Supreme Court dismisses appeal on delay grounds, affirming High Court's refusal to injunct criminal trial.

THE SUPREME COURT

[S.C. No: 261 of 2004]

[S.C. No: 295 of 2004]

Denham J.

Macken J.

Finnegan J.

BETWEEN/

D.T.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/CROSS APPELLANT

Judgment delivered the 25th day of January, 2007 by Denham J.

1. This is an appeal by D.T., the applicant/appellant, hereinafter referred to as 'the applicant', from a decision of the High Court

(Smyth J.) delivered on the 14th May, 2004 in which the learned High Court judge refused to injunct the trial of the applicant in

respect of charges arising out of the complaint of P.K.. There is also a cross appeal on behalf of the Director of Public Prosecutions,

the respondent/cross appellant, hereinafter referred to as 'the respondent', from the order of the High Court injuncting proceedings in

relation to the complaint of C.K..

2. The proceedings commenced on the 21st January, 2002 when the applicant was granted leave by the High Court (Ó Caoimh J.) to

apply by way of an application for judicial review for an injunction restraining the respondent from proceeding or taking any further

steps in a criminal prosecution pending before the Central Criminal Court against the applicant in respect of Newtownmountkennedy

Charge Sheets 7/2001 to 100/2001 inclusive bearing Bill No. 46/01J. The applicant was given leave to apply for judicial review on four

of five grounds sought, being that:

(i) by reason of inordinate and inexcusable delay, the applicant has been deprived of his right to a fair trial with due

expedition in breach of his Constitutional rights to fair procedures pursuant to Article 38.1 of the Constitution;

(ii) the applicant has been prejudiced in his defence of these proceedings by reason of the delay in his case being brought

to trial;

(iii) there is a real and substantial risk that the trial of the applicant will be unfair by reason of the delay and consequent

prejudice resulting therefrom;

...

(v) the trial of the applicant has not occurred with due or reasonable expedition; furthermore the delay cannot be

justified or excused.

The fourth ground, which raised issues of specificity, was refused.

3. The offences alleged are:

(i) 40 offences of buggery committed against P.K. on various dates between 1976 and 1980;

(ii) 40 offences of indecent assault committed against P.K. on various dates between 1976 and 1980;

(iii) 4 offences of indecent assault committed against C.K., a brother of P.K., during 1978 and 1979;

(iv) 2 offences of indecent assault committed against M.W. in 1978.

4. In the High Court counsel for the applicant addressed his submissions and legal arguments to the period between the dates of the

alleged offences and the dates of complaints being made to the Garda Síochána in October 2000. The facts were set out by the

learned trial judge. The applicant was the employer of the three complainants. He was a friend of the parents of P.K. and C.K. (who

are brothers) and visited their home from time to time. All the complainants were schoolboys in their early teens at the time when

they were employed by the applicant in his business. P.K. was 13 years old when he went to work for the applicant and he worked for

the applicant for four summers until he did his Leaving Certificate and went to college.

The learned trial judge sets out in detail the explanation given by the complainants as to why they had not made an official complaint

earlier. He also describes and analyses the evidence of Mr. Desmond O'Mahony, Clinical Psychologist, as to the reasons for the delay

in reporting the alleged offences, whom he observed giving evidence. However, this aspect of the judgment is not now in issue or

relevant since the decision of this Court in H. v. The Director of Public Prosecutions [2006] I.E.S.C. 55.

The learned trial judge addressed the issue of a fair trial. There was evidence before the High Court as to the applicant's ability to

defend himself. The learned High Court judge stated that the applicant had difficulties at school in keeping up with his class and

rather poor educational achievements and that the medical evidence was that up to 16th September, 1983 he “may have been

functioning intellectually in dull to normal range". In 1983 he suffered personal injuries and was described as of the 24th May, 1984 as

“suffering from brain damage from a fat embolism". The learned trial judge describes that in July 1986 a consultant psychiatrist stated

on examining the applicant that he had "memory difficulties with very poor recall and short term memory". However, this was not

found as to his long term memory. The learned trial judge also considered other medical evidence as to the applicant's memory and

ability and held:

"I am satisfied and find as a matter of fact and of law that the alleged cognitive impairment of the Applicant in this case

is not such as to expose him to a real or substantial or serious risk of an unfair trial. I am likewise satisfied and so find

that the Applicant has not been, as submitted, fatally hampered in preparing a defence to the proceedings involving PK. I

am satisfied that the replies given by the Applicant to the Garda, allowing for denials, evasions and deferrals, show a

memory for time, place and details."

However, while the High Court permitted the trial in relation to P.K., the High Court prohibited the trial in relation to the complaints of

M.W. and C.K. in the following words:

"The only evidence [of] credibility and consistency of complaints the Applicant will be called upon to deal with is that of

PK. I have no hesitation in prohibiting the trial of the charges grounded on the complaint of MW and while I have some

doubt for the reasons expressed at the hearing concerning the charges grounded in the complaints of CK, I am prepared

to give the benefit of that doubt to the Applicant and prohibit the trial on those charges."

5. In the applicant's Notice of Appeal from the judgment of the High Court, many of the grounds relate to the reasons for the delay,

the ability of the applicant arising from the road traffic accident in 1983, alleged brain damage arising thereform, and the learned High

Court judge's account of the medical evidence.

Written submissions were filed on behalf of both parties. Supplemental submissions were filed on behalf of the applicant in light of H.

v. The Director of Public Prosecutions [2006] IESC 55.

The respondent filed a cross appeal in relation to the order made in respect of the charges involving C.K.

6. In this case the applicant has sought to prohibit his trial of alleged offences committed years ago against young persons. The

jurisprudence relating to lengthy delays by complainants in this type of judicial review was revisited and restated by this Court in H. v.

The Director of Public Prosecutions. Whereas for over a decade the courts had looked at the reasons for the delay in making

complaints by persons who had been abused as children, the Court has determined now that this exercise is no longer required.

Arising from a decade of experience in such cases, there is judicial knowledge of the reasons why children may not make official

complaints until many years after such abuse. Consequently, the test for a court in considering whether a trial should proceed where

there has been such delay relates solely to the issue of fair trial. The test was described in H. v. The Director of Public Prosecutions

as:

"Therefore, the Court is satisfied that it is no longer necessary to establish such reasons for delay. The issue for the

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 would thus restate the test as:

"The test is 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 the

circumstances of the case."

Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence

any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the

complainants' complaints against an applicant no longer arises. The inquiry which should be made is whether that degree

of prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend

upon the circumstances of the case."

7. Decision

The decision in this appeal is made on current jurisprudence. It is a case where the law has evolved since the decision in the High

Court.

7.1 While the reasons for the delay by the complainants in making the complaints were carefully considered and the then law applied

by the learned trial judge, this aspect of the case is no longer of relevance. Consequently, this extensive part of the High Court

judgment and the related grounds on the original notice of appeal are not live issues on the appeal.

7.2 Counsel on behalf of the applicant submitted that it was apparent from the medical evidence that there was a real or serious risk

of an unfair trial. He referred to the road traffic accident in 1983 when he argued that the applicant had sustained very serious

injuries, including brain damage. He canvassed the evidence as to the applicant's health. He submitted that the applicant was

consequently prejudiced and could not get a fair trial. Counsel submitted that because of the history of this case, in all the

circumstances, in light of the evidence, it was permissible for the court to intervene.

7.3 I am satisfied that these are not grounds upon which to intervene by way of judicial review to injunct the trial of the applicant.

The issue raised on behalf of the applicant is his alleged disability, his capacity. Such is not part of the jurisprudence on delay and the

right to a fair trial, it is not an issue of prejudice caused by delay. Incapacity or disability may arise in situations where there is no

delay.

If there are issues as to the applicant's capacity there are separate specific procedures to be applied. It is a matter for the trial court

to determine a person's fitness to stand trial. The issue of the fitness of an applicant was raised also recently in J.B. v. The Director

of Public Prosecutions (Unreported, Supreme Court, 29th November, 2006) in which I held:

"Thirdly, there was reference to medical reports being sought as to his capacity to instruct counsel. That is an entirely

different issue to the stress test as expounded in P.M. v. Malone. It is not an issue before this Court. The capacity of the

applicant to plead is a matter which may more appropriately be raised before the trial judge."

Also, in J.K. v. The Director of Public Prosecutions (Unreported, Supreme Court, 27th October, 2006) McGuinness J. refused to accept

that the applicant's health problems were 'wholly exceptional circumstances' as referred to in H. v. The Director of Public

Prosecutions, and stated that it is a matter for the trial judge.

Applying the law to the facts of this case I am satisfied that the issue of the applicant's fitness to plead is a matter for the

appropriate law and the trial court and that the applicant's submissions on this ground fail. The issue of his capacity or disability is not

an exceptional circumstance under H. v. The Director of Public Prosecutions.

7.4 In essence when this case was commenced the applicant sought to prohibit his trial on the grounds of delay based on the medical

and related evidence given as to the reasons for the delay by the complainants in making a complaint. Such delay of itself is no longer

a basis upon which the applicant may succeed under the evolving jurisprudence. The applicant now seeks to injunct his trial on the

basis of his incapacity. It is not a basis upon which he was granted leave to appeal - and so the appeal could be dismissed on that

basis alone. However, because this case was on the cusp of the developing jurisprudence, I have considered the issues raised on

behalf of the applicant. I am satisfied that the appeal is misconceived in that the issues go to the capacity of the applicant and not

to the jurisprudence on delayed trials. It would be entirely inappropriate to try the issue of capacity and disability on affidavits and

cross examination by way of judicial review. While reference was made to the Criminal Law (Insanity) Act, 2006 and the rules and

procedures governing the issue of fitness to be tried I make no finding as to that procedure.

No issue of prosecutorial delay arose in this case.

7.5 Thus, the test to be applied is that stated in H. v. The Director of Public Prosecutions, as set out previously in this judgment.

Applying that test, I am satisfied that the applicant has not established that by reason of delay there is a real or serious risk that the

applicant would not obtain a fair trial or that the trial would be unfair as a consequence of the delay. The issue of the capacity of the

applicant is not a matter within this judicial review, it is a matter for the trial court. Thus the learned trial judge erred in so far as he

considered and made a determination as to the 'alleged cognitive impairment' of the applicant. Further, the applicant P.K. has not

raised any matters which may be considered to be an exception under H. v. The Director of Public Prosecutions.

8. Conclusion

For the reasons given I would dismiss the appeal of the applicant, and affirm the decision of the High Court. Consequently the trial in

relation to the complaints of P.K. is not injuncted by these proceedings. Of course, this review does not exclude any appropriate

application to the trial judge.

In all the circumstances of the case, which include the fact that this appeal has occurred at a time when the relevant jurisprudence

has been developing, the view taken by the trial judge that the only evidence of credibility and consistency of complaints which the

applicant will be called upon to deal with is that of P.K., and the overall requirement to balance factors in the interest of justice, I

would dismiss the cross appeal of the respondent. Consequently I would affirm the decision of the learned trial judge that the trial of

the applicant on foot of the complaints of C.K. be prohibited.

The issue of a trial of the applicant arising out of the complaints of M.W. was not before this Court on appeal and therefore remains

prohibited by the order and judgment of the High Court.