Cullen v the Director of Public Prosecutions [2014] IESC 59 (16 October 2014)

Judgment Title: Cullen v the Director of Public Prosecutions

Neutral Citation: [2014] IESC 59

Supreme Court Record Number: 342/13

High Court Record Number: 2012 348 JR

Date of Delivery: 16/10/2014

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., O'Donnell Donal J., McKechnie J., Dunne J.

Judgment by: The Court

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Denham C.J.	Link	Appeal dismissed

Outcome: Dismiss

Notes on Memo: Judgment of the Court

THE SUPREME COURT

Appeal No. 342/13

Denham C.J.
Murray J.
O’Donnell J.
McKechnie J.
Dunne J.

Between/

Sharon Cullen

Applicant/Respondent

and

The Director of Public Prosecutions

Respondent/Appellant

Judgment of the Court delivered on the 16th October, 2014, by Denham C.J.

1. Once again the issue of prosecutorial delay comes before the Court.

2. This is an appeal by the Director of Public Prosecutions, “the DPP”, from the judgment of the High Court (O’Malley J.) delivered on the 17th June, 2013, and the Order of 8th July, 2013, by which the DPP was injuncted from further prosecuting the applicant to these judicial review proceedings, Sharon Cullen, “ the applicant”, on two charges arising from a serious assault against her father in 1988.

The Background facts
3. The background was set out by the learned High Court judge as follows:-

“(i) The applicant was born on the 5th of December, 1972. She is the daughter of Christopher Payne Senior and Philomena Payne (now Philomena Coton). She has one younger brother, Christopher Junior. In 1988 the family lived in Crumlin in Dublin. Mr. Payne, who was 37 at the time, suffered from severe renal failure and attended hospital for dialysis three times a week.

(ii) On the evening of the 13th May, 1988 Mr. Payne went to hospital as usual. Mrs. Payne was out. The applicant was at home with Christopher Junior and a friend of hers named Jennifer O'Dwyer, the sister of the applicant's then boyfriend Jessie O'Dwyer. Late in the evening a number of men came into the house wearing balaclavas. These men were Jessie O'Dwyer (aged 18), Stephen McKeever (aged 19) and two others. It seems to be clear that these others played a peripheral role and it is not necessary to name them for the purposes of this judgment. All of them were recognised and subsequently named by Christopher Junior, then aged 13, who was threatened with a knife by McKeever.

(iii)The three youngsters were put in one of the bedrooms and tied up. Philomena Payne arrived home at about 11.30 pm and she too was tied up. Mr. Payne came home from the hospital some time after midnight. It appears that he was then subjected to a savage assault by O'Dwyer and McKeever, and suffered serious head injuries.

(iv)The injuries were not in themselves fatal. Mr. Payne was in a coma for some time, but returned home to his family in September, 1988. He does not appear to have made a full recovery. When he died on the 28th November, 1988 the causes of death were multiple but were stated to include ‘old head injury’.

4. Christopher Payne Junior recognised all the masked intruders and named them to Gardaí later that day. On the 14th May, 1988, they were arrested and all made incriminating statements.

5. During the course of these statements, Mr. O’Dwyer and Mr. McKeever admitted their own involvement in the attack on Mr. Payne. Mr. O’Dwyer and Mr. McKeever both stated that they were asked by the applicant to have her father “done” because he was beating her and her mother, Mrs. Payne.

6. In their statements, the men stated that they had a conversation with the applicant and her mother in which they agreed the terms of the attack and this included the men receiving a sum from the insurance proceeds of an earlier burglary.

7. On the 23rd June, 1988, the investigation file was submitted to the DPP. The four men were charged and returned for trial to the Central Criminal Court, where the case was listed for trial on the 3rd July, 1989. The applicant and her mother attended on that date as witnesses for the prosecution, and there were guilty pleas from the four men to the charges before them. Mr. O’ Dwyer and Mr. McKeever pleaded guilty to assault with intent to do grievous bodily harm. They were sentenced each to over nine years on the 27th July, 1989.

8. On the 25th July, 1989, the DPP issued directions to charge the applicant and her mother. On the 16th August, 1989, a warrant to arrest the applicant was issued, which refers to her as being of “No Fixed Abode.” The arrest warrant was not executed. The applicant and her mother had left the jurisdiction with her brother.

9. A review of the case was undertaken in November, 2009 by the Serious Crime Review Team. A number of people were interviewed and made fresh statements. In January, 2010, the Gardaí spoke to Mr. Payne’s brother Geoffrey, to notify him of the review of the case. He informed them that the applicant was married and living in Ireland. The Gardaí located the applicant in Co. Cavan in early 2010.

10. An updated file was subsequently sent to the DPP in July, 2011. The DPP directed the Gardaí to proceed with the original charges in December, 2011. The applicant was arrested and charged on the 19th December, 2011.

Events between the 3rd July, 1989, and the 19th December, 2011
11. An officer of the DPP, Mr. Henry, has stated in affidavit evidence that the case file was received by the Office in late June, 1988, and consideration had to be given to the position of the suspected parties in the case. It was deposed that Mr. O’Dwyer and Mr. McKeever were regarded as important witnesses as against the applicant and her mother, but they would not have been available during the course of their prosecution.

12. It was deposed that directions were given to charge the applicant on the 25th July, 1989, once Mr. O’Dwyer and Mr. McKeever had pleaded guilty, and queries in relation to the applicant and her mother had been clarified. The DPP stated, however, that at that stage the applicant could not be located.

13. There are three sworn affidavits furnished by Detective Superintendent Brian Sutton. These are to the effect that the applicant “fled” the country; that efforts were made at all relevant times to locate the applicant, including the attendance and surveillance of the applicant’s grandmother’s funeral in 2006, at which time she was not located.

14. The Gardaí stressed that they were searching for the applicant under the name Sharon Payne, but that she was actually going under her married name Mrs. Sharon Cullen. This is cited as a principal reason for the failure of the Gardaí to locate the applicant. The Gardaí deposed that they were unaware of the fact that the applicant resided in this jurisdiction until 2010, at which time Geoffrey Payne had informed them of same.

15. The Gardaí explained that they did not arrest the applicant when they became aware of her presence in Co. Cavan in 2010 as it was necessary to then review the case. An updated file was sent to the DPP on the 11th July, 2011.

16. The applicant deposed that she did not leave the country until late July, 1989, when she was brought with her brother by her mother to England to “start a new life”. In 1990 the applicant gave birth to her first child by her, now husband, Con Cullen. The applicant got accommodation and child benefit under the name Sharon Payne. The applicant had a bank account and paid taxes under that name.

17. The applicant married Con Cullen in 1995 and has used the name Cullen since then. The learned High Court judge found as fact, that the applicant’s maiden name, Payne, was noted on her first passport in 2002/2003 at her request.

18. The applicant moved to Ireland with her husband and two children in 2004. They established themselves in Co. Cavan, where they both attained employment. The applicant applied for a PPS number, for this purpose the applicant provided her maiden name and last address in Ireland. The applicant received benefit from 2005 to 2008 under the name Sharon Payne, until her name was updated to reflect her married name.

19. Geoffrey Payne, the brother of the deceased, has stated that he remained in contact with the applicant. He stated that he informed Mr. O’Carroll, the prosecuting Garda involved in the Payne case, of the applicant’s whereabouts in September 1989, when he was asked about the whereabouts of his sister-in-law. Geoffrey Payne confirmed that the applicant attended the funeral of his mother, and sat with him at the front of the church and went to a local public house afterwards. When contacted by the Serious Crime Review Team in 2009, Geoffrey Payne informed them that the applicant was married and living in Ireland. He was not asked for an address, he maintains he would have provided same were he asked.

20. As previously mentioned the applicant was arrested and charged on the 19th December, 2011.The applicant was granted leave to seek reliefs by way of judicial review on 23rd April, 2012, to injunct the DPP from prosecuting her.

Relevant dates
21. 13th May, 1988:- The applicant’s late father was violently assaulted in the
family home by four men.

14th May, 1988:- The four men were arrested and made incriminating statements. The applicant, then 15, gave a witness statement in which she is also said to have made incriminating statements.

15th May, 1988:- Directions were given by the DPP to charge the four men involved in the assault.

23rd June, 1988:- Investigation file submitted to the DPP.

3rd July, 1989:- The four men entered pleas of guilty. (The applicant and her mother were in attendance at court on this date.)

27th July, 1989:- The four men were sentenced. The DPP issued directions to charge the applicant and her mother.

July, 1989:- (exact date unknown):- The applicant moved to England, with her mother and brother

16th August, 1989:- A warrant to arrest the applicant was issued.

January, 2010:- The Gardaí were notified of the applicant’s presence in the jurisdiction by the victim’s brother, the applicant’s uncle. The Gardaí located the applicant in Co. Cavan.

July, 2011:- The DPP was sent an updated file by the Gardaí.

December, 2011:- The DPP directed the Gardaí to proceed with the original charges.

19th December, 2011:- The applicant was arrested and charged with offences pursuant to ss. 11 and 18 of the Offences Against the Person Act, 1861.

High Court decision
22. The learned trial judge set out the background to this case in great detail. There was credible and sound evidence upon which the determination of facts was made by the learned trial judge.

23. The learned High Court judge specifically considered the decision of the DPP not to charge the applicant until after the trial of the four men. It was held:-

“Mr. Henry, having reviewed the file in the Director's office, has averred that the question of charging the applicant was under consideration for some time. He has specifically averred that an important factor was the desirability of having Jessie O'Dwyer and Stephen McKeever available as witnesses against the applicant, which, it was considered, would not be possible until their own proceedings had concluded. The direction to charge her was therefore not given until after they had pleaded guilty.

In Kennedy v. DPP (unrep., Supreme Court, 7th June,2012) the applicant had been charged on the 22nd October, 2010 with offences of corruption alleged to have been committed on dates in 1992 and 1997. The alleged offences concerned planning decisions which were the subject of investigation by the Tribunal of Inquiry into Certain Planning Matters and Payments. The Director had given directions in the applicant's case in June, 2010. A major part of the justification for the delay was that the prosecution wished to have available to it the evidence of Frank Dunlop, which was not possible until Mr. Dunlop's engagement with the Tribunal had concluded and he himself had been prosecuted. Mr. Dunlop pleaded guilty in his own case in January, 2009 and was sentenced in May, 2009.

A majority of the Supreme Court considered that the DPP was entitled to await the conclusion of Mr. Dunlop's trial, on the basis that, if he had been called as a witness against the applicant before his own case had been dealt with, there could have been a perception that his evidence was affected by the desire to gain some benefit for himself.

In the instant case, it is easy to understand why Mr.O'Dwyer and Mr.McKeever were charged more or less immediately, when they had made admissions as to their role - there was nothing complex about the nature of the charges against them, given the evidence. The question of whether to charge the applicant, and if so what charges to prefer, was obviously more complicated given that she took no physical role in the incident. In the event, she was charged as a principal.

I think that it is implicit in the reasoning of the Director in this case that the prosecution wanted to call the applicant as a witness in the trial of the four men and did not, therefore, want to charge her until that trial was concluded. That means that a decision was made as to which trial took priority. That is understandable, given that Mr. O'Dwyer and Mr. McKeever were the persons who actually carried out the attack.

However, the difficulty that presents itself is that the applicant was 15 at the time, while Mr. O'Dwyer and Mr. McKeever were, respectively, 18 and 19 years old. The choice that the Director made at the time therefore involved a conscious decision to delay the prosecution of a young person until the conclusion of proceedings against persons who were, in law, adults.”

24. The learned High Court judge also considered the events after the decision to charge the applicant. The learned High Court judge held:-

“It is clear on the evidence that neither the applicant nor her mother were told that a decision had been made, or even that it was likely or possible that a decision would be made, to charge them in relation to the assault. Mrs. Payne took her two children and left the country at a time when this was perfectly lawful. The efforts by the Gardai, on affidavit, to portray this as the applicant fleeing the country to avoid prosecution, are to my mind misguided. She was 16 at the time and still subject to her mother's control.

It seems to me that the evidence thereafter speaks for itself. There was no real effort to find the applicant, who was living openly in England under her own name and engaging with public authorities on a day-to-day basis. The assertion that, after her marriage in 1995, she used her married name as a device to evade detection is quite rightly disowned by Counsel. The persistent denial of her truthful claim to have had her maiden name marked on her passport is, to my mind, a matter of real concern. The fact that she moved back to Ireland in 2004, worked and paid taxes with the same PPS number as she had had all along is another indication of failure on the part of the Gardai to keep investigative channels open.

It must be remembered that this is a case where there was a warrant issued by a court to arrest the applicant in existence since 1989. Cases involving warrants are subject to the particular requirement that the warrants be executed promptly.

…

In the instant case, the court is dealing, not with a bench warrant issued on foot of failure to appear, where the onus would in the first place be on the applicant to explain such failure, but with a warrant to arrest of which the applicant was never aware. I am satisfied that the lapse of over 20 years amounts to significant, blameworthy delay, which has not been adequately explained and which triggers an inquiry as to whether the applicant's rights have been compromised.

While the case might not have warranted "a national manhunt", it certainly required more than waiting for the applicant to fall gratuitously into the laps of the Gardaí. In effect, the latter was the stance adopted. After the initial circulation of the notice, nothing seems to have been done other than the ongoing contact of Mr. O'Carroll with his criminal informants in the Crumlin area. This was, in the circumstances of the case, never likely to bear fruit. I cannot in these proceedings resolve the conflict of evidence between Mr. O'Carroll and Mr. Carolan but it is obvious that contact with other relatives of the applicant such as Mr. Payne would have yielded information as to her whereabouts.

There was a further, largely unexplained, delay after the applicant was located in Co. Cavan in early 2010. She was not then charged until November, 2011. This is not a case where new evidence of an independent or compelling nature came to light. The Director argues that the fresh statements of Jessie O'Dwyer and his sister Jennifer provide new information from a prosecution point of view. However, it seems to me that much of what is new in them consists of retrospective speculation and hearsay as to the events of 1988. In any event, there is no explanation why it took so long to forward these statements to the DPP.”

25. The learned High Court Judge concluded:-

“Having considered the relevant factors identified in the case, it seems to me that the matters to be given the most weight in favour of the applicant are: her age at the time of the alleged offences; the making of a decision by the Director at or about that time not to charge her until the other trial had concluded; the wholly exceptional lapse of time since then; the absence of blameworthy responsibility on the part of the applicant for that lapse of time; the presence of blameworthy dilatoriness on the part of the prosecution authorities and the absence of any feature such as newly-obtained evidence of a significant nature.

In favour of the applicant I must bear in mind the seriousness of the charges and the concomitant public interest in prosecuting them, along with the finding that the applicant is not prejudiced in any real sense by the unavailability of Mrs. Carolan.

It seems to me that the overwhelming consideration is that the special duty to deal with young offenders as closely as possible to the time of their offences has been seriously breached to the extent that what is now proposed is to try a 40- year old in relation to the words and intentions (not actions) of a 15-year old in circumstances where she is not to blame for the delay. Such a trial would, as described by the Supreme Court in B.F. v. DPP, take on a "wholly different character" to any trial that would have been embarked upon when she was at or near the age of 15. Were she to be convicted, the purpose of the sentencing process would also be radically altered. Although many of the protections afforded to young offenders under current legislation did not exist at the time there were certain significant features such as the fact that she could have been imprisoned only in very limited circumstances. Sentencing of a girl of her age would have focussed very largely on the issue of rehabilitation, which is at this stage manifestly irrelevant.

Having regard to the importance of the special duty in relation to young persons and the breach of that duty which has been established in this case, I consider the proposed process to be unfair to the point that it should not be permitted to proceed.”

Concern of learned High Court Judge
26. The applicant claimed in the High Court that she got her first passport in 2002/2003 and that her maiden name was noted on it at her request. This was persistently denied by the Gardaí.

27. In the affidavit of Detective Superintendent Brian Sutton of the 23rd July, 2012, it is deposed that:-

“…it is the belief of An Garda Siochana that the [a]pplicant and her mother… fled the jurisdiction to evade charge. In this connection it is not the case, as the [a]pplicant asserts, that when she applied for a passport, the passport she says is currently in possession of An Garda Siochana, that she included her maiden name of Sharon Payne on it. This passport is in the name of Sharon Cullen. The name Payne does not feature on it. In this regard I beg to refer to a copy extract from same, which contains a photo and name, upon which marked with the letters ‘BS 3’…”

Further, Gardaí stated before the High Court that they could “definitively state that there is no record of her maiden name Payne recorded on this passport”.

28. On the evidence before her, the learned trial judge made the following finding:-

“The applicant’s solicitor has exhibited a letter from the Passport Office of the Department of Foreign Affairs supporting the applicant's position. The passport was produced in court. It does indeed bear an annotation to the effect that the holder's birth name was Sharon Philomena Payne.”

Having made the finding that the applicant’s maiden name of Payne did in fact appear on her passport, the learned trial judge stated at para. 109:-

“The persistent denial of her truthful claim to have her maiden name marked on her passport is, to my mind, a matter of real concern.”

29. The Court shares the concern of the learned trial judge. The applicant, as found as fact by the High Court, had both her married name, Cullen, and maiden name, Payne, marked on her passport. This, contrary to the DPP’s submissions, would not suggest an attempt by the applicant to evade charge or Gardaí. Rather, it evidences that the applicant elected to have marked on her passport, an important legal document by which a person is identified, both her married name and her family name. This is inconsistent with any suggestion of an attempt by the applicant to change her identity for the purposes of avoiding prosecution.

30. Gardaí affidavits stating that the applicant’s maiden name did not appear on her passport, when the contrary is true, is a matter of deep concern to the Court. The making of incorrect statements on affidavit by any deponent, but in particular a member of An Garda Síochána, in relation to details contained in a legal document, leading to a suggestion that a person attempted to evade a criminal charge or a prosecution, and thereby contributed to the delay in her prosecution, is unacceptable conduct. It is also of concern that an application of the DPP should be initiated and proceed before the High Court on the basis of this kind of affidavit. Even on the most benign interpretation of events, the affidavits asserting that the applicant’s name did not appear on the passport, could not have been sworn and once sworn maintained if any care had been taken to scrutinise the passport, especially once it became clear that this was likely to become a serious issue. Parties, and in particular members of An Garda Síochána, should appreciate that an affidavit is sworn evidence and care should be taken to ensure it is accurate and not misleading. It should contain evidence of fact, and not assertion or argument, and should be forthright with the Court and acknowledge errors or failure when they occur. Instead of acknowledging the obvious failure of investigation and prosecution here, the affidavit was instead used to make an allegation that the applicant had evaded discovery, for which there was no factual support. Unusually in this case, the applicant was able to produce some evidence supporting her case, but that might not have been the case, and the allegation could have coloured the case where there is an obvious public interest in ensuring the prosecution of serious crime.

Notice of Appeal
31. The DPP appealed the decision of the High Court of the 17th June, 2013, granting injunctive relief to the applicant on six grounds. The grounds of appeal are that the learned trial judge erred in law or in fact or a mixed question of law and fact:-

“(i) In granting an Order injuncting the [DPP] from prosecuting the [applicant];

(ii) In failing to find that the public interest required the prosecution to proceed, notwithstanding the passage of time and findings of blameworthy prosecutorial delay, given in particular the background facts which gave rise to the allegations and charges, namely the assault on Christopher Payne Senior, the detailed admissions made by the [applicant] with respect her role in the criminal activity, and her singular failure to engage with the evidence against her in the criminal proceedings, required of her as part of her judicial review;

(iii) While placing great weight upon those authorities recited by her in relation to the duty on prosecuting authorities to process with due efficiency proceedings against young offenders, it is notable that in the consideration of a separate heading of the ‘seriousness of the offences’, there is a diminution in the perceived seriousness due to the youth of the applicant at the time of their commission. This of itself diminishes the main case being made by the appellant which is to say that despite any fault which may lie with the prosecution and the delay in the process of bringing alleged culprits to the court, the facts of this case, being of such gravity should, when set in the balance, require a trial even at such a remove as this;

(iv) The learned High Court Judge failed to consider adequately the seriousness of the offences alleged. Despite her stated intention to treat the seriousness of the offences as an important and separate ingredient to be considered in the subsequent balancing exercise, it was diminished or diluted in its weight, by being cast in light of the age of the applicant at the time, prior to being placed in the balance against factors favouring the [applicant];

(v) In making an incorrect statement of the balance to be maintained by rendering of less significance the legitimate community interest in seeking a trial of very serious offences when compared with the youth of the suspect of the time of the offences;

(vi) In failing to hold that a sentencing hearing, should such a stage be arrived at, could amply accommodate such submissions as the defence may wish to raise given that if arrested and tried at a time more proximate to the time of the commission of the offences, the applicant might have been sentenced as a minor;

(vii) Such further or other ground as may be permitted by the Court.”

Submissions on behalf of the appellant
32. Counsel on behalf of the DPP made written and oral submissions to the Court.

33. The DPP submitted that a finding of blameworthy delay does not of itself prohibit a trial proceeding. Notwithstanding a finding of blameworthy delay in the present case, the trial of the applicant should proceed.

34. It was submitted that despite any fault which may lie with the prosecution and the delay in the process of bringing an accused person to trial, there may, and should, exist certain categories of offence of such gravity, that when set in the balance required a trial notwithstanding the passage of time. In this case it was submitted the offence is so serious that it must carry greater weight than the prosecutorial delay which has occurred.

35. The DPP submitted that insufficient regard was had by the trial judge to the public interest in the bringing of a serious case of alleged criminality to trial. It was submitted that the DPP has, by the provisions of the Constitution and relevant legislation, an independent role in determining whether a prosecution is to be brought on behalf of the People and the courts should be slow to interfere with such a decision.

36. The DPP submitted that insufficient weight was given by the learned trial judge to the previous admissions of guilt made by the applicant. The DPP submitted that evidence of admissions, such as those made by the applicant, have been found to be a determinative factor in deciding whether or not to prohibit a trial.

37. It was submitted on behalf of the DPP that where, as in this case, the risk of an unfair trial has not been established, the trial should proceed. Notwithstanding, the substantial delay in bringing the proceedings in this particular case, it was submitted that there exists a number of safeguards within the criminal process which would serve to protect the applicant’s rights.

38. The DPP submitted that the age of the applicant at the time of the attack on Mr. Payne does not override the public interest in having all of those responsible for the attack on her father being put on trial for the offence.

39. Finally, the DPP submitted that if the Court were to overturn the decision and order of the High Court judge and permit the trial of the applicant to proceed, and were the sentencing stage to be arrived at, the trial court could, at that stage, take account of any concerns in relation to the age of the applicant at the time the offences were allegedly committed, and the lapse of time between the offence and charging the applicant. It was submitted, however, that in the interests of justice, it is necessary that the applicant be tried for the serious offences with which she is charged.

Submissions on behalf of the applicant
40. Counsel on behalf of the applicant made written and oral submissions to the Court.

41. The applicant submitted that the learned trial judge considered all of the factors relevant to the exercise that she was required to carry out, applied those factors correctly when weighing the competing interests, and ultimately came to the correct conclusion that, in all the circumstances of the case, the applicant’s trial should be prohibited. It was submitted that the learned trial judge very clearly had regard, and factored into the balancing exercise, the seriousness of the charges facing the applicant and the public interest in prosecuting those charges.

42. It was submitted on behalf of the applicant that the claims made by Gardaí that the investigation was active and ongoing in respect of the applicant are not credible and cannot be deduced from a reasonable analysis of the affidavit evidence. The applicant submitted that the investigation in this case into the whereabouts of the applicant was inadequate in that it was “shoddy, lack-lustre and lackadaisical.” Further, even when the applicant’s presence in the jurisdiction became known to the DPP, there then followed a further period of culpable delay.

43. The applicant submitted that the learned trial judge correctly weighed the issues in this case, and correctly assessed the public interest. It was submitted that the public interest in the prosecution of serious crime is not to be divorced from the factual context of the individual case before this Court.

44. The applicant submitted that the culpable delay involved in the prosecution of this offence, and the absence of any determined investigative effort, diminishes the public interest for this offence to be prosecuted further. It was submitted that the public interest in prosecuting the offence which existed at the time would no longer be served by putting the applicant on trial after such a lengthy period of time has elapsed as a result of wholly exceptional and culpable prosecutorial delay.

45. The applicant submitted that, in assessing where the public interest lies in this case, it is relevant to have regard to the fact that all four of the principal participants in this offence were brought to justice some 25 years ago. Further, in this regard it was submitted that the DPP made a conscious decision in 1989 to delay the prosecution of a child, the applicant, until the conclusion of proceedings against persons who were, in law, adults.

46. The applicant submitted that, in accordance with the decided authorities, the seriousness of the charge as a factor has lesser impact where juvenile offenders are concerned. Further, it was submitted that the special duty on authorities to expedite trials in the case of child offenders was breached in this case.

47. Finally, counsel on behalf of the applicant submitted that the exceptional circumstances of this case are such that it would be unfair and unjust to put the applicant on trial.

Prosecutorial delay

48. The right to a fair trial, as guaranteed by the Constitution, has been held to encompass a right to a trial with reasonable expedition. In the seminal case of The State (O’Connell) v. Fawsitt [1986] I.R. 362 this Court upheld the finding of the High Court at p.378:-

“….that the Constitution guarantees to every citizen that the trial of a person charged with a criminal offence will not be delayed excessively; or, to express the same proposition in positive terms, that the trial will be heard ‘with reasonable expedition’…The nature of the delay must be considered…having regard to the circumstances of the case.”

49. The law surrounding prosecutorial delay has been addressed by this Court in many cases. In Devoy v. D.P.P. [2008] 4 IR 235 it was stated at pp. 243- 245:-

“In P.M. v. Malone [2002] 2 IR 560, Keane C.J. referred to the balancing exercise required of the court in situations where prosecutorial delay is alleged. He stated:

‘The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonable expeditious trial justifies the prohibition of the trial proceeding at this stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there was a real and substantial risk of an unfair trial then, as pointed out by Denham J. in

D. v. D.P.P.

[1994] 2 I.R. 465, the applicant's right to a fair trial would necessarily outweigh the community's right to prosecute. Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.’

The test to be applied in cases where there has been prosecutorial delay was restated in P. M. v DPP, [2006] 3 IR 174, where Kearns J., with whom the other members of the Court agreed, held at p. 185:-

‘In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests protected by the right to expeditious trial must also be shown to have been so interfered with such as would entitle the applicant to relief.’

O’H. v. DPP

[2007] 3 IR 299 the principles relating to prosecutorial delay were described by Fennelly J. as follows on p. 303:-

‘The essence of the principles established in these cases is that culpable or blameworthy delay on the part of the prosecution does not, in itself, automatically give rise to an order preventing further prosecution. The Court should engage in a balancing operation. It should balance the public interest in prosecuting crime against the interests of the applicant. Where it is not established that there is a real risk that, due to delay, loss of evidence or the like, the applicant will not have a fair trial, the applicant is, nonetheless, entitled to rely on a number of matters outlined and considered in the case-law. One of these is any additional distress that the applicant has suffered as a result of the delay.

… In addition, it will be necessary to consider whether an applicant, such as the applicant in the present case, is required to place before the court evidence of any additional distress upon which he seeks to rely.’”

In light of the foregoing it was found at page 245 that:-

“The particular circumstances of a case required to be put in the balance. In analysing the circumstances of a case this court has over the last decade on several occasions found the judgment of Powell J., with whom the other members of the United States Supreme Court agreed, in

Barker v. Wingo

(1972) 407 US 514 relating to the right to speedy trial under America's jurisprudence, helpful in analysing our jurisprudence. I continue to find it a persuasive precedent.”

50. Thus, the Court may make an order prohibiting a trial where a period of delay has been so substantial as to amount to a breach of an applicant’s constitutional rights, even where the applicant has suffered no actual prejudice. It is clear, however, that culpable or blameworthy delay on the part of the prosecution does not, in and of itself, automatically give rise to an order preventing further prosecution. Rather, the Court must engage in a balancing exercise to protect the public interest in the prosecution of offences as against the interests of an applicant. The particular circumstances of an individual case must be placed in the balance. Further, this Court has held that there exists discretion to prohibit a trial in such “wholly exceptional circumstances where it would be unfair or unjust to put the accused on trial” in H. v. DPP 3 I.R. 575 at p. 622.

Children Act, 1908
51. It is accepted that were the applicant arrested and charged in 1988, or as soon as reasonably possible after the occurrence of the alleged offence, she would not have been subject to any of the protections afforded to an accused child under the Children Act, 2001, for the simple reason that the Act of 2001 was not yet in existence.

52. In 1988, however, the applicant, as a fifteen year old, would have been subject to its predecessor- the Children Act, 1908. This Act has been described by Professor Dermot Walsh in Juvenile Justice (Thomson Round Hall, 2005) as reflecting a “desire to rehabilitate child and young offenders” and “to accommodate special circumstances of young offenders”. Professor Dermot Walsh also provides a useful overview of the legislation at para. 1-03, where he stated:-

“…the 1908 Act makes provision for: limits on the nature and length of the custodial punishments; a greater emphasis on non-custodial punishments; greater parental responsibility for the offending of their children; summary trial for most offences (including the application of the Summary Jurisdiction Acts and rules made thereunder to courts of summary jurisdiction dealing with juvenile offenders); and protection for the privacy of the child and young offender…”

53. Whilst the protections afforded to a child under the Act of 1908 were not as extensive as those now provided under the Act of 2001, the applicant nonetheless would have benefited from the provisions contained therein. There is therefore a fundamental difference between the applicant being charged and tried as a child in the year 1988, and as an adult now, (or in 2011 when the DPP instituted the proceedings), and furthermore an adult who is now over 40 years of age, a factor which must be taken into consideration by this Court.

Special duty in relation to child or young offenders
54. The right of an accused to a trial within a reasonable time places a corresponding obligation on prosecuting authorities to act with reasonable expedition. This obligation takes on particular significance in relation to children or young offenders, by reason of the special duty on State authorities to prosecute a child or young offender expeditiously.

55. The obligation to provide a child or young defendant with a speedy trial was explicitly provided for by this Court in B.F. v. DPP [2001] 1 IR 656, where Geoghegan J. stated at p.666:-

“… in the case of a criminal offence alleged to have been committed by a child or young person as in this case, there is a special duty on the State authorities over and above the normal duty of expedition to ensure a speedy trial, having regard to the obvious sensitivies involved.”

56. In B.F. the accused admitting to having committed sexual offences against two girls in 1995. The accused was then fourteen years old, and there were no charges brought against him at that time. The accused then moved to England with his mother, and at all times the Gardaí were aware of his whereabouts. In March, 1996, an order for extradition was made in respect of the accused and he returned voluntarily to Ireland in August, 1998, at which time he was returned for trial at the Central Criminal Court. This Court was satisfied in B.F. that the “special obligation” of expedition had been breached, in that the extradition proceedings in that case were allowed to take an inexplicable excessive length of time. The trial was prohibited on the grounds that a culpable delay of two years and nine months had taken place. In this regard, Geoghegan J. emphasised at pp. 663-664:-

“It was of utmost important that if it was decided to proceed with the charges, there should be no delay so that a trial would take place while the memories were fresh and while [the child] was reasonably close to the age at which he is alleged to have committed the offences.”

57. At the same page of the said report Geoghegan J. referred to the “wholly different character” of a trial of an accused as an adult as opposed to a child, which was “true independently of the different penal provisions applicable to a child or young person…”

58. The argument that the principles identified by Geoghegan J. in B.F. applied only in respect of sexual offences committed by a child was rejected by Quirke J. in the High Court decision of Jackson and Walsh v. DPP [2004] IEHC 380, where he stated at p.16 that:-

“It is no secret that persons in their late teenage years have particular vulnerabilities. These vulnerabilities can be compounded by difficult or deprived family or social circumstances and by a variety of other causes. The interests of the community will not be served by subjecting such persons to substantial delay in confronting them with complaints of criminal activity made against them. The interests of the community will surely be better served by efficient action on part of State authorities designed to ensure that young persons acquitted of criminal offences may be enabled to resume normal life and those convicted may be dealt with in such a manner as to reduce the risk to the community of further criminal activity. Whilst the right of the community to have criminal offences is a right which must, if appropriate, be vindicated by the courts the State authorities also have a responsibility to take such steps as may be necessary to vindicate that right.”

Quirke J. in that case reiterated the special duty on State authorities to ensure the speedy trial of a child or young persons. In that case it was held that, although no specific prejudice could be proved, it was to be presumed that there was a degree of prejudice suffered having regard to the age of the accused at the material times. It was also held that the capacity of the accused to defend themselves was to be presumed to have some degree of prejudice, by reason of the inordinate period of time which elapsed in bringing the applicants to trial.

59. Thus, the age of an accused person is another factor which may be put into “the melting pot” when the balancing exercise in relation to prosecutorial delay is being considered. As noted by Thomas O’Malley in The Criminal Process (Roundhall, 2008) at para. 17.57:-

“The young age of the defendant is another factor which may be placed in the balance once blameworthy delay has been established. Courts are much less tolerant of delay in processing charges against young defendants which means that a lapse of time will become blameworthy more readily than in the case of adult defendants.”

Blameworthy prosecutorial delay
60. The learned trial judge made a finding that “the lapse of over 20 years amounts to significant, blameworthy delay, which has not been adequately explained and which triggers an inquiry as to whether the applicant’s rights have been compromised.”

61. The background to this case has been set at length above. The incident which gave rise to the applicant being charged under ss. 11 and 18 of the Offences Against the Person Act, 1861, occurred on the 13th May, 1988. On the 14th May, 1988, the men involved in the attack on the applicant’s father made admissions of guilt. On the same date, the applicant, then aged 15 years, is said to have made incriminating statements. The following day, the DPP gave directions to charge the four men involved in the assault.

62. It was not until the 25th July, 1989, two days prior to the date on which the four men were sentenced, that the DPP issued directions to charge the applicant and her mother. The applicant and her mother had in fact moved to England at an unknown date during July, 1989, but, however a date after the 3rd July, 1989, on which date the four men entered guilty pleas. The applicant and her mother were in attendance in court on that date in order to provide witness evidence. A warrant for the applicant’s arrest was issued in August of the same year.

63. The applicant moved back to Ireland in 2004 as a married adult with children. She established herself with her family in Co. Cavan. Although at this time the applicant went by her married name of Sharon Cullen, on her return to Ireland she applied for a PPS number for which purpose she provided her maiden name, Payne, and her last address in Ireland, the family home in Crumlin. Further, the applicant received benefit for three years under the name Sharon Payne. The Gardaí were notified of the applicant’s presence in Ireland in January, 2010. The applicant was arrested and charged with the relevant offences on 19th December, 2011.

64. Thus, there was a delay of 23 years and 8 months between the date on which the offence was alleged to have occurred and the date on which the applicant was arrested and charged. This was a very significant blameworthy delay on the part of the State authorities to which the applicant in no way contributed. The applicant, then aged 15, was taken lawfully to England by her mother in 1989. The applicant and her mother were unaware of any intention on the part of the DPP to charge the applicant with the offences. The applicant settled in England and led an open life, fully engaging with authorities. Whilst the applicant did go under the name Sharon Cullen from 1995, from the time of her marriage to Con Cullen, she opened a bank account and paid taxes under Sharon Payne until then. Further, the trial judge found as a fact that the applicant had both her married and maiden name listed on her passport, at her request, when she obtained it in 2002. The applicant returned to this jurisdiction permanently in 2004 with her husband and two children. The applicant received benefit under her maiden name for 3 years in this country. In other words, the applicant led an open life, she did not conceal her identity.

65. The applicant did not evade the State authorities. The delay is a very significant and inexplicable blameworthy delay on the part of the prosecuting authorities.

66. As previously stated, a delay of 23 years and 8 months had elapsed between the date on which the offence was allegedly committed and the date on which the applicant was arrested and charged. In the circumstances, this Court upholds the finding of the trial judge that there was significant and blameworthy delay by the prosecution.

67. As provided for in the case law discussed above, however, the existence of significant culpable prosecutorial delay does not, of itself, automatically prohibit a trial. Rather, the court must engage in a balancing operation, balancing the public interest in prosecuting the crime, as against the interests of the applicant. As per Geoghegan J. in P.M v. DPP [2006] 3 I.R. 174 at p. 177:-

“…blameworthy prosecutorial delay… is one factor in itself and of itself which must be put into the melting pot when the balancing exercise is being considered.”

68. The balancing operation is required to take into consideration the particular circumstances of an individual case. Having found that there exists significant blameworthy delay, the Court turns to consider whether there exists something more in the particular circumstances of this case to put into the balance when considering whether the trial judge was correct in prohibiting the trial.

Age of the applicant
69. The applicant was fifteen years old at the time of the commission of the alleged offences. As a young person, a child in law, there was a “special duty” on the part of the State authorities, over and above the normal duty of expedition, to ensure the speedy trial of the applicant. Further, as this Court held in B.F. v. DPP [2001] 1 IR 656, once there was a decision to proceed with the charges there was to be no delay in order for the trial to take place while memories were fresh and the applicant was reasonably close to the age at which she was alleged to have committed the offences.

70. There is no doubt that this “special duty” owed the applicant to expedite the proceedings was not discharged in this case. The applicant was fifteen years of age when the offences were alleged to have been committed by her. The applicant is now forty one years of age.

71. On the 19th December, 2011, the date on which she was arrested and charged for offences committed on the 13th May, 1988, the applicant was thirty nine years of age. There has been a delay of twenty three years in bringing charges against the applicant. The DPP failed in its special obligation to the applicant, as a 15 year old in respect of whom there were, unknowingly to her, directions given to prosecute.

72. In B.F. this Court held that a delay of 2 years and 9 months amounted to a breach of the special duty owed towards an accused child or young person. A delay of 23 years, in the circumstances of this case, is a breach of the special duty owed to the applicant. However, there are also other factors to be taken into consideration.

Sentencing
73. The DPP contends that the age of the applicant could be adequately dealt with by the trial judge, were a sentencing stage arrived at. Whilst the age of the applicant at the time of the alleged commission of the offences is a matter which could be taken into consideration and dealt with by a sentencing judge, this Court considers that the age of the applicant at the time of the offence, namely fifteen, is a factor which must be put into “the melting pot” by a court when conducting a balancing operation as to whether or not the circumstances of this case are such that the trial should be prohibited. It is not a factor to be postponed to any possible sentencing hearing.

Degree of prejudice
74. The DPP seeks to try the applicant for an offence which she allegedly committed as a child. As noted by Geoghegan J. in B.F. v. DPP [2001] 1 IR 656:-

“A trial of an adult in respect of an offence which he committed as a child…

takes on a wholly different character from a child who has committed such offences while a child

. This is

true quite independently of the penal provisions applicable

to a child or young person…”

75. It must be acknowledged that there is a certain implied prejudice to the applicant being tried now as an adult, as opposed to as expeditiously as possible after the commission of the alleged offence, where the applicant would have stood trial as a child or young person.

Delay post 2010
76. A further aspect of this case is the occurrence of what is referred to as the additional delay. The Gardaí were notified of the fact that the applicant was living in Co. Cavan, with her husband and two adult children, by the applicant’s uncle Geoffrey Payne, when he was contacted by the Serious Crime Review Group in January, 2010.

77. In July, 2011, the DPP was sent an updated file by the Gardaí. It is stated that this delay of 19 months was in order to review the case against the applicant, to ensure the Gardaí were still in possession of the necessary proofs and to consider whether there was any further evidence available.

78. The applicant was arrested and charged in December, 2011. This amounts to a further delay of nearly two years, 23 months.

79. This delay takes on greater significance when it follows a very substantial delay of twenty-one years in respect of prosecuting the applicant for offences which were, allegedly, committed by a child.

Seriousness of the offence
80. It was contended by the DPP that notwithstanding any finding of any culpable blameworthy delay on the part of the State authorities, and the young age of the applicant at the time of the commission of the alleged offences, that the nature of the charges put against the applicant are of such gravity that it is in the public interest that she be prosecuted. Further, the DPP submitted that the trial judge was incorrect in finding that less weight is to be afforded to the seriousness of offences in cases involving young offenders.

81. It is acknowledged that the nature of a case may be such that notwithstanding the fact that a person was a child at the time of the commission of an alleged offence, he/she may face trial as an adult. The public interest in having the matter brought to trial may be such as to require the trial to proceed. Indeed, in circumstances of cases involving very serious charges, the fact that the person was a child at the time of commission of the alleged offence, and as a consequence of delay will be tried as an adult, may not be sufficient to outweigh the public interest in having such a charge proceed to trial. It will depend on all the circumstances of the case.

82. The special duty of the State to expedite the prosecution of offences where the accused is a child or a minor was referred to by Quirke J. in the High Court decision of Jackson and Walsh v. D.P.P. [2004] IEHC 380 where he stated:-

“The interests of the community will not be served by subjecting such persons to substantial delay in confronting them with complaints of criminal activity made against them. The interests of the community will surely be better served by efficient action on part of State authorities designed to ensure that young persons acquitted of criminal offences may be enabled to resume normal life and those convicted may be dealt with in such a manner as to reduce the risk to the community of further criminal activity. Whilst the right of the community to have criminal offences is a right which must, if appropriate, be vindicated by the courts the State authorities also have a responsibility to take such steps as may be necessary to vindicate that right.”

83. The “community interest” in prosecuting young persons is such that if acquitted, the child can resume his/her normal life and if convicted, the child can be dealt with by the juvenile justice system in such a manner so as “to reduce the risk to the community of further criminal activity.”

84. The applicant in this case was not convicted of “any further criminal activity”, neither as a child nor as an adult.

85. The seriousness of the offences in question is one factor to be taken into account by the court when conducting the balancing operation. It must be considered in the context of the realities of mounting a prosecution in a complex case. A reasonable amount of time is required to prepare for the prosecution of a serious and/or complex case. However, that does not arise on the facts in this case.

Decision
86. In the present case, there exists blameworthy prosecutorial delay which has gone unexplained. It is contended by the DPP that the applicant contributed to this delay by evading State authorities for a number of years. This was found to be untrue by the High Court. This Court would affirm that finding. The applicant was unaware of the existence of any decision on the part of the DPP to charge her and was lawfully moved to England by her mother. There, she set up a new life and fully engaged with authorities. The applicant kept a close relationship with her uncle, who stated that he informed the Gardaí of the applicant living in England and stated that he would have provided an address were he asked for same. The applicant’s uncle informed the Gardaí of the applicant living in Co. Cavan when he was contacted by authorities in 2010. The applicant had been living openly in the jurisdiction since 2004. Again, during this period the applicant had engaged with relevant authorities, having applied for a PPS number, undertaken work and paid taxes, in addition having received benefit under her maiden name for many years. There was no attempt on the part of the applicant to evade the State authorities. The applicant can not be said to have contributed in any way to the delay which has occurred in this case.

87. Further, it is clear that there has been an undoubted breach of the “special duty” that exists on State authorities to expedite proceedings in relation to a child or young person in this case where there has been a delay of over twenty three years.

88. In addition, there are all the individual circumstances of the present case. The initial decision of the DPP was not to prosecute the applicant until after the four men were prosecuted. The delay between the alleged commission of the offences and the applicant being charged, twenty three years, is a very significant length of delay. Further, there was additional delay after the applicant was located in early 2010. This delay must be viewed in light of the special duty of the State authorities, including the duty of the DPP, to move with expedition after there has already been a lengthy delay in a case.

89. The Court finds that these factors are sufficient, when taken together, to outweigh the factors that the offences were serious and the public interest in having the applicant prosecuted. The length of the highly culpable prosecutorial delay accrued in this case, the disparity between the age of the applicant then and now, taken with the loss of protections that flow from such an elapse of time, are such that this Court finds the existence of wholly exceptional circumstances.

90. For the reasons set out above, this Court would affirm the decision of the High Court, granting a prohibition on the trial of the applicant, and dismiss the appeal.

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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Cullen v the Director of Public Prosecutions [2014] IESC 59 (16 October 2014) URL: http://www.bailii.org/ie/cases/IESC/2014/S59.html Cite as: [2014] IESC 59

Supreme Court of Ireland Decisions