Supreme Court dismisses appeal to prohibit trial due to prosecutorial delay and alleged unfairness in indecent assault charges.

THE SUPREME COURT

[S.C. No. 270 of 2007]

Denham J.

Fennelly J.

Finnegan J.

Between/

J.T.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judgment delivered the 17th day of April, 2008 by Denham J.

1. This is an appeal by the applicant/appellant, J.T., hereinafter referred to as "the applicant", from the judgment of the High

Court (Hanna J.), given on the 15th June , 2007, refusing to prohibit the trial of the applicant in the Circuit Criminal Court

on 104 charges of indecent assault on a number of pupils in a national school.

2. The High Court (McKechnie J.), on the 18th July, 2005, granted the applicant leave to apply for judicial review for the

following reliefs:-

(i) An order granting a permanent injunction restraining the Director of Public Prosecutions, his servants or agents, from

further prosecuting the applicant on the charges currently pending before the Dublin Circuit Criminal Court and comprising

104 charges of indecent assault.

(ii) A declaration that the applicant is entitled to the benefit of the constitutional right to be presumed innocent, at all times,

in all proceedings (criminal and civil; interim and interlocutory; injunctive and final) and in all tests or parts of tests that are

applied by the Court therein, unless and until he is convicted in a criminal court.

(iii) A declaration that there should never be an assumption that the allegations made by the complainants herein are true at

any stage, of any proceedings (Criminal and civil; interim and interlocutory; injunctive and final) or in any tests or parts of

tests that are applied by the Court therein, unless and until the applicant is convicted of such allegations in a criminal court.

(iv) Costs.

3. The grounds for such relief sought were:-

(i) The delay on the part of the Director of Public Prosecutions in commencing these criminal proceedings (both in terms of

complainant delay and prosecutorial delay) constitutes a breach of the applicant's constitutional rights:

(a) to be tried on a criminal charge in due course of law,

(b) to be tried on a criminal charge with reasonable expedition,

(c) to fair procedures, and

(d) to fairness and justice

contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.

(ii) The delay on the part of the Director of Public Prosecutions in commencing these criminal proceedings (both in terms of

complainant delay and prosecutorial delay):

(a) constitutes an inordinate and inexcusable delay, and

(b) has prejudiced the applicant

contrary to the provisions of Article 34, Article 38.1 and Article 40.3 of the Constitution.

(iii) The delay on the part of the Director of Public Prosecutions in commencing these criminal proceedings (both in terms of

complainant delay and prosecutorial delay) is contrary to the provisions of Article 6 of the European Convention on Human

Rights.

(iv) The trial of the applicant on these offences at such a remote time from the date of the alleged offences amounts to an

abuse of the process of the Courts.

(v) The leaking by the Gardaí of information about the investigation to the media has contributed to the pre-trial anxiety

suffered by the applicant and makes a fair trial impossible.

(vi) The leaking by the Gardaí of information about the investigation to the media has contributed to the vilification of the

applicant and makes a fair trial impossible.

Thus the grounds raise issues of complainant delay, prosecutorial delay, article 6 of the European Convention on Human

Rights, that the length of the delay is itself an abuse of process, that the leaking by the Gardaí of the information about the

investigation to the media contributed to the pre-trial anxiety suffered by the applicant, and that the vilification of the

applicant has made a fair trial impossible.

4. The High Court, by judgment on the 15th June, 2007 and order of 24th July, 2007, refused the application.

5. The learned trial judge concluded:-

"For the reasons above stated I am satisfied that there has been blameworthy prosecutorial delay in processing these criminal

proceedings. That, of itself, is not sufficient to halt this criminal trial. The applicant must bring something more to the overall

picture to give rise to those most exceptional circumstances which could prohibit it and he seeks, inter alia, to introduce

prejudice to meet this requirement. I am not persuaded that prejudice has been established.

Although I am not satisfied that any of the grounds of prejudice raised of themselves constitute a sufficient basis upon which

to prohibit this trial nevertheless I must step back, as it were, and survey the composite vista applying what is referred to as

the omnibus principle. In the words of McCracken J.:

'It may well be that none of these matters individually would justify prohibiting the trial, but the court must view the matter

with regard to the cumulative effect of these concerns.'(See D.K. v. Director of Public Prosecutions (Unreported, Supreme

Court, 3rd July, 2006 at p. 9).

This approach was since endorsed by Hardiman J. in S.B. v. Director of Public Prosecutions (Unreported, Supreme Court,

21st December, 2006)).

This is a case with a multiplicity of complainants. They complain of acts of sexual abuse perpetrated on them by the

applicant. Some allege that they witnessed him do likewise to others. These are allegations of considerable antiquity. There

is no doubt but that the passage of time will have a significant impact in this case. Necessarily memories will be dimmed.

Were this trial to proceed it would , no doubt, be a complex and difficult one for the applicant, the complainants, the lawyers

involved and ultimately the trial judge who must ensure that the matter is put with utter fairness before the jury.

But the fact that a trial of this nature presents a great challenge to all concerned is not a ground to prohibit. The applicant

has not convinced me, as a matter of probability, that he would be exposed to an unfair trial. One must presume (and I

believe properly so) that any such trial would be conducted with impeccable fairness by the trial judge. The applicant has at

all times maintained his innocence and it is a matter for a jury to judge whether they believe him or the complainants.

Is it fair that the applicant be put on trial? The delay, both excusable and inexcusable, allied to the vilification to which the

applicant was exposed by the printed media was undoubtedly highly unpleasant and distressing to a man presumed by law to

be innocent. However, the vilification, such as it was, stopped in 2004. Such is the evidence before me. If it is repeated

subsequent to this judgment but prior to the trial presumably further questions may arise for this Court or the trial judge.

The applicant has available to him all of the witnesses who were discovered in the course of the detailed investigation. The

passage of time has seen the deaths of witnesses of at best peripheral significance in the context of the complaints brought

by multiple complainants.

Insofar as the applicant’s rights have to some extent been compromised in this matter such regrettable circumstance does

not, in my view, overpower the public’s right to have these multiple, serious charges prosecuted. On balance I am not

satisfied that it is either unfair that this trial should proceed or that it is unfair that the applicant meet the charges laid against

him.

I refuse the relief sought."

6. The applicant filed eighteen grounds of appeal, being that the learned High Court judge erred in law or in fact or on a

mixed question of law and fact as follows:-

1. In holding that the prosecution which the applicant faces should not be injuncted.

2. In failing to hold that the combination of the following factors was a sufficient basis on which the prosecution should be

injuncted:

i The case involves charges that relate to events which allegedly occurred between 35 and

38 years ago.

ii. The finding at page 3 of his judgment that the Garda investigation concluded in April

2003 and the file was then sent to the D.P.P.'s Office where it remained until a request for

further information was transmitted in September 2004 and that "no explanation for this

period of silence was tendered by the respondent at the hearing".

iii. The finding that there was blameworthy delay on the part of the prosecuting authorities.

iv. The finding that part at least of the information that the media used to vilify the applicant came from Garda sources.

v. The finding that the Gardaí involved in the leaking were guilty of gross irresponsibility and possible criminality.

3. In failing to give due weight and effect to his statement at page 3 of his judgment that "It is imperative that investigations

such as this must proceed with due despatch".

4. In failing to injunct the charges in circumstances where the learned High Court judge found at page 17 of his judgment

that there was blameworthy delay on the part of the prosecuting authorities.

5. In holding that the applicant was not prejudiced by the death of Brother D and Brother B.

6. In holding that the applicant was not prejudiced by the absence of school rolls and, in particular, in erroneously holding

that "it seems to me that the absence of documents was as much a hindrance to the prosecution as it was to anyone else" (at

page 19 of his judgment).

7. In his analysis of memory and, in particular in his holding at page 20 of his judgment that "insofar as the allegations of

wrongdoing involve only the applicant and one complainant, given his stout refutation of the charges, any memory deficit on

the applicant's part does not weigh heavily in the balance".

8. In failing to hold that a meaningful trial in due course of law is not possible in respect of charges that relate to events

which allegedly occurred between 35 and 38 years ago.

9. In characterising the applicant's case as a 'bare assertion of the stress and anxiety' (at page 25 of his judgment) whilst at

the same time holding (at page 30 of his judgment) that 'the delay, both excusable and inexcusable, allied to the vilification to

which the applicant was exposed by the printed media was undoubtedly highly unpleasant and distressing to a man

presumed by law to be innocent.

10. In failing to give due weight to the fact that additional stress and anxiety was caused to the applicant as a result of his

vilification at the hands of the media, which said vilification was caused by the deliberate leaking of information by An

Garda Síochána.

11. In failing to give due weight to the fact whilst it may be axiomatic that some stress and anxiety will be caused by a

pending prosecution of this nature, stress and anxiety caused by the deliberate leaking of information by An Garda Síochána

falls into a different category.

12. In failing to consider whether his finding that part at least of the information that the media used to vilify the applicant

came from Garda sources, which said allegation had been denied by the Gardaí in the opposition papers, cast a doubt over

the credibility of all of the evidence put forward by the Gardaí in the case.

13. In speculating that "it is possible that the graphic and, at times, tasteless and abusive references to the applicant may

have occurred in any event" (at page 28 of his judgment) and in treating that as an answer to the stress and anxiety caused

to the applicant by the deliberate leading of information to the media.

14. In holding that "any residual trial prejudice could be assessed and dealt with if appropriate by the trial judge" (at page 28

of his judgment). This might be a relevant finding if the applicant's claim were one based on pre-trial publicity of itself

meaning he could not get a fair trial. It is not an answer to a claim based on additional stress and anxiety caused by the

misconduct of the Gardaí since that is not a matter that is, by its nature, capable of being cured by any direction of the trial

judge.

15. In holding that the reasoning in the case C O'T v President of Circuit Court 26 July 2005 was not equally applicable to

the present case.

16. In holding that there were no wholly or exceptional circumstances such as should give rise to an order of injunction. In

particular in failing to hold that his finding that finding that the Gardaí involved in the leading were guilty of gross

irresponsibility and possible criminality was a wholly or exceptional circumstance in respect of someone facing charges that

relate to events which allegedly occurred between 35 and 38 years ago.

17. In holding (at page 29 of his judgment) that the omnibus approach was not satisfied in all of the circumstances of the

case.

18. Such further and other grounds as may be relied on at the hearing of this appeal.

7. In oral submissions made on behalf of the applicant it was urged that in addition to the general prejudice which follows

from a delay of almost four decades, that the applicant had clearly established some very unusual features in this case which

should cause the Court to consider that this is one of those exceptional cases which should be injuncted. The features

referred to were:-

(i) the finding of fact in regard to Garda leaking;

(ii) the campaign of vilification by the media that was based on this leaking;

(iii) the unexplained period of twenty months that the file spent with the Director;

(iv) the fact that the Gardaí devoted one investigating member to the case who simply recorded statements and made no

attempt to address any matters such as forensic evidence or psychiatric or medical issues.

It was submitted that the cumulative effect of all of these factors, together with the lapse of time, amounts to "the bitter

enemy of justice" in the case.

8. Key dates in this case are:-

(i) 1969 - 1972, the alleged child abuse;

(ii) 16th July, 1998 the complaint of AH begins the Garda investigations;

(iii) In April, 2003 the Garda file is sent to the Director of Public Prosecutions ;

(iv) In November, 2004 directions are received from the Director;

(v) On 19th January, 2005 the applicant is charged;

(vi) On 23rd March, 2005 the applicant is returned for trial.

9. The applicant is a former Christian Brother who was born in 1942. He was charged initially with 104 charges of indecent

assault in relation to sixteen complainants, one complainant has since died. All of the complainants were at a specific national

school. Three of the complainants were in fifth class between 1970 and 1971, where they were taught by the applicant.

Eleven of the complainants were in fifth class between1971 and 1972 and were taught by the applicant. The final

complainant was not taught by the applicant but alleges that he was indecently assaulted by him on the school playing field.

10. Decision

This application for judicial review was commenced prior to the case S.H. v. Director of Public Prosecutions [2006] 3

I.R. 575, which clarified the jurisprudence on delay in cases where sexual abuse of children is in issue. Thus this case is,

what may be called, a 'transitional' case, commenced before S.H. v. Director of Public Prosecutions and concluded after

that decision. The Court has exercised a flexible approach to applicants in such cases as regards to pleadings, because of the

clarified state of the law.

11. Prosecutorial Delay

The applicant raised the issue of prosecutorial delay. This aspect of the law has been clarified in recent case law. In P.M. v.

Malone [2002] 2 I.R. 560 the required balancing process was described. In P.M. v. The Director of Public Prosecutions

[2006] 3 I.R. at p.185, Kearns J., with whom the other members of the Court agreed, stated:-

"I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone [2002] 2 I.R. 560 is the appropriate

mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of

prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay

arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not

be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased

levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length

of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy

delay took place should not of itself justify the prohibition of a trial."

This test was correctly identified by the High Court. The issue is whether it was correctly applied by the learned trial judge

to the facts of the case. The applicant raised a number of matters which, it was submitted, required to be put in the balance.

12. Leaking of information by Gardaí

On behalf of the applicant it was emphasised that there had been leaking of information by the Gardaí, which lead to

vilification of him in the media. The learned High Court judge did find that information had been passed on to the media. He

held:-

"Having heard his evidence and observed him I am not disposed to conclude that Detective Garda Maloney was personally

responsible for passing information of the calibre complained of to the print media. Nonetheless, I am satisfied that some

part of it at least was sourced from a member or members of An Garda Síochána. It is unfortunate that I must come to this

conclusion given the limited nature of the enquiry in which I have engaged. It is to my mind most regrettable that, after all of

these articles had appeared, including material about which Detective Garda Maloney expressed grave reservations, only the

most lacklustre and informal enquiry resulted. Given the possibility of the derailment of a trial I cannot accept that this was

an appropriate response to what was, potentially, a significant disciplinary matter."

The finding, that part at least of the information was sourced from members of An Garda Síochána, is a fact. However, it

was a limited finding that 'some part' of the information was sourced from An Garda Síochána. Having considered the

newspaper articles in question I am satisfied that the majority of the information came from the complainants or people

speaking on their behalf. This was a misguided exercise on their behalf.

The conduct by which the information became public is a fact. However, the key factor is the consequence of the

publication of the information to the trial of the applicant. The test to be applied was stated in D. v. Director of Public

Prosecutions [1994] 2 I.R. 465 and Z. v. Director of Public Prosecutions [1994] 2 I.R. 476; being whether there is a real

risk of an unfair trial. In this case the publications in issue were several years ago, and so the fade factor is applicable to

them. In all the circumstances I would affirm the decision of the High Court that they are not such as to give rise to a real

risk of an unfair trial.

There was some leakage of information from An Garda Síochána which is a serious issue, as pointed out by the learned trial

judge. But this Court is not a disciplinary tribunal to impose punishment on any such member. The consequence of the

leakage to a trial is the issue - whether the publication was such as to impede a fair trial. Does such information, which was

limited in this case, including that the file has been sent to the Director of Public Prosecutions, warrant this court prohibiting

the trial? I am satisfied that it does not. However, that is no reason to impede any internal inquiry and disciplinary action in

An Garda Síochána. It should be noted that the High Court held, and I would affirm, that Garda Maloney was not

personally responsible for passing on information to the media.

13. Stress and Anxiety

Counsel for the applicant submitted that the publicity had had a detrimental effect on the applicant and has caused pre-trial

stress and anxiety. There was evidence of stress suffered by the applicant. In his affidavit sworn on the 15th day of July,

2005 the applicant deposed:-

"43. I say that I was born on the ---- 1942 and am now 63 years of age. I joined the Christian Brothers in 1958 when I was

18 and left in 1989.

44. I have had difficulties with chronic acute depression and anxiety and have been admitted on occasions into St John of

God Hospital in Stillorgan, Dublin. This was due to anxiety and depression.

45. I say that the fact that I have been questioned about allegations from 1969 to 1971 has caused me acute anxiety and

depression.

46. In addition, the manner in which I have been vilified in the media has caused me greater anxiety and depression.

47. My present position is that although I have bail I do not believe that I can function in the community with these charges

hanging over me and I have instructed my legal advisors that I wish to remain in Arbour Hill rather than try to cope outside.

I believe that if I take up any bail I will be hounded by the media again who will plant reporters and photographers outside

of wherever I am staying. I would therefore prefer to remain in Arbour Hill pending the outcome of these judicial review

proceedings."

There is no doubt that the applicant has suffered stress, and that he has a fear of vilification arising from the publicity.

However, there is no medical evidence supporting this claim, which is an important factor. The publicity which he referred

to took place 4 to 6 years ago.

In all the circumstances I would affirm the decision of the High Court on this ground. I am satisfied that the evidence falls

short of that required to injunct a criminal trial. While it is not always a requirement that there be medical evidence, in this

case the applicant has had medical care and yet no medical evidence was before the Court and so it is a relevant factor that

a medical report has not been produced.

14. Imprisonment

The applicant has chosen to remain in prison during this time. He has been granted bail and could sign himself out of prison.

While his choice indicates his stated concern as to vilification, it does not create a factor of pre-trial incarceration such as is

referred to in Barker v. Wingo 407 U.S. 514 (1972), which has been accepted as a useful precedent in this jurisdiction.

15. Delay

The applicant also raised the issue of what was referred to as "the 20 month delay" in the office of the Director of Public

Prosecutions. In fact, I do not believe it was quite that long, being from April, 2003 to November, 2004. However, that is

not to excuse the delay. It is on its face inexcusable. No reason was offered to the Court for such delay. In general I assume

that such a case as this would take several months to be processed through the office of the Director of Public Prosecutions.

Thus, in effect, in this case, it is an unexplained delay of over 12 months. It is an unreasonable delay. But in all the

circumstances of the case I am satisfied that it is not a factor which of itself should trigger a balancing exercise. Even if such

a balancing exercise were required, the delay is not such as to attract the relief sought. However, I would not like this

decision to be taken as an endorsement of such a delay - quite the contrary, it is inexcusable and contrary to best practice.

16. Witnesses

On behalf of the applicant it was submitted that important witnesses have died or cannot be traced. Brother B. died on the

17th September, 1990. Brother D. died on the 8th September, 2006. In relation to Brother D, it is noteworthy that he died

after the grant of leave to seek judicial review. On the nature of the evidence he might have given, I would affirm the High

Court findings that his evidence would be to some extent neutral. Also, I would affirm the finding that the evidence was

feeble and most unlikely to bear heavily, if at all, on the thrust of the trial.

As to Brother B., who died in 1990, I would affirm the decision of the High Court also. Consequently, I am satisfied that in

the context of this trial the absence of Brother B. and Brother D. is not a factor so prejudicial to the applicant as to warrant

an injunction of his trial.

17. Documentation

On behalf of the applicant it was submitted that there was an absence of necessary documentation. The documents in issue

are some of the rolls from the school. The applicant has sworn in his affidavit that:

"I say that I have a recollection of only four of the above complainants, namely L, C, S, and McN. I have no recollection of

any of the other complainants and the names do not mean anything to me."

It is in these circumstances that it was submitted that the documents were important and their absence prejudicial to the

applicant. However, I am satisfied that this is no basis upon which to intervene in this case. The school rolls are incomplete -

but there has been no engagement with this evidence by the applicant. A mere assertion of prejudice is insufficient. I would

affirm the decision of the High Court on this issue.

18. Memory

Counsel for the applicant also referred to the issue of the applicant's memory. Thus in his affidavit the applicant deposed

that he can only recollect four of the complainants. In his interviews with An Garda Síochána there were many references to

his memory. As the learned trial judge said, the interviews "are littered with references to his inability to remember persons

and circumstances." However, this evidence is not such as to require the relief sought. It is vague, ambiguous, and there is

no medical evidence. On this issue I would affirm the decision of the High Court.

19. Case Law

Reference was made to Ó Tighearnaigh v. President of the Circuit Court [2005] 3 I.R. 170, as a precedent for the

applicant's cause. However, I am satisfied that it is not relevant and is of no assistance to this case, for a number of reasons.

First, that case was decided before this Court's decisions in S.H. v. The Director of Public Prosecutions and P.M. v. The

Director of Public Prosecutions. Secondly, references in that case were contrary to the now settled law. Thirdly, the

nature of the publicity in that case was more extensive than in this case. The position of An Garda Síochána was different,

in this case most of the information came from sources other than the gardaí. Fourthly, the situation of the applicant in that

case had changed - he had moved job and invested in his future. This created relevant factors in the matrix of the facts of

that case. Consequently that case does not assist the applicant.

20. Cumulative

On behalf of the applicant it was submitted that the alleged offences occurred many years ago, that the Director of Public

Prosecutions decided to prosecute, but that he was guilty of delay in his office, that there was leaking of information by the

Garda Síochána, that there was a campaign of vilification, that he says he can remember only four of the complainants, that

relevant witnesses have died, that some of the school rolls are missing, and that in all of the circumstances of the case there

is a real risk of an unfair trial arising from the cumulative effect.

I have addressed the factors individually previously in this judgment. Considering them cumulatively I am not satisfied that

they meet the required test for intervention and prohibition of a trial by the Court either on the basis of prosecutorial delay,

or an abuse of trial process. In the circumstances as a whole there is no real risk of an unfair trial. As in all such cases the

trial will proceed under the control of a judge who has the duty to ensure that the trial is fair. The test to be applied is that

stated by Finlay C.J. in Z. v. Director of Public Prosecutions, [1994] 2 I.R. 476, at p.507:

"… to establish a real risk of an unfair trial … necessarily and inevitably means an unfair trial which cannot be avoided by

appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an

unavoidable unfairness of trial."

21. Conclusion

The applicant has sought to raise the exceptional jurisdiction of the Court to prohibit his trial. However, he has failed to

establish matters so as to invoke this jurisdiction. In all the circumstances of the case, which include the fact that there are

multiple offences, multiple complaints, and witnesses available to the alleged events, I would dismiss the appeal of the

applicant and affirm the order of the High Court refusing the application to injunct the trial.