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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (J.) v. D.P.P. [2007] IEHC 40 (19 January 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H40.html Cite as: [2007] IEHC 40

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Neutral Citation No: [2007] IEHC 40

THE HIGH COURT

[2004 No. 1179 JR]

BETWEEN

J. D.

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EX TEMPORE JUDGMENT of the Honourable Mr. Justice O'Neill delivered on the 19^th day of January, 2007.

This is an application for prohibition of the applicant's trial on six charges of sexual offences alleged to have been committed between 1975 and 1985 or alternatively an injunction restraining the further prosecution of these charges. The ground upon which the relief is sought is that of inordinate delay in the making by the complainant of her complaints and further inordinate delay on the part of the prosecution authorities in the carriage of the prosecution, as a consequence of which it is claimed the applicant's defence has been grossly prejudiced such that he cannot now have a fair trial. The history of the proceedings is as follows:

The complainant made a statement of complaint on the 17^th February, 2003. On the 20^th November, 2003 the file was sent to the Director of Prosecutions.

In February, 2004 queries by Director of Public Prosecutions were dealt with by the Gardaí.

On the 26^th March, 2004 the D.P.P. made a decision to prosecute.

On the 10^th June, 2004 the D.P.P. directed the content of charge.

On the 14^th June, 2004 the applicant was arrested and charged.

On the 7^th September, 2004 he was returned for trial to the Circuit Court.

Since the case of H. v. the Director of Public Prosecutions in which the Supreme Court delivered its judgment on the 31^st July, 2006 there has been a radical change in how cases of this kind are to be approached. It is no longer necessary or appropriate to enquire into the reasons for a delay by a complainant in reporting offences of this kind to the Gardaí because judicial notice can now be taken of these reasons. In the course of delivering his judgment Murray C. J. also said the following at page 29:

"There is no doubt that difficulties arise in defending a case many years after an event. However, the courts may not legislate, the courts may not take a policy decision that after a stated number of years an offence may not be prosecuted. Also as the Legislature has not itself established a statute of limitations that itself may be viewed as a policy of the representatives of the people. Thus each case falls to be considered on its own circumstances."

It necessarily follows from this, that what has hitherto been referred to as presumptive prejudice caused by the passage of time cannot of itself now be a ground for prohibiting a trial in relation to sexual offences. In this regard also the judgment of Denham J. in D.C. V. D.P.P. [2005] 4 IR 281 at 283 is of relevance where she says the following:

"Such an application for prohibition of a trial may only succeed in exceptional circumstances. The constitution and the state through legislation have given to the Director of Public Prosecutions an independent role in determining whether or not a prosecution should be brought on behalf of the people of Ireland. The Director having taken such a decision, the courts are slow to intervene. Under the constitution it is for a jury of 12 peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional rights of all persons in exceptional circumstances, the court will intervene and prohibit a trial. In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial. It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial."

In this case the applicant makes the case that his defence is prejudiced precisely because of inability to recall events so long ago and hence it would be unjust to subject him to a trial at this stage. He also points to particular aspects of the allegations made by the complainant to demonstrate, in the first instance the unreliability of her evidence, and secondly, to illustrate the difficulty the applicant experiences countering these applications. I think it has to be observed at this stage that there is an element of the parsing and analysing of the type condemned by Denham J. in that exercise. The applicant also submits that the spreading of the allegations over periods of six years is unfair to him as it makes it very difficult if not impossible to address his own recollection to a particular time when it is alleged these offences occurred and to assemble any evidence to counter these allegations.

There is no doubt, as was said, by the Chief Justice in the H case that defending allegations of the kind made in these charges is difficult so long after the alleged events. This is in part because the allegations are not pinned down to a precise point in time. As has been observed in many cases, that is an unavoidable feature of child sex abuse cases, simply because the victims of these crimes are unable, because of their tender years and the lapse of time before reporting, to state precisely the times of the alleged offences. If the law required precision as to time in this regard it would not be possible to prosecute these offences.

Thus in my opinion that is a difficulty that accused persons have to endure and save in very exceptional circumstances, is not a ground for prohibition.

Insofar as his own recollection is concerned, the evidence wholly fails to establish any real impairment or disfunction which would disarm the applicant from defending himself in a forensic enquiry. On the contrary the notes of his interviews suggest that he has an intact memory of the periods in question and all the surrounding family detail, which is of course the battleground on which these allegations will be tested.

In a number of respects the applicant is in a better position than many who in recent years have faced trial in respect of offences of this kind. Firstly, insofar as some of the offences are concerned, these are alleged to have taken place in the presence of other persons. Secondly, there are issues of fact which can be decisive in favour of the applicant, namely, did he ever baby-sit for the complainant or her family and did he ever drive the complainant's mother to the shops.

These aspects of the case provide a basis for testing the allegations of the plaintiff which is not diminished by the passage of time. Unusually in this case there is evidence from a sibling which if accepted can be seen as corroborative of the complainants testimony.

Insofar as prosecutorial delay is concerned I am not satisfied that there has been inordinate delay in the carriage of the prosecution. That of course would be sufficient to dispose of that aspect of the case but in addition to that, the applicant has been unable to point to any prejudice or additional prejudice which could be attributed to that prosecutorial delay. As I have come to the conclusion that the applicant has not demonstrated specific prejudice, otherwise in respect of the lapse of time before complaint, there is not an accumulation of prejudice arising from the lapse of time and prosecutorial delay in this case.

I am satisfied that the applicant has not demonstrated at all that there is specific or actual prejudice to his defence or any other exceptional circumstances which would expose him to an unfair trial and in those circumstances I refuse the application.

Approved: O'Neill J.