Supreme Court restrains prosecution of elderly man for 34-year-old indecent assault due to unfair trial risks.

THE SUPREME COURT

[S.C. No: 179/2006]

Denham J.

Geoghegan J.

Macken J.

BETWEEN/

P.T.

APPLICANT/RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

Judgment delivered the 31st day of July, 2007 by Denham J.

1. This is an appeal by the Director of Public Prosecutions, the respondent/appellant, hereinafter referred to as 'the D.P.P.', from a

judgment of the High Court (Dunne J.) delivered on the 21st day of March, 2006.

2. P.T., the applicant/respondent, and hereinafter referred to as 'the applicant', was born on 1st November, 1920. He was returned

for trial on twenty eight charges of indecent assault contrary to common law and to s.6 of the Criminal Law Amendment Act, 1935.

The offences alleged were committed many years ago.

3. The applicant obtained leave from the High Court on 10th January, 2005 to apply by way of judicial review for an order of

prohibition, or injunction, restraining the D.P.P. from taking any further steps in the proceedings. The grounds upon which such leave

was granted were:-

1. There has been a breach of the constitutional right of the applicant to a trial with due course of law in that the D.P.P.

is continuing a prosecution in which there is a serious risk of an unfair trial, for a number of reasons:

(a) The lapse of time between the dates of the alleged offences (said to have occurred between 1st April, 1965 and 1st

September, 1970) and the return for trial of the 12th October, 2004 is more than 34 years and up to 39 years.

(b) The D.P.P. has breached the constitutional rights of the applicant to fair procedures in that the D.P.P. has failed or

refused, in respect of the criminal proceedings the subject matter of this application:

(i) to disclose material information to the applicant.

(ii) to furnish material documents to the applicant.

(iii) to investigate material matters or cause them to be investigated.

there being a duty to do same arising from the obligations of fair procedures. The D.P.P. refuses and has failed to reply to

requests made by the applicant in a letter dated the 2nd November, 2004 to Mr John Brosnan, State Solicitor, Friar St,

Youghal, Cork seeking such disclosures and investigations.

2. The constitutional right of the applicant to trial in accordance with law is breached in that his liability to properly

defend himself has been severely prejudiced by virtue of lapse of time between the date of the alleged offences and the

return for trial of the applicant in respect of those alleged offences. He has suffered prejudice as a result of a number of

factors:

(a) the vague and unspecific nature of the criminal charges against the applicant in the criminal proceedings the

subject matter of this application;

(b) the advanced age of the applicant who is 84 years of age having been born on the 1st November, 1920.

(c) the stress, anxiety and prejudice caused as a consequence of the within allegations, including removal from

active ministry as a Roman Catholic priest.

3. The constitutional right of the applicant to trial with due expedition is breached in that the D.P.P. has been guilty of

prosecutorial delay in that he delayed in a number of respects:

(a) caused and/or permitted a lapse of time of over 2 years between the apparent reception of the complaint

against the applicant of the alleged victim and the first appearance of the applicant in court on foot of a valid

summons to answer the charge on the 28th September, 2004.

(b) caused and/or permitted a lapse of time of 21 months between the questioning of the applicant in relation to

the offence (8th December, 2002) and his first appearance in court on foot of a valid summons on the 28th

September, 2004).

3. The High Court judgment was given prior to several important decisions of this Court which developed the relevant jurisprudence.

Consequently, this appeal, as has happened in several other cases, arises after the applicable law has been clarified.

4. The High Court considered the delay prior to the making of the complaint. The High Court held that there was a reasonable

explanation for the delay by the complainant prior to making the complaint. This finding reflected the earlier jurisprudence.

5. The High Court proceeded to consider delay subsequent to the making of the complaint. The submitted delay ranged from 29th

May, 2002, when the complaint was notified to An Garda Siochána by the church authorities, and 28th September, 2004,

approximately 28 months later. The learned High Court judge stated that it seemed there had been a lack of urgency in bringing

matters to a stage when the applicant could be charged with the alleged offences. The High Court held:-

"Ultimately, this case, were it to proceed to trial, is one in which the prosecution will be based on the statement of the

complainant and her sister. The prosecution relies on no other evidence. This is not a case in which there was any

difficulty in locating witnesses or, indeed, ascertaining the whereabouts of the applicant. Sergeant McN in his affidavit

carefully set out the various steps taken in the course of the prosecution of this matter but I cannot understand,

notwithstanding the matters he sets out at length, why it took so long for this matter to reach court from the date when

the complaint was first received, 29th May, 2002, until the date when the applicant was brought before the court on 28th

September, 2004. In the written submissions furnished on behalf of the applicant, reference is made to unexplained delays

in the steps taken by State authorities in this case. To cite just one example, it took from the 1st March 2004 when the

direction to prosecute was received by the Gardai until the 28th September 2004 to bring the applicant properly before a

court. There is no explanation for the delays which occurred throughout the process of investigation and the receipt of

directions from the office of the respondent leading ultimately to the charges being brought against the applicant. The

timescale involved seems to me to be such as to attract the description “blameworthy”. This is particularly so in the

context of a case where the earliest of the offences is alleged to have occurred over 41 years ago and the most recent,

some 36 years ago. It also seems to me that as a matter of common sense, in a case such as this where the applicant is

of such advanced years it behoves the State authorities to act expeditiously once a complaint is received. The applicant

in this case is now 85 and in less than perfect health according to the letter from his doctor exhibited in the applicant’s

affidavit.

In the circumstances, it seems to me that I have to accept the submission that the delay of 28 months post complaint is

unacceptable and that it has had the effect of breaching the applicant’s right to a trial with due expedition. In the

circumstances, I have no option but to grant the relief sought herein."

6. The D.P.P. has appealed against the judgment of the High Court on the following grounds:-

1. The learned trial judge erred in law and in fact holding that there had been blameworthy prosecutorial delay on the part

of the prosecuting authorities in bringing the applicant to trial.

2. The learned trial judge erred in law and in fact in holding that blameworthy prosecutorial delay of its own entitled the

applicant to the relief sought.

3. The learned trial judge erred in law and in fact in holding that there had been a breach of the applicant's right to an

expeditious trial.

7. In a cross-appeal the applicant filed grounds relating to the issue of pre-complaint delay. However, these grounds were, correctly,

not advanced on this appeal in light of the developed jurisprudence.

8. The Court, as it has done in similar cases where the jurisprudence was re-stated during the time between the delivery of the High

Court judgment and the hearing of the appeal, took a flexible approach to the issues argued. This approach was adopted to ensure

fairness to the parties.

9. The submissions to the Court on the appeal were net. Sunniva McDonagh, B.L., counsel on behalf of the D.P.P., stated that

reliance would be placed on H. v. The Director of Public Prosecutions [2006] 3 I.R. 575 and P.M. v Director of Public Prosecutions

[2006] 3 I.R. 172. Counsel submitted that there was no blameworthy prosecutorial delay, that in this case there were particular

reasons to proceed carefully and cautiously in preparing the prosecution papers, that it was not a simple investigation.

10. Counsel referred to the unfortunate error in that the original summonses were for the wrong District, but pointed out that they

were withdrawn and issued for the correct District, and that the Book of Evidence was then ready to be served. It was submitted

that there was no prosecutorial delay.

11. However, it was submitted, if the Court found that there was prosecutorial delay, it was required then to do a balancing exercise.

There was no imprisonment or prejudice arising from such delay, it was submitted. It was submitted that while it was originally a

ground of the applicant's case that there was stress and anxiety arising from the delay, it was now submitted that the stress would

arise from being put on trial. Counsel submitted that that was a matter for the learned trial judge. As to the stress alleged from his

resigning from church ministry, it was submitted that the applicant was removed from ministry when the complainant went to the

Church authorities and before any formal complaint, that as his removal from ministry was prior to the formal complaint, it was not

related to any alleged delay in the prosecution of the offences. Further, that the applicant is now past retirement age so the issue of

removal from ministry is not so relevant. Counsel addressed the issue of stress from 2002 to date. Counsel also addressed the issue of

the effect of the stress of a trial on the applicant, and reference was made to O'B. v. Director of Public Prosecutions [Unreported, ex-

tempore judgment, the Supreme Court, Hardiman J. 5th February, 2007], and J.K. v. Director of Public Prosecutions [2006] IESC 56,

and distinguished them from the facts of this case.

12. Mr Paul Coffey, S.C. counsel on behalf of the applicant, accepted that the grounds of the cross-appeal as filed no longer arose

because of the restatement of the law in H. v. The Director of Public Prosecutions [2006] 3 I.R. 575. Counsel submitted that the

events in issue were very remote, being between 37 and 42 years ago; that when the Church authorities told An Garda Síochána in

May, 2002 of the allegations, there was an interval of 28 months before the applicant was charged and returned for trial; he

addressed the issues of the age of the applicant and the physical health of the applicant. He submitted that the applicant was

entitled to succeed because there had been an infringement of his right to an expeditious trial, or, in the alternative, that it was

unfair to put the applicant on trial.

13. Law relevant to this appeal has been clarified in two recent cases.

(i) In H. v. The Director of Public Prosecutions [2006] 3 I.R. 575 the test to be applied to determine if there would be a fair trial was

described as being whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or

that a trial would be unfair as a consequence of the delay. The test is to be applied in light of all the circumstances of the case.

However, I shall return to this decision later in the judgment.

(ii) The second important area of case law relates to prosecutorial delay. In P.M. v. Malone [2002] 2 I.R. 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 cause 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."

In P.M. v The Director of Public Prosecutions, [2006] 3 IR 174, Kearns J. stated:-

"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."

14. I am satisfied that no case of prosecutorial delay has been proved. There was delay, but the finding by the High Court judge that

the 'delay of 28 months post complaint is unacceptable' is not sufficient to meet the requirement in law to establish prosecutorial

delay so as to prohibit a trial. The test set out by Keane C.J. in P.M. v. Malone and Kearns J. in P.M. v. The Director of Public

Prosecutions has not been met.

15. However, that is not the end of the matter. It is appropriate to consider the 'exceptional circumstances' referred to in H. v. The

Director of Public Prosecutions [2006] 3 I.R. 575. In H. v. The Director of Public Prosecutions it was stated, at p.622:-

"In this case the developing jurisprudence as to delay in bringing a prosecution for offences of child sexual abuse was

considered by the Court. The Court is satisfied that in general there is no necessity to hold an inquiry into, or to establish

the reasons for, delay in making a complaint. The issue for a court is whether the delay has resulted in prejudice to an

accused so as to give rise to a real or serious risk of an unfair trial. The Court does not exclude wholly exceptional

circumstances where it would be unfair or unjust to put an accused on trial." [The emphasis is added].

At issue in this case is whether the applicant falls within the terms of the "wholly exceptional circumstances where it would be unfair

or unjust to put an accused on trial."

This is a test based on 'wholly exceptional circumstances', which are essentially fact based and thus previous cases are of limited

value as precedents. It is necessary when analysing this aspect of the test to consider the particular facts of a case, and to

determine whether it would be unfair or unjust to put that specific accused on trial in all the circumstances of the case.

In this case relevant factors include:-

(1) It is an old case, i.e. the allegations related to events between 37 and 42 years ago;

(2) Consequently, it has the features of an old case;

(3) There was an interval of time between the Church authorities being told of the allegations, the formal complaint, the

charging of the applicant, and the return for trial;

(4) The applicant is in his old age, he will be 87 years old in the autumn;

(5) The charges have had a detrimental effect on the life of the applicant, because of the nature of the charges.

(6) The health of the applicant.

As to the health of the applicant, Dr John Kenny, consultant cardiologist, deposed, inter alia, of the applicant:-

"5. At present he is quite short of breath on pretty minimal exertion and has great difficulty in moving around. When I last

saw him on 21/12/06 he had heart failure but his heart failure is well controlled on his medication. He also suffers quite a

bit from stress and given the unstable nature of his cardiac condition I feel that the stress associated with a criminal trial

could have a major affect on his health and possibly precipitate heart failure or acute myocardial infarction."

16. It is important to note to what this decision does not relate. The applicant has not discharged the onus of establishing on the

balance of probabilities that he has been prejudiced by the delay to such an extent that there is a real or serious risk of an unfair

trial. Nor has the applicant discharged the onus of establishing that there has been prosecutorial delay as described in law by P.M. v.

Malone and P.M. v The Director of Public Prosecutions.

17. In issue is the exception referred to in H. v. The Director of Public Prosecutions: whether it would be unfair or unjust to put the

applicant on trial. Thus the relevant factors require to be identified and then a balancing exercise undertaken by the court.

In this case the factors relevant to the applicant's position are: (i) it is an old case, while this is not unusual in such a prosecution, it

is a factor, (ii) the applicant is elderly, in his 87th year, and, (iii) the ill-health of the applicant.

18. On the other hand, the factors relevant to the prosecution require to be considered. There is the public nature of criminal law.

Prosecutions are taken on behalf of the People of Ireland by the Director of Public Prosecutions. The court does not interfere lightly

with a decision of the Director. As I stated in D.C. v D.P.P. [2005] 4 I.R. 281:-

"Such an application [for the prohibition of a trial] may only succeed in exceptional circumstances. The Constitution and

the State, through legislation, have given to the Director of Public Prosecutions an independent role in determining

whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having taken such a

decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to

determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional

rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial.

In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair

trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding

judge."

Factors may exist, or may develop after a decision has been made by the Director of Public Prosecutions, which would render a trial

unjust. The issue in this case is whether such an exception has occurred. In this balancing exercise the court must give consideration

to the right of the public to have crimes prosecuted. This is not an absolute, for prosecutions are taken when they are in the public

interest. It is part of a justice system which is for the common good, which includes consideration of the constitutional requirement of

due process. A prosecution is not an exercise in vengeance. While a court should give careful regard to the position of victims, it

must protect the integrity of the justice system as a whole.

19. No single factor renders this case an exception. This decision does not mean that a person may not be prosecuted for a crime

committed many years ago, nor that a person in their eighties may not be prosecuted, nor that a person with ill-health may not be

prosecuted. It is the cumulative effect of all the factors which bring this case within the category of an exception requiring a

balancing exercise to be conducted by the court. Of specific importance is that it is an old case, that the prosecution took some time

to mount (I am not finding that there was prosecutorial delay but merely recording the fact of the time lapse), that the applicant is

an elderly man, in his 87th year, and that he is in bad health.

20. It demeans a system of justice if its process is one of vengeance, or has such a perception. It evokes concepts of primitive

jurisprudence. The People of Ireland under the Constitution require that there be due process in the justice system. The courts are

required to protect the integrity of that system, which may mean that in exceptional circumstances a prosecution should be

restrained. It is a question of proportionality.

21. In all if the circumstances of this case I am satisfied that it is an exception as envisaged in H. v. The Director of Public

Prosecutions and I would restrain the trial.

22. For all these reasons I would dismiss the appeal.