K -v- Judge Carroll Moran Anor High CourtJudgment was given by Mr Justice Peter Charleton on February 5th, 2010.
Judgment
This was one of the very few applicants who fell within the category of succeeding in showing that there was a real risk of an unfair trial due to delay. In this case, a reasonable person could doubt the soundness of a conviction whereby a simple man with limited recall could have defended himself against allegations arising out of events almost half a century before, when one of the closest participants, his mother, was dead.
Background
At a family funeral in August 2007, a scuffle broke out because it had come to light that two members of a family were alleging the accused had sexually assaulted them many years before. Later that month, formal statements were taken from them and on May 16th, 2008, he was charged with 10 counts of sexual assault.
His solicitor had him psychiatrically examined and reports were received from two psychiatrists in March 2009. Following this, an application was made to take judicial review proceedings seeking to prevent the criminal trial on the grounds that the delay had caused him such prejudice that there would be a real risk of an unfair trial. In addition, he claimed a mental disability and that it would be unfair to allow the trial to proceed.
One of the charges related to an allegation that he had committed a sexual assault against a male person, who was a child at the time. The remaining charges related to allegations that he had sexually assaulted a female over a period, starting when she was about eight and continuing until she started secondary school.
The alleged offences happened in the applicant’s family home, according to the complainant, and involved the applicant putting a hand up her skirt and touching her while he committed a sexual act. The offences allegedly occurred 43 years ago and the details were vague. The applicant denied both allegations and said he was never alone in his house with the female complainant.
His mother died about 17 years ago. The case was made that because of the mental disability of the applicant, she was likely to have been more closely involved in his care and supervision than would otherwise be the case. Whether or not that was true, she could have been expected to be a witness in relation to all the allegations.
Psychiatric evidence was given by Dr Moosajee Bhamjee, who described the applicant as a “simple bachelor who lives alone since his mother died”. He is almost 64 years of age and lives on a disability pension following a diagnosis of epilepsy. He had a history of being slow in class and being illiterate.
He was described as “a person of low intelligence in the mild to moderate learning disability range.” According to Dr Bhamjee, he would not be fit to plead and would not be able to instruct counsel or understand court procedure.
Another psychiatrist also examined him and formed the view that he did not have the capacity to participate willingly in the interview, as he did not understand its purpose. He said he understood the nature of the accusations against him and wanted to plead not guilty, but the doctor was concerned at his inability to weigh the consequences of entering a plea. He was reserving his opinion on his fitness to be tried.
Mr Justice Charleton said that the High Court should be slow to interfere with a decision by the DPP to prosecute and it was to be presumed that an accused would receive a fair trial. The onus of proof was therefore on the accused when taking a judicial review to stop a criminal trial.
In relation to delay, the judge would warn the jury of the handicaps faced by the accused in such a case. The burden of proof was not discharged by an applicant making a general complaint about lapse of time.
However, there may be circumstances, which are wholly exceptional, where it would be unfair or unjust to put an accused on trial, including a lengthy lapse of time, old age, the sudden emergence of extreme stress and severe ill-health.
Decision
Mr Justice Charleton first examined the issue of fitness to plead, now governed by section 4 of the Criminal Law (Insanity) Act 2006, whereby the trial judge, sitting alone, determines the question of fitness to be tried.
“There is no possible basis for substituting an inquiry on judicial review for this comprehensive statutory code,” he said. There were no grounds made out whereby he could bypass the intention of the Oireachtas on this issue.
He described the applicant as a man suffering from “significant cognitive impairment”. His answers to gardaí and doctors suggested that his manner of dealing with events was to recall them in simple terms where he remembered them at all and to eschew descriptive narrative.
He was facing an allegation in respect of something that happened 43 to 44 years ago. There were only two real possibilities whereby he could meet the charges. The first was by giving evidence on his own behalf, which was likely to be terse, truncated to a general denial and possibly emotional. The other was he would be able to remember specific detailed circumstances through which his counsel could seek to gently undermine the complainant’s case.
With a person of reasonable intelligence, this prospect might possibly be open, even after all these years, but in this case he could not see this as reasonably open, Mr Justice Charleton continued.
In a civil case, the issue being tried was to be proven as a matter of probability. The issue here was, could the applicant’s guilt or innocence be fairly decided beyond reasonable doubt at a criminal trial?
Should a trial take place and a conviction occur, it would be open to a reasonable person to doubt the soundness of the conviction whereby a simple man, with limited recall, could have defended himself against allegations arising out of family visits almost half a century before, where one of the closest participants, his mother, was dead.
This was one of the very few applicants who fall within the category of showing that there was a real risk of an unfair trial due to delay.
The full judgment is on www.courts.ie
Andrew Sexton SC and Claire Colleran BL, instructed by John Casey and Co, Ennis, for the applicant; Siobhán Phelan BL, instructed by the Chief Prosecution Solicitor, for the DPP.