

On 22^nd June, 1998, the applicant was interviewed by Det. Garda Lynch in respect of these allegations. He again denied the allegations.

4. On 11^th August, 1997, the applicant's son S made a statement to the Garda retracting the allegations which he had made in October of 1996.

In July of 1998, a decision was made by An Garda Síochána to take no further steps to the prosecution of the applicant in respect of the complaints made against him by his son S.

5. Detective Garda Lynch who had been in charge of the investigation into the complaints made by the applicant's daughter C did not become aware until 11^th February, 1998, that the applicant's son S had made a complaint against the applicant of sexual abuse.

When he learned of this complaint Det. Garda Lynch reactivated the investigation into the complaint which had earlier been made by the applicant's daughter C in September, 1992.

On 2^nd December, 1998, the applicant's daughter C made a formal written statement to An Garda Síochána outlining details of the complaint which she wished to make against her father and which comprise the offences with which he has been charged.

On 11^th August, 1999, the applicant was arrested and interviewed. He denied the allegations which have been made.

6. On 27^th June, 2000, a file was sent by An Garda Siochána to the Director of Public Prosecutions.

7. On 3^rd August, 2000, further information was sought by the Director of Public Prosecutions and An Garda Síochána and on 22^nd September, 2000, that information was furnished.

8. On 16^th October, 2000, the Director of Public Prosecutions directed that the applicant should be prosecuted in respect of the offences and on 11^th December, 2000, the applicant was arrested charged and brought before the District Court.

9. On 27^th June, 2001, a Book of Evidence was served upon the applicant and on 25^th July, 2000, the applicant was returned for trial in respect of the offences concerned.

10. On 12^th November, 2002, the applicant applied to the Central Criminal Court to stay his trial which was fixed for hearing on that day. His application was refused by the court. However the trial was adjourned for reasons concerning the availability of jurors.

11. On 7^th April, 2003, the applicant was again brought before the Central Criminal Court and his trial in respect of the offences commenced.

During the course of the trial the jury was discharged on technical grounds.

12. On 26^th May, 2003, the applicant sought liberty to seek the relief which has been sought herein.

THE APPLICANT'S CLAIM

The applicant claims that the respondent has been guilty of inordinate and inexcusable delay by allowing a period of eight years and ten months to elapse between 8^th September, 1992, when the applicant's daughter first complained in respect of the offences and 25^th July, 2001, when the applicant was returned for trial in respect of the offences.

In this case there is no allegation of pre-complaint delay on the part of the applicant's daughter. That is so because there was no such delay. The applicant's daughter was six years old when the offences are alleged to have occurred and was ten years old when she first complained of the offences.

She was sixteen years old when she made a formal complaint to An Garda Siochána.

It follows inexorably as there can be no question of pre-complaint delay in such circumstances.

SPECIFIC PREJUDICE

No specific prejudice has been alleged in this case and the grounds relied upon by the applicant in support of an application for liberty to seek this relief do not make such a claim.

Accordingly the claim advanced on behalf of the applicant relates exclusively to an allegation of prosecutorial delay on the part of the respondent allowing the period of eight years and ten months to elapse between the date of first complaint by the applicant's daughter and the date of his return for trial on 25^th July, 2001.

In a statement of opposition delivered on behalf of the respondent on 8^th October, 2003, the respondent had pleaded that these proceedings have not been brought promptly or within the period of three months limited in that behalf by the Rules of the Superior Courts and accordingly that this court should refuse that relief.

Further and alternatively the respondent contends that there has been no prosecutorial or other delay on the part of the respondent in these proceedings, no violation of the applicant's right to trial with reasonable expedition and no question of any unfairness in the trial with which the applicant will be provided.

1. Order 84 Rule 21

Order 84 Rule 21 (1) of the Rules of the Superior Courts provides as follows:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds from the application first arose or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made."

In this case the applicant concedes that the application for the relief sought was not made promptly or within the three month period limited by the rule concerned. However he contends that at all material times a practice was in existence within the Circuit Court and Circuit Criminal Court whereby applicants who sought to stay or prohibit their trials on grounds of delay were discouraged from seeking relief by way of judicial review and were instead encouraged to seek relief by way of an application made just prior to the commencement of criminal trials for orders quashing

indictments on grounds of delay.

This practice was followed by the applicant's legal advisors who made an application to the Central Criminal Court on 12^th November, 2002, to stay the trial on grounds of delay. The application was rejected.

The applicant did not appeal to the Court of Criminal Appeal in respect of the refusal to stay the trial on grounds of delay.

In the case of P.O'C. v. Director of Public Prosecutions which was decided on 27^th January, the Court of Criminal Appeal determined that inter alia that the practice earlier referred to whereby applications to discontinue or stay trials on grounds of delay should be made by way of an application for an order quashing an indictment immediately prior to the trial of the alleged offences was inappropriate and should be discontinued.

Notwithstanding that decision the applicant participated in his own trial in respect of the offences without complaint on 7^th April, 2003. That trial was aborted and the jury was discharged on technical grounds.

It was at that point (or shortly thereafter), on 26^th May, 2003, that, the applicant sought the relief which has been sought herein.

It is contended on behalf of the applicant that the existence of the practice and its adoption by the courts gave rise to a degree of uncertainty sufficient to constitute a good and sufficient reason for his failure to seek the relief which is sought herein up to the time when he did so.

On behalf of the respondent it is argued that, with effect from the 27^th January, 2003, (when P.O'C was decided) the applicant, fully professional represented, was aware of the time limited by O. 84, r. 20 within which he was obliged to seek the relief which he has sought.

It is further argued that having regard to the decision in P.O'C the applicant was obliged at that point to make his application "promptly".

Furthermore it is argued the applicant actively participated in his own trial on 7^th April, 2003, notwithstanding his knowledge that he was obliged to seek liberty "promptly or in any event within three months…" from the date when his right accrued.

Ms. McDonough relies upon the decision of the High Court (McKechnie J.) in the case of M.Q. v. Director of Public Prosecutions and Anor. (Unreported 14^th November, 2003).

In that case the accused person was aware in January 1999 of the Director of Public Prosecutions had decided to charge and prosecute him in respect of certain offences. He sought and obtained professional advice. That advice was available to him right throughout 1999 and 2000.

The applicant participated in full and in a criminal trial in respect of charges preferred against him. The jury disagreed.

Twelve months later the applicant sought leave to seek judicial review for an order prohibiting the trial. He did so in the knowledge that the Director of Public Prosecutions intended to seek a retrial.

McKechnie J. pointed out that the applicant in that case:

"…was part of and in the judicial process. This was a process which in the absence of challenge continued up to and including this trial. He chose to adopt this route. He elected to contest allegations on their merits. He was perfectly entitled to do so. Having done so, however I am of the view that by his conduct he must be taken to have surrendered, waived, or abandoned his constitutional rights and his rights to natural justice which I have above identified. That one can do so is not in dispute… once an individual without other disability has full knowledge of the relevant circumstances and once that can be established on further misconduct then he would have taken to have unambiguously surrendered such rights. The same applies to natural justice…"

I do not think that the facts of this case are analogous to the facts in M.Q. In the latter case no confusion (judicial or otherwise) existed in relation to the appropriate relief to be sought or to the procedures to be adopted for the purpose of seeking that relief.

In the instant case the applicant has at all material times asserted that he was entitled to relief by reason of the delay in prosecuting him. Having regard to the comparative uncertainty, not of his making, which existed by reason of a practice adopted by the courts and over which he had no control I am satisfied that the applicant should be allowed to seek the relief which he has been sought and that he should not be precluded from seeking relief on the grounds as failure to comply with the provisions of O. 84 r. 20.

I am accordingly holding that there was a sufficient reason for his delay and his failure to make the application within the time limited in that behalf by O. 84 r. 20.

PROSECUTORIAL DELAY

Mr. O'Carroll on behalf of the applicant claims that there was inordinate delay on the part of the applicant between 1992 and 1998 in failing to prosecute the applicant in respect of the offence concerned.

I cannot accept that contention.

It is not the function of this court to intervene and seek to influence or supervise the prosecution of offenders by the respondent. The solemn statutory obligation rests solely upon the respondent.

In cases such as this the function of the court is simply to establish whether or not there has been a violation of the rights of an accused person to an expeditious trial.

In this case the evidence has established that on 31^st July, 1993, the respondent had decided that the evidence which was then before him did not warrant a prosecution of the applicant in respect of the offences alleged against him.

The applicant was so advised.

In 1996 the position was altered by the fact that a further complaint was made against the applicant by a member of his family. It also involved an allegation of sexual abuse. By 2^nd December, 1998, the applicant's daughter C had reached the age of sixteen years and made an express formal written complaint to the prosecuting authority in respect of the offences alleged.

It is well settled that the respondent is empowered to review the potential prosecution of suspected persons intermittently if additional evidence becomes available or if there is a bona fide change in the circumstances to revive the question of prosecution even where a decision has earlier has been made not to prosecute.

As I have already indicated it cannot, having regard to her age and circumstances, be suggested that C was in any way culpable or guilty of any pre-complaint delay

I am quite satisfied on the evidence of Detective Paul Lynch that following upon the complaint of the applicant's daughter C on 2^nd December, 1998, the prosecuting authorities moved expeditiously and conducted a thorough, appropriate and expeditious investigation before arresting the applicant on 11^th August, 1999. The investigation was then progressed efficiently and expeditiously until 25^th July, 2001 when the applicant was returned for trial.

Having regard to all of the foregoing circumstances it follows that the respondent was guilty of no prosecutorial delay and that the applicant's right to a trial with reasonable expedition has been in no way affected or compromised by any act or omission on the part of the respondent.

It follows that the relief sought by the applicant must be declined.