High Court: Man accused of abusing his sisters is granted order prohibiting prosecution

About this case:

• Citation:
  [2019] IEHC 107
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The Criminal Proceedings

The criminal proceedings involve allegations of indecent assault and rape from HS’s two sisters, alleged to have occurred between October 1974 and October 1978 in the case of “the first complainant”; and during the period between December 1977 and June 1985, in the case of “the second complainant”.

The statement of charges before the District Court set out 17 charges, Mr Justice Simons explained that there were only two incidents with an identifiable date specified in the statement of charges. It was alleged that:

• On 24 December 1977, HS indecently assaulted the second complainant contrary to common law and as provided for by section 6 of the Criminal Law Amendment Act 1935;
• On the date HS announced his engagement to his future wife, he raped the second complainant.

Neither complainant alleged that she was aware at the time that the other had also been the victim of sexual assault at the hands of HS, and Mr Justice Simons said that legal significance of this was that neither complainant was capable of providing corroboration of the other’s evidence.

HS asserted specific prejudice arising from the fact that a number of people expected to have been in a position to provide evidence in relation to these events have since deceased (HS’s wife died in 2012) or have no clear recollection of the events (witness statements from the complainants’ mother suggested she had no clear recollection).

Emphasising the need to protect the identities of the complainants, Mr Justice Simons said “[t]he use of this impersonal language should not be mistaken for any lack of sympathy on the part of the court for the complainants and the difficult circumstances of their early childhoods”.

The narrative of the complainants’ childhood as set out in the various witness statements indicated that, aside from the sexual abuse, their upbringing was very difficult and traumatic – their father was described as an alcoholic who abused their mother, and the second complainant described life in their home as “a war zone”. Mr Justice Simons said that he “could not but have genuine sympathy for the complainants in this regard”, but that his task was to determine whether a fair trial could be carried out at this remove.

Legal Test

HS sought to restrain the further prosecution of criminal proceedings pending against him on the basis that there is a real risk that the trial would be unfair by reason of delay.

Whereas the length of time was not in itself a reason for granting an order of prohibition, Mr Justice Simons said that the very significant lapse of time since the alleged offences created a real risk of an unfair trial, and the death of potential witnesses had the effect of denying HS an opportunity to advance lines of defence. In addition, surviving witnesses have indicated to the Gardaí that they have no clear recollection of events – apparent from the mother’s two witness statements.

Applying the test in SH v Director of Public Prosecutions [2006] 3 IR 575, as recently applied by the Court of Appeal in BS v Director of Public Prosecutions [2017] IECA 342, Mr Justice Simons concluded that there was a real or serious risk HS, by reason of the delay, would not obtain a fair trial.

Time Limit

The DPP raised an objection that the judicial review proceedings were instituted outside the three-month time-limit prescribed under Order 84, rule 21 of the Rules of the Superior Courts. Setting out the chronology, Mr Justice Simons explained that a period of just over twelve months had elapsed between the date of the return for trial (1 June 2017) and the ex parte application for leave to apply for judicial review (10 June 2018).

The DPP contended that time begins to run for the purposes of Order 84, rule 21 from the date of the return for trial – which, if correct, would mean that the application was made out of time and HS would have to persuade the court that an extension of time should be granted.

For the purposes of an application to restrain a criminal prosecution, Mr Justice Simons said that it was not clear from the case law as to the date from which time should be calculated.

The Supreme Court CC v Ireland [2006] 4 IR 1 indicated that the time-limit ran from the date of indictment. The correctness of this approach has been queried in the High Court in Coton v Director of Public Prosecutions [2015] IEHC 302.

Mr Justice Simons said CC was binding on the High Court, and therefore he could not accept the DPP’s submission that time began to run from the date of the return for trial. He said that even if he was in a position to adopt the alternative approach suggested in Coton, the late disclosure of the 7 December 2017 supplemental statement of the complainants’ mother on 4 April 2018 was a sufficiently significant event so as to reset the clock for the purposes of judicial review proceedings. Mr Justice Simons said the letter of 23 April 2018 from the Chief Prosecution Solicitor was also relevant to the time-limit.

In circumstances where an indictment had not yet been formally served, Mr Justice Simons said that the three-month time limit had not begun to run. Even if he was incorrect in this finding, Mr Justice Simons said that any delay would be justified by the delay on the part of the DPP to disclose the supplemental witness statement.

• by Seosamh Gráinséir for Irish Legal News