BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McA. (J.) v. D.P.P. [2004] IEHC 54 (15 January 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/54.html Cite as: [2004] IEHC 54 |
||
[New search] [Printable RTF version] [Help]
[2004] IEHC 54
372 JR 2000
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Gilligan delivered the 15th day of January, 2004.
On the 17th July, 2000, the applicant herein obtained leave from this Court to seek by way of an application for judicial review an order of prohibition preventing the respondent from proceeding with the charges herein or alternatively an injunction restraining the respondent from proceeding with the charges contained in an indictment, then standing against him.
The grounds upon which such relief was sought were set out in Paragraph E of the statement of grounds in the manner following;
1. The applicant has been deprived of his right to a trial with due expedition by virtue of the delay in bringing this prosecution.
2. The applicant has been prejudiced in his defence by virtue of delay in bringing these proceedings.
3. The applicant has been prejudiced in his defence of these proceedings by virtue of the fact that the delay in bringing in these proceedings has resulted in relevant witnesses no longer being available.
4. The applicant has been prejudiced in his defence of these proceedings by virtue of the lack of specificity in the charges alleged.
5. The applicant has been prejudiced in his defence of these proceedings by virtue of the State's delay in prosecuting these complaints.
The four charges contained in the indictment relate to allegations that the respondent sexually assaulted a female the complainant herein on four separate occasions contrary to s. 2 of The Criminal Law (Rape) ((Amendment) Act, 1990.
The first charge in the indictment relates to an alleged sexual assault between the 31st March, 1992, and the 1st May, 1992, and the three remaining charges refer to alleged sexual assaults between the 1st February, 1993, and the 31st July, 1993.
The evidential material before the Court which is by way of several affidavits and exhibits indicates that the complainant in this case was born on the 22nd April, 1982, and at the time relevant to the charges she lived with her parents and her brother at a Dublin housing estate. Her parents have since separated and her father no longer lives with her. Her house is a semi-detached house and the applicant lives in the house next door attached to the complainant's house. He was born on the 4th November, 1918, and retired from his employment in or about 1984.
The applicant is now 85 years of age and the respondent is 21 years of age.
During the time span of the alleged offences, the complainant was aged between ten and eleven years and the applicant was aged between seventy-four and seventy-five years.
The background situation is that the applicant's wife was suffering from Alzheimer's disease and the complainant's parents and in particular her mother spent a lot of time in the applicant's house, looking after the applicant's wife. It was accordingly normal for the complainant to go next door with her mother in the course of her various visits. All the alleged sexual assaults that took place in this case are alleged to have occurred in the home of the applicant. The first assault took place when the applicant's father, and another man were erecting a satellite dish on the roof of the house and the nature of the assault was that applicant touched the complainant outside her clothes, around her vaginal area. On a separate occasion the applicant touched the complainant in the same manner and attempted to kiss her. On a further occasion, it is alleged that the complainant put his hands inside the complainant's pants and moved his hand up and down in her vaginal area, but there was no penetration of her vagina.
A specific incident is alleged to have occurred around the 10th April, 1992, and the complainant is able to remember this particular date because it was her tenth birthday. She remembers the applicant's sister being home on holidays from America. She describes the situation in the following terms.
"I remember around the time of my tenth birthday, the applicant's sister was home on holidays from America. This lady was a little bit doting. My tenth birthday was in April, 1992. I remember the applicant's sister being at my birthday party. One evening around this time I went into the applicant's house. The applicant's sister was sitting on the couch. This couch was against the wall which is adjoining our house. The applicant was in the chair in the corner at the window. It was dark and the curtains were drawn. I was sitting in a low chair beside the applicant. He reached his hand over to me and put his hand outside my clothes, around my vagina. He was watching the television while he was moving his hand up and down on my clothes. The applicant's sister did not see him doing this. I just sat there. I did not say anything to the applicant's sister because I knew she did not see what he was doing because he put my hand over his hand and it looked like I was just holding his hand".
On another occasion the complainant alleges that she was in the applicant's house and was wearing blue denim jeans, cut into shorts. She cannot remember what colour top she was wearing and she says there was no one in the house, except herself and the applicant. She says the applicant closed the blinds on the window and then proceeded to put his hands inside her pants and moved his hand up and down around her vagina. He then proceeded to open the button on her jeans and he pulled down the zip and pulled her jeans and pants down to her ankles and he bent over and started kissing her vagina. The complainant said to the applicant that she didn't like this anymore and she moved away from him and pulled up her pants and shorts and this was the last occasion that the applicant is alleged by the complainant to have interfered with her.
On two or three occasions during the course of the period of the alleged sexual abuse, the complainant alleges that the applicant made her touch his penis once outside his clothes and twice inside his clothes, but she does not remember the dates when this took place.
Subsequent to the last abuse, which appears to have taken place prior to the 31st July, 1993, the complainant did not mention the abuse to any third party. She said that she did not visit the applicant's house again on her own and only went in the company of her mother.
During 1994, the complainant's mother became aware that a programme about child abuse was to be shown on R.T.E. after the 9 p.m. news one evening. She took the view that her two children should see this programme as child abuse was becoming prevalent and they watched the programme. Shortly after the programme finished the complainant's mother found the complainant sitting on the stairs in a panic crying. The complainant's mother comforted her and she put her arms around her neck and said "mom, Joe". The complainant's mother realised that her daughter was referring to the applicant. The applicant told her mother that the complainant touched her but was unwilling to tell the full story. Subsequently the complainant's mother says that she was quite happy until July, 1997 but a week before she was due to go to the Gaeltacht she indicated to her mother that she wanted to talk about the situation that had occurred with the applicant. This led to the complainant being referred to the Children's Hospital, Temple Street. She was examined by a clinical psychologist, Barbara Duffy. It appears that a catalyst for the complainant reactivating the matter with her mother was the fact that she saw other young girls visiting the applicant next door and she was concerned for their welfare. During the course of the interview with Barbara Duffy, the complainant on being asked if anybody else was ever in the house while the sexual abuse was taking place, stated that on one occasion the applicant's sister was in the sitting room watching the television. She reported that the applicant was on a higher chair to her and that the applicant's sister was at the far side of the room. She stated that on this occasion the applicant had touched her on the genital area outside of her clothes.
On being asked if she ever wanted to tell about what was going on, the complainant said that she did but she felt that she could not say anything as her mother was very close to the applicant.
The complainant indicated to Barbara Duffy that the events had not had any specific effect on her lifestyle although she found it very difficult to hang around with boys. Following the incidents, they remained in her head but the thoughts had gone away for quite awhile. The memories have began to come back during the Summer and she remembered a picture in her mind of the last incident where she alleges the applicant licked her in the genital area, she felt very angry when she thinks about this memory and she cannot get it out of her head.
The applicant referred to the fact that over the previous months, her mother had been very supportive and had addressed the issue with the applicant and had not visited him since.
In Barbara Duffy's view as of October, 1997 the incidents of sexual assault did not appear to have had a very significant effect on the complainant's life, though she felt uncomfortable around boys and she found it difficult to cope with one particular memory of the alleged abuse and she was referred to the Mater Child's Guidance Clinic for further counselling.
As a result of contact with the Hospital Authorities, the matter was reported to the Garda Síochána in December, 1997 and the applicant after an initial hesitation made a statement to Garda Griffin on the 7th June, 1998. During the course of this statement, the complainant described the incident where the applicant's sister was present in the room at the time of an alleged sexual abuse taking place in the manner as already set out.
The complainant continued her statement on 29th June, 1998, and on the 4th August, 1998, the applicant was arrested and interviewed. The applicant absolutely denied the allegations that were being made against him by the complainant herein and on the advice of his solicitor declined to answer various questions as put to him at interview.
The file was referred to the Director of Public Prosecutions on the 5th October, 1998 and a decision was given on the 10th November, 1998, that the applicant be prosecuted pursuant to four charges and the D.P.P. took the view that the charges were suitable for summary disposal in the District Court.
A number of attempts were then made to formally charge the applicant but due to his indisposition this was not possible until the 8th June, 1999, when he was formally charged. A book of evidence was served on the 30th November, 1999 and a preliminary examination took place on the 19th January, 2000, and the applicant was returned for trial to the Circuit Court, having been put on his election.
The applicant sought leave to apply for judicial review on the 17th July, 2000.
Counsel in opening the application made reference to an allegation on the applicant's behalf that the prosecution service had been slow to respond to reasonable requests for documentation, in particular alleging that on the 26th March, 2001, Kelly J. had adjourned an application for discovery for twelve months because of delay on the part of the prosecutorial service and that subsequently it was only possible to serve a notice of re-entry on the 1st July, 2002. A further allegation was made that a statement of opposition which was dated the 6th March, 2001, was not served until the 22nd July, 2002, and that in effect the matter lay dormant in the judicial review list for two years. Counsel for the applicant sought leave to amend the grounds upon which relief had been sought to include these particulars as a further ground. Counsel for the respondent objected on the basis that they were not on any notice of any such application being made and that quite clearly such application would now be significantly out of time. Furthermore Counsel for the respondent indicated that the respondent would be taking issue with the allegations that were set out by Counsel for the applicant. Counsel for the applicant was not able to offer any explanation as to the delay in this matter being brought to the attention of the Court and in these circumstances in the exercise of my discretion, I declined the applicant's application to file additional grounds on which to seek judicial review in relation to matters which occurred subsequent to the application for judicial review having been made.
The central issue in this case is that there was a delay in the complainant reporting the allegations of sexual abuse as against the applicant to the Garda Authorities the alleged abuse taking place between 31st March, 1992, and 31st July, 1993, and the report to the Garda Authorities being made in December, 1997.
The applicant contends that the delay in reporting the alleged sexual assaults to the Garda Síochána cannot be blamed on him and that as a result of the delay involved notwithstanding that it could not be described as an inordinate delay, he has suffered actual prejudice in that his sister who was alleged to have been present in the same room when one of the alleged sexual assaults took place would have been available to him between March, 1992 and March, 1997, when she was diagnosed as suffering from Alzheimer's disease. In this regard I am furnished with an affidavit from James M. Richards, M.D., a medical doctor practising in Los Angeles, and he avers that he examined the applicant's sister in 1993, 1994 and 1996 and that during this period of time she would have been definitely competent to give evidence and to travel to Ireland and that it was not until her visit to him in March, 1997, that she exhibited signs of confusion and loss of memory. Dr. Richards avers, that as of March, 1997, the applicant's sister was not competent to travel or to give evidence in a Court of law. The applicant contends that if the complainant had reported the matter to the Garda Authorities or given him any indication that a complaint was being alleged against him during the period 1993 to 1996, he would have been in a position to bring his sister as a witness to give evidence at the trial of any proceedings against him but because of the particular circumstances of the delay in this case, he has been deprived of the benefit of her evidence and it is submitted that she is the only single piece of corroborating evidence that is available in the circumstances of this case which is quite simply a straight forward direct conflict of evidence as between the complainant and the applicant, against the background where the applicant has always denied any involvement and despite the D.P.P. directing that the charges were suitable to be tried summarily against him, has opted for trial in the Circuit Court with a judge and jury.
The applicant also relies on the grounds of prosecutorial delay and lack of specificity and I will deal with these aspects in due course.
The first issue that arises is the alleged failure of the applicant to move promptly and within time as provided by Order 84 Rule 21 of the Rules of the Superior Courts which states:
"21(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose or six months were the relief sought is certiorari unless the court considers that there is good reason for extending the period within which the application shall be made."
It is submitted on the applicant's behalf that the Court has discretion to extend the period within which the application for prohibition and in the particular circumstances of this case injunctive relief can be made and that good reason has been shown. The reason advanced for the application to seek leave for judicial review not being brought until 17th July, 2000 is the very fact that the applicant's solicitor was trying to clarify the situation as regards the applicant's sister with Dr. Richards in Los Angeles. I have been referred to the affidavit of Elaine Connellan, a solicitor representing the applicant wherein on the 17th July, 2000, she avers that she was instructed by Counsel to seek full disclosure from the State and to obtain a copy of the indictment. She says she was further instructed to obtain information in relation to the capacity of the applicant's sister to give evidence during the years 1992 up to the time of the swearing of her affidavit. She refers to the fact that the she only received the indictment in this matter on the 22nd June, 2000, and that she first wrote to Dr. Richards in Los Angeles on the 23rd May, 2000, and that she subsequently wrote on four occasions culminating with the letter of the 10th July, 2000, and that she was eventually obliged to telephone Dr. Richard at his office on various occasions most recently on the 13th and 14th July, 2000, in an attempt to get specific information. It was on the 14th July, 2000, that Dr. Richards agreed to put the relevant information on affidavit.
It is submitted on the respondent's behalf that the applicant has not set forth any good reason for extending time, and the respondent relies on the failure of the applicant to advance any good reason relying on the judgment of Costello J. in O'Donnell v. Dunlaoghaire Corporation (No. 2) [1991] I.L.R.M. 301.
"In considering whether or not there are good reasons for extending the time, I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believes that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay."
Counsel for the respondent further relies on the decision of De Roiste v. Minister for Defence [2001] 1 I.R. at 190 wherein Denham J. reaffirmed the principles outlined by Costello J. stating that the inherent jurisdiction vested in the Court to refuse relief where there had been delay should be exercised having regard to a number of factors, including
1. The nature of the action, the subject matter of the application.
2. The conduct of the applicant.
3. The conduct of the respondent.
4. The effect of the order under review on the parties.
5. The effect on third parties and
6. The requirement of public policy that proceedings relating to the public law domain take place promptly, except for good reason as furnished.
Fennelly J. also in De Roiste v. Minister for Defence reviewed the relevant Case Law on the topic and I refer to his views in the matter as expressed at p. 220 of his judgment.
"It is clear from a reading of the aforementioned case as well as many other cases that an order of certiorari is always, as a matter of principle, discretionary. But the nature of that discretion must be considered in two different contexts. An applicant who is not directly affected by the legal act which he attacks can do no more than ask the Court to exercise its discretion to quash an order. Applications of this sort are rare. When the order is one to which the applicant is entitled to ex debtio justitiae, i.e. one which affects him directly, that discretion can normally be exercised in only one way (i.e. in his favour). That does not mean however, that the behaviour of the applicant may not be such as to deprive him of his prima facie right to relief. This gives rise to a second context for the exercise of discretion."
Counsel for the respondent further submits that the charges in this case are extremely serious. Granting the relief sought would clearly have a serious impact on the complainant and public policy requires that a reasonable explanation should be given for a failure to comply with time limits set down by the rules of court. Counsel urges that the applicant has failed to discharge the burden of proof placed on him to show that the time in this case should be extended and the Court should decline to grant the relief sought.
There is no doubt but that the charges as preffered against the applicant are serious. He did not seek leave to apply for judicial review either promptly or within three months from the date when the ground for the application first arose.
It appears to me to be reasonable to accept that the appropriate date upon which date the ground arose was the 19th January 2000 being the date when the applicant was returned for trial. To comply strictly with the provisions of Order 84 Rule 21 the application for judicial review should have been made promptly and in any event within three months of the 19th January 2000. In the present circumstances the application was not made until the 17th July 2000.
I take the view however that there is a partial explanation for the delay in that the applicant's solicitor was attempting to clarify the precise position as regards the availability of the applicant's sister to give evidence from Dr. Richards in California. Certainly it appears that Dr. Richards did delay in clarifying the situation for the applicant's solicitor in that the correspondence with him commenced with a letter of the 3rd May 2000 and only concluded with his affidavit as sworn the 14th July 2000.
The reality of the situation in the particular circumstances of this case is that the central issue to be determined herein is of a particularly serious nature both to the applicant and the complainant. No serious prejudice has been identified which would be occasioned to the complainant were I to accede to the applicant's application to extend time within which to bring the application for judicial review. In the circumstances that arise I take the view that I have to consider the exercise of my discretion as to whether or not the applicant has made out that he has an arguable case.
I propose to follow the reasoning of Hardiman J. in G.K. v. Minister for Justice [2002] 2 I.R. 418 wherein at 423 he considers the use of the phrase "good and sufficient reason for extending the period" against the background of s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 which provides that an application for leave to apply for judicial review in respect of any of the matters referred to in s. 5(1) shall be made within the period of 14 days unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made.
Hardiman J. stated "I believe that the use of the phrase "good and sufficient reason for extending the period" still more clearly permits the court to consider whether the substantive claim is arguable. If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought however slight the delay requiring the exercise of the court's discretion, and however, understandable it may be in particular circumstances. The statute does not say that the time may be extended if there were "good and sufficient reason for the failure to make the application within the period of 14 days". A provision in that form would indeed have focused exclusively on the reason for the delay and not on the underlying merits. The phrase actually used "good and sufficient reason for extending the period" does not appear to me to limit the factors to be considered in any way and thus in principle to include the merits of the case." I take the view accordingly that the phrase "good reason for extending the period within which the application shall be made" as set out in Order 84 Rule 21(1) does not limit the factors to be considered in any way and accordingly includes the merits of the case.
In the particular circumstances of this case I take the view that the applicants case is clearly arguable, and in the absence of any prejudice, the interests of justice and fairness are best served by my exercising my discretion in the applicant's favour and accordingly I extend as appropriate the time to enable the applicant to make this application for judicial review and I propose to proceed accordingly.
Issue of Delay
The sexual assault which is the subject matter of the charges allegedly took place between March, 1992 and July, 1993. The complainant makes the first allegation of these alleged sexual assaults to her mother at some time in 1994 in circumstances where R.T.E. was showing a programme dealing with child sexual abuse. Subsequent to the programme, the complainant's mother found her halfway up the stairs in a panic and crying. She ran to where her daughter was and put her arms around her and the complainant was still crying and said "mom, Joe". She realised that her daughter was referring to the applicant who lived next door. Once her daughter had told what had happened, her mother took the view that she seemed to be happy in herself and did not want to talk further about the incident. It is clear that the complainant did tell her mother that the applicant had touched her. Subsequently it appears that the complainant's mother continually asked her if she was o.k. regarding the incident with the applicant and she always says that she was o.k. but eventually in July, 1997, the complainant advised her mother that she did wish to talk about it and events then effectively moved forward from that point in time with the complainant being referred for psychological assistance to The Children's Hospital, Temple Street where an assessment was carried out by Barbara Duffy, a clinical psychologist, and the matter was reported to the Garda Authorities in December, 1997, and was investigated and the applicant was arrested on the 4th August, 1998, and subsequently was charged on the 8th June, 1999.
Barbara Duffy, clinical psychologist assessed the complainant on the 30th September, 1997, and it is clear from her report that the actual incidences of sexual assault did not have a significant effect on many parts of the complainant's life, although she felt uncomfortable around boys and she found it difficult to cope with one particular memory of the abuse.
Insofar as the delay aspect was touched on by Ms. Duffy she states as follows:
"The complainant's mother explained that the complainant first disclosed to her that she had been sexually abused by the applicant two years ago. She stated this disclosure came about following watching a programme about incest on the television. She reported that following this programme she found the complainant sitting on the stairs crying and that on being questioned, the complainant explained 'Joe used to be at me'. The complainant's mother described feeling both upset and relieved. She was upset with regard to what had happened to the complainant but was relieved that the complainant did not say that she had abused by her husband. The complainant's mother clarified this by saying that she had no reason to suspect that her husband may have abused her daughter but outlines that this would be every mother's dread. The complainant's mother stated that she offered much emotional reassurance to the complainant at this time and allowed her to sleep in her bed for the following few nights. The complainant' s mother explained that the complainant reported to her that the applicant had abused her for a period of about one year and that the last incident had involved him wanting to lick her, by making her straddle her legs. The complainant's mother said that the complainant explained that she did not want to tell about the abuse while it was happening as 'the applicant is a good friend to you and you had nobody else'. The complainant's mother explained, however that she was afraid to address this issue with the applicant or her husband at this time as she was afraid that her husband would 'tackle the applicant'. She said that she maintained contact with the applicant and she was friendly towards him, visiting daily to take care of his ailing wife who was suffering from Alzheimer's and blindness. She explained that on hindsight she bitterly regrets the situation and feels that the complainant resented her maintaining contact with the applicant. She reported that this time period was very stressful as this was when she first took out a barring order against her husband and they separated. She stated that the applicant had given her much emotional support and she had often been able to speak to him about her worries and concerns regarding her marriage.
The complainant's mother reported that the complainant began speaking of details of the abuse in the summer of 1997. She attributed this to the fact that other children had been calling regularly to the applicant's house, asking to walk the dog. She stated at this point she felt she needed to do something about what had happened. She explained that she called to all parents in the area outlining what the complainant had disclosed to her and advising them to supervise whether or not their children were visiting the applicant. She reported however, that she has not as yet discussed this issue with her husband."
The complainant herein was seen on the respondent's behalf by Rosaleen McElvaney, clinical psychologist/psychotherapist on the 17th January, 2001, as a result of having been contacted by the Chief State Solicitor, the purpose of the assessment being to establish whether the abuse complained has had any and if so, what effects, including long and short term effects on the complainant and in particular, whether and if so which effect have inhibited her from complaining of the said abuse until relatively recently.
Ms. McElvaney refers to the fact that the applicant appears to have been a very close friend of the complainant's family, and was very supportive to the complainant's mother during the years when she was having personal difficulties with her husband. The complainant herself stated that she considered the applicant as a grandfather when she was small as her grandparents were deceased. I am not clear as to whether or not at the time of the actual alleged sexual assaults, the complainant regarded the applicant as being in a grandfather capacity but what is of crucial importance in my view, is the view as taken by both the complainant and her mother, that the applicant was trusted by the family and Ms. McElvaney takes the view that the breach of trust inherent in the alleged sexual abuse could have implications for the complainant's future relationships and in her opinion did impact on the complainant's relationship with her mother in that she was not able to tell her mother about the alleged abuse. Against this background, Ms. McElvaney does accept that on the positive side, there is the fact that the complainant was able to tell her mother, following the viewing of the television programme in 1994 and her mother's supportive response, the termination of the visits to the applicant's house and her prior development as a well adjusted child.
I am satisfied from the general tenor of the content of Ms. McElvaney's report that the complainant herein has not suffered any significant psychological consequences of the alleged abuse. At its high point it appears that she has experienced some difficulties with retrospective thoughts and her relationship with boys has been affected.
When Ms. McElvaney discussed directly with the complainant why she did not tell about the abuse sooner than she did, the complainant advised that if she had been asked, she thinks she probably would have told. It simply never came up in a conversation and she really did not know that it was wrong. She did not appear at that time to have any feelings of self blame or shame in relation to what happened.
Ms. McElvaney avers that the complainant did feel shameful about the alleged experiences of sexual abuse, and although the complainant stated a number of times that she did not understand that what the applicant was doing was wrong, she did mention feeling confused about this – knowing it was wrong, yet not really knowing. Her reluctance to tell her mother about it, given that the applicant was a close friend of hers, also suggests that the complainant was aware at some level, that it was wrong and that somehow her telling about it, would cause trouble.
Ms. McElvaney reaches the overall conclusion that the delay in reporting the alleged abuse was reasonable given the circumstances as outlined by her. She says the delay in reporting the alleged abuse would appear to have been due to the complainant's lack of understanding of the wrong doing inherent in the sexual abuse experience and the relationship which the applicant enjoyed with both the complainant and her family. As a trusted family friend she suggests that the complainant would have been reluctant to question this behaviour and discuss it with her mother. She says that the complainant's apparent discomfort about these experiences prevented her from being able to discuss them with her mother until prompted to do so by the viewing of the television programme on incest. According to the complainant, if she had been asked about the alleged sexual abuse, she probably would have told sooner. It is not uncommon in McElvaney's view for individuals who have experienced childhood sexual abuse to tell someone about it for the first time after media publicity about the issue.
Kearns J. in W (A) and The D.P.P. in his judgment as delivered on the 23rd November, 2001 very succinctly sets out the legal position relevant to this case in the following terms.
"Legal position
The basic principles applicable to cases of this nature are now well established. Firstly, statute law places no limitation in time on the prosecution of the alleged offences. Secondly, a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law under the Constitution, to a trial with reasonable expedition.
In addition, a prosecution brought after long delay may be halted if the Applicant establishes a real risk of an unfair trial. These rights must be assessed in the light of the circumstances and facts of the particular case.
For the limited purposes of the task in which this Court is presently engaged, the Court must assume that what the Complainant says is true.
In P. C v. Director of Public Prosecutions [1999] 2 1.R. at p. 67, Keane J. (as he then was) stated:
"This is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every such case is whether the court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved.
Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial "in due course of law". The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the Court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.
If that stage has been reached, the final issue to be determine will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed."
These principles were summarised afresh by Keane C.J. in P. O'C. v. DPP [2000] 3 I.R. 87 (at pp. 93 to 94) when he stated:
"While the principles applicable in cases of this nature are well settled and have been explained in a number of decisions in this Court in recent years, they must be summarised again for the purposes of this appeal. There is not, and never has been, any statutory period of limitations in respect of the institution of prosecutions for serious crimes. However, the requirement in Article 38.1 of the Constitution that no person to be tried on any criminal charge "save of in due course of law" entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children and particularly in cases where the adult is in a position of authority in relation to the child, e.g., as parent, stepparent, teacher or religious."
Later at the same page, he continued as follows:
"If.... the Court invited to hold the trial is satisfied that, as a matter of probability, the failure of the victim to complain of the offending conduct was the result of the conduct itself the delay, of itself and without more, will not be reasons for halting the trial. There remains, however, a further inquiry which must be conducted by the Court in every case, i.e. as to whether the degree to which the Applicant's ability to defend himself or herself has been impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier stage of the inquiry that the delay is the result of the Applicant's own conduct ceases to have effect once that stage of the inquiry has been concluded In the final stage of the inquiry, the Applicant is presumed to be innocent of the offence with which he has been charged and, if he or she can demonstrate to the Court that it is probable that a specific offence which might otherwise have been open to him is now no longer available because of the passage of time, the Court may then halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial Judge.""
In determining the issue as to blameworthiness for the delay in reporting the alleged sexual abuse to the Garda Authorities, I have to accept the truth of the general nature of the complainant's allegations as made against the applicant herein. There is a delay as between the 31st March, 1992/ 31st July, 1993, and December, 1997, when the Gardaí were notified. I have no reason to doubt the evidence of Rosaleen McElvaney, the psychologist and in particular her conclusion that the delay in reporting the alleged abuse was reasonable. I note that while a notice of cross-examination was initially served, Ms. McElvaney was not cross-examined on the content of her affidavit or the content of the report and her actual conclusion remains unchallenged. She examined the complainant on the 17th January, 2001, and appears to have been of the view that the complainant was inhibited from complaining about the abuse until relatively recently to the time of her examination. Ms. McElvaney makes no reference to the aspect of dominion which is central to this issue and I express my surprise in this regard because this is clearly a situation where the applicant in his capacity as the immediate next door neighbour to the complainant and in his further capacity as a trusted family friend was a person in a position of trust and furthermore, there is a reference in Ms. McElvaney's report to the complainant having indicated to her that if she told, the applicant would take her to bed with him and while the complainant did not fully understand what this meant, it was clear to her "that it wouldn't be nice". These are matters which I would have expected Ms. McElvaney to have clarified especially having regard to the complainant's age at the material time.
I take the view in this particular case that it has to be approached on the basis that the alleged acts of sexual abuse took place at a time when the plaintiff was aged between eleven and twelve years, and the background where there is an uncontradicted assertion that if the complainant "told" that the applicant would take her to bed with him, which assertion the complainant understood would not be nice. It is also apparent that the complainant was unclear as to the rights and wrongs as to what had occurred but was sufficiently concerned having watched the television programme in 1994 to indicate to her mother that the applicant had touched her. It was not until the complainant was fifteen in July of 1997 that she explained to her mother the extent of the sexual assault that had been carried out upon her by the applicant.
While there may be no clarification on the issue of dominion in this case, the only issue to be determined is as to whether or not the delay in all the circumstances is reasonable. I take the view that this is the case where common sense and general experience of life have to be applied as to why the complainant did not immediately report the sexual abuse perpetrated upon her by the applicant.
The length of delay is approximately three and half years and in my view could not be described as an inordinate delay.
The relationship between the parties is that of daughter of a very close friend of the applicant where the parties lived immediately adjacent to one another in a housing estate and I am satisfied that the applicant was in a position of trust, to the complainant.
At the time of the alleged sexual assault the complainant was aged between ten and eleven years and the applicant was aged between seventy-six and seventy-seven years, I take the view that this is clearly a relevant factor, particularly against the background where the applicant told the complainant he would take her to bed with him if she told.
In the particular circumstances of this case, the applicant has made no admission and there is a direct conflict on the evidence as between the complainant and the applicant.
I have already dealt at some length with the psychological evidence and accordingly the aspect of delay comes down to a straightforward question as to whether or not the Court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution.
In deciding this issue there is a presumption as to the truth of the complaint. I consider that the vital factor in this case is the age of the complainant. I take the view that it is reasonable that the complainant made an initial complaint to her mother against a somewhat confused background, following the watching of the television programme in 1994 at a time when the complainant was twelve and then a more detailed complaint when she was fifteen in July, 1997. Accordingly I come to the conclusion that the delay in the making of the complaint to the Garda Authorities in this case by the complainant was reasonable.
Prosecutorial Delay
Mr. Grehan S.C. on behalf of the applicant is not strenuously making the case that there was prosecutorial delay in the circumstances that arise. The formal complaint was made to the Garda Authorities in December, 1997 and the matter was investigated and a number of witnesses interviewed and statements taken and the applicant himself was arrested and interviewed on the 4th August, 1998. The applicant's file was referred to the Director of Public Prosecutions on the 5th October, 1998 and a direction was received on the 10th November, 1998 from the Director of Public Prosecutions advising that the applicant be charged with four counts of sexual assault and that the charges were suitable for summary disposal in the District Court. The applicant was to be charged in January, 1999 but due to his unavailability as a result of ill health, he was not charged until the 8th of June, 1999. There was then a preliminary examination and the applicant was returned for trial on the 19th January, 2000 and on the 17th July, 2000, the applicant was given leave to apply for judicial review.
I am satisfied in these circumstances that there was no prosecutorial delay.
Lack of specificity in the charges
The applicant also relies on the lack of specificity with regards to the charges. In the particular circumstances of this case there are four distinct charges which range for a relatively short period between the 31st March, 1992 and the 31st July, 1993. The essence of the complaints against the applicant is the systematic sexual abuse of the complainant and in my view having regard to the tender age of the complainant herein it would be unrealistic to expect that she is in a position to give specific dates of each alleged incident.
Counsel for the applicant in his submissions refers to variations in the dates contained in the affidavits and reports of Barbara Duffy, clinical psychologist, Grainne Lawlor, social worker and the complainant's own affidavit and that the lack of specificity puts the applicant in an intolerable position.
In my view these are matters which can be addressed in cross examination and I am satisfied that any lack of specificity could if necessary be dealt with by the trial Judge to ensure fairness.
Risk of an unfair trial
Accordingly, the further issue to be determined is as to whether or not the degree to which the applicant's ability to defend himself has been impaired is such, that the trial should not be allowed to proceed. It follows that in the light of the presumption of innocence to which the applicant is entitled, this Court, must still consider whether the degree of prejudice as a result of delay is such as to give rise to a real and serious risk of an unfair trial. The complainant alleged at an early stage, quite specifically that the applicant's sister was present in the living room of his house on one of the occasions when he sexually assaulted her. This fact only became known to the applicant at a point in time after his sister had been diagnosed as suffering from Alzheimer's disease. The applicant accepts that his sister was present as outlined by the complainant against the background where he denies any sexual assault. Dr. James M. Richards of Los Angeles, California U.S.A. swore an affidavit on the 14th July, 2000, in which he sets out that the applicant's sister was a patient of his and has been since November, 1991. He states that in 1993 and 1994 through until 1996, the applicant's sister was definitely competent to give evidence and to travel to Ireland but in March, 1997 he noted that her short-term memory had been affected and she appeared to have been confused and he says this was the only time that Alzheimer's disease was diagnosed. He avers that as of the 14th July, 2000 the applicant's sister was not competent to travel or give evidence in a court of law.
In essence what has occurred is that the applicant as a result of delay has been deprived of access to his sister and she is not available as a witness to give evidence on his behalf but she would have been so available between the period 21st July, 1993 until some time shortly prior to March 1997.
It is submitted on the applicant's behalf that this situation gives rise to a real and serious risk of an unfair trial against the background where there is a straight conflict of evidence between the complainant and the applicant and the availability of an independent witness is crucial to his position.
I take the view that it is of some significant importance that when the complainant made her statement herein on the 7th June, 1998, she specifically refers to the fact of the applicant's sister being home on holidays from America. She describes her as being a little bit doting. She describes the circumstances where she was sitting on a low chair beside the applicant and his sister was sitting on a couch against a wall. She said that the applicant was watching television while he was moving his hand up and down on her clothes. She said that the applicant's sister did not see her doing this and she just sat there. She did not say anything to the applicant's sister because she knew she did not see what he was doing because he put her hand over his hand and it looked like she was just holding his hand.
Counsel for the applicant submits that it is clearly implied from the complainant's statement that the applicant's sister would have seen what was taking place because of the complainant's implied admission that she would have seen what was happening but would not have realised what was going on because the applicant had his hand over the complainant's hand and it would look to the applicant's sister like the complainant was just holding the applicant's hand. The applicant in his affidavit at Paragraph 15 avers that he has been advised by his legal advisors and so believes that his sister's evidence would have been of exceptional importance to his defence in this case and in particular to the occasion on which it is alleged she was present. He says that he has been further advised that his sister's evidence would have relevance to the other allegations as her evidence may well have cast doubt on the general credibility of the complainant herein.
The nature of any evidence that the applicant's sister may have been able to give of what she saw or heard or what may or may not have happened or what could or could not have happened in the room of the applicant's house on the occasion in question is unknown and is a matter of some speculation. The fact is that it is a potential source of valuable information no longer available to the applicant.
In the particular circumstances of this case I have to weigh up the presumption of innocence which attaches to the applicant, the fact that he has always denied any involvement in the alleged sexual abuse of the complainant, that this case involves a direct conflict on the evidence as between the applicant and the complainant and the communities right to have these criminal offences prosecuted which right is not absolute but has to be exercised in accordance with the provisions of the Constitution and with due process. The test to be applied is as to whether or not there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge.
There is no doubt but that very often in this type of case the alleged sexual abuse takes place in private between the perpetrator and the victim. It is certainly an unusual feature that as occurred in this particular case, the applicants' adult sister was present in the same room where the abuse is alleged to have taken place.
The onus of proof rests on the applicant to satisfy the court that a specific defence which might otherwise have been open to him is now no longer available because of the passage of time and that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge.
Keane C.J. in P. O'C v. D.P.P. [2000] 3 I.R. 87 at p. 94 stated:
"There remains however a further enquiry which must be conducted by the court in every case, i.e. as to whether the degree to which the applicant's ability to defend himself or herself has being impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier stage of inquiry that the delay is the result of the applicant's own conduct ceases to have effect once that stage of the inquiry has been concluded. In the final stage of the inquiry the applicant is presumed to be innocent of the offence with which he has been charged and if he or she can demonstrate to the court that it is probable that a specific defence which might otherwise have been opened to him or her is now no longer available because of the passage of time the court may then halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge."
And Keane C.J. further at p. 96 of the judgment states:
"In the present case the applicant cannot successfully rely on the general prejudice which undoubtedly affects any person who faces a trial on a serious criminal charge many years after the happening of the alleged offence because of the nature of the particular offence and the evidence of the psychologist as to the probable effect it would have had in terms of the making of a complaint. Nor could he rely, in a case such as this, on a bald assertion that some specific prejudice has resulted to him which would give rise to a real and serious risk of an unfair trial. In the present case his solicitor placed before the High Court material which went beyond such a bald assertion. Had the trial taken place within a reasonable time of the commission of the alleged offence there should have been little difficulty in testing the accuracy of the complainant's version of events as to the locking of the room. It was open to the respondents once this matter had been raised to avail of their resources to investigate the matter further and place before the High Court material which might or might not have shown that there was no substance in the difficulties in which the applicant sought to rely. There was however in my view no obligation on the applicant to go further than he did in indicating to the court the nature of the defence which he would have hoped to make, the materials on which it was based, and the difficulties which on his behalf it was alleged now arose in presenting that defence to a jury. To ask him to go any further would be to place him in a different position from other persons charged with serious crimes and to erode the presumption of innocence to which he is entitled to a degree which was not justified even by the special nature of the offence with which he is charged. As has being repeatedly emphasised by this court the public interest in ensuring that every person charged with a criminal offence receives a fair trial must where a conflict arises take precedence over the unquestionable public interest in the prosecution and punishment of crime."
I take the view in the particular circumstances against a background where the plaintiff enjoys the presumption of innocence, it is his word against the complainant's as to whether or not the alleged acts of sexual assault took place, the fact that both the complainant and the applicant agree that the applicant's sister was present in the same room at a time when one of the acts of alleged sexual assault took place, the fact that the applicant's sister would have seen both the complainant and the applicant, that it is reasonable to come to the conclusion that the applicant's sister is clearly an essential witness in the applicant's defence of the prosecution as brought against him. It is an unfortunate consequence of the delay which occurred that the applicant has lost the benefit of having his sister as a witness. Without her I take the view that her absence does give rise to a real and serious risk of an unfair trial. I cannot see how the trial judge could give any rulings or directions to the jury which would in anyway substitute for her presence giving evidence at the trial.
Accordingly I take the view that the applicant herein has suffered actual prejudice as a result of the delay that occurred between the time of the alleged sexual assault and the reporting of the matter to the Garda authorities and I propose to grant the applicant an order prohibiting the respondent from taking any further steps in the bringing of a prosecution against the applicant in respect of the charges set out upon the indictment Bill No 167/00 and bearing the title Director of Public Prosecutions Prosecutor and J McA Accused being four charges of offences contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 being the offences referred to on charge sheets numbers 37-40 of 1999 prepared at Malahide Garda Station Dublin.
