THE SUPREME COURT
Appeal No: 66/2014
President of the Circuit Court and the Director of Public Prosecutions
Judgment of the Court delivered on the 10th day of March, 2015, by Denham C.J.
1. This is an appeal by the applicant/appellant, J.(S).T., hereinafter referred to as “the appellant”, from the judgment and order of the High Court (Kearns P.), made and perfected on the 17th January, 2014, refusing to prohibit the trial of the appellant in Limerick Circuit Criminal Court on 251 counts of indecent assault on a number of pupils in a national school in Limerick between 1979 and 1981, when the appellant was a teacher at the school.
2. The Director of Public Prosecutions is the respondent, and is referred to as “the D.P.P”.
3. This appeal is in essence a repeat of the appellant’s previous unsuccessful appeal, made in relation to other prosecutions, where other complainants, other ex pupils of his, made similar complaints: J.T. v. D.P.P.  IESC 270.
(ii) An order of prohibition, or in the alternative an injunction, by way of judicial review prohibiting the D.P.P., his servants or agents, from prosecuting criminal proceedings entitled “The People (at the suit of the D.P.P) -v- J.(S).T., Bill Number LK 190/12” pending before Limerick Circuit Court and comprising of 139 charges.
(iii) An order of prohibition by way of judicial review staying the trial of the appellant as an abuse of process.
(iv) A declaration that the delay in instituting the criminal proceedings and the delay in bringing the proceedings to hearing had prejudiced the appellant generally and specifically with regard to the possibility of a fair trial.
(v) A declaration that the wholly exceptional circumstances exist in the circumstances of this case that render it unfair or unjust to put the appellant on trial.
(vi) A declaration that the delay in bringing the criminal proceedings the subject matter of the application to hearing constitutes:
b) a trial otherwise than in due course of law as required by Article 38 of the Constitution;
c) an infringement of the appellant’s liberty; and
d) A breach of Article 6 of the European Convention for the Protection of Rights and Fundamental Freedoms 1950.
(viii) An order providing for an extension of time within which to bring these proceedings.
ii) These charges are currently pending before Limerick Circuit Court (Bill Number 93/2010) and Bill Number LK190/12.
iii) The [appellant] was questioned by the prosecution authorities in respect of the allegations the subject matter of Bill Number 93/2010 in May 2006 and May 2008 and was first before the court on the 11th February 2010 in respect of these allegations. The prosecution authorities made disclosure in November 2012 after a trial date of the 5th of February 2013 had been set. An earlier trial date had been vacated on the application of the prosecution.
iv) The [appellant] was first before the court in respect of the allegations the subject matter of Bill Number LK190/12 on the 21st June 2012 having been questioned about these matters by members of An Garda Siochana in 2011. It would seem that these complaints were received from members of An Garda Siochana after the gardai approached former pupils of the Christian Brothers in Sexton Street, Limerick on dates between 2010 and 2011. A book of evidence was served on the [appellant] in respect of these matters on the 28th of November 2012 and he was returned for trial to Limerick Circuit Court on the same day. A provisional trial date of the 5th of February 2013 has also been set for the trial of these matters.
v) The [appellant] has previously faced trial on 6 occasions on diverse dates between May 2009 and May 2011 before Dublin Circuit Criminal Court for similar allegations (and been in custody for a total of 4 ½ years on foot of those matters) but has never been convicted of any offence.
vi) The delay on the part of the Director of Public Prosecutions in commencing these criminal proceedings (both in terms of complainant delay and prosecutorial delay) constitutes a breach of the [appellant's] constitutional rights:
(a) to be tried on criminal charges in due course of law pursuant to Article 38.1 of the Constitution.
(b) to be tried with reasonable expedition.
(c) to fair procedures, and
(d) to fairness and justice
vii) The delay on the part of the Director of Public Prosecutions in commencing these proceedings (both in terms of complainant delay and prosecutorial delay):
(a) constitutes an inordinate and inexcusable delay, and
(b) has prejudiced the [appellant]. In this regard the [appellant], at this time remove does not remember individual complainants and one potential witness namely R.C.C. is now deceased. Furthermore, one of the complainants namely R.C.C. refers to making a complaint about me to a Brother Sexton. However at this time remove it is impossible for me to establish that no such complaint was actually made as the then principle of the school is deceased.
ix) The trial of the [appellant] on these offences at such a remote time from the date of the alleged offences amounts to an abuse of process of the courts. The prosecuting authorities have manipulated the court process so as to cause the [appellant] the maximum amount of stress and anxiety.
x) The prosecuting authorities, their servants or agents, by their acts or more particularly by their omissions are culpable in relation to the passage of time between the alleged incidents and the initiation of proceedings.
xi) Exceptional circumstances exist that render it unfair or unjust to put the [appellant] on trial. Those circumstances are as follows:
• the charges relate to events which are alleged to have occurred 32 to 34 years ago,
• save for one complainant the gardai seem to have first approached the complainants,
• the [appellant] is now 70 years of age and in bad health,
• the [appellant] has previously faced trial on 6 occasions in respect of similar allegations and has not been convicted,
• the [appellant] has previously spent over 4 years in custody in while awaiting trial for those other matters;
The High Court judgment
7. The learned trial judge held that he was not satisfied that there had been any prosecutorial delay in bringing the prosecutions after the complaints were initially made. He stated:-
9. It was also held by the learned trial judge that the fact the appellant had previously faced trial on six other occasions on other complaints, and had not been convicted, could not be described as exceptional circumstances that would warrant a grant of the relief sought. Kearns P. stated:-
10. The appellant filed a notice of appeal setting out 16 grounds of appeal. The primary ground of appeal arises from an alleged failure of the learned President of the High Court to conduct an overall assessment of all the circumstances in considering whether it would be unfair or unjust to put the appellant on trial.
The specific grounds of appeal were stated to be:-
2. The learned President of the High Court erred in law in concluding that it would not be unfair or unjust to put the Appellant on trial in this case. In this regard, the teamed President of the High Court Judge failed to have regard to the totality of the circumstances of the case in so concluding.
3. The learned President of the High Court erred in law in finding that the Appellant's previous multiple trials for similar type charges, over many years, none of which resulted in a conviction, and time spent in custody by the Appellant while awaiting those trials, were not relevant to the application to prohibit the Appellant's trial on the charges the subject matter of these proceedings.
4. The learned President of the High Court erred in law and in fact in treating the case as one in which an application for leave to bring proceedings by way of judicial review was brought at the last moment only days before the trial was due to get underway, when the reasons for the timing of the application were explained on affidavit. In particular, the learned President of the High Court erred in law in failing to consider or give any or any adequate weight to the circumstances that, in one case (bill no. 190/2012), the application was in fact brought within less than three months of the return for trial and, in the other case (bill no. 93/2010), the application was brought within less than three months of disclosure having been made by the prosecution notwithstanding repeated requests by the defence over a period of two years for disclosure, which requests were deliberately ignored by the prosecution, and in circumstances where the prosecution proposed to have the two cases tried together.
5. The learned President of the High Court erred in law in treating the investigation as sufficiently complex and detailed to require five years or more for the prosecution to investigate yet failing to consider or give any or any adequate weight to the circumstances in which the Appellant was required to defend the allegations with less than three months notice of the case against him on bill no. 190/2012 and with less than three months to consider the disclosure made by the prosecution on both bills.
6. The learned President of the High Court erred in law in failing to consider or give any or any adequate weight to the circumstances in which the complaints emerged, in particular that there had been extensive, adverse publicity concerning the Appellant, which publicity had prompted civil actions by some of the complainants, and there was evidence of communication between some of the complainants in that regard, without complaints having been made by-them to the Gardai of any criminal wrongdoing.
7. The learned President of the High Court erred in law in failing to consider or give any or any adequate weight to the fact that some of the complainants, having pursued civil actions in those circumstances, had not made any complaint of criminal wrongdoing until approached by Gardaí.
8. The learned President of the High Court erred in law in applying the principle identified in S. H. v. Director of Public Prosecutions  3 I.R. 574, that it is not a necessity to inquire into the reasons for complainant delay, in the particular and very unusual circumstances of this case, in particular the fact that some of the complainants had spoken to other complainants about the subject matter of the charges, having become aware of adverse publicity concerning the Appellant, and had commenced or even concluded civil proceedings without making any complaint to the Gardaí.
9. The learned President of the High Court erred in law and in fact in concluding that no blameworthy prosecutorial delay had occurred.
10. The learned President of the High Court erred in law in failing to consider or give any or any adequate weight to the delay in the conduct of the Garda investigations and in the assessment of the outcome of those investigations by the Second-Named Respondent.
11. The learned President of the High Court erred in law in failing to consider or give any or any adequate weight to the deliberate policy of the prosecution to frustrate the conduct of the defence in relation to bill no. 93/2010 by refusing to make disclosure in relation to that case until such time as they were in a position to proceed with bill no. 190/2012, notwithstanding repeated requests for such disclosure to be made, and notwithstanding the very considerable passage of time since the dates of the alleged offences.
12. The learned President of the High Court erred in law and in fact in concluding that the Appellant was not prejudiced by reason of blameworthy prosecutorial delay.
13. The learned President of the High Court erred in law and in fact in his assessment of the evidential significance of the prejudice to the Applicant as a result of the passage of time, in particular in relation to the loss of counseling notes in relation to one complainant and the death of Brother S and of a teacher, FK.
14. The learned President of the High Court erred in law in deciding that, because it had not been shown that the Appellant was incapable of participating in a trial process, it would therefore not be unfair or unjust to put him on trial.
15. The learned President of the High Court erred in-law and in fact in exercising his discretion to refuse the relief sought on the grounds that the application was brought days before the trial was due to get underway.
16. Such further and other grounds as to this Honourable Court may seem fit.”
11. Written and oral submissions were made on behalf of the appellant. It was submitted that there had been blameworthy prosecutorial delay in this case.
12. It was submitted that the appellant would suffer specific prejudice if the matter went to trial as his position is fatally hampered by the passage of time and the absence of witnesses. It was submitted that the absence of four witnesses means that they cannot be cross examined as to any previous inconsistent statements made by one of the complainants.
13. In oral submissions, counsel for the appellant said that the adverse publicity generated in relation to the alleged Dublin offences, including the appellant’s identification in media publications, affected the emergence of further allegations in this case. It was submitted that the existence of these newspaper articles and the emergence of civil claims against the appellant undermines the credibility of the complainants and the fairness of the trial.
14. Counsel for the appellant submitted that the following cumulative factors give rise to wholly exceptional circumstances so as to render it unfair or unjust to put the appellant on trial in this case:-
(ii) The charges relate to events which are alleged to have occurred 32 to 34 years ago.
(iii) Save for one complainant the gardaí seem to have first approached all the other complainants
(iv) There is evidence that there was discussion amongst some of complainants prior to official complaints being made to the gardaí. Some of those discussions took place in contemplation of civil proceedings.
(v) The prosecution are unable to locate witnesses, and counselling records have been destroyed.
(vi) The appellant has previously faced trial on 6 occasions in respect of similar allegations from other complainants, “the Dublin offences”, and has not been convicted.
(vii) The appellant has previously spent over 4 years in custody while awaiting trial for those other matters.
15. Counsel for the D.P.P. made oral and written submissions to the Court. It was submitted on behalf of the D.P.P. that a complex and detailed investigation had taken place and there had been no blameworthy prosecutorial delay in the complex circumstances of this case. Further, there was no evidence before the High Court that valuable evidence was lost or that there was any specific prejudice arising from delay in this case.
16. In the event that the Court should find that there has been blameworthy prosecutorial delay, it was submitted that this Court, in adopting the balancing exercise, should find that the public interest in having these multiple allegations prosecuted outweighs the effect of any delay in the case.
17. The sheer number of allegations and the serious nature of those allegations made against the appellant, from various pupils from various classes at the school, is an important factor that should weigh against prohibition in the event that the Court adopts any such balancing test.
18. Counsel for the D.P.P. submitted that the High Court (Kearns P.) addressed each of the issues stated by the appellant to constitute cumulative factors that justified prohibition. He considered the issue of prosecutorial delay, the allegations that this was a garda driven investigation, the issue of unavailable witnesses and whether the Dublin charges should be weighed in the balance. The trial judge then specifically addressed the health of the appellant and concluded that none of the medical evidence suggested that the appellant was unable to stand trial or incapable of participating in the trial process or that his ability to contest the charges would be in any way impaired.
20. In J.T. v. D.P.P. the Court refused the appellant’s application to injunct his trial and held that he had failed to establish matters so as to invoke the jurisdiction of the Court upon which to prohibit his trial. The appellant did not meet the required test for prohibition of a trial, and in the circumstances as a whole there was no real risk of an unfair trial. It was pointed out that the trial would proceed under the control of a judge who had a duty to ensure that the trial was fair. It was stated:-
I have addressed the factors individually previously in this judgment. Considering them cumulatively I am not satisfied that they meet the required test for intervention and prohibition of a trial by the Court either on the basis of prosecutorial delay, or an abuse of trial process. In the circumstances as a whole there is no real risk of an unfair trial. As in all such cases the trial will proceed under the control of a judge who has the duty to ensure that the trial is fair. The test to be applied is that stated by Finlay C.J. in Z. v. Director of Public Prosecutions 2 I.R. 476, at p.507:
‘… to establish a real risk of an unfair trial … necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.’
The applicant has sought to raise the exceptional jurisdiction of the Court to prohibit his trial. However, he has failed to establish matters so as to invoke this jurisdiction. In all the circumstances of the case, which include the fact that there are multiple offences, multiple complaints, and witnesses available to the alleged events, I would dismiss the appeal of the applicant and affirm the order of the High Court refusing the application to injunct the trial.”
23. The Court would adopt the reasoning of Kearns J., as he then was, in P.M v. Malone  2 IR 560, who set out the required balancing process when considering blameworthy prosecutorial delay. He stated as follows at p. 185 :-
24. The Court agrees with and affirms the approach of the learned President that, the charges relating to “Dublin offences” have no relevance to the allegations that are the subject matter of this complaint. The appellant did spend time in custody but this was because he voluntarily decided not to take up bail. Again, it is not relevant to these proceedings.
26. Three individuals who were counsellors and from whom statements were taken are unavailable. Counselling records in relation to one of the complainants, R.K have been destroyed.
27. In all the circumstances, the missing records are not a basis upon which to prohibit the trial. In a recent case of Ó’C. v. D.P.P , O’Malley J. rejected the argument that missing records from a health centre and the death of a doctor, to whom the complainant had spoken to about alleged sexual abuse, were matters which should persuade the Court to grant prohibition. Each case has to be considered on its own facts. The alleged absence of documents in this case does not appear to be such upon which to prohibit a trial. That said, it is an issue which may be opened to the trial judge, who will be best placed to determine the matter.
29. The appellant relied on the case of PT v D.P.P.  IESC 39. However, each case has to be considered on its own facts. In PT v D.P.P. the appellant had a serious medical condition and was much older, 87 years of age. The Court would distinguish that case.
30. Further, in relation to the age and ill health of the appellant, the Court adopts the reasoning in DT v. D.P.P..  IESC 2, where it was held:-
Applying the law to the facts of this case I am satisfied that the issue of the applicant's fitness to plead is a matter for the appropriate law and the trial court and that the applicant's submissions on this ground fail.”
Information in the public domain
33. This issue was considered by High Court (Hanna J.) in the earlier case concerning “the Dublin offences” J.T. v D.P.P  IEHC 309. Hanna J. found that the leakage did not require prohibition, but stated:-
Nonetheless, I am satisfied that some part of it at least was sourced from a member or members of An Garda Síochána. It is unfortunate that I must come to this conclusion given the limited nature of the enquiry in which I have engaged. It is to my mind most regrettable that, after all of these articles had appeared, including material about which Detective Garda Maloney expressed grave reservations, only the most lacklustre and informal enquiry resulted. Given the possibility of the derailment of a trial I cannot accept that this was an appropriate response to what was, potentially, a significant disciplinary matter.
In the circumstances of this case I am not persuaded that the leaking of information to the press by a member or members of An Garda Síochána constitutes sufficient reason for stopping the trial. What occurred was reprehensible. But, although undoubtedly sustained by the feeding of information to the newspapers, it is possible that the graphic and, at times, tasteless and abusive references to the applicant may have occurred in any event.
Further, the evidence before me indicates that any vilification referable to the leaks ceased over three years ago. Any residual trial prejudice could be assessed and dealt with if appropriate by the trial judge.”
35. On the issue of prejudicial publicity, in this case, because of the lapse of time, the fade factor applies, and it is not a basis upon which to prohibit the trial.
36. The Court, however, is concerned at the apparent premeditated leaking of information by a member or members of An Garda Síochána. The Court condemns any such action by a member of An Garda Síochána. It should be observed also, that any such action in another case could have the most serious consequences. The Court welcomes the opportunity to address this issue in a case where, for quite different reasons, it is not appropriate to prohibit the trial. It must be clearly understood that information about a criminal investigation in the possession of a member of An Garda Síochána, is not his or her personal property to be shared, or otherwise disposed of, at his or her personal discretion. It is Official information, in the possession of An Garda Síochána as a State Institution. If the gardai as an Institution decide to publicise such information to the Media, on the authority of a senior officer, that is quite a different matter. But unauthorised leaks by individual members do no credit to the force and may, in an appropriate case, lead to the prohibition of a trial. It is for those in charge of An Garda Síochána to bring this practice to an end, whether it is attributable to ‘Garda sources’ or to an individual member.
37. The Court contrasts what happened in this case with a situation where it may be appropriate for An Garda Síochána as an institution, with proper authority from a senior officer, perhaps through the Garda Press Office, to seek publicity in a case to, for example, bring forward witnesses, or for another good reason.