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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J. (M.) v. D.P.P. [2005] IEHC 113 (22 February 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H113.html Cite as: [2005] IEHC 113 |
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Neutral Citation No: [2005] IEHC 113
THE HIGH COURT
DUBLIN
2002/258JR
M.J.
Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 22nd DAY OF FEBRUARY 2005:
The applicant sought and obtained leave to apply for judicial review from McKechnie, J. on 13 May 2002 for:
1. An order restraining the respondent from prosecuting the applicant on Bill C1 6/02 at present pending before the Naas Circuit Court.
2. An order restraining the respondent from prosecuting the applicant on charges numbered 1 to 6 on Bill CC 30/022 at present pending before the Central Criminal Court.
3. An interim order pursuant to order 84, Rule 20 (7) of the Rules of the Superior Courts 1986 staying any further proceedings on foot of Bill C 16/02 and CC 30/02 pending the determination of the continuing judicial review.
4. An order for costs.
The grounds permitted by that order to be pursued were as follows:
1. The delay in laying charge against the applicant as contained in Bill C 16/02 and Bill CC 30/02 breaches the applicant's constitutional right to trial in due course of law and/or trial within reasonable expedition.
2. The delay between the arrest and charge of the applicant on 14 November 2001, and the prosecution of the applicant before the Central Criminal Court which will take place in the Central Criminal Court on 17 November 2003 breaches the applicant's constitutional right to trial in due course of law and/or trial with reasonable expedition.
3. The respondent has acted contrary to natural and constitutional justice and fair procedures in instituting proceedings against the applicant regarding offences which are alleged to have taken place some 15 to 20 years ago.
4. The applicant will not be afforded a trial in due course of law as a consequence of a fundamental unfairness in the procedure.
The applicant has been charged with 23 offences of a sexual nature against his own daughters which are alleged to have taken place between the mid-1970s and the mid-1980s. The dates of the offences and the complaints made referable to same are as follows:
(a) MJ
Two offences alleged between 2 April 1976 and 31 December 1980. (First complained to Gardaí on 22 January 2001. Formal statement made on
5 February 2001, some 20 to 24 years after the alleged offences took place and when the complainant was 33 years old.)
(b) HC
Fourteen offences alleged between 31 October 1981 and 8 March 1986. (Complaint to Gardaí on 12 February 2001 some 15 to 19 years after the alleged offences took place, and when the complainant was 31 years old.)
Both prosecutions based on the foregoing are pending before the Circuit Court.
(c) ED
Seven offences alleged between 20 February 1976 and April 1985. (Complaint to Gardaí on 2 March 2001 some 15 to 20 years after the alleged offences took place and when the complainant was 33 years old.)
In addition the applicant also faces a charge of threatening to kill ED on 24 December 2000.
The prosecution based on the foregoing is pending before the Central Criminal Court.
The applicant was charged with the offences on 14 November 2001. The matters were returned for trial on 27 February 2002. The matters returnable to the Central Criminal Court were not anticipated or due to be tried until 17 November 2003.
The affidavit upon which the leave application was grounded was not that of the applicant but of his solicitor. Each of the complainants -- none of whom was cross-examined -- swore an affidavit describing the elements of abuse (and incorporating by reference the statements they made to the Gardaí and to the extent that the report of Dr. Michael Dempsey, psychologist, whom each attended, recounts matters of fact relating to their individual personal circumstances) and swear to their truth. Dr. Dempsey also gave oral evidence to the Court.
The respondent opposed the application for judicial review on the grounds following:
1. The lapse of time between the dates of commission of the alleged offences and the institution of the proceedings in respect of which the applicant has been returned for trial is neither oppressive, unjust nor unfair, does not violate the applicant's right to a fair trial with due expedition, and does not violate his right to a trial in accordance with law and Article 38 of the Constitution of Ireland.
2. The lapse of time between the dates of commission of the alleged offences and the institution of the proceedings in respect of which the applicant has been returned for trial has neither prejudiced the applicant's right to a fair trial, nor has it prejudiced him in the preparation and conduct of his defence.
3. Any lapse of time in the prosecution of the charges laid against the applicant arises as a consequence of the nature of the abuse perpetrated by him upon the injured parties. The respondent will rely upon the affidavits filed herein on his behalf for greater particularity regarding the effect of the abuse upon the injured parties and the reasons why they did not make an earlier complaint in respect thereof.
4. The period of time between the applicant's arrest and charge on November 14, 2001 and his trial on certain of those charges before the Central Criminal Court on November 17, 2003 does not breach his constitutional right to a trial in due course of law and/or trial with reasonable expedition.
5. The respondent has not acted contrary to natural and constitutional justice and fair procedures in instituting the prosecution of the applicant out of which the application for judicial review arises.
6. The procedures adopted with regard to the applicant's prosecution are not fundamentally unfair.
7. The applicant will be afforded a trial in due course of law.
Notwithstanding the ample grounds upon which relief was granted, the case was opened on the more limited basis that:
l. The reports of Dr. Dempsey were not sufficiently detailed.
Dr. Dempsey, were not appropriate to discharge the onus that was on the respondent to show that there was no undue or unreasonable delay, in the context of the decided cases, in the making of the complaints.
At the conclusion of the evidence the applicant while adhering to the requirement of (3) above confined his submissions to state that there was no evidence of a psychological reason for the non-disclosure of the complaints. Accordingly it becomes necessary to consider, in more detail than I would otherwise do in a judgment, the evidence in this regard.
I find the following facts as agreed, undisputed or established to my satisfaction on the evidence before the Court:
This complainant was born on 2 April 1967 in England and is the eldest of three children born to the applicant and his wife BJ. By about the time she reached 16 years, she had lived at least six different addresses, five in Ireland. She describes experiences at age nine (paragraph 4), and aged 12 (paragraph 5 of her affidavit of 16 December 2002). Further reference to details of abuse are described by reference to her statement made to Detective Garda Murth Whelan on 5 February 2001 in Exhibit MH1, the content of which she avers are true. It is unnecessary for the purpose of this judgment to recite the instances of abuse which are not contradicted by any affidavit evidence of the applicant. To convey a sense of the relationship that emerged from abuse in her early life, I refer to paragraph 6 of this complainant's affidavit sworn on 16 December 2002 wherein she avers:
"Throughout my childhood the applicant was always very violent to my mother, my sisters, and I. We were quite regularly beaten by him for the slightest reason. If my mother said anything out of place or stood up for one of us she would get a beating from him. As a result I was in constant fear of him. The most serious beating I received from my father was in August 1987 when I was 20 years old. At that time I was three and a half months pregnant. This pregnancy was the result of a rape. This rape has no connection to this complaint. I was chatting with my mother in the living room of the family home in Ireland. My father who had just gone to bed came down the stairs in a rage, dived for me on the couch, and grabbed me by the hair. He dragged me into the hallway and bashed my head off the wall about four or five times. He punched and kicked my stomach and bottom. My sister H was present and saw what happened on this occasion. Two nights later there was bad thunder and lightning. My father was shouting and roaring at me and I felt my stomach go dead. I was bleeding and next morning I went to Dr. Flanagan who sent me straight to hospital. Two hours after being admitted to the hospital I lost the baby. I told no one outside of my immediate family about what had happened even though I spent the night in a friend's house."
MJ in or about 1985 did, when aged 18, tell her friend JMcN, a friend of about the same age, this complainant was very upset about what she had suffered from the applicant. This complainant avers: "When J. was comforting me I told her all about the abuse."
I am satisfied that this disclosure to a confidante made under the influence of drink is not to be compared to a calculated disclosure to authority. A statement of the disclosure when sober a week later is referred to by Ms. McN who concludes her statement thus:
"When I came home from America M said to me about her suffering a miscarriage after a beating from her father. M. had been home from London a while before I came back from America. M. and I have spoken regularly about this abuse since, especially when M. was going for counselling."
MJ sought counselling in 1994. I infer the abuse referred to by Ms. McN to be that referable to the loss of the child in 1987. Even if I am wrong in this regard, I am satisfied that Ms.
McN was a confidante and such disclosure was on a confidential basis. In 1989 MJ met a man who was to be, and still is, her husband A. She informed her husband from the outset of their relationship of the sexual and general abuse she suffered from her father. In my judgment this was a wholly appropriate and understandable disclosure, again in the confidence of the intimacy of such a relationship.
In 1993 MJ became aware that her sister HC had suffered sexual abuse as a child, being so informed by HC. About a week or two later MJ confronted the applicant in the presence of his wife, mother of MJ and in the presence of her own husband AJ and her sister H about the abuse. HC in paragraph 7 of her affidavit sworn on 16 December 2002 in reference to this confrontation avers:
"In the presence of our mother, M's husband A and myself, M accused the applicant of abusing us both. He admitted to it without saying what he had done. My mother did not cope well with this confrontation and she developed a drink problem. The matter was not discussed by our family again."
This is uncontradicted evidence. It is true that in response to questions from the Gardaí that the applicant denies the allegations and refers to fabrications, but there is no sworn evidence from the applicant. Again all this disclosure remained within the family. It is in my judgment to be equated with a calculated disclosure to outside authority.
Subsequent to this confrontation, MJ went to see her other sister ED and enquired if she too had been sexually abused. Her response was to nod, but she said she did not want to talk about it, again an in-family disclosure.
BJ developed a serious drink problem after the confrontation in 1994 and in late 2000 attended a clinic for treatment. As previously noted, MJ sought counselling from 1994 and thereafter. In paragraph 13 of her affidavit sworn on 16 December 2002, this complainant avers:
"The reason I did not report the abuse by the applicant to the Gardaí is that for a long time I was unable to speak freely about it. I only began to go for counselling because it was affecting me badly. The counselling I have received since 1994 had made me strong enough to talk about the abuse. When the suspicions arose about A, I just felt that I could not go on anymore without talking about it and I decided to report this abuse. Knowing that my sisters were going to report their abuse gave me more support, but I think at that stage that I would have been able to report it anyway."
Now, A was the 14-year-old niece of MJ and whatever, if anything, passed between the applicant and A, and A and her mother ED, there was an apprehension that the child sexual abuse that had been suffered by the three sisters might have or was about to occur to children of the next generation.
Dr. Michael Dempsey, a chartered clinical psychologist at the respondent's request met each of the complainants and assessed them after interview, each of them, and prepared a written report describing the effect of the alleged offences:
(a) The effect of the alleged offences.
(b) The reasons for the delay in reporting the alleged offences to An Garda Síochána.
(c) Whether those reasons can be attributed to the applicant's conduct (be that the assaults themselves or any other conduct) and/or its effects upon her.
(d) His view as to whether the delay in reporting those offences to An Garda Síochána is explained and is reasonable in the light of her circumstances.
In approaching a consideration of the evidence of Dr. Dempsey in respect of each of the complainants, I bear in mind the very clear decision of the Supreme Court in DO'R-v-DPP unreported 30 July 2004 per McGuinness, J. at pages 26-29 inclusive, and in particular I note in regard to psychological evidence: "In certain cases there is ample ordinary evidence which would assist the Court in understanding from its own common sense and general experience of life why, for example, a child did not immediately record sexual abuse by an adult."
And:
"All such evidence is open to challenge and cross-examination. It must, however, be borne in mind that it is not the task of the expert witness to assess the credibility of the complainant or the guilt or innocence of the applicant. The truth or otherwise of the complaint is to be tested at the trial of the applicant."
Mindful of the elements of cross-examination of a critical nature of Dr. Dempsey, I am satisfied and find as a fact that his evidence (T: p.31; Q.95; 1.21-26) is credible, and when read in conjunction with all the written evidence, I find in accordance with his evidence that:
"The profile that comes out from these reports of the three interviews with these people in their statements certainly fits with the profile of what we know in relation to childhood sexual abuse and its psychological consequences."
Specifically in relation to MJ two elements of complaint were noted by Dr. Dempsey such as caused him to invite this complainant to a second interview:
(a) Her recording in her statement to the Gardaí that in the past she had at age seven been sexually abused by her uncle. Dr. Dempsey
stated in evidence that he was not surprised by this belated revelation:
"This is not surprising because disclosure of abuse is often gradual. The shame of being abused by your uncle and that occurring within a family, and also her mother's sort of, you know, downplaying it would have been factors in her nondisclosure to me."
Further Dr. Dempsey's evidence that:
"It is not unusual for people who have been sexually abused, allegedly sexually abused by one member of a family to be abused by, unfortunately, other members of that family. It is just simply not unusual. It is something that would not have surprised me, and certainly wouldn't have surprised me in this particular case since there seems to have been, if what I have been told was true, there seemed to be a lot of boundary breaking within the family, and certainly then the women, some of them were vulnerable to get into abusive relationships in adulthood. And we know that unfortunately that happens with people who have been sexually abused in childhood." (T: p.30/31; Q.92; 1.22-1.7)
(b) In the course of the second interview it emerged that this complainant mentioned that her father 'had sex' with his mother-in-law. When asked by counsel in cross-examination
about this, the witness stated (T: p.34; Q.107; 1.6-9):
"I wouldn't have been particularly surprised because within this family, from what I knew about it or from the allegations that had been made, all sorts of boundaries were being broken."
The matter was further pursued by counsel as to how the complainant might have known about the alleged event between her father and her maternal grandmother who died in 2004, and what this betokened about the psychology or mental state of this complainant to which Dr. Dempsey responded (T: p.36; Q.121; 1.13-19):
"Well no, not the mental state. The mental state of my subject would have been entirely different, but the psychology of it would be that I wouldn't be particularly surprised because of the boundary breaking that was going on within the family, allegedly. I wouldn't be surprised that such behaviours were occurring."
While there is no direct evidence from MJ on the point as to why she made these disclosures at a very late date which is a reflection of the 'gradual disclosure' referred to by Dr. Dempsey, I think it reasonable to infer, but I expressly draw no conclusions from the inference, that MJ did not wish to inflict further hurt on her mother who had been beaten herself in the past, who witnessed the children being beaten, not merely corrected or chastised, who suffered the humiliation of the confrontation in 1994, and had fallen prey to such abuse of alcohol that she had to attend a clinic in late 2000.
However, I accept the evidence as set out in Exhibit A to the affidavit of Dr. Dempsey sworn on 9 February 2005 in this regard. Indeed so 'bottled up' was this complainant that she did not disclose until very late in enquiries that, although she had been married since 1992 and had two children by her husband A, that he was in fact her first cousin, because she felt awkward and embarrassed about this fact.
In concluding his first report on MJ, Dr. Dempsey stated: "Ms. J reported that following H's disclosure of her own alleged abuse, she 'was not ready mentally' to report the matter to the Gardaí, but that eventually her experience in counselling gave her the strength to report it to the Gardaí. A further factor that inhibited her from reporting the alleged abuse to the Gardaí was that she was afraid of her father.Fear of their father is a key issue for the three complainants.
Finally, however, her suspicions that her father was allegedly abusing her niece gave her the courage to make a complaint to the Gardaí. In my opinion the reasons for the delay in making the complaint are understandable in terms of Ms. J's life history."
(Emphasis added.)
The complainant MJ avers that the statements of fact in the foregoing quotation are true, and as not challenged, I find such facts for the purpose of my conclusions on this complainant's delay in reporting matters to the Gardaí. In this regard I also take into account the evidence of Dr. Dempsey in cross-examination when asked by counsel (T: p.54/55; Q.192-194; 1.20-1.1), as follows:
"192
Q. Then she told you, in fact, when you asked for clarification that she never wanted to complain to the Gardaí about her father's alleged abuse either?
A. Yes, my Lord.
193
Q. But that she had decided because she had wanted to put it behind her that she was only complaining now to support her sisters who were complaining? A. I don't know -- yes, I mean, more or less, that is the gist of it, yes.
194
Q. She only complained to the Gardaí about her father because her sisters were... (INTERJECTION).
A. Yes.
In re-examination the witness was asked a number of very pertinent questions arising from the foregoing (T: p.72; Q.273-275; 1.5-29; p.73; Q.277-278; 1.10-24).
"273
Q. Would you be able to offer your professional view as to why she might not have wanted to complain in the circumstances?
A. Because, I mean, she may not have wanted to complain because of all the other aspects of her life that she was trying to cope with. She had an eating disorder. She reported that she was depressed. There had been some sort of strains in her relationships. She had been assaulted by a man when she was --there was lots of things she was coping with in her life.
274
Q. Did you set those out in your report?
A. I think I have, yes, my Lord.
There was her fear of her father. She reported that she wasn't ready mentally to go, and that is, you know, the normal history of making a complaint, that people are often coping with the emotional sequelae of the alleged abuse, and that often delays going into a Garda Station. It is a completely different thing telling friends or telling a counsellor than going into a Garda Station and telling someone that you don't know who is in authority about the alleged abuse.
275
Q. You mentioned I think, just towards the end of your evidence the suggestions regarding A that this might have been a precipitating factor? A. Yes.
277
Q. What sort of precipitating factors arise? What matters can amount to precipitating factors?
A. Well, in the case of a person seeing that a child, be it a relation or neighbour or whatever, is at risk of the same type of abuse that person may have endured themselves, then the wish to stop the abuse and to prevent the abuse continuing into the next generation is a very common reason why women report abuse, finally come to report the abuse, that they see that it is not -- that it is potentially going to continue and continue and that they put their own concerns about themselves behind and they report it. That is very, very common for this to happen."
I am satisfied and find as a fact that the delay in the making of a complaint by this complainant was reasonable and explicable given her life experience and that she was inhibited psychologically as a result of the conduct of abuse to which she was subjected by the applicant from making the complaint at an earlier date.
2. HC
This complainant was born on March 18, 1969 and is the youngest of the three children. She avers that throughout her childhood and that of her sisters, the applicant was very violent towards the whole family, beating them regularly for little or no reason. She expressly swears at paragraph 3 of her affidavit sworn on 16 December 2002:
"We all used to live in fear of him and to this day I am still frightened of him."
The sexual abuse against this complainant began when she was 12 years old when the applicant was driving home after a Sinn Féin or IRA meeting at which he had been and continued on a regular and sustained basis for a considerable time after the birth of her daughter S. S was aged 13 when the complainant made a statement to the Gardaí on 12 February 2001. It is unnecessary for the purposes of this judgment to detail all the acts of violence. For example, the applicant being beaten black and blue with the hose from a twin-tub washing machine as a result of which she missed school for weeks, witnessing her mother being beaten, et cetera , or sexual abuse which are uncontradicted by any affidavit evidence of the applicant. This complainant avers to the truth of the facts set out in her statement to the Gardaí and to the extent that Dr. Dempsey's report recounts matters of fact relating to her personal circumstances that such are true.
In 1987 the complainant married one GT having had two children by him prior thereto. It was a violent relationship. The marriage broke up after 13 or 14 months. She then formed some kind of association with a EB and became pregnant by him and had a son called M, born 13 June 1992. The arrangement with EB did not last very long. A divorce was obtained in connection with her marriage to GT in November 1998 and the following year in July 1999 she married her present husband by whom she has two children.
During the time this complainant was being abused she never spoke to her sisters about it, although she had her suspicions about her sister E, but never spoke to her about it. In 1989/1990 she confided in her friend MM that she had suffered abuse but did not make a full disclosure to her. After the birth of M she was unable to cope and consulted her general medical practitioner Dr. Flanagan and spoke to him on and off about the abuse. The doctor referred the complainant to a Health Board counsellor. The complainant does not remember his name and she avers she received no benefit from the visits. In late 1994 or early 1995 the complainant went for counselling to Ann Ahern. For eight years prior to making a complaint to the Gardaí this complainant had been on medication and avers in her affidavit that:
"From time to time I still have nightmares about the abuse."
About a year or thereabouts before this complainant began taking counsel, she was drunk one night and disclosed to her sister M that the applicant had abused her, but she did not divulge the details. The response was that M then told H about her abuse, either in 1993 or 1994 H was present with M when visiting her sister ED and M informed E that she M had been abused by her father. Some days later their mother was informed about these past events and the confrontation earlier referred to in this judgment in 1994 occurred. This complainant informed Dr. Dempsey that from the age of approximately 13 years she learned: 'to block everything out' and this would stop her getting hurt emotionally during the alleged sexual experiences.
In respect of this complainant, the sexual abuse only stopped when she was 23 years old, after the birth of her son M, when she threatened her father that she would disclose the alleged abuse to her mother. Notwithstanding the disclosure to her mother and the confrontation in 1994, she did not report the abuse to the Gardaí because she felt that by doing so this would add to her mother's distress. The 1994 confrontation led the mother into alcoholic abuse, and in my judgment, given the fact that when in the past the mother stood up for her daughters the mother was beaten, it was perfectly understandable and very understandable that now that the daughters were adults, albeit all very severely wounded psychologically by their experience of abuse, they would not wish to add to their mother's distress.
This statement of the complainant to the Gardaí dated 23 September 2001, part of Exhibit HC3 to her affidavit sworn on 16 December 2002, records:
"Further to the previous statements I have made in this matter, I wish to add that the reasons I have taken so long to come forward about my abuse was because I had went for help for myself without going to the Guards. I was afraid for a long time to report it because of the effect I felt it would have on my mother. I never wanted her to know. I was also terrified of my father and what he would do to me, and I still am. The final straw for me was the concerns over A and the fact that I have daughters of a similar age myself. I don't want to have to be constantly worrying about them coming into contact with my father and he abusing them."
Paragraph 10 of this complainant's affidavit is almost in identical terms.
In August 2000 this complainant called to her parent's house to collect clothes for her mother who was then in a clinic for treatment for her drink problem. She, the complainant, was frightened to find her niece A alone in the house with her grandfather, the applicant. The complainant noticed a big change in A's behaviour after this, and while A has never told this complainant that she was abused by the applicant, the complainant suspected something untoward happened between the applicant and A. This complainant told her husband N that she was abused as a child but did not identify the abuser until Christmas 2000 and even then did not go into the details with him.
While Dr. Dempsey saw HC on one occasion, he did have arrangements to see her for a second interview, but she did not attend. This complainant appears to have been involved in a road traffic accident or accidents on dates unspecified, and subsequent to Dr. Dempsey's report on this complainant, he appears to have received a report referable thereto and thought he might have pursued it for the sake of completeness (T: p.20/29).
Dr. Dempsey's conclusions (despite not meeting this complainant a second time, and being cross-examined) that this complainant's account of the alleged abuse is consistent with the accounts of abuse reported in the literature, was not displaced. More importantly his evidence as recorded in the final paragraph of his report on this complainant was not displaced in the course of cross-examination, either in relation to her 'contemplated overdose', her suicidal ideation (T: p.66; Q.252; 1.27-29), or her attendance for counselling. HC attended two counsellors, one of whom Dr. Dempsey noted she attended for a short period but whom she did not like (T: p.47/48; Q.153-159), and another who kept no notes, i.e. Ann Ahern. Having considered all the evidence and observed Dr. Dempsey's concerned demeanour in the witness box, I see no good reason to discount the conclusions in his report on HC as less than reliable. He concludes his report thus: "I am aware that there are some inconsistencies between the information Ms. C gave to me on interview and her statement to the Gardaí, and it is my view that these inconsistencies reflect to some extent her shame that the abuse continued for so long.
The alleged abuse took place in the context of her father's dominance of her. She feared him right through her childhood and indeed reports that she still fears him today. She believed that her father was associated with the IRA and that he would get them to harm her if she did not comply with his demands. Such dominance could have been a factor in inhibiting her from reporting the alleged abuse to the Gardaí until relatively recently.
Another factor was in my opinion her reports of her own coping difficulties over the years and the expectation that reporting the matter to the Gardaí would add to her own distress. A further factor that inhibited her from informing the Gardaí until relatively recently was her concern about the effects such disclosure might have on her mother. Her mother had found it difficult to cope with the initial disclosure to her and it is quite understandable that Ms. C might feel concerned about the effect of disclosure to the Gardaí which might have affected her.
Additionally, in my opinion, a further factor that inhibited her from complaining to the Gardaí would be that it was making public a family secret and the fear of the possible shame on the whole family that such disclosure might result in." (See also T: p.56; Q.201)
Further:
"However, such concerns were finally overcome by her fears that her niece might have been abused and her concerns over her own daughter's safety."
I am satisfied and find as a fact that the delay in the making of a complaint by this complainant was reasonable and explicable given her life experience and that she was psychologically inhibited as a result of the conduct of abuse to which she was subjected by the applicant from making the complaint at an earlier time. The incident with A was the factor that precipitated the actual complaint.
3. ED
This complainant was born on 20 February 1968 and comes second in age in her family. She avers that between the ages of 8 and 17 years of age she was the victim of repeated sexual assault and rape by the applicant. She avers that as long as she can remember the applicant was always violent and she was regularly beaten by him. Her evidence is that while the abuse was going on, she used to faint when she felt something was going to happen with the applicant, and that if she fainted, nothing would happen to her. Her uncontested evidence is that she thinks these faints were brought on by fear of the applicant. Over the period of between age 9 and 16 years, she attended Hospital. She was diagnosed as epileptic and prescribed medication which she never took. She believes that this was a false diagnosis and she never has had an epileptic fit in her life. She unequivocally swears that the fainting stopped at the same time that the abuse stopped.
In the cross-examination of Dr. Dempsey this question of epilepsy was pursued. The doctor's evidence was that hysterical epilepsy is as real as epilepsy having an organic cause. His view was that hysterical epilepsy would be as a result of emotional dysfunction or it could have an emotional cause (T: p.8; Q.21; 1.16-20). Dr. Dempsey was most careful to point out that he was not a medical doctor, but when pressed in cross-examination, he did say that hysterical epilepsy could be indicative of severe emotional distress in childhood. He accepted that because medical opinion had diagnosed this complainant as epileptic, that he had to accept that she was diagnosed medically as suffering from epilepsy. Dr. Dempsey considered that all the issues a complainant speaks about need to be taken into account to make their complaint understandable and the fact that one item, i.e. the subjective belief of ED that she did not believe that she was epileptic did not negative her complaints. I did not find the enquiries (p.59-64; Q.223-240) in this regard of much assistance on the issues I have to determine.
About the time of her 17th birthday this complainant began keeping the company of one OD. About a month later she became aware that she was pregnant by one JE. She gave birth to her daughter A in 1985. When A was two months old, the applicant expelled her and her infant out of the parents' home. She then went to live with the D's. She married OD in 1987 and went to live at her current address. In 1988 she gave birth to a second child, O. In 1991/1992 her marriage to OD broke up and she obtained a barring order against him (T: p.31; Q.92; 1.4-7). She is now legally separated from her husband and living with one JH since 1997 by whom she has one son S who was aged 3 on 7/02/2001, the date this applicant made a statement to the Gardaí.
Reference has already been made in this judgment to the visit of M and H to their sister E in 1993. E did not verbalise her position, but both other sisters surmised by her response that she had been abused, but as she would not talk about it, they left her house. The interval of three to four years from then to 1996 to about 1997 she spoke to no one about the abuse, but in 1996/1997 when giving her daughter some education in sexual matters, she told her daughter that she herself had been sexually abused by the applicant.
This complainant's directly uncontradicted evidence that the next time the abuse was mentioned was on 20 December 2000. She reports the events of that night in paragraph 8 of her affidavit including the statement that A had told her mother, ED, that the applicant had abused her. Shortly afterwards E confronted the applicant about this abuse and he denied it. This complainant avers that she has grave suspicions that something untoward has gone on between the applicant and A because of the sudden drastic change in her behaviour. The deponent was aware that A was in the company of the applicant when BJ was attending a clinic. As of February 2001 A was attending a school in Dublin for troubled children. Part of the curriculum there is counselling sessions. When Student Garda Fiona Ruth attended on A on 8 August 2001, A said she did not want to speak about her concerns and would neither confirm nor deny that she had suffered abuse from her grandfather.
This complainant records events in and around Christmas 2000 when she went to her parents' home in this way:
"I told my father that A had told me that he had abused her. He denied this. I said I could not believe him after what he had done to me. I told him that he hasn't heard the last of it and that if I found out he had touched A, I would kill him. Later, my parents called over to my house to discuss arrangements for the Christmas dinner. In the kitchen my father said to me 'if anything comes of this I'll kill you'. No one else was present when he said this to me. Early in 2001 my sisters met with my mother in my eldest sister's home. we decided to report my father to the Gardaí."
The reason for the delay in reporting the abuse to the Gardaí is recorded in paragraph 11 of this complainant's affidavit, thus:
"The reason I have only reported this abuse now is because of my concerns over my daughter A and her contact with the applicant. I had not spoken to anyone about this abuse other than my sisters, my mother, and A before I made the statement to Sergeant Murth Whelan in February 2001. I do not think I would ever have spoken about it if it was not for what had happened to my daughter Christmas 2000. The reason I never spoke about it was because I just wanted to close it off in my mind."
In his evidence and report Dr. Dempsey noted a number of reasons why this complainant delayed in reporting the abuse to the Gardaí.
? Fear of her father both as a child and adult.
? His threats not to report the abuse to anyone
(for example, her statement of 7 February 2001, pages 2, 3, 4).
? The dominance and control of the applicant over this complainant and the whole family.
? She thought she had protected A. When she discovered she had failed, her guilt motivated her to make a report.
? Her sense of concern for her mother who was unable to protect her children.
? She tried to take jobs away from home, 'to get away from it' and 'leave it behind'. Her repression and escapism did not work in the end. she did not know that the appropriate way to proceed was to re-report the allegations to the Gardaí.
? Over the years her attention was on coping with difficult situations in her own life.
? She had to cope with the trauma of being raped at 18 years of age.
? Married at 20 years to escape from home was like 'going from the frying pan into the fire'. Her attention was diverted in coping with violence in marriage.
? She did not want anyone to know of the abuse. Dr. Dempsey noted that the potential shame that such disclosure could bring to the alleged victim can act as a powerful disincentive to reporting abuse.
I am satisfied and find as a fact that the delay of this complainant in making a complaint has its origins in the brutal treatment she suffered from the applicant and is reasonable and explicable given her life experience and the real and present fear of her father, who charged her to tell no one, prevented her inhibited her psychologically from disclosure. Such inhibition was and is the result of the conduct of abuse to which she was subjected by the applicant.
I am satisfied and find as a fact that Dr. Dempsey was concerned to ascertain as to whether the facts disclosed to him by the complainants fitted in with what is known about the immediate and long-term effects of childhood abuse -- are the reasons for the delay psychological or are the reasons for the delay other matters? He said he would be mainly focusing on looking at psychological reasons for a delay (T: p.41/42; Q.127-128; 1.21-8).
While it is true that from time to time the daughters left home for short periods of time and tried with varying if indifferent success to set up families of their own, the preponderance of the time they were in or nearby to the home of their parents. The applicant did not make a statement to the Gardaí, but in a question and answer session at interview on
3 May 2001, he is recorded as saying:
"There's always some of them in the house." I am satisfied that at all or for most of the material times, the complainants, if not under the complete dominion of the applicant, could be fairly described as within the sphere of his influence and dominion. The proximity of their addresses is illustrative of this issue. The fact is of importance when taken in conjunction with the other inhibiting factors to which I have already referred.
There remains the question as to whether such violation of the constitutional right to a reasonably expeditious trial is of such a nature as to necessitate the prohibition of a trial at this stage. I am satisfied that this is not a case in which it has been demonstrated that the capacity of the applicant to defend himself at such a trial would be necessarily impaired by the delay that has occurred. In the interview notes I note that in the session held at 9:25 a.m., the following matters are noted:
Page 2
correction of E's statement regarding the
date of the hunger strikes.
Page 4
The omission in M's statement of her row at a
Slane pop concert with one JJ.
Page 4
The recollection of the upbringing of his daughters is not accepted. He says:
"as far as I'm concerned they had quite a normal upbringing."
In the session held at 2:50, the following is noted: Page 2
The statements of M and H are corrected
when the applicant recalls that the location of the confrontation was in K's pub.
In the session held at 4:30:
Page 10
In regard to the reference of the alleged beating of his daughters, the applicant says:
"If I ever hit one of them a few clatters it was on their mother's instructions."
While allowing that for the purpose of this part of the judgment the presumption of innocence is paramount, I am satisfied that notwithstanding the alleged complainant delay, the applicant has not averred to any specific prejudice. In Z-v-DPP [1994] ILRM 435 Finlay, C.J. at 481, notes:
"This Court in the recent case of D-v-DPP unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances, he could not obtain a fair trial."
And at p.499:
"The onus to establish a real risk of an unfair trial necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one, but the unfairness of trial must be an unavoidable unfairness of trial."
In Hogan-v-President of the Circuit Court [1994] IR 513 at 521 Finlay, C.J. held that:
"In any case where the prosecution authorities on the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and elapse of time before they.are in a position to do so cannot give an accused a right to prohibit a trial on the basis of the defeat of his constitutional right to an expeditious trial."
The right to an expeditious trial arises on charge. In the instance case, I am satisfied that there has been no breach of the applicant's right to an expeditious trial and that any question on or arising from the fact that the incidents complained of are some time in the past can be met by appropriate rulings and directions by the trial judge. In my judgment there is not a sound basis for prohibiting the trials either because of the suggestion that the applicant cannot and will not have a fair trial or the submission that the applicant is being denied an expeditious trial.
A subsidiary point was made in these proceedings that because the matter returned for trial on 27 February 2002 would not be listed before the Central Criminal Court until 17 November 2003, it would be unfair that an already delayed trial be further delayed by court process delay. Reliance was placed on the decision of Geoghegan, J. in P.P.-v-Director of Public Prosecutions [2001] IR 403. In my judgment the instant case is radically and clearly distinguishable from that case. No query is raised in the instant case of any prosecutorial delay. In P.P., Geoghegan, J. noted at p.409:
"The whole investigation appears to me to have been conducted in a lackadaisical and slovenly fashion."
In my judgment the applicant has not shown that there is a real likelihood that he would not receive a fair trial. Had the applicant chosen to proceed to trial instead of taking these proceedings, he would have had a trial over 15 months ago. The additional delay is of his own choice. In its recent decision in DO'R-v-DPP, the Supreme Court, unreported 30 July 2004, referring to delay has a very clear statement of the law in the judgment delivered by McGuinness, J. as follows:
"Delay will always cause some difficulty in a trial but in this case it does not appear that a serious risk due to the delay itself has been established. The memory of both parties seems to be good. All the incidents took place in private so that no independent witnesses could have been available at any time. It appears that the defence on which the applicant may rely is one of consent. If that is so, the core issue at any possible trial is likely to be the credibility of the parties themselves. Delay in itself therefore does not create a real and serious risk of an unfair trial."
I apply that reasoning to the instant case. I dismiss the application.
