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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Q. (M.) v. Judge of the Northern Circuit & Anor [2003] IEHC 88 (14 November 2003)
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Cite as: [2003] IEHC 88
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Q. (M.) v. Judge of the Northern Circuit & Anor [2003] IEHC 88 (14 November 2003)


     
    THE HIGH COURT
    JUDICIAL REVIEW
    2001/13JR
    BETWEEN
    M.Q.
    APPLICANT
    AND
    THE JUDGE OF THE NORTHERN CIRCUIT AND
    THE DIRECTOR OF PUBLIC PROSECUTIONS
    RESPONDENTS
    Judgment of Mr. Justice William McKechnie delivered on the 14th day of November, 2003.
    Background:
  1. On the 15th January, 2001, the applicant, above identified as M.Q., obtained leave from this Court to seek by way of an application for Judicial Review, an Order of Prohibition preventing the first named respondent, from proceeding with the trial of the said applicant on any of the charges contained in an indictment then standing against him and secondly, a permanent injunction restraining the 2nd named respondent from taking any future steps in the further prosecution of the applicant on all or any of those said charges.

  2. The grounds upon such relief were sought were so described in paragraph (E) of the statement grounding the application, in the manner following:

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    "1. The applicant has been deprived of his right to a trial with reasonable expedition because of the lapse of time between the alleged commission of the offences and the trial of the applicant.
    2. Because of the gross and inexcusable delay between the making of the complaint and the institution of the appropriate criminal proceedings, the applicant has been denied his right to a trial in due course of law.
    3. The applicant has been prejudiced by the delay in his being brought to trial.
    4. When the second named respondent had made a decision not to prosecute and this decision had been communicated to the applicant, the second named respondent acted unfairly and contrary to natural justice in deciding to institute a prosecution against the applicant over four years later when no additional evidence had come to hand to support such a decision.
    5. The second named respondent has acted on foot of an improper policy in reversing his decision not to prosecute when the applicant had been told he would not be prosecuted.
    6. A further trial of the applicant, having regard to the evidence and all the circumstances, would be oppressive and contrary to natural and constitutional justice and fair procedures: it would also amount to an unlawful and unreasonable breach of the applicant's constitutional rights to a fair trial and would be contrary to due process."
  3. The evidential material before the Court which is by way of several affidavits and exhibits, indicates that the complainant in this case was born on the 30th April,

    4. - 3 -

    1970, and had for several years been a pupil of the applicant who taught her Irish dancing. On the 29th August, 1993, the said complainant, Miss D, made an allegation to the Gardaí that the applicant had sexually abused her between the years 1982 and 1989. On the 31st of that month, the sergeant to whom the complaint was made interviewed the applicant. Further inquiries, investigations and interviews with other potential witnesses were then conducted by the Gardaí. A file was sent to the Director of Public Prosecutions. On the 15th March, 1994, not having heard further from the Gardaí, the applicant and his wife spoke to the investigating sergeant about these allegations. No information at that time was given to them. In July of that year the accused person and his wife again met the sergeant . It is claimed by Mr. Philip White, solicitor, who represents the accused person, at para. 6 of his grounding affidavit that the sergeant informed both of them that "the case had been before the DPP and the DPP has ruled that there is no case to answer and this is the end of it". In his own affidavit the applicant puts the detail of this information as follows. He says he was told, "I am to inform you that the DPP will not be proceeding with the case". The sergeant, in her affidavit, gives a slightly different version again when she says that she simply informed the accused person of the result which was that there would be no prosecution. These differences between the individuals mentioned and indeed further differences as to what transpired in August 1993, March and July of 1994 when the applicant and his wife met this Garda, are not in my view of any relevance. Whatever maybe their exact recall as to what information was imparted to the accused person in July 1994, I am quite satisfied that he was informed of the DPP's decision that there would be no prosecution arising out of the complaints previously made, those being the subject matter of this Garda investigation.

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  4. Without any further contact between the Gardaí and the accused person, the latter was arrested on the 27th January, 1999, and charged with 24 offences of indecent assault on the complainant between the 1st January, 1983 and the 31st December, 1988, all contrary to s. 10 of the Criminal Law (Rape) Act, 1981. On the 10th June, 1999, the applicant was returned for trial to Letterkenny Circuit Court. The trial was eventually fixed for the 2nd February in the year 2000. After a three-day hearing before His Honour Judge Deery, the jury disagreed. Following a direction by the DPP the re-trial was fixed for hearing on the 30th January, 2001. Prior to that, as is evident from the dates above mentioned, leave of this Court was obtained to institute these proceedings. That Order, according to its terms, granted a stay on the further prosecution of the applicant until such time as the issues herein raised had been finally determined.

    5. The circumstances in which the Director of Public Prosecutions came to reverse his earlier decision not to prosecute, are outlined in the affidavits of Miss Catherine Finn, from the Chief State Solicitor's Office and from the affidavit of Sergeant Hargadon, sworn by her in April 2002. These can be summarised as follows:-

    a) It would appear that, having received instructions from the DPP's office in 1994 not to prosecute the accused person, Sergeant Hargadon also informed the injured party of that decision. She and her immediate family were obviously distressed by such a decision and so expressed their dissatisfaction to the sergeant. The sergeant then returned the file to the DPP's office with a request that the earlier decision be further reviewed. The result of that review affirmed the decision that no prosecution should
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    take place. The exact timing of these events is not clear but these are likely to have occurred in 1994.
    b) Some time afterwards, the complainant apparently immigrated to America where, a number of years later, she married. In the summer of 1998 the sergeant became aware that the injured party had returned to Ireland and was living in Co. Clare. Following the intervention of the North Western Health Board, the Superintendent of the relevant Gardaí Station agreed to reopen the case and a fresh interview between the sergeant and the injured party took place on the 12th July, 1998. This lead to a further statement which was taken from the said complainant on that occasion. The sergeant then requested her superiors to ask the DPP to reopen the case.
    c) This apparently was done by the local State Solicitor, who on the 7th September, 1998, wrote to the DPP enclosing the second statement from the injured party and "other enclosures constituting a fresh Garda file".
    d) On the 24th September the DPP referred the State Solicitor to some of cases later mentioned and also requested the injured party to undergo a psychological assessment. Evidently she so agreed; hence the report of Mr. Clarke, dated the 11th November, 1998. That was sent directly by him to the DPP who in turn furnished copies to the relevant parties.
    e) By letter dated the 12th January, 1999, the DPP wrote to Mr. Ciaran McLoughlin, the State Solicitor for Donegal, directing the prosecution of the applicant on the several counts which ultimately became the indictment in the criminal case.
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    It was these steps which lead to the arrest of the accused person on the 27th January, 1999 and to the events subsequent to that which are hereinafter outlined.
    Submissions:
  5. Mr. John Whelan S.C., on behalf of the applicant, challenged the legality of his client's position under a number of headings. His first complaint related to the overall delay between the commission of these alleged offences, that is between 1982 and 1988, and the date upon which the accused person was charged with them. This period runs from eleven to seventeen years and in his submission his client's right to a trial with reasonable expedition as guaranteed by Article 38.1 of the Constitution cannot now be satisfied. He referred to The State (Healy) v. Donoghue [1976] I.R. 325, The State (O'Connell) v. Fawcitt [1986] I.R. 362, Hogan v. President of the Circuit Court [1994] 2 I.R. 513 and The DPP v. Byrne [1994] 2 I.R. 236. He then relied upon some later cases as reaffirming and consolidating the principles outlined in the authorities just mentioned. These cases were P.P. v. The Director of Public Prosecutions [2000] 1 IR 403, P.O'C v. DPP [2000] 3 I.R. 87, J.L. v. DPP [2000] 3 I.R. 122 and B.F. v. DPP [2001] 1 IR 656. He argues that under this heading, notwithstanding the special consideration which the courts give to cases of sexual abuse involving minors, his client's constitutional rights as above identified cannot in the individual circumstances of this case, be vindicated, if he is now forced, after such a lengthy period of time, to re-engage in the criminal justice system.

  6. A second ground of complaint related to the period between the victim making her initial statement to the Gardaí in August, 1993 and the charging of the applicant in January, 1999, a period of almost five and a half years later. The authorities above

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    mentioned were relied upon in this regard, including Hogan v. The President of the Circuit Court [1994] 2 I.R. 513. Moreover he suggested that no acceptable explanation has been forthcoming for such delay. He says that the entire of the police investigation was completed when the file was originally sent to the DPP and that no new material of an evidential nature emerged during the period in question. He rejects the view that the second statement of the victim has added anything to her original statement and also points out that the report of the social worker and the statement of a teacher Miss C. were available at the time of the original investigation. The examination by the clinical psychologist in November, 1998 is not relevant in this regard. Accordingly, he repeats his submission that, even in respect of this period on its own, the applicant should be entitled to succeed.

  7. A third ground relied upon asserts the existence of anxiety and distress, general prejudice, and in some way also raises specific prejudice. It is said that the initial events which followed the complaint made in August 1993 caused much anxiety to the applicant, his wife and family. These matters were being dealt with when he was charged in January 1999; this resurrected to a much more serious degree that initial distress. In addition it affected his wife's health and also played a significant part in his early redundancy from his job. Furthermore he relies on the above to ground a claim of general prejudice.

    8. In addition, as well as referring to general memory loss and to the undesirability of proceeding with a trial at this point of remove he claims as an example of specific prejudice the uncertainty about the availability of a witness living in the UK for any new trial, and also refers to doubts about a potential witness in the U.S. He refers to

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    the Supreme Court's endorsement in DPP v. Byrne, supra, of what was said by the U.S. Supreme Court in Barker v. Wingo 407 U.S. 514 at 532 [1972]. He cited from p. 411 of the decision of Geoghegan J. in P.P. v. Director of Public Prosecutions [2000] 1 IR 403 although the passage relied upon is probably more relevant to a situation where because of a very long lapse of time, the accused person does not have to assert or prove actual prejudice. The same judge, giving the judgment of the Supreme Court in B.F. v. The Director of Public Prosecutions [2001] 1 IR 656 at 666, repeated in essence what he had said in the earlier case of P.P. and applied it by way of analogy.

  8. Partly as a ground discrete from the other grounds relied upon, the applicant submits that in the circumstances which exist, the DPP was not empowered by law to reverse the decision originally made by him. He says that when he was informed there would be no prosecution in July 1994, this information was communicated without reservation or qualification. There was no suggestion that the same might be subject to review or that it might be reopened at some point of time into the future. He claims that no new evidence has emerged between 1994 and 1999 and that otherwise there was no change in circumstances which would justify a reconsideration of the original decision. In addition he points out that a period of over four and a half years elapsed between the communication to him of the DPP's original decision and his arrest and charge in January 1999. Moreover he highlights the anxiety concern and stress which he and his family were under between August 1993 and July 1994, there attempts to deal with that in light of the communication made to him by Sergeant Hargadon and then the re-emergence of that stress and anxiety, to a much higher level, following his said arrest and charge. In all of these circumstances it would be, it is suggested, fundamentally unfair and contrary to due process to allow

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    the DPP's change of mind to stand. See Eviston v. DPP [2003] 1 ILRM 178 and in particular at p. 197.

  9. And finally in response to para. 16 of the statement of opposition, which puts in issue the applicant's delay in moving the leave application, Mr. Whelan S.C. submits that in the circumstances his client is entitled to the orders as sought ex debito justitae. He refers to the State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 and State (Vozza) v. O'Floinn [1957] I.R. 227. He cites in particular the passage from the judgment of McCarthy J. at page 100 of the report in Furey's case. He claims that the respondents took some sixteen months to file opposition papers in the present action and that such delay should be taken into account in considering this alleged objection. Furthermore it is asserted that the applicant should not be denied the orders as claimed merely because he has sought to and has defended his rights before the criminal courts. Finally it is said that his participation in the criminal trial should not prevent him from seeking redress for this public wrong which it is claimed he has been subject to, and furthermore that since his constitutional rights to due process and reasonable expedition have been infringed, the previous trial should not be a bar to success in the present action.

  10. On behalf of the second named respondent, there being no appearance on behalf of the first named respondent, Mr. Feichin McDongh S.C. submits that as of now, the law on the right to an expeditious trial excludes any period prior to the complaint being made. If however reference should be made to such a period, then on the evidence available any delay was reasonable having regard to all the circumstances. Secondly whilst the applicant has in general raised the question of

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    prejudice, his evidence and assertions thereof merely refer to memories fading and to the possibility that certain witnesses may not be available. Given his participation in the first trial these are matters which should not interfere with his entitlement to due process. Thirdly he says that the core issue is whether there is a real risk of the accused person not obtaining a fair trial and in that context he referred to D. v. DPP, [1994] 2 I.L.R.M. 481 and to the minority judgment of Fennelly J. in Dunne v. DPP [2002] 2 ILRM 241. Fourthly he distinguished the case of Eviston from the present one in that Mr. M.Q. has already undergone a trial and furthermore he claims that there was evidence available upon which the DPP could legitimately reconsider the levelling of charges against the accused person. On the right to a trial with reasonable expedition he further submits that once an accused person can obtain a fair trial then having balanced the State's constitutional right to prosecute and also the constitutional right of the victim to bodily integrity the normal criminal judicial process should be allowed to proceed. He referred to P.M. v. District Judge Malone & DPP [2002] 2 IR 560. He denies that in this type of case an order ex debito iustitae should issue. On the contrary, the applicant knew for almost two years prior to moving the leave application of the DPP intention to prosecute him on the offences as charged. He should have moved promptly but did not do so. In his view there is no material before this court which would justify an enlargement of time and accordingly on that ground alone the application should not succeed.

    Delay – pre complaint:
  11. Notwithstanding the submission on behalf of the second named respondent that any delay prior to complaint is irrelevant on a consideration of the applicant's right to a trial with reasonable expedition, (see P.M. v. District Judge Malone & the

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    DPP, [2002] 2 IR 560), it is proposed in deference to the arguments advanced on behalf of the applicant, to deal in a factual way with the overall issue of delay. That is, in respect of the period which might be referred to as pre-complaint delay, the period between July, 1994 and January, 1999 and then the two year period prior to the institution of the present proceedings.
  12. In the past number of years, from both this Court and the Supreme Court, many decisions have been delivered dealing with this question of delay in cases involving sexual offences against young persons. One such decision was B v. Director of Public Prosecutions [1997] 3 I.R. 140. At p. 193, et seq. of the judgment, Denham J. deals with this issue. As is common case, there is no limitation in time placed upon the prosecution of sexual offences by statute law. Equally so it is now fully accepted that the Constitution, within it, guarantees to an accused person a right to a speedy trial, or a trial with reasonable expedition, or to a trial in respect of which there should not be any unreasonable delay. In addition, Article 38.1 provides that no person shall be tried on any criminal charge save in due course of law. The right formally mentioned is, I believe, an independent, discreet right capable of standing alone and outside Article 38, (see The State (Healy) v. Donoghue [1976] I.R. 325). This right, however, is also very appreciably involved in any analysis of particular facts in the context of Article 38.1, see (The State (O'Connell) v. Fawsitt [1986] I.R. 362).

  13. Denham J., in B. v. Director of Public Prosecutions [1997] 3 I.R. 140, having referred to The State (Healy) v. Donoghue [1976] I.R. 325, The State (O'Connell), Barker v. Wingo, 407 U.S. 517 [1972] and the Supreme Court's decision in DPP v.

    14. - 12 -
    Byrne [1994] 2 I.R. 236, sets out at p. 195 of the report a non-exclusive list of factors which must be taken into account in determining this issue. These include, the delay in question, the reasons therefor, the accused's actions in relation to the events in issue, the accused's assertion of his constitutional rights, any alleged prejudice, any period of pre-trial custody, any pre-trial anxiety, any limitations which might impair the running of a defence, and the community's right to have the offences prosecuted.
  14. The learned judge then dealt with cases which fall into a special category like the present one. She referred to Hogan v. President of the Circuit Court, supra, and G. v. The DPP [1994] 1 I.R. 374. She then sets out features which have a particular applicability to sexual cases. These include the relationship between the parties, any question of dominion, who was responsible for the delay, the precise nature of the alleged charges, the question of an alibi, the availability of witnesses and the accused person's response to being charged, in particular whether there is an assertion of innocence or an admission of guilt.

  15. This issue was also addressed by the Supreme Court in P.C. v. The Director of Public Prosecutions [1999] 2 IR 25. Keane J., dealt with the matter at pp. 67 and 68 of the report. The question in each case, per Keane J., is "whether the Court is satisfied as a matter of probability that the circumstances were such as to render explicable inaction of the alleged victim from the time of the offence until the initiation of the prosecution . . . " The learned judge goes on to say that for the purposes of this exercise one must assume the truth of the complaints being made and that, if the delay is referable to the accused's own actions then, on that ground, the trial would not be prohibited.

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  16. In the present case it appears to me that there is very strong evidence, unchallenged and uncontradicted, from a variety of sources which leads me to the conclusion that any delay prior to August 1993 was unattributable to the victim and almost entirety had its foundation in the alleged abuse. The complainant, whose was born on the 30th day of April, 1970 was a lover of Irish dancing, had a dedicated passion for it and performed it at an exceptionally high scale. She completed, both nationally and internationally, at different levels most successfully. She won many honours and trophies. It was the one activity to which she was most committed. Her teacher during the years in question was the applicant who was almost 30 years older than her. The abuses as alleged took place in this context at various locations, dates, and events. The abuse it is claimed commenced by acts not as serious as those later committed. This was followed by periods of no interference and then the activities would recommence. The nature, extent and seriousness increased gradually and over time. Ultimately the abuse became regular, repetitive and persistent and involves acts which grossly violated her person, destroyed his childhood and stole her innocence. During this time according to the victim's statements and affidavit, the accused person developed an overwhelming domination of her mind and psychologically had an overbearing control over her. She was made to feel the shameful and guilty one whilst at the same time being told how beautiful, brilliant and special she was. She had by his manipulation total trust in him. He was calculating, deliberate and deceitful. She lost her growing up life to him. So much so that during the currency of these events and even when the same ultimately stopped, the complainant, by reason of these activities was in no state or condition to and was entirely ill-equipped to deal

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    with them by way of full disclosure to the Gardaí. This inability resulted directly from the acts and wrongdoings of the applicant.

    These events, for the purpose of this application only I am assuming to be true and I do so following the decision of the Supreme Court in PC v. DPP [1999] 2 IR 25 and POC v. DPP [2000] 3 I.R. 87.

  17. What is perhaps surprising in this case is the effort made throughout the years by the victim to get some help from those with whom she was in contact. From almost the very beginning the complainant made several attempts to report these matters to persons in authority. On one occasion between 1982 to 1984 she wrote a letter to a teacher at school explaining her disruptive behaviour by indicating that she had severe personal difficulties at the time. Unfortunately the lady in question was not her teacher in the succeeding year and hence no action was taken. No reply was received. During that same period she had a conversation with a Sister attached to the school during which she again spoke of her severe personal difficulties but likewise there was no follow up. In 1985 she reported the sexual abuse to a local priest again without any help. In 1987 she spoke to another priest and told him of the ongoing abuse that she was subject to. In 1989 she informed the priest last mentioned in a frank and full way of the extent of the sexual abuse. On occasions following that meeting she phoned the said priest but was unsuccessful in making contact with him. At a later stage this priest informed her that he was not of a mind to get involved in situation. In 1989 she again reported the abuse to a chaplain at the college where she was then attending and then in 1990 she told her sister and also a doctor whom she started to attend for counselling at that time. In 1992 there was unfortunately a family tragedy. She attended Mr. Seamus Gordan, Counsellor in respect thereof. Ultimately

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    this issue of informing the Gardaí was confronted and she then made the complaint to Sergeant Hardagon in August 1993.

  18. For a great portion of this period the abuse was ongoing. The applicant, during this time sought to convince Miss. D. that all of his was her own fault, that she was a weak and bad person, that she was "too sexual", that God was going to punish her and that she was dirty and shameful. On one occasion, in or about 1985 she threatened the accused that she would report the abuse. His response was to get very aggressive and he physically shook her. He said that as a result he would be finished in the town and that she would not be able to do dancing anymore.

    19. This summary of evidence like that in the paragraph immediately proceeding is but a portion of the victim's overall account which is before this court.

  19. Mr. Stephen Clarke, who at the relevant time was acting principal clinical psychologist to the North Western Health Board, swore an affidavit in this case in which he exhibited a report following upon his assessment of the victim which took pace on 30th October, 1998. In that report he outlines the pattern of reported abuse, the attempts made by the victim at reporting that abuse and then comments on the late disclosure. It was Mr. Clarke's view that it has became increasingly accepted over time that it is not unusual for victims of abuse to delay disclosing to a responsible person, their experience of abuse, for months or years afterwards and some people never disclosed. As a child, Miss D. had thought that she would not be believed or supported by her parents because they were very close and friendly with the applicant and his wife. In typical childlike manner she had wanted the abuse to stop but had not

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    wanted anything bad to happen, such as the accused person getting punished or her career in Irish dancing ending.

    The psychologist continued by indicating there had been a very strong power relationship between the applicant and the victim within which he was the master and she was the pupil: he was the trusted adult and she was a child. Given his position of power and control over her - this because she was so involved in Irish dancing, this made it even more difficult to either escape or disclose. As she became older and realised that what was happening to her was abuse, the victim wanted to escape both physically, by leaving the locality, and mentally by going into a kind of state of denial about her abuse history. She related that she would have liked to have kept it locked away forever but the effects of her experience kept coming back to her, particularly at times of vulnerability such as that which occurred with a family tragedy in 1992.

    Mr. Clarke then gives his clinical opinion as being:

    "That her delay by some years in making a report herself to the Gardaí is understandable, given the nature and content of the abuse, her age when it started and the reactions or failed reactions she felt she had received at earlier attempts to disclose to people in authority."

    Overall it is quite clear on this experts report that he finds the late disclosure to the Gardaí to be entirely understandable and justified.

  20. There is also evidence, in affidavit form from a Mr. Seamus Gordon, Social Worker, who began counselling the victim in the aftermath of this family

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    bereavement. This commencing some time in August 1992. In addition there is a statement from one of the teachers above mentioned.

  21. From the above evidence it is entirely reasonable in my view to understand why no complaint was made by the victim to the Gardaí until August 1993. No fault can in any way be attributed to her for this. The fact that prior to then she had made several attempts at reporting does not in any way take from this conclusion. It was of course very unfortunate that the reaction of those involved failed to supply the support which she needed. The attempts up to December 1988 were heavily conditioned by the ongoing abuse. Despite such efforts on her part, the same fell short of making a complaint to the Gardaí. This failure to make full disclosure is, I firmly believe, entirely attributable to the psychological and emotional effects which the abuse continued to have on her. In my opinion therefore on the facts of this case her efforts at partial disclosure do not in any way detract from the applicant's responsibility for the delay in Miss. D. in contacting the Gardaí up to and including August 1993. See P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and in particular Denham J. at p. 62 et seq.

    22. Prosecutorial Delay: January 1999 - January 2001
  22. Immediately prior to dealing with this period I should say that in respect of time between August 1993 and January 1999, including the original submission of the file to the DPP and his decision thereon, the first review of the file as requested by Sergeant Hardagon, the reopening of the case in the summer of 1998 with the further submission of the file to the DPP and his decision to reverse his original conclusion, are all matters which I will come back to later in this judgment.

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    Between January 1999 and January 2001
  23. Apart altogether from any delay between the date of the alleged offences and the complaint in respect thereof having been made to the Gardaí, there is a further period between complaint and trial that must also be considered. As previously stated an accused person on any criminal trial of whatever nature is entitled to a hearing with reasonable expedition. The State (Healy) v. Donoghue [1976] I.R. 325 identified such a right as having a constitutional base. Gannon J.'s view as expressed in that case was upheld by the Supreme Court in the State (O'Connell) v. Fawcitt [1986] I.R. 362, and again, in several cases thereafter including P.C. v. DPP [1999] 2 IR 25. Some of the reported cases consider prejudice either specific or presumptive in the context of such delay but others asserted a belief that once the constitutional right to a speedy trial had been infringed then an order of prohibition could issue even if no prejudice could be declared or inferred. In P.P. v. DPP [2000] I.R. 403. Geoghegan J., when referring to cases of sexual abuse, strongly highlighted where there was a delay between the date of offence and complaint, the paramount importance of there being no further blameworthy delay on the part of the "prosecuting authorities" whom he held covered both the DPP and the Gardaí. So in this case I must now consider the period between January 1999 and January 2001 even though this post charge period almost entirely covers the time when this case was in the judicial domain.

    24. 25. Following upon the applicant's arrest and charge on 27th January, 1999, the case came before Letterkenny District Court on the 2nd February of that year, on which occasion time was extended for the service of the Book of Evidence until 15th April, 1999. By the 22nd April, 1999, the book had been served and the matter was

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    adjourned for one month so as to allow the defence time to consider the book. On the same day, statements of named individuals, not included in the book, were sent to the applicant's solicitor. The matter was further adjourned to the 10th June again at the applicant requests. On this date Mr. M.Q. was returned for trial to Letterkenny Circuit Court, at the sittings commencing on 13th July, 1999. As part of this order the applicant's solicitor unsuccessfully applied to have the complainant assessed by a psychologist nominated on behalf of the accused person. On 12th July, 1999, a copy of the indictment was served.

  24. When the matter was called on before the Circuit Court on 13th July, the accused, having been arraigned, pleaded not guilty to all accounts. An application was made to have the trial adjourned to next term on account of the unavailability of a particular Senior Counsel on the defence side. The trial was adjourned for hearing to the sittings commencing on 5th October, 1999. On 30th September of that year, some one week before the trial was due to commence, the applicant's solicitor sought an adjournment on the grounds that his Senior Counsel was unavailable and also that he wished to take further instructions on documentation received. On 5th October the trial was adjourned until the following day partly because Senior Counsel was still not available and partly because the defence alleged that the DPP had not furnished to them a photocopy of the defendant's original statement. Despite opposition from the DPP, the matter was again listed on 6th October and ultimately adjourned by the Circuit Court judge to 7th December, 1999. On that date the Director of Public Prosecutions successfully applied for an adjournment on the basis that the complainant was ill and was unable to attend court. Witness's expenses were awarded to the defence. The trial ultimately commenced on the 2nd February, 2000,

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    and continued until the jury entered a disagreement verdict at about 6.30 pm on 4th of February.

  25. On 9th February, 2000, this matter was mentioned before the Circuit Court when it was claimed that the applicant had breached his bail conditions. His answer to this allegation namely that he believed he had had been discharged from the terms of his bail following the jury disagreement, was accepted by the Circuit Court judge. On 2nd March, 2000, members of the victim's family were met by the Gardaí in the local Garda Station. On 13th March, 2000, the State Solicitor sought the DPP's direction on the question of a retrial. That was affirmatively responded to on 20th March, 2000. On 28th March the Gardaí informed the State Solicitor that the victim was proceeding as a witness in a new trial but that such trial could not proceed in May 2000 due to certain examinations which she had to set. The applicant was so informed. In any event as only three days were set aside for those sittings it was not realistically possible for the case to go to trial at that time. By letter dated 9th May, 2000 the State Solicitor requested the applicant's consent to have the trial moved to 3rd October when it was more likely that the matter would be heard. On 28th July, his Honour Judge Deery made an order directing that the transcript of the evidence of the first trial be made available to the parties. On 3rd October a different Senior Counsel appeared on behalf of the accused person and sought an adjournment on the basis that one of the defence witnesses was unable to attend: this on the grounds that she had just got a new job and had no holiday entitlements. The adjournment application, despite objection, was granted with the case obtaining a new trial date of 30th January, 2001. On 29th of that month the State Solicitor was informed by the applicant of the within proceedings.

    26. - 21 -
  26. In my opinion the above chronology and sequence of events do not support any submission that there was a delay, which could be attributable to the complainant or the DPP, during this period between January 1999 and January 2001. Following his arrest and charge the accused person was brought before the District Court as a matter of urgency. The Book of Evidence was served within the time permitted by the District Court or at latest within one week thereafter. The case was then adjourned to permit the defendant to consider the evidence. On 10th June, 1999 the return for trial was made and within four weeks a copy of the indictment was served. On 1st available sitting of the Circuit Court the matter was adjourned at the behest of the applicant who was the defendant of course in such proceedings. On 5th October, 1999 again one of the reasons for the trial not proceeding was the unavailability of Senior Counsel. On 7th December, 1999, because of the complainant's illness, the case was unable to proceed and finally it was as we know, heard on the 2nd and subsequent days of February 2000. In my view there is nothing in the above detail which could in any way be categorised as delay in the prosecution or judicial processing of this trial much less any inordinate, inexcusable or culpable delay. All time limits imposed were reasonable, desirable and necessary. All were, I think, met or substantially met. The case was adjourned on a number of occasions to facilitate the accused person. One cannot legislate for an unexpected illness which prevented the trial going on 7th December 1999. Accordingly, I would be very much of the view that nothing in this period of time can be said to constitute delay.

  27. Following the disagreement of the jury in February 2000, certain steps were obviously then required to be taken by the State Solicitor and DPP. The latter had to

    28. - 22 -

    consider the question of a retrial and in that context it was reasonable to ascertain the wishes, views and position of the complainant. Those maters were dealt with and finalised by the end of March 2000. Again it was not in my view unreasonable that the trial should be deferred on account of examinations which the victim had to sit in May of that year. Furthermore from the uncontroverted evidence of Ms. Finn's affidavit it would appear that there was no realistic possibility of the case proceeding in May whether or not the victim was available. In July an order was obtained making available the transcript from the earlier trial. On 3rd October, 2000, a different Senior Counsel, from the person previous mentioned, appeared on behalf of the accused and sought an adjournment on the basis that one of these witnesses was not available. Again it was reasonable and proper.

  28. From the above circumstances I cannot, with regard to any part of the two periods under review, find any evidence which would sustain an allegation of delay for either of these said periods. Accordingly I cannot agree with any submission which seeks relief founded upon these said periods.

    29. Reversal of the DPP's decision:
  29. In 1974, under the Prosecution of Offences Act, the office of the Director of Public Prosecutions was established. Under section 2 (5) of the Act, the DPP was declared independent in the performance of the functions assigned to him thereunder. In furtherance of this status, section 6 of the Act places a prohibition on certain persons from making communications with the DPP in respect of decisions made by him. This section does not apply to a complainant, or a member of his or her family, or to a defendant or a putative defendant.

    30. - 23 -

    The role of the Superior Courts, when exercising their supervisory jurisdiction, has been considered in the following cases in the context of decisions made by the DPP (see The State (O'Callaghan) v. O'Huadhaigh [1977] I.R. 42, The State (McCormack) v. Curran [1987] I.L.R.M. and H. v. DPP [1994] 2 I.R.). From these judgments the following general propositions emerge:-

    (a) The DPP, when exercising his decision making power, is subject to the Constitution and to the Law,
    (b) For this purpose his decisions are subject to court control though the scope of such permitted review is much more circumscribed than with other persona or bodies carrying out decision making functions,
    (c) Where it can be demonstrated that the decision arrived at was made mala fides, or was influenced by an improper motive or an improper policy then the courts have power to intervene, and
    (d) The DPP does not have to furnish reasons for his decisions either those that are positive or negative.
  30. In the State (McCormack) v. Curran [1987] I.L.R.M. 225, and H. v. DPP [1994] 2 I.R. 589, the Court was concerned with a challenge on its merits to decisions made by the DPP not to prosecute. There was no question in either case of the decision having been taken on review or of having been communicated to the defendant and no issue arose as to any change of circumstances. These matters however did arise directly in Eviston v. Director of Public Prosecutions [2003] 1 ILRM 178.

    31. - 24 -
  31. In Eviston v. Director of Public Prosecutions [2003] 1 ILRM 178, the applicant was involved in a road traffic accident which unfortunately involved the death of the driver of the other vehicle. The police investigated and submitted a file to the DPP. The applicant also obtained a report from a firm of consulting engineers and assessors and sent a copy of that to the respondent. A decision was made by the DPP not to prosecute and in early December 1998 the applicant's solicitor was so informed by the Gardaí of this decision. That information was communicated to Mrs. Eviston. On 16th December, 1998, the father of the deceased man wrote to the DPP and requested a review of the documentation and earnestly urged that some charges be levelled against the applicant. On 23rd December, 1998, District Court Summons were issued against her, alleging inter alia dangerous driving causing death. Prior to any court hearing on these charges and following the DPP's refusal to give any reasons for his change of mind, leave was obtained from the High Court permitting the applicant to challenge the validity of the decision to prosecute.

  32. In his judgment, Keane C.J. reaffirmed the view that the DPP was subject to the Constitution and to law in the performance of his functions and also declared that in addition to the circumstances above outlined, (see para 31 (c) above) the court did have power to review a decision of the DPP which had the effect of reserving an earlier decision of his not to prosecute. The learned Chief Justice expressed the opinion that the DPP could review a decision not to prosecute and could change his mind in respect thereof. He may do this even in the absence of fresh evidence or different factors. This it was said was in the public interest given the absence of any appeal process from a decision of his and given his right to refuse to give reason in respect thereof. If the reviewed decision had not been communicated to a potential

    33. - 25 -

    defendant but somehow had become public knowledge, that fact on it own would not render the decision reviewable by the court. Equally so no challenge could be successfully mounted simply because the review was initiated by a member of the victim's family or indeed, by the Gardaí. Moreover in such circumstances though a putative defendant undoubtedly would have suffered stress and anxiety at the DPP's reversal, nonetheless these factors, again on this own, would not be sufficient to ground judicial review proceedings.

  33. The judgement of the Chief Justice also dealt with the doctrine of equitable estoppel and the question of legitimate expectation.

    34. Having identified as a distinguishing feature in the case, the communication by the DPP of his decision not to prosecute to the person concerned in circumstances where no new material was to hand, the Chief Justice was satisfied that his decision of reversal was prima facie reviewable on the grounds that fair procedures had not been observed.

  34. At p. 197 of the report, Keane C.J., when dealing with the particular evidence on the issue of fair procedures, continued:

    35. "It is, however, beyond argument that the degree of such stress and anxiety as to the applicant was subjected was exacerbated by the decision of the DPP to activate the review procedure in circumstances where he had already informed the applicant that she would not be prosecuted and he had not given her the slightest inclination that this was a decision which would be subjected to review in accordance with the procedures in his office… No reason has been
    - 26 -
    advanced, presumably because none existed, as to why the applicant was not informed that the decision of the DPP not to institute a prosecution might in fact be reviewed at a later stage. In the result she was subjected to a further and entirely unnecessary layer of anxiety and stress. Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am forced to the conclusion that in the circumstances where the DPP candidly acknowledges that there was no new evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to which, in all the circumstances, she was entitled. It follows that the requirements of the Constitution and the law will not be upheld the DPP in the present case were to succeed.
    I would, accordingly, dismiss the appeal and affirm the order of the High Court."
  35. In a separate judgment McGuiness J. dealt extensively with the scope of review insofar as the role of the DPP was concerned. She relied on several decisions cited in her judgment and expressed the view that The State (O'Callaghan) v. O'Huadhaigh [1977] I.R. 42 was both similar to and analogous with the facts of Eviston v. Director of Public Prosecutions [2003] 1 ILRM 178. At p. 216 of the report the conclusion of the learned judge was that:

    36. "The dictum of Finlay P. at page 53 (of The State (O'Callaghan) v. O'Huadhaigh) that it appears to me that the same or analogous principals must apply, a fortiori to the exercise by the Director of Public Prosecutions of the statutory powers would appear to establish that the requirement of fair
    - 27 -
    prosecutions does indeed apply to the Director of Public Prosecutions, at least in 'particular circumstances' in the exercise of his statutory functions.
    In my view, the 'particular circumstances', of the instant case must require fair procedures on the part of the DPP. In thus holding I am bearing in mind all the facts of the case as they have emerged during the course of the proceedings. I also bear in mind the level of stress and anxiety of which has been borne over a considerable period of the applicant. On those particular facts it seems to me the DPP had unequivocally and without any caveat informed the applicant that no prosecution would issue against her with this road and traffic accident, it was a breach of right to fair process for him to reverse his decision and to initiate a prosecution by the issuing of the summons on the 23rd December, 1998. I would dismiss the appeal."
  36. Applying these principals to this case it seems to me that the second named respondent is suggesting, through the affidavit of Miss. Finn from the Office of the Chief State Solicitor, that the DPP had new material upon which he could, by law, change and alter his original decision. She refers to some case law of the Supreme Court, a second statement from the injured party dated 12th July, 1998, and a psychological report from Mr. Clark dated 11th November, 1998. With regard to the 12th July statement she says that this differed from the original evidence available in that the victim sets out in much more detail a description of the sexual assaults and secondly, again in more detail she describes the operation and effect of such assaults on her. So in that away it is submitted on the DPP's behalf that new material was available to him.

    37. - 28 -
  37. In my view I cannot agree with this submission. It seems to me firstly that the reference in the State Solicitor's letter of 7th September, 1998, to the DPP, which refers to "other enclosures constituting a fresh garda file" must be interpreted in light of the affidavit evidence as a whole. Otherwise there is no doubt in my mind but that specific identification of such "other enclosures" would have been forthcoming. As this has not been done, I can only assume that all of the new material, whatever that might constitute, is that as is otherwise made known in the affidavits.

    38. When one considers the additional statement of the complainant it seems to me that this does not amount to new material which could have any, or any significant bearing on the later decision of the DPP to reverse that which was communicate in 1994. It seems to me from an examination of both statements of the victim that all of the ingredients necessary to constitute the charges, ultimately preferred against the accused, are contained in her original account. Equally so there was sufficient material to describe, at least in an acceptable way the effects which such abuse had had on her. Therefore I do not believe that it can truly be said that the second statement added anything of a significant evidential nature to the material already before the DPP.

  38. Likewise with regard the other statements which are referred to in the documentation, which are those from a teacher Ms. C, the social worker Mr. Gordan, and the psychological report of Mr. Clarke dated 11th November, 1998. In the DPP's own opinion these statements were omitted from the Book of Evidence because he had no intention of seeking to introduce them at the trial. In any event the statement of Ms. C was available in 1994 and the report of the social worker was based on

    39. - 29 -

    interviews which he had with the complainant between 4th September, 1992, and the end of December 1993. The psychological report was to deal with any defence point on delay prior to August 1993. In addition there is a reference to a report from a Dr. Murray but that also was available not later than January 1994. Accordingly I cannot see in any of the documentation placed before this court, material which could justify a holding that the DPP had new evidence before him in 1998. In my view on any factual analysis of the papers before me he did not so have. On the legal side I do not agree that more recent case law, however relevant and material, can be said to constitute new evidence for the purpose of a DPP's review.

  39. So in summary, from an evidential point of view I am of the opinion that the Director of Public Prosecution's decision was communicated to the accused person and his wife in July 1994, in terms which made it clear that there would be no prosecution arising out of the complaints made by the victim to the Gardaí in August 1993. Secondly this communication was unconditional and thirdly I am satisfied that there was no new evidential material available to the DPP when he reversed that decision in late 1998 and which led to the accused being charged in January 1999. The immediate question of law therefore is whether in such factual circumstances the DPP was legally justified in making this decision and secondly if he wasn't, what effect, if any, did the applicant's delay in seeking relief and his submission to the criminal justice system, have on the resulting position.

  40. Based on the above findings it seems to me that the features which distinguished Eviston v. Director of Public Prosecutions [2003] 1 ILRM 178 from the State (McCormack) v. Curran [1987] I.L.R.M. 225, and H v. DPP [1994] 2 I.R. 589 equally exists in this case. There is no doubt but that the communication took

    41. - 30 -

    place, and that it was not qualified in any way. Whilst the absence of new material arose from a concession in Eviston, the finding of this court to same effect must lead to a similar conclusion. In addition in my opinion this case has at least two additional matters, of considerable significance, which favours the applicant. In the first instance as is clear from the evidence of Sergeant Hargadon, cited at para. 5 (a) above, there was in fact, back in 1984 a review of the original decision not to prosecute. Therefore what the DPP did in 1998, constituted what was in effect a second review rather than an original review. Even though I was not referred to the review procedure of the DPP (see p. 188 of Eviston) I doubt if that procedure envisages a second review. Secondly the time period which elapsed in Eviston between the communication of the decision not to prosecute and the issue of the summons was something like three weeks. In the present case it was more than four and the half years for which there is no satisfactory explanation. These factors coupled with the undoubted added stress anxiety and concern suffered by the applicant in 1999 makes a conclusion, in my view, almost inevitable that fair procedures were not followed by the DPP when making his decision at the end of 1998 or early 1999. In my opinion, therefore, the decision to prosecute was in the circumstances of this case contrary to fair procedures and thus to the applicants established rights.

  41. Following upon the above finding it is now necessary to consider what legally flows therefrom given the particular circumstances of this case. The circumstances now relevant include the fact that the application for leave to this court was not made for a period of almost two years from the arrest and charge of the accused person in January 1999 and secondly that without legal protest or objection taken on his behalf the said accused participated fully in his trial before the Circuit Court. These matters

    42. - 31 -

    it is claimed are irrelevant in that this is a case in which the orders sought should issue ex debito justitiae. This submission is based upon the State (Vozza) v. O'Floinn [1957] I.R. 227 and The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89. It is said that a public wrong has been done to the accused person and that accordingly his participation in the criminal trial and any delay in instituting the proceedings are entirely irrelevant.

  42. The State (Vozza), v. O'Floinn [1957] I.R. 227 supra. was a case in which the applicant was originally brought before the District Court to answer a charge of attempting to steal a purse from a named individual. Having heard some evidence the District Justice was satisfied that the case was one fit to be tried summarily and having informed Mr. Vozza of his right to a trial by jury, he proceeded, in the absence of any objection, to determine the case summarily. Having heard further evidence the justice was of the opinion that the facts justified the more serious charge of stealing. He did not, when making that decision or at any time thereafter, inform the applicant of his right under section 2 (2)(a) (ii) of the Criminal Justice Act 1951. He proceeded to conviction and sentenced him to two months imprisonment. His appeal was rejected and the original conviction affirmed. Having obtained a conditional order of certiorari he was refused relief in the High Court on the basis that certain statements in his affidavit were grossly exaggerated, unrealistic or downright wrong. On appeal that decision was reversed. He was granted an order of certiorari.

  43. In the Supreme Court Maguire C.J. said that except "where it goes as of course", the granting of an order of certiorari is in all cases discretionary. However when there was a conviction on record made without jurisdiction, as in the case of Mr. Vozza, then that discretion could be exercised only in one way namely by quashing

    44. - 32 -

    the order. When dealing with the ground upon which the High Court refused relief the learned Chief Justice said that he would find it difficult:

    "to imagine conduct on the part of an applicant for certiorari which would disentitle him to an order of certiorari in regard to a conviction of a crime of any sort, where it is established that it was made without jurisdiction."
    (see 244 of the report).

    Lavery J. felt that any distinction between an order which would issue as of course and one where discretion could be exercised only in one way seemed to him meaningless.

    Kingsmill Moore J., did not rule out the possibility that in certain circumstances conduct could operate as a bar to obtaining an order of certiorari but, at least in the context of a conditional order, such conduct would have to be "of a much grosser character than would justify setting aside an absolute order made on an ex parte application," (see p. 252 of the report).

    This case of the State (Vozza) is substantially different, in a number of ways, from the instant one. Firstly, the debate above mentioned was in the context of an order of certiorari, secondly, there was an aggrieved person who had a conviction on record against him, thirdly, that conviction was made without jurisdiction and finally the conduct being impugned was in the context of an ex parte application for a conditional order. None of these features exist in the present case.

    - 33 -
  44. As to The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89, on the 15th August, 1975, Mr. Furey was discharged from the army for the stated reason that his services were no longer required and that his military conduct was "unsatisfactory". In October 1979 he moved in the High Court, by way of obtaining a conditional order, to have this discharged quashed on certiorari. On appeal to the Supreme Court an issue arose about this period of delay in moving the application. In a majority decision granting him relief, the following passage, from the judgment of McCarthy J., was particularly relied upon in this case. At p. 100 of the report the learned judge said:

    45. "Further I see no logically reason why delay, however long, should, of itself, disentitle the certiorari any applicant for that remedy who can demonstrate that a public wrong has been done to him – that for instance, a conviction was obtained without jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life."

    Based on these cases and in particular the latter observation from McCarthy J. it is submitted that the factors mentioned at para. 43 above are not relevant to the applicant in this case and that such matters ought not to prevent him from obtaining an order of prohibition and an injunction.

  45. This substantial area of law was reviewed comprehensively by the Supreme Court in De Roiste v. Minister for Defence, Ireland and the Attorney General [2001] 1 IR 190. For the reasons set forth in the judgments of Denham J. and Fennelly J. Keane C.J. was satisfied that the above quotation from the State (Furey) "cannot be regarded as a correct statement of the law", (see p. 197 of the report).

    46. - 34 -

    In their respective judgments both Denham J. and Fennelly J. analysed in considerable depth, the issue, inter alia, of delay and discretion when the court was considering an application for certiorari. The State (Cussen) v. Brennan [1981] I.R. 181 was referred to as was the decision of O'Higgins C.J. in The State (Abenglen Property Ltd.) v. Dublin Corporation [1984] I.R. 381. In The State (Abenglen), O'Higgins C.J. expressed the opinion that even when the relief issued as of right, the court retained a discretion to refuse the application if the impugned conduct of the applicant was such as to disentitle him to relief. At p. 208 of the report in De Roiste, Denham J. set out several factors which a court should take into account in considering a request to extend time or to allow judicial review. She listed these factors as being:

    "(i) The nature of the order or actions the subject of the application:
    (ii) The conduct of the applicant:
    (iii) The conduct of the respondents:
    (iv) The effect of the order under review on the parties subsequent to the order being made and any steps by the parties subsequent to the order to be reviewed:
    (v) Any effect which may have taken place on third parties by the order to be reviewed:
    (vi) Public policy that proceedings relating to the public law domain take place promptly except when good reason is furnished."

    That list she said was not exclusive and during the course of her judgment she refused to accept as correct the statement of McCarthy J. in the State (Furey) v. Minister for Defence [1988] I.L.R.M. 89.

    - 35 -

    Fennelly J. undertook a similar review of the relevant case law and his conclusion can I believe be taken from the following passage which appears at p. 220:-

    "It is clear from a reading of the aforementioned case as well as many other cases that an order of certiorari is always, as a matter of principle, discretionary. But the nature of that discretion must be considered in two different contexts. An applicant who is not directly affected by the legal act which he attacks can do no more than ask the court to exercise its discretion to quash an order. Applications of this sort are rare. When the order is one to which the applicant is entitled to ex debito justitiae, i.e. one which affects him directly, that discretion can normally be exercised in only one way that is i.e. in his favour. That does not mean, however, that the behaviour of the applicant may not be such as to deprive him of his prima facie right to relief. This gives rise to a second context for the exercise of discretion."

    Likewise Fennelly J. felt that The State (Furey) no longer represented the law.

  46. I am not at all certain that in a case where an order of prohibition and/or an injunction are sought that the above cases are directly in point. It has never been suggested to my knowledge, that when a court is considering an application for an injunction that it cannot take into account the question of delay, or the conduct of the applicant or any other feature which is material to the case. Indeed all of the circumstances are and must be considered before the court, in the exercise of its discretion and in accordance with well established principals, makes a decision on such an application. With regard to an order for prohibition, this is of course a relief within Judicial Review proceedings. As such Order 84 must apply to it as it applies to

    47. - 36 -

    any other relief available under such a procedure. Therefore under Rule 21 of that Order the application must be made promptly and in any event within three months from the date when grounds for the application first arose or six months where the relief sought is certiorari. Indeed, there have been cases which have failed this procedural test notwithstanding that they were moved within the required period. See DPP v. McDonnell (High Court, Unreported, 1st October, 1990). In addition the court, even when the relief sought is not certiorari, has always had, as a matter of substantial law, a discretion whether or not to grant the type of relief which is sought in this case. However it seems to me that even if I was to apply by analogy the principals which govern the granting of certiorari, I would still have a discretion whether to grant the orders sought and I would still have to find "good reason" to extend time for making the application when the same on its face has not compiled with Order 84 Rule 21.

  47. If this view be correct then, not withstanding my opinion on the DPP actions, the applicant must fail by reason of his delay in moving this application. Following upon his contention that the orders must issue ex debito justitiae, he has not sought to establish by way of evidence any grounds upon which this court would be justified in enlarging the time for bringing this application. That being so no extension can be granted. However I would not like to fully rest my decision in this way. On the more substantial point, however, namely the courts overall discretion in granting relief, I am also of the view that the applicant cannot succeed. This on the facts of the present case.

    48. - 37 -
  48. There is no doubt but that the accused person knew in January 1999 of the DPP's decision to charge and have him prosecuted. Very shortly thereafter he retained solicitor and counsel. Those professionals continued to be available to him right throughout 1999 and into the year 2000. Presumably on advice the decision was made to contest the criminal proceedings in the circuit court. The trial took place over three days. The complainant and other witnesses were called and were cross-examined. As was the accused person. The jury having deliberated reached a disagreement. Another twelve months in effect was then allowed to lapse before moving the leave application. Certainly he was fully aware of the DPP's intention to seek a retrial as and from the early part of the year 2000. And yet there was no move on the Judicial Review side. And yet there was no explanation for that lack of action and/or why he choose to defend rather than more to the High Court. In these circumstances I could not see it either being just or proper, and certainly not just or proper to the victim, that I should exercise my discretion in his favour and accordingly on this ground the applicant also looses.

  49. There is another way in which the actions of the accused person throughout 1999 and 2000 can be considered. As previously stated he was fully and completely aware of the moves by the DPP as and from January 1999. He was brought before the District Court within one week or so of having been arrested. He was thereafter part of and in the judicial process. This was a process which in the absence of challenge continued up to and including his trial. He choose to adopt this route. He elected to contest allegations on their merits. He was perfectly entitled to so do. Having done so however I am of the view that by his conduct he must be taken of having surrendered, waved, or abandoned his constitutional rights, and his rights to natural justice which I

    50. - 38 -

    have above identified. That one can so do is not in dispute. See the State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and G. v. An Bord Uchtála [1980] I.R. 32. Once an individual, without other disability, has full knowledge of the relevant circumstances and once that can be established or inferred from his conduct, then he will be taken to have unambiguously surrendered such rights. The same applies to natural justice. See Corrigan v. Irish Land Commission [1977] I.R. 317 and O'Brien v. Bórd na Móna [1983] IR 255.

    As a result on this separate ground I would conclude that he cannot attempt to re-establish a position which was open to him in January 1999 but which, as of now, has been superseded by a process to which he willingly submitted.

  50. This result, is I think supported by the decision of Butler J. in State (Conlon Construction Company) v. Cork Co. Co., (Unreported, High Court, 31st July, 1975). Although that case was decided under the 1962 Rules of the Superior Courts, it remains I feel applicable. The learned Judge said:

    51. "The making of an order is within the discretion of the court, the court must consider all the circumstances of the case including the conduct of the parties and, unless coheres by the manifest requirements of justice, to exercise the discretion to make the order, he refused it on judicial grounds. Where mandamus is sought to secure a right the right must be promptly claimed and the claim pursued vigorously without being abandoned. Among well recognised grounds for refusing the remedy is delay on the part of the applicant in pursuing the claim and the abandonment of the claim in favour of alternative remedies. Where such delay of abandonment was deliberate
    - 39 -
    because the claimant may have thought such a course to be in his better interest he cannot repent his decision and ask for the discretion of the court to be exercised in his favour by the making of the order."
  51. From the above therefore I would refuse the relief sought on the following grounds:-

    52. (a) That the complainant was not in any way responsible for any delay between the dates of the offences and August, 1993, during which period if there was a delay, the same was firmly grounded upon and can be attributable to the alleged abuse,
    (b) That there was no delay on the part of either the Gardaí or the DPP between January 1999 and January 2001,
    (c) That the applicant failed to move promptly with his application to this court,
    (d) That with full knowledge of all of the relevant evidence and circumstances, he consciously and purposefully made a decision to participate in his trial and thus through the criminal process to vindicate his constitutional rights, and
    (e) That as a result he has waived and/or abandoned and/or surrendered such rights either being constitutional or legal in nature, which otherwise might have been available to him in January 1999.
  52. If however I should be wrong in my conclusions and if the applicant has made out a serious case for alleging that his right to a trial with reasonable expedition has been breached, which I don't believe, then I should consider the competing interests

    53. - 40 -

    of his portion in preventing a retrial and of these of society, including the victim, in permitting the existing criminal process to proceed to finality.

  53. As appears from the submissions made on behalf of the applicant, it is claimed by him that there exists in this case both general and specific prejudice. General in respect of the matters which he has identified, to include the distress, worry and anxiety at having these allegations made against him in the first place, at having been interviewed by the Gardaí in 1993 and at having to form a response to and otherwise deal with such allegations. This worry and concern must undoubtedly have returned and at a much more intense level following his arrest and charge in January 1999. Such emotional and psychological reaction is perfectly understandable but in my view, at least initially, this stemmed from the making of the allegation themselves rather than to the specific point in time when the complaint was made. In other words it is my belief that most likely a similar response would have been aroused in from the accused person even if the allegations were made in 1988 or 1989. In any event, as previously so found by this court, I am satisfied that if there was any delay up to August 1993 it was directly as a result of the applicant's wrongdoing which I must assume to exist for the purposes of this application. Therefore at least insofar as this response is concerned I could not agree that this is a material factor of any great significance.

  54. There is no doubt but that the levelling of charges against the accused person must have reactivated within him and his family a degree of anxiety, stress and concern which most probably was to a far higher level then that experienced in 1993 and 1994. Accordingly, but purely in the context of the exercise outlined at para. 54

    55. - 41 -

    above, I am prepared to accept that this is a relevant factor for the purposes of the present analysis.

  55. Which regard to prejudice I do not believe that the applicant is in any danger or at any risk in having to face a re-trial under this heading. The general prejudice point is true of all cases where any substantial period expires between the date of the alleged offences and the trial of an accused person thereon. However all of the relevant witnesses have given evidence in the trial which took place in February 2000 and therefore it is quite unlike a situation where potential witnesses have yet to agitate their minds. I do not believe that memory has any potential to operate an injustice in the circumstances of this case.

  56. Equally so in my view there is no substance in any allegation of specific prejudice. It is said in the affidavit evidence that one witness, quite material to the defence case, is now resident in England and may or may not return for a new trial. The evidence of Mr. Philip White, the applicant's solicitor, in this regard is set out in paragraph 14 of his first affidavit. He says that the witness living in England has indicated a willingness to attend but one of course, can't be certain that he or she will in fact so return. However Sergeant Hardagon informs the court that this witness apparently for many years, has lived next door to the accused person and was and remains a good friend of the family. She offers the opinion that there is every possibility of such a person being available for any retrial. The second witness is referred to only as a potential witness with the type and kind of evidence, which he or she might be, not in any way being outlined. Moreover there is no clear cut suggestion that raises any substantial doubt as to the future availability of such a

    57. - 42 -

    person. I am satisfied that if reasonable arrangements can be made and communicated to that individual in good time, then there is no reason why he or she would not attend. Accordingly I do not believe that the applicant has proved the existence of any prejudice, in this case either general or specific.

  57. Apart from the degree of stress and anxiety above mentioned, I do not believe that there exists any other adverse factor, which the right to a trial with reasonable expedition is designed to protect. The matters identified by Powell J. in the United States Supreme Court decision of Barker v. Wingo 407 U.S. 514 [1972], which has long been accepted in this jurisdiction, are not present in the instant case. That being so, and taking into account the entire time period involved, I am firmly of the belief that there is no real or substantial risk to the applicant in any retrial of not obtaining due process.

    58. Even therefore if this analysis should be relevant, I believe that the balance of justice clearly favours a continuation of the criminal process.

  58. I therefore refuse the relief sought.

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