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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McC. (R.) v. D.P.P. [2005] IEHC 23 (1 February 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H23.html Cite as: [2005] IEHC 23 |
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Neutral Citation No: [2005] IEHC 23
THE HIGH COURT
JUDICIAL REVIEW
[2004 No. 49 JR]
BETWEEN
RMcC
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
EX-PARTE JUDGMENT of Quirke J. delivered on the 1st day of February, 2005.
By order of the High Court (de Valera J.) dated 26th January, 2004, the applicant was given leave to seek relief by way of judicial review comprising an order prohibiting the respondent from prosecuting the applicant in respect of sexual criminal offences allegedly committed by the applicant on nine occasions between 1st June, 1993 and 1st December, 1995.
The applicant was also given leave to seek additional relief ancillary to the substantive relief sought.
FACTUAL BACKGROUND
On 11th October, 2000 L. McC was apparently asked by the Gardaí to make a statement in respect of her allegations but declined to do so. She was informed by the Gardaí that she could do so at a later date if she so wished.
. On 2nd September, 2001, L. McC contacted the Gardaí and on 18th October, 2001 she made a written statement of complaint to the Gardaí in respect of the offences which are the subject of these proceedings.
"While the applicant was abusing me in the way in which I have described above, I felt completely powerless to do anything about it. I was entirely under his control and did not think that I would be believed if I were to report the matter to anyone. It was only when I was about 18 years of age that I felt in a position to report the matter."
She said that by November, 2001, a statement of complaint from L. McC had been obtained together with a preliminary statement from L. McC's mother.
Garda Ross did not describe the course of the Garda investigation in detail but it is evident from perusal of the comprehensive Book of Evidence that quite a number of witnesses were required to make statements in support of the charges preferred against the applicant and that these statements were taken and the investigation proceeded during the weeks and months after the applicant was first arrested and interviewed in November of 2001.
On the evidence of Garda Ross I am satisfied that a preliminary file was submitted to the respondents office some time in 2002 and that this file was supplemented on 1st February, 2003, with a statement from H.H who was a witness of some relevance and who could not be contacted for a period of time for a variety of reasons.
On 8th May, 2003, Garda Ross received directions from the respondent to charge the applicant in respect of the offences and on 18th June, 2003, the applicant was formally charged.
On 30th July, 2003, the applicant was returned for trial (presumably to the Circuit Criminal Court in Dublin).
THE LAW
The general principles of law which apply to applications to prohibit, on grounds of delay, the prosecution of offences of a sexual nature allegedly committed against children (and reported only after very substantial periods of time) are now well settled. They have been stated by the courts within this jurisdiction on countless occasions and are to be found in such cases as Barker v. Wingo 407 U.S. 514 [1972], B. v. Director of Public Prosecutions [1997] 3 I.R. 140, P.C. v. Director of Public Prosecutions [1999] 2 IR 25, P.O'C v. Director of Public Prosecutions [2000] 387, J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 and J.O'C v. Director of Public Prosecutions [2000] 3 I.R. 478 and many others. It is accordingly unnecessary to restate them herein.
THE APPLICANT'S CLAIM
The applicant claims that his constitutionally protected right to a trial with reasonable expedition has been violated in two respects. That is:
1. By delay on the part of the complainant L. McC in making a complaint to the prosecuting authorities in relation to the offences of which she complaints
2. That the prosecuting authorities were guilty of inordinate and excessive delay by allowing a period of 19 months to elapse between the date when L. McC made her first written statement of complaint to the prosecuting authorities on the date when the applicant was returned for trial.
The applicant contends that by reason of (1), pre-complaint delay on the part of L. McC in making her complaint to the prosecuting authorities and (2),an inordinate and inexcusable delay of 19 months on the part of the prosecuting authorities in completing their investigation into the offences and bringing the applicant before the courts for trial the applicant has (a), suffered not only an unavoidable presumption of prejudice in his capacity to defend himself in respect of the charges preferred against him but has (b), also suffered express prejudice because his brother V. McC is now deceased and is not available to testify on his behalf at the trial of the offences.
He says that the testimony of V. McC is and would be central to his defence and of crucial importance to the conduct of that defence.
He says that by virtue of culpable or "blameworthy" delay on the part of L. McC and on the part of the prosecuting authorities or by reason of such delay on the part of either and indeed by virtue of the passage of seven and a half years between the date of the last alleged offence and the date when the applicant was returned for trial, the testimony of the applicant's brother is no longer available to him and he is accordingly exposed to a "real and serious risk" that he will not receive a fair trial.
PRE-COMPLAINT DELAY
At the time of the alleged offences L. McC was a child and her father was a mature adult who exercised clear and identifiable dominion over her within the meaning ascribed to that term by the Supreme Court in the cases of B. v. Director of Public Prosecutions and P.C. v. Director of Public Prosecutions to which I have referred earlier.
It has been contended on behalf of the applicant that the dominion which the applicant exercised in respect of L. McC ceased in 1995 when the applicant moved out of the family home.
I do not accept that contention.
In 1995 L. McC was thirteen years old. I do not accept the contention that the dominion exercised by a father over his thirteen year daughter necessarily ceased when the former leaves the family home.
Having regard to the averment of L. McC that she felt:
"…entirely under his control and did not think that I would be believed if I were to report the matter to anyone. It was only when I was about 18 years of age that I felt in a position to report the matter."
I am satisfied that the applicant's dominion over L. McC continued until she felt able to report the abuse to the Gardaí on 18th October, 2001.
I am satisfied that during the period between December of 1995 when the final events were allegedly committed by the applicant and 18th October, 2001 (when L. McC made her first written statement to the Gardaí) the relationship between the applicant and L. McC came within the category of relationships identified by Keane J. (as he then was) in the case of P.C. v. Director of Public Prosecutions.
The age difference between LMcC and her father (she was between her 13th and 19th years and he was a mature adult male) and the relationship of father and daughter rendered "explicable" any apparent "inaction" on the part of L. McC during that period (for the purposes of the test which is required and has been identified in P.C. v. Director of Public Prosecutions). The court does not require expert psychological evidence to ground such a finding.
For the purpose of that test, this court accepts the veracity of the complaints made by L. McC. It follows that the failure on the part of L. McC to report the abuse between 1995 and the 18th October, 2001, was referable to the conduct of the applicant. He cannot accordingly complain that his constitutionally protected right to a trial with reasonable expedition has been violated by any failure on the part of L. McC to report the abuse between 1995 and October of 2001. That failure was referable to the applicant's own conduct.
Insofar as it has been contended that there was inordinate delay on the part of L. McC between October, 2000, (when she was interviewed by the Gardaí), and 18th October, 2001, (when she made a written statement), I do not accept that contention either. I am satisfied that her reluctance to make a statement in October, 2000, was quite consistent with her evidence and that during that final year her relationship with the applicant still came within the category of relationships identified in P.C. v. Director of Public Prosecutions This rendered "explicable" the delay in reporting.
PROSECUTORIAL DELAY
It is the contention of the applicant that there was inordinate and inexcusable delay on the part of prosecuting authorities in investigating the offences alleged against the applicant under bringing the applicant before the courts for trial in respect of those offences.
I do not accept that contention.
A period of nineteen months elapsed between the date when L. McC made a formal complaint in writing to the Gardaí in respect of the alleged offences and the date when the applicant was returned for trial. I do not accept , on the evidence, that that period of time was excessive of inordinate in the circumstances.
I am satisfied that Det. Ross acted with efficiency and expedition in relation to the investigation of the offences. That is clear from the careful perusal of the various statements which have been collated and are now contained within the Book of Evidence. Significant investigative and administrative work was required over a period of time in order to prepare for the prosecutions of these offences.
The preparation and submission of the very substantial amount of evidence to the respondent took significant time. That was reasonable in the circumstances.
A preliminary file was submitted to the respondent by Garda Ross at a relatively early stage and this was supplemented at a later stage.
The respondent's office duly directed that the applicant should be prosecuted and returned for trial.
There has not in this case been "slovenly or lackadaisical" delay by the prosecuting authorities of the type identified by the High Court (Geoghegan J.) in PP v. Director of Public Prosecutions. Nor has there been, in my judgment, culpable or blameworthy delay of any kind.
I am satisfied on the evidence adduced that the prosecuting authorities acted with reasonable expedition and efficiency in handling this investigation and the prosecution of the applicant and that accordingly there was no inordinate or excessive delay on their part in the prosecution of the applicant in respect of the offences.
SPECIFIC PREJUDICE
It is contended on behalf of the applicant that by reason of delay on the part of the prosecuting authorities in prosecuting him in respect of the alleged charges he has suffered specific prejudice in his capacity to defend himself and that he is therefore exposed to the risk of an unfair trial.
It is argued on behalf of the applicant that delay in this context does not necessarily mean "culpable" or "blameworthy" delay but the simple passage of time.
It is however acknowledged on behalf of the applicant that prejudice which accrues to an accused person by reason of the death of a relevant witness which effects detrimentally his capacity to defend himself will not be a ground for prohibiting a trial in the absence of prosecutorial or other delay. It is argued that prejudice to an accused person which results or may result from the death of a relevant witness invariably gives rise to a ground for prohibiting a trial where there has been "substantial delay" in the prosecution of the alleged offender.
In the instant case I have found that the delay in the prosecution of the applicant between December of 1995 and October of 2001 was referable to the applicant's own conduct.
Accordingly if that delay has resulted in the prejudice of which he complains then any disadvantage which he has suffered up to that point has been of his own making.
The applicant's brother V. McC died in August 2002.
On the evidence the prospect of the applicant being brought to trial before August, 2002, in respect of charges arising from complaints made ten months earlier on 18th October, 2001, were non-existent.
It is not the function of the courts to act in a supervisory capacity in relation to the prosecution of criminal offences. The prosecution of offences is within the jurisdiction of the respondent who exercises mandatory independence in the performance of his statutory functions.
It is within the jurisdiction and the discretion of the respondent to decide when evidence which is available to him warrants the prosecution of a suspect. The courts will not interfere with the exercise of that jurisdiction and that discretion unless it can be shown by way of evidence and on the balance of probabilities that the respondent has by act or omission, violated or infringed the accused person's constitutionally protected right to a trial, "in due course of law". It is the function of the courts to ensure, insofar as that is possible, that the constitutionally protected rights of citizens to a trial "in due course of law" is vindicated. That right includes the right to a trial with reasonable expedition.
I have earlier found that in the instant case there was no such a violation or infringement of the applicant's right between October, 2001 and the date of return for trial on 30th July, 2003.
I have also found that any "delay" in prosecution which preceded the 11th October, 2001, was referable to the conduct of the applicant.
It was on the ground that the applicant's constitutionally protected right to a trial with reasonable expedition has been violated that the applicant was given leave to seek the relief which has been sought herein. I have found that there has been no such violation.
It follows from the foregoing that the relief which the applicant has sought is declined.
Approved: Quirke J.
