H22
Judgment
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Neutral Citation: [2015] IEHC 22 THE HIGH COURT JUDICIAL REVIEW [2014 No. 641 J.R.] BETWEEN J.J.P. APPLICANT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT JUDGMENT of Mr. Justice Eagar delivered on the 19th day of January 2015 1. This is an application by the Applicant by way of Judicial Review for an order of prohibition prohibiting the Respondent from prosecuting the Applicant on counts 1 to 64 in Bill of Indictment Number TYP0028 of 2013 before Tipperary Circuit Criminal Court. 2. The grounds upon which this relief is sought can be summarised under the following headings.
ii. The second complainant had made a complaint to the Garda Siochana in 2001 that the Applicant had assaulted her in 2001 and the Garda file in relation to the investigation of this complainant has been lost. No prosecution was taken on foot of that complaint and there was a delay in excess of 12 years from the time when the second complainant made her original complaint. 3. On the 13th July 2010 the three complainants made complaints of sexual assault with regard to the alleged actions by the Applicant. The Applicant was arrested and interviewed on the 20th April 2011. 4. Counts 1 to 3 in this indictment refer to the first complainant alleging sexual assault on her between the 1st September 2001 and the 30th September 2005. Counts 4 to 25 refer to 22 counts of sexual assault between the 1st April 1996 and the 31st August 2001 relating to the second complainant and counts 26 to 64 relate to 39 counts of sexual assault on the third complainant between the 1st October 1996 and the 30th June 2006. 5. The affidavit of John Fitzgerald, Solicitor grounding the Statement of Grounds states that the Applicant entered into a relationship with the mother of the three complainants in 1994. The three complainants were respectively born on the 4th February 1991 (first complainant), 1st October 1984 (the second complainant) and 21st September 1987 (the third complainant). 6. The Applicant had four children from a previous relationship, two girls and two boys. He and the mother of the complainants had two further children, both boys, between April 1996 and October 2002. 7. In August 2001 the second complainant left home and around that time made a complaint to An Garda Siochana that the Applicant had sexually assaulted her. Garda Sergeant Frances Fitzgerald interviewed the third complainant and the Applicant was arrested and detained and interviewed. Certainly no charges were brought against the Applicant. All the documents relating to the Garda investigation appear to be missing save for a copy of the custody record. Neither the statement of complaint of the second named complainant nor the statement of the third named complainant or the interviews with the Applicant were available. 8. In July 2010 the three complainants made complaints to An Garda Siochana alleging numerous incidents of sexual assault by the Applicant. The Applicant was arrested and detained by An Garda Siochana on the 20th April 2011. There were six interviews in the course of that detention. It is noteworthy that in the course of that detention there were certain admissions made by the Applicant in respect of sexual assaults committed on the third complainant from when she was 10 years of age. 9. The Applicant was charged with the offences in the indictment on the 5th February 2013. The Book of Evidence was served on the 5th March 2013 and on that date the Applicant was returned for trial to Nenagh Circuit Criminal Court. Circuit Criminal Court Proceedings 11. On the 8th October 2014 counsel for the Applicant instructed by the Applicant’s then solicitor applied to have the charges prohibited from proceeding or for a direction of Teehan J directing the acquittal of the Applicant. The application was based on the missing evidence and also the delay. In the course of this application reference was made to detailed social worker notes of the Social Work Department in the Mid-Western Health Board for the periods from June 2001 to May 2003 relating to the welfare of the children living with the Applicant and the mother of the complainants and also the second complainant. These disclosed details of what the third complainant had said to social workers and to third parties however it appears from these notes that no complaint was made by the third complainant to An Garda Siochana although it is clear she made many complaints to social worker staff and others. 12. Counsel for the Applicant further indicated that the solicitors for the Applicant had sought details by way of disclosure of the arrest and detention of the Applicant in 2001 and that all that he received was the first page of the custody record relating the detention of the Applicant in 2001. 13. Counsel further indicated that the State Solicitor, Mr O’Brien, had indicated that the complaint was made to Thurles Garda Station in approximately August 2000 and that a Sergeant Frances Fitzgerald began a subsequent investigation and that no Garda investigation file had been located following searches at all the local Garda Stations and the offices of the Respondent. He also said that Sergeant Fitzgerald had been on long term illness and was now retired from An Garda Siochana. 14. Counsel for the Applicant further argued that the defence of the Applicant was prejudiced by the missing file. Further what was contained in the statement of the second complainant in the Book of Evidence appeared to contain longer and more serious incidents. He also referred that it was his instructions that this was the case. He also referred to the prejudice of not having a record of what was alleged to have happened in 2001 and that Superintendent Cogan who was the Superintendent in charge of the area was now deceased. 15. Counsel for the Respondent agreed with counsel for the Applicant in relation to the jurisdiction of the trial judge with regard to making a ruling. However he did state that it would not be appropriate or competent for the Circuit Court to entertain any application in relation to the decision by the Respondent to prosecute the Applicant and that this would be a matter for the High Court. Counsel for the Respondent indicated that the onus was on the Applicant to engage with the facts of the case. The alleged prejudice, if such prejudice is established, must be married to the facts of the case in order to demonstrate that the judge’s rulings or directions of the trial judge might be insufficient to ensure a fair trial. Counsel for the Respondent further indicated that the Applicant appeared to have been capable of furnishing instructions in relation to his detention in 2001. He also stated that it was clearly unsatisfactory that the documents were not available. 16. Teehan J ruled in the matter that the onus was on the defence to satisfy the court that there is a reasonable, real and unavoidable risk of an unfair trial for the accused and he was not satisfied that what was submitted was sufficient to demonstrate that this was the case. He did say that if he became satisfied during the trial that there was a real possibility of prejudice arising that he would not let the matter go to the jury. 17. In this judgment I have gone into the details of the arguments made by counsel for both sides and the judge’s ruling as it appears to me that part of the role of this court is to review what was put before the Circuit Court bearing in mind that Teehan J. is a very experienced trial judge. 18. On the 9th October 2014 the court was told that the Applicant had changed his legal team and that the trial was adjourned until the 10th October 2014. Then a jury was sworn and trial commenced on the 14th October 2014. Over the following days the second complainant and the third complainant were examined in chief and cross examined by Mr Sheehan on behalf of the Applicant. On day 4 of the trial the third complainant gave evidence and was cross examined by Mr Sheehan. On the 5th day of the trial, the 20th October 2014, the Respondent disclosed to counsel for the Applicant defence material which had not been disclosed previously. This was a report to a Garda McCarthy which was submitted to the Sergeant in charge of Thurles Garda Station with a PULSE indication number indicating that the mother of these three complainants and the third complainant had reported to Garda McCarthy nuisance calls alleged to have been made to the third complainant by her father and her elder sister, the second complainant, suggesting that the third complainant could be taken into care. This document was dated a date in 2003. The Gardai contacted the second complainant and the father of the complainants in this regard. 19. As a result of this disclosure Teehan J discharged the jury on the application of the defence as this would have required further cross examination of the complainants who had already given evidence. The prosecution is now listed for the sittings in February 2015 in Nenagh Circuit Criminal Court. Delay Prejudice Statement of Opposition Delay Risk of Fair Trial Prejudice 26. Helpful written submissions were prepared by the Applicant and the Respondent which dealt with in useful detail with the grounds of the Judicial Review. I would first of all deal with the issue of the time limits provided by O. 84 of the Superior Courts (as amended by S.I. 691 of 2011). It appears that the final disclosure of loss of the investigation file occurred at the trial which commenced on the 8th October 2014 and in those circumstances it seems to me to be reasonable that this application was made within the time limits. 27. It is also my view that it is necessary to look at the prosecution of these cases as three prosecution cases with each of the complainants making complaints. Each of the complainants form a separate and distinct case and the trial judge in instructing a jury must charge the jury on this issue. It appears to me that prejudice may arise in respect of one or more of the complainants and may not arise with another complainant. 28. Complaint is made of the complainant delay by each of the three complainants in respect of their Statements of Complaint in 2010. That is that in making the complaint in 2010 in relation to allegations relating back to the dates of the charges this was an inordinate delay. 29. I am quite satisfied that the decision of the Supreme Court in S.H. v. The Director of Public Prosecutions [2006] 3 IR 575 deals with this issue. Murray C.J. (as he then was) referred to the affidavit sworn by Dr. Harry Ferguson who was cross examined on his reports and affidavit and referred to Dr Ferguson’s indication from his research that the fact that from the 1930’s until the 1980’s child sexual abuse was not reported. In summing up Murray C.J. said:-
31. The decision of the Supreme Court in P.M. v. The Director of Public Prosecutions [2006] IESC 22 lays down the issues with regard to blameworthy prosecutorial delay. Blameworthy prosecutorial delay of significance, if established, was not sufficient per se to prohibit a trial but that one or more of the interests protected by the right to expeditious trial must be shown to have been interfered with such as would entitle the plaintiff to relief. In order words the Supreme Court in quoting Kearns J (as he then was) :-
33. I say in relation to the third complainant that there is sufficient material in the social work notes to provide for the proper cross examination by the Applicant of this complainant. It is also worthy of note that the Applicant has made admissions of sexual assault on the third Applicant from the time that she was 10 years of age to a time when she was 17 years of age. I would like to refer to S.A. v. The Director of Public Prosecutions [2007] IESC 43 a Supreme Court Judgment of the 17th October 2007 in relation to an appellant’s appeal against the judgment of the High Court where the appellant was refused relief to seek to prohibit a trial. Hardiman J stated:-
In the course of interviews with the gardai the Applicant is alleged to have made certain admissions. These are admissions to actions which would amount to indecent assault (now described as sexual assault) but do not extend to the crime of buggery, which he stoutly and consistently denied. The conduct to which he admitted, which was in the nature of inappropriate touching, occurred, he said, "in moments of human weakness". He also said, speaking of the allegations made against him, that "if the boys have said this, he must accept it, but he has no recollection of it. He must accept what they have said on trust. His memory is not as good as it used to be..something must have taken place".
34. In those circumstances the Respondent will be prohibited from prosecuting the counts in the indictment 4 to 25 and I refuse prohibition in relation to counts 1 to 3 and 26 to 64 in the indictment. 35. I would make a comment in relation to the time between the complaints of the complainants on the 13th July 2010, the time it took for the Applicant to be arrested and interviewed on the 20th April 2011 and in particular the time it took the Respondent’s office to direct the prosecution of the Applicant (on the 31st August 2012) and the delay in charging the Applicant in February 2013. There appears to me to be a consistent pattern of delay in directing prosecutions by the Director of Public Prosecutions in offences of historic sexual assault. While the issue of the missing file was undoubtedly a relevant factor, the experience of this court, the Central Criminal Court and the Circuit Criminal Courts are of unreasonable delays on the part of the Director in giving directions in these cases. 36. I would ask that counsel for the Director of Public Prosecutions would communicate these views to the Respondent. Such delays inevitably prompt applications of this nature and there is no doubt that prejudice will almost certainly arise for a complainant and for an accused person having regard to the delay in directing prosecutions. These delays appear to be in cases where there are clear admissions of guilt as well as denial. |