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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (D.) v. D.P.P. [2005] IEHC 166 (3 June 2005) URL: https://www.bailii.org/ie/cases/IEHC/2005/H166.html Cite as: [2005] IEHC 166 |
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no. [2005] IEHC 166
THE HIGHCOURT
![]()
JUDICIAL REVIEW
2002 No. 184 J.R.
BETWEEN/
D.D.
APPLICANT
AND
THEDIRECTOR
OF PUBLIC PROSECUTIONS
RESPONDENT
Judgment of Mr. Justice Murphydated
the 3rd
day
of June, 2005.
1. Pleadings
The applicant seeks an order of prohibition by way
of application
for
judicial review prohibiting the respondent
Director
herein
from
allowing the
further
prosecution of the applicant on Bill No. 1172/99 and an injunction restraining the respondent
from
taking any
further
steps in relation to that bill.
The notice of motion dated
26th April, 2002
was
grounded on the affidavit of the applicant's solicitor, Garrett Sheehan, sworn 12th April, 2002 and a
further
affidavit sworn by the same
deponent
on 11th
December,
2002.
Leave was
granted by McKechnie J. on 15th April, 2002. Three affidavits on behalf of the respondent
were
sworn in November/
December,
2003. Submissions
were
filed
in October, 2004.
2. Grounding affidavit of 12th April, 2002
Mr. S. referred to the 34 counts
of assault made against the applicant in respect of 10
complainants
from
dates
unknown between 1st September, 1970 and 1st March, 1994, all in the
county
of Galway. The earliest incident referred to two
counts
of assault occasioning actual bodily harm on
dates
unknown between 1st September, 1970 and 30th September, 1977, a period of seven years, the longest span. The shortest span referred to
dates
unknown between March and July, 1975 in respect of two
counts
of indecent assault and one of assault occasioning actual bodily harm. The most recent incidents, made by the tenth
complainant,
were
in respect of one
count
of assault between 1989 and 1994; three
counts
of indecent assault between 1st January, 1990 and 17th January, 1991 and eleven
counts
of sexual assault between 18th January, 1991 and 1st March, 1994.
All counts
referred to assaults
within
the
county
of Galway. All but one of the
complainants
were
boys born between 1962 and 1968,
who
lived in an industrial school. The other
complainant
in respect of the most recent matters
was
born in 1979.
The deponent
referred to the indictment being laid in such broad and unspecified terms
with
such
wide
geographic areas and time periods.
The first
statement of
complaint
was
made to Gardaí on 25th November, 1994 in relation to the shortest period (March – July, 1975). The
complaint
in respect to the earliest period and
widest
span (1970 – 1977)
was
made on 7th June, 1995 (18 to 25 years later). The
complaint
relating to the most recent incidents (1989 – 1994)
was
made on 21st May, 1996 between two and seven years later.
The applicant was,
at the
date
of the swearing of the affidavit, 72 years of age and is and
was
at all material times a member of an order of brothers, and
from
1973
was
the
Director
of the industrial school. He
first
became aware that serious allegations
were
made against him around September, 1994. He received a
direction
from
his superior that he should not visit the industrial school
while
the investigation
was
continuing.
The
deponent
wrote
to the
Western
Health Board on his behalf in March, 1995, protesting his innocence and indicating that he
would
make himself available
for
interview.
The applicant was
invited to attend Athlone Garda Station
for
questioning
which
he
did,
by arrangement, on 16th May, 1995, in relation to allegations made by three of the ten
complainants.
He
consistently
denied
sexually abusing any boy in his
care.
He attended that garda station on 29th June, 1995 and on 8th September, 1995, in relation to one of the three
complainants
referred to and a
further
three
complainants.
On 8th October, 1996, the applicant was
arrested and
denied
the allegations put to him.
A file
was
sent to the respondent
Director
on either 29th November, 1995 or on 20th January, 1997. The respondent's
directions
to proceed
were
received by the Gardaí on 6th June, 1997. In July, 1997 the applicant
was
requested to attend at S. Garda Station
where
he
was
arrested,
charged
with
32
counts
of assault and brought before the
District
Court
in Galway. The matter
was
remanded until 1st October, 1997 to allow
for
the preparation of the book of evidence. On 31st October, 1997 the applicant
was
served
with
a list of
witnesses
and a booklet of statements in evidence.
The first
statement of
complaint
made to the Gardaí
was
on 25th November, 1995, by the
first
named
complainant,
subsequent statements being made by eight other
complainants
between 1st January, 1995 and 21st May, 1996.
Disclosure
in respect of 144 statements, memos of interviews and lists of previous
convictions
of the
complainants
were
furnished
on 26th November, 1997. A
further
book of evidence
was
served on the applicant in
February,
1999, in respect of a
further
complaint
made by a tenth
complainant
on 1st July, 1997.
On 7th July, 1999 the applicant was
sent
forward
for
trial. On 5th October, 1999 a successful application
was
made on behalf of the applicant to have the matter transferred
for
trial in
Dublin
on the grounds of adverse pre-trial publicity. The 8th May, 2000
was
then
fixed
for
the trial of the applicant. An adjournment
was
made on
consent
and
continued
to be adjourned
from
time to time in order to allow the
defence
to
consider
certain
documents
and to allow the prosecution to
comply
with
its
disclosure
requirements. In
December,
2000, six volumes of material
were
furnished
to the
defence.
On 30th January, 2002 the applicant
was
furnished
with
four
large volumes of material
comprising
disclosure
of the
Western
Health Board.
Further
material
was
served on 19th March, 2002.
Mr. S. averred that the delay
of the institution of proceedings had prejudiced the preparation of the applicant's
defence
in that his recollection of the events is no longer
clear.
Had the
complaints
been made earlier, he might have been able to
collate
or
call
evidence to refute them. Several potential
witnesses
were
now
deceased.
He said and believed that the testimony of the night
watchman,
R.
D.,
would
have been
crucial
to the rebuttal of the allegations and
would
have been able to testify as to
who
entered the
dormitories
at night. The night
watchman's
books
were
burnt or lost in the
changeover
from
S.J. to the Health Board premises in 1995.
The testimony of the tailor attached to S.J., who
died
in the early 1980s,
would
have been
central
to the
defence
of the allegation of two of the
complainants
of
fondling
when
in the tailor's shop.
One of the kitchen workers,
who
died
in the late 1970s,
could
have given evidence regarding an allegation of injury inflicted by the applicant on another of the
complainants
which
necessitated him being
fed
liquidised
food.
Several parts of the old building had been demolished
and new houses built on the site, in respect of
which
several places had been indicated as being locations
where
alleged abuse had taken place.
The applicant had a heart by-pass in 1994 and high blood pressure. Stomach problems were
due
to be investigated in April, 2002.
Widespread
media
coverage
of abuses including "The Boys of St. Vincent's" television programme, resulted in several
complainants
coming
forward,
resulting in the tarnishing of the reputation of the order of brothers to
which
the applicant belonged. The
first
newspaper reports of the alleged abuse at S.J.
were
made in
December,
1994.
Forty-eight
articles appeared in newspapers
from
that
date
up to July, 1997, all but a
few
of
which
mentioned S.J. and only
five
of
which
mentioned that the allegations
were
denied.
On 29th March, 1996, the first
complainant
appeared as a guest on the "Late Late Show" and,
during
a 30-minute interview, gave an account of the alleged abuse. At no stage
was
it indicated that the accounts
were
allegations or that the allegations
were
denied.
It appeared from
the interview that the
complainant
was
in receipt of
counselling.
It had not been possible
from
the
disclosure
to ascertain how many other
complainants
were
similarly in receipt of
counselling.
From
disclosure
furnished
in
December,
2000 and January, 2002, it appeared that a Mr. G.
F.
controlled
or
directed
the investigation into S.J. in S. on behalf of the Health Board and, the
deponent
averred, took an active and unusually suggestive role in eliciting material
from
persons
who
were
allegedly injured parties or
witnesses.
Statements
were
taken by the Gardaí after such persons had been interviewed by Mr. G.
F.
and his team. The
deponent
raised
concerns
regarding the methods employed by the
Western
Health Board though
written
evidence thereof is not apparent.
The deponent
then analysed the
disclosure
furnished
in
December,
2000,
which
showed that Mr.
F.
had
worked
as a
child-care
worker
in S.J. in S.
from
mid-1975 until mid-1981. In 1982 he
was
invited back and accused of making adverse
comments
about S.J. and told that he
was
not
welcome.
No statement
from
Mr.
F.
was
included in the book of evidence.
It was
also
disclosed
that a Mr. P.G.
was
also involved in the investigation. A Mr. M. of the
Western
Health Board had attended the garda station on 3rd November, 1993, and indicated that there had been allegations of paedophilia at S.J. Mr. M. sought a meeting
with
the Gardaí to
develop
a strategy that
would
allow both their services to go
forward
into inquiring and investigating the allegations of impropriety.
A letter of February,
1995 by Superintendent S. to Mr. J.S., referred to Mr.
F.:
"For
some reason best known to himself, now vehemently
denies
that he said to me in my office on November 3rd, 1994, that 'buggery on a large scale' had taken place in S.J. School, S. … It
was
agreed that Mr.
F.
and Mr. G.
would
![]()
continue
their search
for
![]()
witnesses
![]()
from
the 41 names supplied by your office to me and if any of these people
were
prepared to make statements they should be referred to (the Gardaí)".
Further
correspondence
ensued.
Some of the documentation
disclosed
related to a Mr. T.S.
who
was
referred to the
Western
Health Board and met Mr.
F.
and Mr. G. and led to
what
the
deponent
termed "an embarrassing and
distressing
mix-up regarding the taking of a statement
which
was
the subject matter of a letter to Superintendent S. of 19th October, 1995".
Subsequent correspondent
regarding other staff members
who
were
still
working
with
children
at S.J.
was
referred to.
A letter from
E.M., Psychologist, a
Family
Guidance
Centre,
of 9th November, 1999, expressed
concern
at the methods used by
certain
health board staff "in trawling information indiscriminately and apparently
without
proper guidelines … the livelihood, status and reputation [of those implicated] had been placed in jeopardy by the relentless pursuit of information by some individuals
who
undertook their task
with
myopic vision".
Further
disclosure
furnished
on 30th January, 2002, gave rise to real and substantial
concerns
with
regard to the role of Mr.
F.
and the health board keeping an eye on
what
had been happening to a lot of religious around the
country
which
was
not something that "
we
could
not stand and sit on".
Mr. F.
first
became aware of a
complaint
by the
first
named
complainant
on 2nd November, 1994, and met the
complainant
and repeated to him threats he had made to the then
Director
of S.J., that he
would
go to the Sunday
World
with
his story. He met the
first
complainant
in London, telling him that there
was
another ex-resident of S.J.
who
was
also making similar allegations.
Mr. S. referred to a note dated
21st September, 1995 in relation to a meeting held
with
Mr. J.M., at
which
meeting the
deponent
said
was
attended by Mr.
F.
and Mr. G. That note stated, inter alia, as
follows:
"Our positionwas
that in relation to Bro.
D.,
etc., if the
D.P.P.
![]()
did
not prosecute and it
did
not go to
court,
he (Jim said)
would
not have any alternative but to accept these people back
working.
We
had
words
about this and said that under the
circumstances
![]()
we
knew that
D.
(the applicant herein)
was
guilty.
Our position asworkers
![]()
within
the Health Board
was
to protect the rights of
children
and there
was
no
way
![]()
we
![]()
could
justify standing behind Bro.
D.
being taken back and being accepted as part of the
workforce
here."
The record of 16th November, 1995 relates to another named complainant
who
had no problems in admitting to having been physically abused by the applicant but
could
not admit to the sexual abuse
due
to the hurt and trauma of it all. In a transcript of an interview
with
the
first
named
complainant
it
was
stated, inter alia, by Mr.
F.,
that "I am trying to trigger your memory, in the sense that
when
you
come
to talk to the guards next
week,
they
will
want
… If I
can
give you a mental picture, my mind is a bit more, as an adult at the time, a much more of an adult viewer". This
would
appear to have been
followed
by some leading questions.
It appeared that Mr. F.
was
accompanied by a garda to London to take the statement and that the
first
named
complainant
said that he
was
feeling
under a lot of pressure.
A report dated
6th
December,
1994, included in the 2002
disclosure,
showed some tension between the Gardaí and the social
workers
in relation, inter alia, to interviewing others in England.
The affidavit continued
in relation to the interviewing of the other
complainants
and the role of Mr.
F.
in relation thereto. There
were
references to minutes of a meeting of 20th April, 1995, indicating that Superintendent S.
was
not happy
with
the
way
statements
were
being taken and that it might be
construed
that they
were
coached.
A memorandum sent to the programme manager (of the health board) by Mr. F.
and Mr. G. on 22nd November, 1995, refers to their
withdrawing
from
the inquiry and their being extremely busy
working
with
ex-residents
wishing
to make statements,
which
had increased
from
twelve to twenty-three, emphasising strong evidence of a
culture
of abuse, both physical and sexual. The memorandum referred to some of the [ex-residents]
forging
strong links
with
investigative journalists and solicitors.
The report criticised
several
features
of the inquiry and referred to their having been
withdrawn
prematurely
from
the inquiry.
3. Supplemental affidavit of 11thDecember,
2002
The lengthy grounding affidavit (of 114 paragraphs) was
followed
eight months later by a
further
affidavit of 33 paragraphs
which
went
into more
detail
in relation to the interviews
with
and statements of
complainants
referring, in one instance, to a
fiasco
of a statement and to the need to
discuss
strategy
with
the investigating Gardaí.
References were
made to other investigations, and in particular, to one
which
had been
closed
where
"no abuse had been
found
– it
was
obviously
whitewashed
…"
A meeting on 29th June, 1995 with
a Mr. P.R.
was
also referred to
where
the latter is reported to have said that he had never been abused
while
in S.J. He had never given any indication that there
was
abuse taking place and he
would
be surprised and
wondered
how
fellows
could
come
up
with
this after so many years.
Further
instances of
difficult
meetings of 28th July, 1995
were
referred to. By letter of 7th September, 1995 Mr.
F.
and Mr. G.
were
informed that Mr. M. (presumably of the Health Board)
was
terminating their
commitment
to the inquiry
from
11th October.
The minutes of a board meeting held between the Health Board and the Gardaí on 4th April, 1996 referred to persistent publicity and the extent to which
the press
were
being
fed
fairly
confidential
information.
The supplemental affidavit of G.S. referred to the respondent counsel's
objection that the application
for
leave by
way
of judicial review
was
out of time. He said he
was
completely
taken by surprise,
considered
it prudent to
defer
making a hasty application given that the respondent
continued
to
disclose
an enormous
flow
of information
contained
therein.
He said that it was
manifest not only that there had been a
delay
on the part of the
complainants
but that there had also been a
curious
relationship between the
Western
Health Board and the Gardaí. No
complainant
was
interviewed by Gardaí until after extensive meetings
with
Western
Health Board personnel.
Moreover, the extensive submissions on behalf of the respondent did
not raise issues of
delay
or
want
of promptness.
4. Statement of Opposition
The respondent denied
that there had been any
delay
in the institution of
criminal
proceedings such as to violate the applicant's right to a trial
with
reasonable expedition or
due
process of law. There
was
no obligation on the respondent to excuse or justify any lapse of time prior to a
complaint
being made to the Gardaí. Insofar as there
was
a
delay,
that
was
excusable and justifiable in the
circumstances
of the
case.
The applicant had failed
to adduce any substantive evidence of prejudice resulting
from
the alleged
delay.
It
was
denied
that the power of investigation of allegations of
criminal
offences entrusted to the Gardaí
was
usurped by the
Western
Health Board. The
criminal
investigation
was
properly
conducted
by the Gardaí.
The respondent was
a stranger to the allegations made against the
Western
Health Board and is not answerable at law
for
the actions of that board. The
decision
to prosecute the applicant may not be impugned in these proceedings, absent any mala
fides
or improper policy.
The Gardaí did
not
co-ordinate
media relations as alleged.
Any issues which
the applicant seeks to raise as to the veracity or otherwise of the
complainants'
statements are matters
for
the trial of the offences and not matters
which
should be
determined
in the judicial review.
5. Affidavit on behalf of the respondent
Sergeant D.C.
said that the respondent had already indicated to the solicitors
for
the applicant that he
was
not proceeding
with
charges
arising out of
complaints
made against the applicant by three of the
complainants.
The respondent was
not obliged to "justify" or "explain" any lapse of time between the occurrence of the matters the subject matter of the
charges
faced
by the applicant and the time
when
a
complaint
or
complaints
were
made to a member of the Gardaí.
In relation to the alleged prejudice to the applicant, the applicant had not sworn to such prejudice. He could
not, accordingly, have been
cross-examined.
Objection
would
be taken to hearsay, hypothesis and supposition
contained
in the affidavit of Mr. S. No attempt
was
made by the
deponent
to explain
why
the
demolition
of part of the buildings
was
relevant.
In relation to the death
of the tailor, the night
watchman
and the
cook,
no effort appears to have been made to establish if any other brothers or pupils
could
give evidence. Instances of
child
sexual abuse, of their very nature, occur in private.
Any suggestion that the applicant has little recollection is hearsay and should not be relied on. No medical evidence was
furnished
in relation to the applicant's present medical
condition.
The respondent did
not accept that publicity in the media in relation to the role of the applicant's order had any prejudicial effect on the applicant's
case.
In particular, nothing in
what
is alleged to have been said by the
first
named
complainant
on the Late Late Show on 29th March, 1996, identified or
was
likely to identify the applicant.
In relation to the garda investigation on the role of the Western
Health Board
which
is extracted
from
the
disclosure
in the
criminal
proceedings,
which
disclosure
was
furnished
in
December,
2000 and in January, 2002 and, to a great extent is
founded
on hearsay, the respondent
does
not accept that the
complaints
made had been borne out by the material referred to in the affidavit. In any event it is a matter
for
the
criminal
trial. It is improper
for
this
court
to be asked to effectively try the
criminal
charges
by testing the extent to
which
the
complainants'
statements may hold up in
cross-examination
or otherwise. The
complaint
in regard to the
conduct
of Mr.
F.
could
be properly,
fully
and adequately
dealt
with
by
way
of
cross-examination
of the various
witnesses
at the trial. All of these matters
were
disclosed
in the
context
of pre-trial
disclosure
in the
criminal
proceedings. This
court
should not usurp the role of the
criminal
trial judge by
determining
the
credibility
and veracity of proposed trial
witnesses
before the trial takes place.
Sergeant C.
was
responsible
for
supervising the investigation and
was
personally aware of all of the
developments
in the investigation. That investigation
continued
up to November, 1995
when
a
file
consisting
of twelve
complaints
of sexual and physical assault
were
together
forwarded
to the offices of the
D.P.P.
This took some time given the
difficulties
in locating and interviewing a number of staff and
Christian
Brothers at S.J.
Further
complaints
were
made to the Gardaí arising out of the ongoing investigation on 18th March, 1998 and on 17th
December,
2000. In respect of the latter
complaint,
the
D.P.P.
directed
that there should be no prosecution.
The respondent did
not accept that Mr.
F.
and Mr. G.
controlled
or
directed
the investigation
which
resulted in the
file
being
forwarded
to the respondent. The investigation
was
at all times
conducted
and
controlled
by the Gardaí
who
liaised
with
the health board as appropriate, to assist in their investigations. The statements,
which
form
the basis of the
complaints
leading to the
charges
in this matter,
were
obtained by Gardaí
following
the appropriate procedures
for
such statements.
Sergeant C.
dealt
specifically
with
a number of the points raised in the affidavits of Mr. S. There
was
no pressure put on specific
witnesses.
It
was
not accepted that the early period of the investigation had been
fraught
with
misunderstanding or that the relationship between the Gardaí and the health board
was
unclear. The Gardaí had the sole and exclusive role of pursuing the
criminal
investigation.
With
the exception of the
first
named
complainant,
whose
statement
was
made to an English policeman, all statements
from
the
complainants
in question
were
made to the Gardaí.
The affidavit of Sergeant C.
was
verified by Garda M.M. and
Detective
Garda P.H. on 5th
December,
2003.
6. Submissions on behalf of the applicant
Mr. Gageby, S.C.,
made extensive submissions in relation to the application to prohibit the prosecution of the applicant by outlining the
facts
already
deposed
to in the applicant's solicitor's affidavits and referring, in particular, to the
Western
Health Board inquiry and the role of Mr. G.
F.
Counsel
also referred to the adverse media
coverage
from
3rd
December,
1994, to the publication of the programme entitled "The Boys of St. Vincent's". He said that none of the media reports mentioned either a preliminary or a parallel investigation being
carried
out by the
Western
Health Board.
Counsel
also instanced
delays
in the proceedings
from
25th November, 1994, the
date
of the
first
complaint,
to the service of the book of evidence on 31st October, 1997.
Supplemental material was
furnished
to the
defence
consisting
of 108 statements of evidence after that
date.
In February,
1999 a book of evidence in relation to a
further
complaint
was
made and the applicant
was
sent
forward
for
trial to the
Circuit
Court
in Galway on 7th July, 1999.
There was
a successful application
for
the transfer of the trial to
Dublin
and adjournments
followed.
On 8th May, 2000, the
case
was
listed
for
trial and adjourned on
consent.
Further
documentation
was
furnished
on 6th June, 2000, in
December,
2000, and on 30th January, 2002. The
case
was
listed
for
trial in the
Dublin
Circuit
Court
on 8th April, 2002 and adjourned.
Mr. Gageby S.C.
referred to the
following
in relation to the general principles:
Article 38.1 – trial indue
![]()
course
of law;
State (Healy) v.Donohue
[1976] I.R. 325;
Barker v.Wingo
[1972] 407 U.S. 514;
D.
v.
D.P.P.
[1994] 2 I.R. 465;
Z. v.D.P.P.
[1994] 2 I.R. 476; and
J.L. v.D.P.P.
[2000] 3 I.R. 122 in relation to the right to
fair
trial being superior to the
community's
right to prosecute.
P.O'C.
[2000] 3 I.R. 87;
P.M. v.D.P.P.
[2000] 2 I.R. 560.
In relation to the special category
of
cases
applicable Mr. Gageby referred to the
following:
Hogan v. President of theCircuit
![]()
Court
[1994] 2 I.R. 513 at 521;
G. v.D.P.P.
[1994] 1 I.R. 374;
B. v.D.P.P.
[1997] 3 I.R. 140;
P.C.
v.
D.P.P.
[1999] 2 IR 25 at 68;
N.C.
v.
D.P.P.
Unreported, Supreme
Court,
5th July, 2001, and
D.
v.
D.P.P.
Unreported, Supreme
Court,
19th May, 2004.
He submitted that the applicable test was
that
contained
in P.
C.
v.
D.P.P.
[1999] 2 IR 25 per Keane J., at pp. 68 – 69.
It was
the
duty
of the respondent to explain that
delay.
If the
delay
was
not attributable to the applicant then there
was
prejudice to the applicant. There
was
a real and serious risk of an unfair trial. The
D.P.P.'s
arguments
were
rejected by the Supreme
Court
in P. O'
C.
v.
D.P.P.
and in J.L. v.
D.P.P.
Where
there is inordinate
delay
in making a
complaint
it is inexcusable
delay
unless there is uncontradicted evidence of a psychologist justifying the
complainant's
delay.
For
the purpose of judicial review the
complaints
are presumed to be true but if there is an issue of
fault
present it should be tested. In the present
case
there
was
no psychological evidence and no reasons given
for
the
delay.
In this
case
the
culpable
delay
of the
complainants
was
not explained. The applicant's
constitutional
rights have been affected. In addition to the
complainants'
delay
there had been prosecutorial
delay.
The preponderance of the
complaints
ended in 1995. The
direction
to prosecute
was
in June, 1997 and the accused
was
sent
forward
for
trial on 7th July, 1999. This
was
four
years since the last
complaint
and two years after the
direction
to prosecute.
Since leave was
granted two and half years had passed
which
was
nine years after the last
complaint.
Accordingly, there
was
presumptive prejudice. So, in addition to the application in limine, the substantive ground of
delay
both of the
complainants
and of the prosecution are relevant. The
court
was
not being told
why
there
was
this
delay.
Submissions were
made relating to
delay,
the onus of proof in relation thereto, to the
duty
to investigate and to prosecutorial
delay.
A number of authorities
were
offered in relation to psychological evidence. Submissions
were
made in relation to the issue of prejudice, miscarriages of justice and
dangers
involved in
cases
of
delay.
Reference was
also made to authorities in relation to the general approach to missing
witnesses
and the effect of
delay
on the memory of potential
defence
witnesses
and on the applicant.
Mr. Feichín
McDonagh, S.
C.,
on behalf of the
Director,
addressed the issue of
delay
raised by the applicant in this judicial review application.
He submitted that when
leave
was
granted on 15th April, 2002, no extension of time had been granted and there
was
no express ground of prosecutorial
delay.
The case
being made by the applicant
was
that the prosecution
was
tainted by the interference of the
Western
Health Board. That ground had only arisen after
disclosure
by the respondent in 2000 and 2002.
The matters now relied on were
known in July, 1999, at the
date
of return
for
trial. Judicial review should have been sought at that stage.
Trial dates
came
and
went.
The book of evidence had been served on 31st October, 1997.
Given the complexity
and interrelationship of the
complaints
made,
further
disclosure
had been given and
considered.
The
date
for
the trial
was
fixed
for
8th May, 2000, at
which
time the applicant
could
have applied
for
judicial review.
Mr. McDonagh referred to De
Roiste v. Ireland [2001] 1 I.R. 208, per
Denham
J.,
who
outlined the
factors
to be taken into account
for
the extension of time. Good reasons must be
furnished.
Fennelly
J., at 216, referred to O'
Donnell
[1991] I.L.R.M.
which
held that good reasons to explain and justify
delay
in relation to O. 84, r. 21,
was
an objective test.
Counsel
submitted that there
was
no justification in not pursuing judicial review between 7th July, 1999 and 15th April, 2002. He referred to Redmond v.
D.P.P.
(per Kearns J.)
where
the application
for
judicial review
failed
on this point.
The arguments in relation to adverse publicity were
not part of the judicial review proceedings and should not be taken into account by the
court.
The prejudice alleged was
weak.
The
demolition
of parts of the building
was
not shown to be relevant. It
was
not significant as the locks on the music room had been in P. O'
C.
v.
D.P.P.
The housekeeper who
worked
in the kitchen
died
in the late 1970s and
was,
accordingly, not relevant. There
were
no
dates
in relation to the incidents
which
might have been seen by the night
watchman,
who
died
in 1996. There
were
too many suppositions in relation to
what
evidence might have been given by parties now
deceased.
The pre-trial delay
was
justified. No matter how valid the
claims
were
relating to the
Western
Health Board it
did
not explain the
delay
in taking judicial review.
Mr. S., in his affidavit, had thought it prudent to wait
for
documents.
That, however,
does
not explain the
delay
from
1999 to 2002.
The respondent is not required to offer any explanation for
complainants'
delay.
The Supreme
Court
has never stopped a trial because of unexplained
complainant
delay.
It has stopped a trial because of prejudice. The only test is the ability to get a
fair
trial (see Z. v.
D.P.P.)
–
where
there is a real risk of the absence of a
fair
trial a
court
should grant prohibition.
He referred to The State (O'Connell)
v.
Fawcett
[1986] I.R. 362.
Sergeant C.'s
averments as to the
complexity
of evidence and the
decision
not to have piecemeal prosecution explained the
delays.
There
was
a need
for
time to track
witnesses
and to obtain statements.
Significantly, Sergeant C.,
and the other Gardaí,
were
not
cross-examined.
Significantly too was
the
fact
that there
were
no allegations of periods of inactivity. Ground E(
f)
was
not being pursued.
What
was
being
claimed
was
that the investigation
was
flawed
and tainted. This
was
too vague and not related to the
claim
that there
was
undue
delay.
In any event, delay
on its own is not sufficient to stop a trial
continuing.
Mr. McDonagh, S.C.,
referred to the role of the
Director
of Public Prosecutions. In M.K. v Judge Groarke and the
D.P.P.
(Unreported, Supreme
Court,
25th June, 2002) at p. 11 of the unreported judgment
Denham
J., on behalf of the
court
stated:
"Thedecision
to prosecute may be a
complex
![]()
decision
involving the balancing of many
factors
… the office of the
Director
of Public Prosecutions seeks to provide on behalf of the people of Ireland a prosecution service
which
is independent,
fair
and effective. It is not
for
this or any
court
to assume the burden of that office."
It formed
no part of the
court's
function
to
formulate
a policy regarding the propriety of a trial proceeding after
five,
ten,
fifteen
or twenty years.
Only in exceptional circumstances
should the
courts
intervene to prohibit a trial, only
where
the risk of an unfair trial is a real risk should the trial be stopped. The onus is on the applicant to establish such real risk of an unfair trial
which
necessarily and inevitably means that an unfair trial
which
cannot
be avoided by appropriate rulings and
directions
on the part of the trial judge.
The applicant must be able to show that the lapse of time was
such as to raise an inference that the risk of an unfair trial had been established as a reality (see
D.P.P.
v. Byrne [1994] 2 I.R. 236, 244-245 per
Finlay
J. (
Dis);
D.O'R.
v.
D.P.P.
[1997] 2 IR 273, 283 per Kelly J. and P.M. v. Malone, Supreme
Court,
7th June, 2002, Keane
C.J.,
23-24.
In relation to the alleged prejudice caused
by the
deaths
referred to, Murphy J. in S.
F.
v.
D.P.P.
[1999] 3 I.R. 235 at 244 held:
"It must be rare that thiswould
happen. Even the
death
of a
crucial
![]()
witness
or
witnesses
![]()
could
hardly
constitute
such terms unless the
death
occurred
within
a period of
delay
![]()
for
![]()
which
the State or its agents
were
responsible."
In relation to pre-complaint
delay,
the U.S. Supreme
Court
identified at least
four
factors
to be taken into account: the length of the
delay,
the reasons
for
the
delay,
the accused's assertion of his rights and prejudice (Barker v.
Wingo
[1972] 407 U.S. 514 at 521-2.
Mr. McDonagh referred to the development
of
cases
in the Supreme
Court
and referred, in particular, to Hogan v. President of the
Circuit
Court
where
Finlay
C.J.
held:
"In anycase
![]()
where
the prosecuting authorities on the information available to them have not got proper grounds
for
![]()
charging
any person
with
an offence, their
failure
to
do
so and a lapse of time before they are in a position to
do
so
cannot
give an accused a right to prohibit a trial on the basis of the
defeat
of his
constitutional
rights to an expeditious trial.
For
example,
cases
![]()
consisting
of
charges
by young
children
in regard to the assaults on them at an early age
which
are not brought to the attention of the authorities by such
children
until very many years after they occurred involve
wholly
![]()
different
![]()
considerations
to those applicable to the present
case."
[1994] 2 I.R. 513, 521.
Mr. McDonagh further
submitted that there
was
no obligation on the
D.P.P.
to justify pre-
complaint
delay.
He referred to
W.
v.
D.P.P.
[1997] 3 I.R.140
where
the Supreme
Court
referred to the
custom
of the
D.P.P.
proffering evidence of a
clinical
psychologist and questioned
whether
certain
aspects of
cross-examination,
particularly those relating to the technical meaning of particular
words,
were
really necessary or of much assistance to the
court.
It
was
for
the
court
to
form
its own opinion on the influence of the
factors
set out by expert
witnesses
within
the parameters of the other evidence in the particular
case.
Mr. McDonagh addressed the court
on the alleged prosecutorial
delay
which
he said
was
not blameworthy and, in any event,
did
not prejudice the applicant.
In relation to prejudicial publicity the authorities (D.
v.
D.P.P.
and Z. v.
D.P.P.)
established that an applicant is required to establish the existence of a real or serious risk of an unfair trial and, that in the
circumstances
there
was
no such evidence in relation to the adverse publicity adversely affecting the applicant himself.
In reply, Mr. Gageby, S.C.,
submitted that there should be some evidence, even
from
the
complainants
themselves, as to the
delays.
All had been at the same institution and their
complaints
involved the same
defendant.
They gave no reasons
for
the
delay.
The
court
was
not entitled to make any assumption. The law leans against
delay
and a
delay
from
the late 1970s to late 1994
carried
with
it an assumption of prejudice
which
was
all the stronger
where
no reason had been given. The absence of evidence of "islands of
fact"
further
prejudices the applicant.
Mr. Gageby argued on the totality of the case,
the age of the applicant, lack of
corroboration
evidence, adverse publicity and prosecutorial
delay,
all
causing
specific prejudice to the applicant.
9.Decision
of the
Court
There have been delays
in instituting the judicial review proceedings in this
case
involving interrelated
complaints.
The right to a fair
trial requires a right to thorough investigation. That
decision
is a
complex
decision.
In the instant
case
of a number of
complaints
the Gardaí must necessarily investigate each thoroughly. It is
common
case
that initial
complaints
were
followed
by subsequent
complaints.
It is significant that not all
complaints
were
the subject of
charges
by the Gardaí. Sergeant
D.C.'s
evidence, supported by Garda M.M. and
Detective
Garda P.H., to the effect that the investigation
was
conducted
independently by the Gardaí has not been rebutted by the applicant. Sergeant
C.
was
not
cross-examined.
Indeed, the applicant's case
is largely
devoted
to the role of the
Western
Health Board, and in particular two of its employees, in relation to the prosecution. This
court
is not in a position to adjudicate on the merits or otherwise of that allegation. The investigation of this allegation is more properly a matter
for
the trial judge and
for
the jury in the prosecution.
The court
is not persuaded that the powers of investigation entrusted to the Gardaí
were
usurped by the
Western
Health Board. It is significant that the Gardaí
declined
to prosecute in respect of some of the
complaints.
The court
is of the view that the applicant has not, on the balance of probabilities, established a
case
for
prejudice in relation to the
death
of potential
witnesses.
There is no evidence that these
were
the only parties
who
could
have given evidence. Indeed the
court
is mindful of instances such as those alleged against the applicant being
done
in private.
The adverse publicity would
appear to be adverse to the institution and the order but
does
not name the applicant. It seems to me, at this remove, that the "
fade
factor"
is sufficient to avoid any prejudice arising in relation thereto. In any event it
was
not a ground in respect of
which
leave
was
given.
There has been considerable
delay
in respect of some of the
complaints.
I have
considered
the authorities referred to by
counsel
and, in particular, P.
C.
v.
D.P.P.
and Another [1999] 2 IR 25; P.O'
C
v.
D.P.P.
and Another [2000] 3 I.R. 87, J.H. v.
DPP,
(Unreported, Murphy J., 2nd April 2004) and, more recently the judgments of the Supreme
Court
in P.L. v. Her Honour Judge Buttimer and
D.P.P.
delivered
20th
December,
2004.
The court
is
concerned
at the
delay
in making
complaint
in respect of the earlier alleged incidents. The
first
complainant
was
the source of two
counts
of alleged assault between 1970 and 1977.
Complaint
was
made on 7th June, 1995,
was
between 18 and 25 years after the event. The second, third,
fourth
and ninth
complainants
complained
of incidents
with
spans of 5, 6, 3 and 5 years,
where
complaints
were
made on 28th September, 1995, 9th April, 1995, 22nd August, 1995 and 22nd August, 1995.
Delays
in making these
complaints
are 19 to 24 years; 16 to 22 years; 19 to 22 years and 11 to 17 years, respectively.
No evidence was
offered as to the reason
for
this vagueness in time and
delay
in making a
complaint.
While
delay,
in itself, is not necessarily a reason
for
prohibition, especially in the
case
of alleged sexual abuse of
children,
the vagueness in timing and the absence of any reason
for
vagueness and
delay
are grounds to acceding to the order sought.
It is difficult
to understand
why
such
complaints
are so vague as to
dates
and seems
difficult
to understand the
delay
in
complaining.
I
would
allow the application
for
prohibition in relation to these
five
complaints.
I am informed that the respondent has
decided
not to proceed in relation to the seventh
complainant,
William
Larkin (
count
14).
The arguments in relation to prosecutorial delay
can,
in the
circumstances
of the affidavit of Sergeant
C.
and the submissions made by
counsel,
in the
circumstances,
do
not establish
delay
which
is inordinate. Some of the
delay,
as the transfer of the trial to
Dublin,
would
appear to be of the applicant's making.
Delay
was
also occasioned in relation to the role of the Health Board personnel. Though served
with
a notice to
cross-examine
it is significant that no
cross-examination
of the respondent's
witness
took place. Moreover, the application
for
judicial review
could
have been made in July, 1999.
In the circumstance,
the
court
grants an order of prohibition restraining the respondent
from
taking any
further
steps
with
the prosecution of the applicant on
foot
of Bill No. 1172/99 in respect of
charges
arising out of the
complaints
of S.
C.,
J.
D.,
G.T., P.G. and J.B. The
court
refuses such order in respect of
charges
arising out of the
complaints
of K.S., J.
C.,
P.H. and B.
C.H.
Accordingly, the Court
will
make an order prohibiting all but
counts
9, 10, 11 (S.); 12, 13 (
C.);
15, 16, 17 (H.) and 20 -34 (H.) of the 34
charges
contained in Bill No. 1172/99.
Approved: Murphy J.