S41 O'B. -v- DPP [2010] IESC 41 (28 June 2010)

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Cite as: [2010] IESC 41

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Judgment Title: O'B. -v- DPP

Neutral Citation: [2010] IESC 41

Supreme Court Record Number: 176 & 360/07

High Court Record Number: 2005 1242 JR

Date of Delivery: 28/06/2010

Court: Supreme Court

Composition of Court: Hardiman J., Macken J., O'Donnell J.

Judgment by: Hardiman J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Concurring
Hardiman J.
Appeal dismissed - affirm High Court Order
Macken J., O'Donnell J.


Outcome: Dismiss




THE SUPREME COURT

Hardiman J. 176 & 360/2007 Macken J.
O’Donnell J.




Between:
C O’B

Appellant/Cross Respondent
and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents/Cross Appellant


JUDGMENT of Mr. Justice Hardiman delivered the 28th day of June, 2010.
This appeal arises out of an application by the appellant to restrain his further prosecution on a number of charges of a sexual nature by reason of delay both in reporting and in prosecuting the offences. The appellant claims that, by reason of such delay, there is a real risk that he will not receive a fair trial.

The offences.
The appellant was charged, by the respondent, with six charges of indecent assault and of gross indecency (one charge of indecent assault and one of gross indecency in respect of each of six occasions) involving the complainant, one MOC. The first four such combined charges are alleged to have taken place at an address in Ailesbury Mews Dublin on unknown dates between the 8th April, 1985 and the 7th April, 1987. The 5th and 6th such combined charges are alleged to have occurred “at or near” an address at Milltown Grove, Dublin, between the 1st January, 1986 and the 7th August, 1987. In the High Court, the learned trial judge (McMenamin J.) granted an order restraining the further prosecution of the appellant in connection with the “Ailesbury Mews charges” but declined to grant relief in respect of the “Milltown Grove” charges. The appellant lodged an appeal against the orders adverse to him within the time limited for appealing; sometime later, the respondent decided to appeal the portion of the order of the High Court which was adverse to him: he was out of time to do so but subsequently procured an extension of time.

It follows from the dates set out above that the most remote date to which the allegations relate is now about 25 years ago and the most recent about 23 years ago. If the charges are permitted to proceed then (going on the basis of the Courts experience in bail applications) it would appear likely that about a further six months will elapse before a trial takes place.

Background.
The complainant, MOC, was born in August 1971. He is thus now aged about 38 years. He alleges that as a young person he was abused by a number of persons when he was between the ages of eight and about fifteen years. He alleges that the present applicant committed offences with and in relation to him when he was in the region of thirteen or fourteen years.

On the undisputed chronology of events, the complainant first made a complaint to the gardaí on the 4th April, 2002. This complaint made allegations against a number of people but not against the applicant. In July of 2002 he made a further statement of complaint against two named individuals other than the applicant and supplemented this the following day with further complaints against one of the people previously mentioned and another person. On an unknown date between July and November, 2002 he made a further statement against the last mentioned person and two other unnamed individuals. On the 13th November, 2002 he made a fourth statement of complaint against two named individuals, neither of whom was the applicant.

On the 27th November, 2002 the applicant made his fifth statement of complaint. In this he first made complaints against the present applicant. Seven months later, on the 21st June, 2003 two gardaí took a further statement from the complainant and travelled with him to a number of scenes where it was alleged that the complainant had been assaulted by the applicant. On the 27th June, 2003 the complainant made a seventh statement which he identified an address where one of the persons against whom he made allegations (not the present applicant), was alleged to have abused him.

On the 19th April, 2004 the applicant was arrested and, following certain submission to the member-in-charge, detained pursuant to s.4 of the Criminal Justice Act, 1984. He was interviewed extensively by the gardaí and appeared to answer all questions he was asked. On the 27th June, 2005 he was arrested and charged and was returned for trial on the 10th October, 2005. After various dealings in relation to disclosure, the applicant was given leave to seek judicial review on the 28th November, 2005.

It may be relevant to note that the applicant was charged jointly with another defendant, J.A. In this case, however, the learned trial Judge found “The allegations come within quite a different framework of time and context,” though the investigations were parallel.

General nature of the case.
The alleged victim alleges that, while a young person, he had sexual contact with the applicant who (having been born in 1954) was some seventeen years older than him. The complainant alleges that he was introduced to the applicant by a “red haired man”. The gardaí have not been able to identify this person.

Charges about the first address.
The applicant was charged with four charges, two of acts of indecent assault and two of gross indecency on each of two occasions against the complainant at this address. They are alleged to have taken place between the 8th April, 1985 and the 17th April, 1987. The complainant says he was driven by the “red haired man” to a public place where the applicant’s car was parked. This was described by make and colour. He got into the car and met the applicant. The latter gave him a cigarette. He was then driven slightly circuitously to the first address. He gave some background detail of the place. He said the applicant put on a pornographic video and that they smoked a joint while watching it. They then went upstairs and had sexual relations. He claimed the applicant paid him £10.00. He described a similar event on another occasion but did not describe it in any great detail.

After he made a complaint involving the applicant to the gardaí the complainant drew a sketch of the premises. The accuracy of this is strongly disputed by the applicant.

At a time to which the allegations related the applicant, on his own un-contradicted account, lived at the address mentioned as the first location, together with his partner. While they lived there, which they did, it seems, at the times material to the first set of charges, they travelled into town and returned home together. The partner, unfortunately, was extremely ill when the applicant was first charged with these offences and was dying by the time the judicial review proceedings were initiated. The partner died of throat cancer and for some time prior to that was able to communicate only with the aid of a computer. The applicant says without contradiction that, for that reason, he was unable to discuss the charges with the former partner, who died on the day after the first affidavit was sworn, on the 20th November, 2005. This was more than three years after the garda investigation commenced but only five months after the applicant was charged and about five weeks after he was returned for trial.

While other forms of prejudice referable to delay were alleged in relation to these first four charges, the death of the applicant’s former partner is by far the most specific. It was also the basis on which the learned trial Judge granted the applicant relief in respect of these charges. The applicant also established that other witnesses were missing, dead or unavailable. The learned trial Judge held that in relation to those persons, “the connection is too remote and not established”. But he took their absence into consideration in estimating the effect of the absence of the former partner. In substance, three friends and close associates of the applicant at the relevant time have died in various stages between 1986 and 2003. Two of the identified persons against whom the complainant also made allegations died in 2002 and 2004. The applicant says that he has no diaries or other records relating to the period in question, which would have assisted him in identifying his movements. The “guy with the red hair” central to the complainant’s account, is unidentifiable and therefore unavailable. Moreover, it is common case that when the gardaí attempted to retrieve the motor taxation records for the relevant time, they were no longer available.

The learned trial Judge was satisfied (para. 31) of the judgment that an appropriate analogy to the present case (having regard to the relationship between the applicant and his former partner) was “the absence through death of a spouse who could have testified in the defence of allegations of crime alleged to have taken place in a family home on two occasions at times and days unspecified and indeterminate”. He held (para. 30) that “The denial that these incidents occurred as alleged is central. So too is the question of location and opportunity. [The deceased] was a partner of the applicant [and] lived in the same house as him, at a time when the offences were alleged to have occurred. It is not controverted that [the former partner] travelled to and from work with the applicant. It has not been established, or even asserted, that [the former partner] would have been in any less control of, or had less access to, the premises than the applicant”.

The learned trial Judge concluded:
          “There is here sufficient gravity and proximity to discharge the onus of proof in circumstances where warnings or directions could be of little assistance in obviating.”

General findings.
Two further findings which appear to be in the nature of conclusions drawn from the learned trial judge’s summary of the evidence, oral and written, which was available to him, should also be referred to. At paragraph 26, using the language of J.B. v. DPP (Reference) the learned trial Judge found:
          “It cannot be gainsaid however that if a trial had taken place in a timely manner the applicant might well have been in a better position to address the charges.”

Furthermore, at para. 36, dealing with the question of prosecutorial delay he held:
          “Nothing has been established in the course of this case to controvert the conclusion formed in [the case of a co-accused with similar facts as far as the investigation was concerned]. That there has been inordinate delay in this investigation. While, for the best of motives, the gardaí may have allowed the complainant to dictate the pace of the statements, this is hardly a sufficient justification to allow a ‘drip feed’ of statements over a period of two years from the 4th April, 2002 to the 19th June, 2004. While the motivations may have been for the best, the very gradual provision of evidence by an important single witness to crime over a period of two years is hardly a situation which would be countenanced in the investigation of other serious offences generally. These observations must however be balanced by the reasons which were furnished by (the gardaí involved) as to their reluctance to press the matter further and in the context of the risks which they saw of the complainant withdrawing his complaints altogether.”

On the latter point, this court would observe that there are obvious difficulties when a complainant comes forward many years after an alleged event, making allegations against multiple persons on a “drip feed” basis. These difficulties maybe compounded if the investigating gardai think that the complainant may if pressed withdraw his allegations altogether. But any difficulties arising from this state of affairs cannot, in my opinion, affect the standards of fairness and expedition to which the defendant is entitled. Many years had elapsed when the complainant came forward in the first place; there is a heavy burden on the gardai to make every effort to expedite their enquiries at that stage, when they are positively aware that a very long period of time has already elapsed since the alleged offences.

It must also be recorded that the period of “inordinate” delay which the learned trial judge found to have taken place appears to have coincided with the period when the partner who cohabited with the applicant in Ailesbury Mews became critically sick, and eventually died on the very day after the applicant swore his affidavit.

In the course of the very large number of very long delayed cases of a sexual nature with which the courts have been concerned, the question of the effect of a missing spouse or spousal figure has already been considered. The context of this consideration, in the case of
JOC v. DPP [2000] 480 was of abuse alleged to have happened over a period of time in the defendant’s house. During the very long delay before the allegations were put to the defendant, his wife of many years standing had unfortunately died. The State contended, as they did in this case, that that circumstance cannot avail a defendant unless he can prove what the deceased spouse would have said, had he or she been available. But that, it seems to me, is a ludicrous and self defeating proposal: where a spouse dies or becomes moribund or disabled before any allegation whatever is made, much less any detail given, it is plainly impossible to demonstrate what he or she would have said. But, in making the contentions summarised above, the prosecution are contending for a test which a defendant must, in every case, fail to satisfy. In the case mentioned above, I said:
          “Where constant visits to [an accused’s] home by a child neighbour forms an essential part of the background, ordinary experience suggests that a housewife working at home will have much to say about the circumstances of the visits, if they happened as alleged. Still more so, where the prosecution cases involves frequent and regular visits to a particular part of the house by the complainant and the [accused] alone… Nor can it be fairly said that her evidence would add nothing to the [accused’s] own… And the wife may very well be able to say more than the [accused]: whether the child called when he was not there; what he or she did in the house; whether visits to the alleged location of the crimes occurred in other contexts; whether she herself would have been absent or otherwise engaged often enough and long enough to allow the husband to behave as alleged so frequently.”


In the present case, the evidence establishes that the premises in which the assaults the subject of the first four charges allegedly took place is one of forty identical houses in an estate or development. The complainant gave certain details of what he claimed to remember of the premises in question. Some of these are structural details such as the number of bedrooms; the applicant claims he has missed out one bedroom altogether. In order, probably, to rebut the possibility that the complainant might have been in one of the forty houses in the estate, but not the applicant’s, the prosecution have also served, in their statements of proposed evidence, the injured parties statements as to the furniture and fittings of the premises. It is clear that the missing witness could have commented on these matters. While it is equally true that the applicant himself can do so if he wishes at the trial it is vitally important if possible to have such evidence given or confirmed by someone who can do so and is not implicated in a very serious charge such as that made against the applicant. Equally, the evidence of the missing witness as to whether it might have been open to the applicant to bring a youth to the house for sexual purposes on a day during the period when they both lived there, is simply irreplaceable.

There are, it appears, certain other “islands of fact” in the case. For example, the complainant describes the (different) motor cars in which he says he was driven to the two locations in relation to which he makes allegations. In the case of the Ailesbury Mews allegation the applicant agrees he had a motor car of the type mentioned (Saab) but says that it was of a different colour. The gardai have discovered that the motor registration office details, which would have extended to the colour of the car, are not now available. In the case of the Milltown Grove allegations, the applicant says that he had a car of the kind described, but not until a date after the time alleged by the complainant. Again, the transfer to him of the vehicle would form part of the motor registration documentation, but this too is unavailable.

The learned trial Judge concluded, at para. 41 of his judgment:
          “The distinguishing feature however is the death of [the missing witness]. The court has already concluded that [the witness’s] death did indeed cause actual prejudice to the applicant in the context of the allegations relating to [the first address]. [The missing witness] unfortunately ultimately died on the 20th November, 2005, and thus it might be legitimately concluded that the prosecutorial delay actually resulted in this substantial prejudice.”
I agree with this summary. In the fairly recent case of S.H. v. DPP the test to be applied in these cases is laid out in the judgment of the court, delivered by Murray C.J.:
          “The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. This test is to be applied in the circumstances of the case.”

I believe that it has been demonstrated that a risk of prejudice arising from the delay applies in relation to the first four charges by reason of the death of the applicant’s then partner. It has not in my view been established that the learned trial judge was in error in finding that this prejudice could be avoided by any step open to a trial judge at the criminal trial.

In the circumstances I am satisfied that the learned trial was correct in finding that the absence, by reason of his death many years after the alleged offences of the applicant’s former partner, causes actual prejudice to the applicant.

Allegation withdrawn.
In the statement of proposed evidence served by the prosecutor’s solicitor, Detective Garda James Duffy, one of the guards involved in the investigation stated, perhaps by way of explanation of Garda delay, that:
          “We took additional statements from [the complainant] pointing out the locations where this alleged abuse took place and statements of corroboration placing [the applicant] at the various locations where these indecent assaults were alleged to have taken place.”

In his affidavit grounding the present application, at para. 42, the applicant says without contradiction that, when he was arrested and questioned at the Garda Station in April 2004, Detective Garda Duffy in applying for his detention to the member-in-charge stated that:
          “During the course of the investigation I had visited the various locations outlined by [the complainant] and obtained statements from people placing the prisoner [i.e. the applicant] at the various locations at the times when these acts of indecent assault are alleged to have taken place.”

During the course of the hearing of this appeal it was admitted that these statements were untrue: no statements linking the applicant to the various premises at the time when the assaults were alleged to have taken place were in fact taken. There is no such evidence.

    It was also established in evidence that the injured party in this case has taken civil proceedings against the defendant. The defendant appears to be the only one of multiple persons alleged to have abused him against whom such proceedings have been taken, on the information available to the court. The applicant is a business man and it is clear from the papers in this case that one, at least, of his enterprises was known to the injured party. This is a matter which, at the discretion of defending counsel, might be deployed at any trial but again I do not think that it is of relevance to the present application.

    I have already held, like the learned trial judge, that the applicant has established a real risk of prejudice in relation to the Ailesbury Mews charges. After very serious consideration, however, I have concluded that he has not established a real risk of prejudice arising from delay in relation to the Milltown Grove charges.

    This, paradoxically, is because of the almost total absence of detail in relation to these allegations. It will be observed from the summary of charges given above that, whereas the first four charges are alleged to have taken place in the relevant premises, the two Milltown Grove charges are alleged merely to have taken place “at or near” those premises. There is, as I have previously held, a very serious obligation on the gardaí, by reason of their unique investigative role, to ensure that very old charges which by their nature create a great difficulty for defendants, are no vaguer in point of time or place or otherwise than they need to be. However no convincing case has been made that there was any obvious omission by the gardai in this regard. The allegation always was one of extreme vagueness. There is no doubt that the defendant will suffer a prejudice on this account but it is, I think, prejudice that is capable of being addressed by an appropriate warning in very strong terms by the learned trial Judge.

    In the case of the Ailesbury Mews premises, there was physical and decorative detail which a person living with the applicant might be expected to be in a position to rebut. There is simply no such detail here. There is an island of fact in the form of the relatively distinctive two seater car which the complainant attributes to the applicant and which the applicant admits that he owned, although not at the time about which the complainant was speaking. It must be made perfectly clear that that is information which would have been on the motor registration documents which are no longer available due to lapse of time. While the Court in the case of S.H. cited above, has taken judicial notice of the fact that complainants in a case of this sort may be inhibited in complaining for long periods of time, the same case has also ended the regime whereby it was assumed or presumed for any purpose that the defendant was responsible for this delay.

    It will be recalled that the investigating garda had, most unfortunately, informed the member-in-charge of the Garda Station, and the applicant himself, that he was in possession of corroborative statements placing the applicant at the premises whether the assaults had allegedly taken place. Although this has turned out to be wrong, the fact remains that the applicant, having been told that there was corroborative evidence placing him at the premises in question (which must include the Milltown premises) nevertheless went on to inform the gardaí, as he has continued to maintain, that he never owned rented or had access to any premises in Milltown Grove.

    Conclusion.
    In the result, the Court will affirm the order of the High Court and will therefore restrain the further prosecution of the applicant in relation to the first four charges (the Ailesbury Mews charges) but will decline to grant relief in relation to the Milltown Grove charges.

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