SO'C v The Director of Public Prosecutions (Approved)

Factual and Procedural Background

The Applicant, a retired primary school teacher aged 71, faces prosecution before the Dublin Circuit Criminal Court on 151 counts of indecent assault alleged to have occurred between 1974 and 1983 involving nine complainants who were students at the school where the Applicant taught. The trial is scheduled to commence on 22 January 2024. The Applicant is currently serving prison sentences for prior convictions relating to sexual offences, including rape and sexual assault, imposed between 2014 and 2021.

The charges in the current indictment arise from three tranches of complaints made at different times. The first tranche involves three complainants whose allegations were reviewed and directed for prosecution in August 2020. The second tranche concerns three complainants who made complaints between 2015 and 2017, with prosecution directed in February 2019. The third tranche involves three complainants who made complaints in 2020, with prosecution directed in August 2021.

On 12 May 2021, the Respondent entered a nolle prosequi to halt the Applicant's initial trial related to three complainants, intending to prosecute all charges together in a fresh indictment that included allegations from the other complainants. The Applicant objected to this procedural step. The Respondent opposes the Applicant’s application to prohibit the trial.

Legal Issues Presented

1. Whether the cumulative effect of delay and other exceptional circumstances renders it unfair or unjust to try the Applicant for the offences charged.
2. Whether the Respondent's use of the nolle prosequi procedure to halt the initial trial and bring fresh proceedings combining multiple complainants' allegations was unfair or unlawful, thereby warranting prohibition of the trial.

Arguments of the Parties

Applicant's Arguments

• The delay of 40 to 49 years between the alleged offences and trial, combined with prosecutorial delay and the Applicant’s advanced age and poor health, constitute wholly exceptional circumstances rendering a fair trial impossible, invoking the second limb of the test in SH v. DPP [2006] 3 IR 575.
• The Applicant had faced previous trials for similar offences and was serving lengthy sentences, and some allegations could have been included in earlier trials, thereby undermining his right to an expeditious trial.
• The Respondent misused the nolle prosequi procedure by halting the initial trial to combine charges from multiple complainants into a single indictment, gaining an unfair prosecutorial advantage by making a defence of fabrication more difficult and benefiting from the Supreme Court's decision in People (DPP) v. Limen [2021] 2 IR 546 regarding similar fact evidence.
• The nolle prosequi circumvented the requirements of s.4 of the Criminal Procedure Act 1967, which restricts adding charges not arising from the original evidence without the accused’s consent.
• Based on case law, such as State (O'Callaghan) v. O hUadhaigh [1977] IR 42, O'Callaghan v. DPP [2011] 3 IR 356, and Furlong v. DPP [2016] 1 IR 320, the Respondent’s use of the nolle prosequi was unfair and should be prohibited.

Respondent's Arguments

• Although there has been considerable delay since the alleged events, the Applicant does not claim specific prejudice resulting from it; issues of delay and potential prejudice are best addressed at trial by the presiding judge through directions or rulings.
• The factors cited by the Applicant, including age and health, do not individually or cumulatively demonstrate an inability to receive a fair trial, referencing authorities such as PB v. DPP [2013] IEHC 401, MS v. DPP [2015] IEHC 84, and BK v. DPP [2022] IECA 119.
• The Respondent’s entry of the nolle prosequi to consolidate all charges into a single indictment was a legitimate and appropriate exercise of prosecutorial discretion, as the initial trial had not commenced, and no forensic advantage had been lost by the Applicant.
• The Applicant retains the right to apply for severance of the indictment if the multiplicity of charges or complainants affects his right to a fair trial.
• There is no evidence that the Respondent’s conduct was underhand or intended to secure an unfair advantage, and the procedural steps taken comply with statutory requirements and case law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied established jurisprudence concerning delay in historic sexual offence prosecutions, particularly the test from SH v. DPP that focuses on whether delay causes a real or serious risk of an unfair trial rather than the reasons for delay. It acknowledged the Applicant’s advanced age and health claims but found insufficient cogent medical evidence to demonstrate poor health impairing his ability to participate in trial.

The court considered the cumulative effect of delay, prosecutorial delay, prior convictions, and multiplicity of charges. It found none amounted to wholly exceptional circumstances that would render a fair trial impossible. The court emphasized that issues arising from delay or multiplicity are generally best addressed at trial by the presiding judge through directions or severance applications.

Regarding the use of the nolle prosequi, the court distinguished the present case from precedents where the accused had obtained a forensic advantage or favorable ruling before the trial was halted. Here, the initial trial had not commenced, so no such advantage was lost. The court held that the Respondent’s consolidation of charges into a single indictment was a legitimate prosecutorial decision and did not constitute misuse of the nolle prosequi power.

The court also rejected the contention that the Respondent circumvented statutory provisions concerning additional charges, noting the timing of complaints made it impossible to include all charges in earlier indictments. The court found no evidence of underhand conduct or unfairness by the prosecution.

Holding and Implications

The court's final decision was to REFUSE the Applicant’s application for an order of prohibition of the trial on the grounds of delay and alleged misuse of the nolle prosequi procedure.

The direct effect is that the Applicant’s trial on the indictment containing 151 counts involving nine complainants will proceed as scheduled. The court emphasized that the Applicant retains the right to raise any issues affecting his right to a fair trial before the trial judge, including applications to sever the indictment. No new precedent was established, and the decision adheres to existing principles governing delay, prosecutorial discretion, and the use of nolle prosequi.