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Supreme Court of Ireland Decisions
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Judgment Title: B.J. -v- DPP
Composition of Court: Denham J., Geoghegan J., Fennelly J.
Judgment by: Denham J.
Status of Judgment: Approved
- 9 -
THE SUPREME COURT
[S.C. No: 067 of 2004]Denham J.
The Director of Public Prosecutions
Judge Thomas Ballagh
Notice PartyJudgment delivered the 1st day of May 2007 by Denham J.
1. The issues in this appeal relate to the lapse of time prior to the proposed trial of B.J., the applicant/appellant, hereinafter referred to as 'the applicant', who is currently before the District Court on charges of rape, of unlawful carnal knowledge of a girl under fifteen years of age, and of indecent assault, allegedly committed against one complainant, between the 1st January, 1979, and the 3rd June, 1983. The applicant has sought an order prohibiting his trial.
2. This is an appeal by the applicant from the order and judgment of the High Court (Ó Caoimh J.) made on the 19th day of December, 2003, refusing the application to prohibit the trial.
3. The history of this judicial review application commenced with the order of the High Court (Smyth J.) made on the 21st February, 2000, when the applicant was given leave to apply by way of an application for judicial review for an order of prohibition or injunction prohibiting the Director of Public Prosecutions from proceeding in the criminal prosecution pending in the District Court entitled 'The Director of Public Prosecutions v. B.J'. The criminal prosecution was stayed pending the outcome of these proceedings.
4. The grounds for review were:-
(ii) That there has been an unjustifiable delay by the prosecution authorities in the preparation, initiation and prosecution of the proceedings against the applicant which is unfair and unjust to him and has violated his right to a criminal trial in due course of law pursuant to provisions of the aforesaid Article of the Constitution.
5. On the 19th December, 2003, the High Court refused the application. There were three principal issues before the High Court.
(i) A very considerable part of the judgment of the High Court related to the reasons for the delay, and reference was made to case law which has now been superseded. In essence the learned trial judge held that the applicant bore responsibility for the delay because of the nature of the offences.
(ii) The learned High Court judge considered the issue of prosecutorial delay and held:
(iii) The High Court addressed the issue of prejudice, as follows:-
6. The applicant has filed a notice of appeal, with twelve grounds of appeal. The initial grounds relate to the reasons for the delay - which aspect of the law has been clarified by this Court in H. v. Director of Public Prosecutions  IESC 55. The second major ground of appeal relates to prosecutorial delay. And, thirdly, the applicant has claimed prejudice.
7. The basic facts of the case are that the applicant is accused of committing sexual offences against C.M., between the 1st of January, 1979 and the 30th of June, 1983, when she was aged between 12 and 16 years of age. The complainant worked on a part-time basis for the applicant in his shop and the offences are alleged to have taken place after work. The applicant denies the charges.
The complainant made a statement of complaint to the Gardaí on the 12th of September, 1997 and the applicant was arrested and questioned in relation to the complaint on the 29th of September, 1997. On the 16th of October, 1998, the applicant was again arrested and was charged with eleven charges of unlawful carnal knowledge and nineteen charges of indecent assault during the above-mentioned time span. On the 19th of February, the prosecution applied for and was granted permission to amend the charges with regard to the specificity of the place of the alleged offences, the locus having been demolished. A Book of Evidence was served on the 5th day of March, 1999.
These charges were withdrawn on the 19th of November, 1999 and forty-nine fresh sample charges were laid, relating to dates from 1st January, 1979, to the 30th June, 1983. These comprise ten charges of rape contrary to s. 48 of the Offences Against the Person Act, 1861, eight charges of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981, eleven charges of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law Amendment Act, 1935, and twenty charges of indecent assault contrary to common law and s. 6 of the Criminal Law Amendment Act, 1935, during the above-mentioned time span. A new Book of Evidence was served on the 11th of February, 2000. No new statements of evidence were included in this new Book.
8. Written and oral submission were made on behalf of the applicant and the Director of Public Prosecutions.
9. Reasons for the delay
A considerable portion of the judgment of the High court related to the reasons for the delay by the complainant in making the complaint. Evidence of a psychotherapist was considered carefully, as was the evidence given by the Garda Síochána. The applicable law has been developed since the decision of the High Court in this case. However, applying the then law, the High Court accepted the evidence of the psychotherapist and held that there was a reason for the delay.
This aspect of the case is no longer a relevant issue and, correctly, was not pursued in this Court on appeal. Since H. v. Director of Public Prosecutions  IESC 55 it is accepted that having regard to the Court's knowledge and insight into these cases there is no longer a necessity to inquire into the reason for a delay in making a complaint. The issue for the Court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court restated the test as:
Thus no issue arises on this appeal as to the reasons for complainant delay.
Insofar as there was a dispute between the applicant and the Garda as to what was stated to him in 1991, the learned trial judge heard oral evidence and reached a conclusion based on it. He accepted, as more probably true, the Garda version of the events. Given this finding of fact, based on oral evidence, and the jurisprudence of this Court, see Hay v. O'Grady  1 I.R. 210, I would not interfere with the determination of the High Court. Indeed, this aspect of the appeal was not advanced by counsel for the applicant.
11. Prosecutorial delay
While the written submissions addressed the issue of prosecutorial delay, correctly, in my view, it was not pressed on the oral submissions. In general, it was submitted that the delay in preparing a Book of Evidence, despite the fact that all relevant statements were in the hands of the Garda Síochána, is unacceptable given the age of the alleged offences. Further, it was stated that the Director of Public Prosecutions contributed to the delay, which delay was wholly avoidable. In particular, it was submitted that the applicant was not charged until the 16th of October, 1998, some thirteen months after the making of the complaint. It was further submitted that there was a delay of five months in the preparation of the Book of Evidence relating to those charges. In November, 1999, the charges were withdrawn and new charges preferred (twenty-seven months after the statement of complaint). A further delay of three months ensued, after which a new Book of Evidence was served, which did not contain any new statements of evidence. It was these facts upon which the applicant relied.
The law on prosecutorial delay has been restated recently by this Court. In P.M. v. The Director of Public Prosecutions  IESC 22, Kearns J., with whom Murray C.J., Denham J., Hardiman J., and Geoghegan J. concurred, set out the test to be applied to the issue of prosecutorial delay as:
The only significant issue raised on this appeal is that of prejudice. It was submitted that there is real prejudice to the applicant as four witnesses who would be crucial to the defence of the proceedings have died. These are:
(a) Ms. S., who leased the shop, who lived on the premises, who was in and out of the shop regularly. The applicant deposed that she was always present in the shop at the close of business. As the complainant has alleged that she was abused at closing up time the applicant submits he is now deprived of this relevant witness.
(b) D.F., a shopkeeper from the shop opposite to the shop in question, who assisted in mounting the security grills most evenings, and who called regularly to see Ms. S.. It was not put to the applicant that this was not so in cross-examination.
(c) The complainant's father who called regularly to the shop and who remained friendly with the applicant until his death.
(d) The applicant's father-in-law who lived with the applicant and his wife and who cared for their children. It was submitted that he could have refuted the complainant's allegation that she babysat regularly for the applicant's children.
I would dismiss this ground of appeal also. Of the four alleged witnesses only two have any significance: Ms. S. and D.F. However, there has been no engagement with the facts by the applicant. As was pointed out by Hardiman J. in McFarlane v. Director of Public Prosecutions  I.E.S.C. 11 at p 11:-
The facts have not established any case as to the locus. There was no real engagement with the layout of premises, no dispute as to the description of the shops or the locations.
A person engaging in illicit sex with a young person will do it in private. Thus at the core of such cases are issues as to the credibility of a complainant and an accused. The Court is alert to the difficulties of old cases, where prosecutions occur after many years. However, the issues relating to those dangers are best met by the rulings and directions of a trial judge, who has the opportunity to see and hear the evidence, and who will guard against an unfair trial.
Nothing raised by the applicant has shown any error by the learned High Court judge in this case, in his refusal to prohibit the trial. The case advanced on behalf of the applicant did not meet the burden of proof necessary to prohibit his trial. Issues touched upon in this application remain matters which may be raised at this trial.
For the reasons given, in all the circumstances of this case, I would dismiss the appeal and affirm the order of the High Court refusing the application.