The Supreme Court has ruled an "unexplained and blameworthy" proseuctorial delay over some 24 years entitles a woman to an order permanently halting her prosecution on charges arising from a "savage" assault on her father.
Christopher Payne (37), who was suffering severe renal failure at the time of the assault in May 1988, died some six months later from multiple causes including an "old head injury", the court noted.
Two young men, including the then 18-year-old boyfriend of then 15-year-old Sharon Payne, claimed she had asked them to have her father "done" because he was allegedly beating her and her mother.
Four intruders tied up Ms Payne, her teenage friend and Ms Payne’s younger brother before tying up her mother when the latter arrived home at about 11.30pm, the court noted.
When Christopher Payne returned from dialysis treatment in hospital sometime after midnight, he was subject to a “savage” assault and suffered serious head injuries. He was in a coma for some time but returned home in September 1988 and died in late November 1988.
Sharon Cullen nee Payne (41), Ballyjamesduff, Co Cavan, was charged in 2011 with unlawfully and maliciously causing grievous harm to her father with intent to murder him at Rutland Grove, Crumlin, Dublin on May 13th 1988.
Yesterday the five judge Supreme Court dismissed the DPP’s appeal against a High Court decision halting the prosecution of Ms Cullen.
The Supreme Court criticised the “unacceptable conduct” by gardaí who claimed Ms Cullen had sought to evade arrest, in denying Ms Cullen’s correct claim her maiden name was, at her request, placed on her first passport obtained in 2002/2003.
After four young men on July 3rd 1989 admitted involvement in the assault on Mr Payne, the DPP on July 25th 1989 directed Ms Payne and her mother be charged in connection with the assault.
Two of the men, both jailed for nine years, claimed they had had a converation with Ms Payne and her mother in which they agreed terms of the attack on Mr Payne to include them getting a sum from insurance proceeds of an earlier burglary.
Gardaí claimed they were unable to arrest Ms Payne as she, her mother and younger brother left Ireland in late July 1989. The case was reviewed as a ‘cold case’ in 2009, gardai located Ms Cullen in 2010 and the DPP in 2011 directed Ms Payne be charged.
In affidavits supporting her bid to prevent her prosecution, Ms Cullen said her mother took herself and her brother to England to “start a new life”. She got accommodation and benefit under the name Sharon Payne and, after marrying in 1995, used her married name Cullen.
She returned with her family to Ireland in 2004, she and her husband got jobs and she applied for a PPS number using her maiden name and last address in Ireland. She received benefit from 2005 to 2008 as Sharon Payne until her name was updated to reflect her married status.
Givin the Supreme Court's unanimous judgment, the Chief Justice Ms Justice Susan Denham, said the gardai's "persistent denial" of Ms Cullen's truthful claim her maiden name was marked on her passport was "a matter of real concern" and "anacceptable conduct".
It was also of concern an application of the DPP should proceed before the High Court on that kind of affidavit.
Instead of acknowledging the “obvious failure of investigation and prosecution” here, the Garda affidavit was instead used to allege Ms Cullen had evaded discovery when there was no factual support for that.
The delay of almost 24 years between the alleged offences and Ms Cullen’s arrest and charge was a very significant and inexplicable blameworthy delay on the part of the State authortities to which delay Ms Cullen “in no way contributed”.
Ms Payne, then aged 15, was taken lawfully to England by her mother when they were unaware of any intention by the DPP to charge them with offences, the judge said. She settled in England and lived openly both there and here after she returned in 2004. She did not conceal her identity or evade the State authorities.
The prosecution also failed to discharge the special duty to ensure a speedy trial of a child as Ms Payne was aged 15 at the time of the alleged offences. Her arrest and charge at age 39 also came more than two years after gardai were notified by Ms Cullen's uncle Geoffrey Payne she was living in Cavan.
Having balanced all the relevant factors, including the public interest in ensuring serious crime is prosecuted and the fact Ms Payne has no convictions,the court upheld the High Court decision restraining any prosecution.
