IpsofactoJ.com: International Cases [2007] Part 11 Case 10 [SCIre]


SUPREME COURT OF IRELAND

Coram

H

- vs -

Director of Public Prosecutions

MURRAY CJ

DENHAM J

FENNELLY J

GEOGHEGAN J

HARDIMAN J

31 JULY 2006


Judgment

Murray CJ

(delivered the judgment of the court)

  1. In the context of the applicant's appeal the Court has considered the jurisprudence which has developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the complaint, and the preferment of charges against the accused.

  2. This appeal came on for hearing before a court of three judges when an issue arose as to the significance of the plurality of complaints in the context of the delay complained of in this case. The appeal was adjourned and further written submissions were directed to be filed. The appeal was relisted for hearing on 9th February, 2006, and recommenced before a court of five judges. However, after further legal argument the appeal was relisted for the purpose of full submissions on the developing jurisprudence relating to the restraint of trials for sexual offences against children by reason of the passage of time. This judgment considers the jurisprudence which has developed and makes determinations as to the relevant principles of law to be applied in such cases.

  3. This is an appeal by H., the applicant / appellant, hereinafter referred to as ‘the applicant’, from the order of the High Court (Ó Caoimh J.) dated 7th July, 2004, which refused his application for an injunction restraining the Director of Public Prosecutions, hereinafter referred to as ‘the respondent’, from taking any further steps in a number of prosecutions against him for sexual offences alleged to have been committed by him on four persons (then minors) in the mid 1960’s. The applicant submitted that arising from the lapse of time between the dates of the alleged offences and the date of his proposed trial that there is a real or substantial risk of an unfair trial.

  4. There are two sets of criminal proceedings currently before the Circuit Criminal Court. There is a prosecution of the applicant pending on 48 separate charges of indecent assault, contrary to s. 62 of the Offences Against the Person Act, 1861. Twenty of these charges of indecent assault relate to J.M., as set out on Swords charge sheets 49, 84, and 86-103 (inclusive) of 2001. Twenty charges of indecent assault relate to S.F., as set out on Swords charge sheets 50, 67-83 (inclusive), and 86 and 104 of 2003. Eight charges of indecent assault relate to E.B., as set out on eight separate Coolock charge sheets, the numbers of which are indecipherable. There is also a prosecution of the applicant pending on two separate charges of indecent assault contrary to s. 62 of the Offences Against the Person Act, 1861, on Coolock charge sheets 42504 and 42502. Each alleges an indecent assault upon L.W.

  5. By two orders of the High Court made on 11th March, 2002, and 29th July, 2002 the applicant was given leave to apply by way of judicial review for injunctions restraining prosecution of him on the fifty charges of indecent assault alleged to have been committed on the four complainants, all of whom allege that they were abused by him when they were in his care when he was a teacher at a school in Dublin. The complainants were schoolboys, and the abuse is alleged to have taken place when the complainants were between 7 and 10 years of age.

  6. The High Court held that no formal complaint was made before May, 1999. In May, 1999 J.M. called to Raheny Garda Station to discuss the sexual abuse alleged. J.M. made a formal complaint on 10th March, 2000. In the case of S.F. the complaint was on 23rd March, 2000; in the case of E.B. the complaint was on 21st February, 2001, and in the case of L.W. the complaint was on 30th August, 2001.

  7. In accordance with the jurisprudence as it has evolved evidence was brought before the High Court by the respondent describing the alleged sexual abuse of the children and explaining why complaints had not been made earlier. The four complainants swore affidavits in the proceedings and three of them were cross- examined on their affidavits. Each described the sexual abuse alleged against him and explained why he had not made a complaint at an earlier date.

    L.W.

  8. L.W. swore an affidavit in these proceedings setting out the abuse alleged and the reason why the complaint was not made earlier. L.W. was born on the 22nd January, 1959. It is alleged that the applicant assaulted L.W. on a date unknown between 1st July, 1966, and the 30th June, 1967, and once on a date unknown between the 1st July, 1967, and 30th June, 1968. L.W. first contacted An Garda Síochána when he heard of the existence of the other complaints in July, 2001. L.W. made a formal complaint on the 30th August, 2001. The applicant was interviewed for the first time in connection with these charges on the 8th November, 2001. The applicant was charged with these offences on the 18th February, 2002. L.W. was not cross-examined.

    J.M.

  9. J.M. swore an affidavit in these proceedings setting out the abuse alleged and the reason why a complaint was not made earlier and he was cross-examined. He set out a full history of the events he alleges and how he told others of the events. J.M. was born on 13th April, 1959, and in 1967 he was in second class. At that time the applicant taught second and third class. J.M. described his memories of the applicant including sexual assaults on himself and other members of his class. He gave explicit details of the abuse alleged, and referred to his statements to the Gardaí which set out alleged abuse in even greater detail. One particular incident deposed to in the affidavit describes a visit to a garda station. He stated:

    4.

    The applicant would give boys whom he had assaulted the job of collecting the Black Babies money from other pupils in the school, as a reward for which one was given money. On one occasion I was kneeling down to put this money into one of the drawers at his desk in the classroom. We were alone in the room at the time and the classroom door was locked. He pushed back his seat and placed his hand on my hand, pulling my face towards his lap. His erect penis was out of his trousers and he pulled my face towards it. I jerked my head away and knocked my mouth on a section of his desk. I damaged one of my teeth and cut my top lip, causing it to bleed. The applicant offered me a lift home in his car, a white Mini with venetian blinds fixed inside the rear window. I thought he would drive me home, but he brought me to a house at .... Avenue. As he drove the car he was laughing and he touched my lap and penis with his free hand. He introduced me as ‘John’ to his father. He brought me into the kitchen and checked my tooth and lip. He kissed me on the cheek and lips. He began to brush my hair, gave me a 10/- note and said that everything would be alright. He then brought me back towards my parent’s house in his car, dropping me off nearby.

    5.

    When I arrived home my mother was very angry out of worry for me. She saw my lip and demanded to know how it had occurred. I told her what the applicant had done to me and how I got the busted lip as a result of trying to not have oral sex with him. My mother did not believe me. When I eventually persuaded her that I was telling the truth, she brought me around to a Garda Terry Gallagher whom she knew. My mother and I explained to him what had occurred. He told us to call up [to] Coolock Garda Station and to report the matter to the Gardaí on duty. My mother and I did as we were told and I recall my mother telling a uniformed Garda about the assault. My mother shouted at the Garda, who shouted back at her. Although I do not recall what was said [as] between them, a lot of shouting went on. At that time people did not believe that sexual assaults took place on children. When we returned home, my mother told my father, who was an alcoholic, about us having been up to Coolock Garda Station and having reported my teacher for having sexually assaulted me. My father went mad and beat me around the place. The complaint was not pursued thereafter.

    6.

    I never spoke with any one else about the abuse either during my period as a pupil at .... School or for many years thereafter. For years I thought about confronting the applicant but could never summon up the courage to do so. The entire matter had left me unable to recount what had happened to others. I passed by the front of the house in .... Avenue on numerous occasions but could no[t] bring myself to go in and challenge him. Approximately ten or eleven years ago, [I] watched a black man from I think Donegal in his forties speaking on the Late Late Show on RTÉ 1 about the abuse that he had suffered at school and how he had dealt with it throughout his life. I was very impressed with his courage and the fact that he felt better as a result of his disclosures. I felt that if I tackled my fear of and anger with the applicant head on I would put an end to this fear and anger and regain my dignity and manhood.

    7.

    In or about early summer 1998, before the school would have closed for the summer, I telephoned .... School and asked to speak with the Principal. I told him that I was a past pupil and inquired about the applicant’s whereabouts. He said he would look into the matter and return my call. About twenty minutes later he did as he had promised. He told me he had no information about the applicant and that a fire at the school had destroyed all relevant records. I then tried to trace the applicant through the telephone directory. I rang all the entries under .... I telephoned a number for .... A female answered, who I presumed was his sister. I introduced myself, saying that I was organising a past pupils’ reunion. The woman was quite nasty and hung up. I then visited the applicant’s house at .... Avenue, where I met his father. I introduced myself in the same fashion as I had done so on the first occasion. Mr. H. told me that his son was working as a teacher in .... School. I left my name and telephone number .... When I returned home I received a telephone call from the applicant. He asked me to call down to .... Avenue on the following day after school at about 2.45 p.m. I did not tell him of my intention to confront him.

    8.

    After a sleepless night, I walked over to .... Avenue on the following afternoon, arriving at 2.35 p.m. I was invited in by Mr. H., and sat in the livingroom speaking with him and his wife, the applicant’s mother. After a while the applicant arrived in with another middle aged gentleman dressed in a dark suit carrying a briefcase. This man did not say a word. I felt that he was a solicitor. The applicant shook my hand and I asked straight away whether his parents should be present. Mr. H. then wanted to know what was happening. I asked the applicant did he remember me, to which he [re]plied in the affirmative. He sat down beside me and I asked him why did he fuck my life up. His mother became upset. I asked the applicant if he would prefer that his parents were not present and that the Gardaí were called. The applicant replied ‘what are you talking about?’ I then called out the names of J.R., P.C., N.O’R., and W.B. He said that Mr. C. and he were the best of friends and repeated his question. I left the house in a very angry state. I had walked about twenty yards down the road when I suddenly realised that I had received no answers nor had made any progress. I felt afraid even though no threats had been made against me.

    9.

    The following morning I telephoned the Department of Education and complained of the abuse I had suffered at the applicant’s hands. One of the persons I spoke with told me that the applicant would be suspended pending investigation, but I felt that nothing would come of it. I then telephoned the Principal of .... School. I complained to him of the abuse that I had suffered. He dismissed my complaints as those of a disaffected student. I contacted this man on another occasion, possibly within a week, and pleaded with him to listen to me. I outlined the abuse that had been perpetrated upon my fellow pupils and I. The Principal listened to what I had had to say on that occasion and we spoke for about three-quarters of an hour. At the end of our conversation he assured me that the applicant would be suspended there and then and an investigation carried out. His attitude was so different to that manifested by him on the first occasion we had spoken that I formed the impression that he had made his own inquiries and had turned up information tending to incriminate the applicant.

    10.

    On May 13th 1999 I called to Raheny Garda Station to discuss the sexual abuse I had suffered and other domestic difficulties I was experiencing at that time. I spoke with a Detective Sergeant Brian Sherry. I told him that I wanted the applicant investigated for sexually abusing boys but that I could not make a complaint until I had sorted out my marital problems. I told Detective Sergeant Sherry that I would make a complaint when I was ready to do so, but I did not follow up on that conversation.

    11.

    Some days before making my official statement as outlined above. I contacted Detective Garda McEnaney at Raheny Garda Station. I arranged to meet him at Clontarf Garda Station, where I discussed the abuse with him. I finally made a statement of complaint to Detective Garda McEnaney on 10th March 2000 as aforesaid.

  10. There was an extensive cross-examination of J.M. as to his complaint and his personal health.

  11. The applicant was detained for questioning on the 28th June, 2000. An investigation file was submitted by the investigating Garda on the 15th September, 2000. It was forwarded to the Director of Public Prosecutions on the 10th October, 2000 and a direction issued on the 17th January, 2001. The applicant was arrested and charged on the 22nd January, 2001. Further charges were preferred on the 30th January, 2001.

    S.F.

  12. S.F. swore an affidavit setting out the sexual abuse alleged and the reason why a complaint was not made earlier. In his affidavit he deposed:

    2.

    I was born on August 3rd 1959 .... In 1966 I went to .... School .... Between 1967 and 1969 H the applicant herein, was assigned to teach our class of about 35 to 40 boys.

    3.

    I recall the applicant as having the appearance of being sweet and kind. In fact, throughout the two years that he was my teacher he regularly sexually abused me. This used to occur in the following fashion. The applicant would sit at a big teacher’s desk at the top of the class. He would tell me to stand beside him and have me read a book to the class aloud. The lower part of my body would be concealed from the rest of the class by the desk. The applicant would put his hand inside my trousers and underpants and pull at my penis. He proceeded to masturbate me. I was aware that this was very unusual behaviour. I did nothing about it because I was frightened and did not know what to do. I would keep on reading the book. I remember that the applicant used to enjoy what he was doing, although I certainly did not. These assaults would take place every few days. I felt terrible about what the applicant was doing to me and thought I was the only person receiving this attention from him. I was too frightened to report it and felt that I would be disbelieved if I told my parents or other teachers about it. As a result I used to avoid going to school when at all possible which had very negative consequences upon my performance.

    4.

    For greater particularity as concerns the abuse and the circumstances that I found myself in at that time, I beg to refer to copies of statement(s) that I made to Garda Dave Nolan, on 23rd March 2000 ....

    5.

    As I grew older I coped with the abuse by simply not thinking about it. I felt very ashamed about the entire matter and thought I would not be believed if I was to have reported it. I never mentioned it to family members or friends or sought any professional help to cope with its effects. The first person I told about the abuse was A.C., who was then my girlfriend, in about 1997. We were speaking with each other about our school days. When I disclosed the abuse to her she was amazed and asked me had I disclosed it to anyone else. I told her that she was the first person I had informed about it.

    6.

    In July / August 2001 when I was informed by An Garda Síochána that a complaint of sexual abuse had been made against the applicant by former pupils of .... school, I denied that I had suffered any abuse. I did so because I felt I was unable to complain of my experiences at the applicant’s hands. I then telephoned my sister and told her about my experiences for the very first time. I asked her for her advice and she told me to tell the Gardaí in order to save other children. This advice enabled me to overcome my reluctance to speak about the abuse. Approximately one week before making my official statement, I approached An Garda Síochána at Swords concerning the abuse. On 23rd March 2000 as aforesaid I made the statements exhibited at paragraph 4 of this affidavit ....

  13. As a consequence of the applicant’s proceedings S.F. attended a counselling psychologist whose report was available in the High Court. S.F. requested the Court to refuse the relief sought. S.F. was cross-examined on his affidavit and in cross-examination S.F. was queried as to the reasons why the complaint was not made earlier, the steps he took toward making the complaint, and his health.

  14. The applicant was detained for questioning on the 28th June, 2000. An investigation file was submitted by the investigating Garda on the 15th September, 2000. It was forwarded to the Director of Public Prosecutions on the 10th October, 2000, and a direction issued on the 17th January, 2001. The applicant was arrested and charged on the 22nd January, 2001. Further charges were preferred on the 30th January, 2001

    E.B.

  15. E.B. swore an affidavit in these proceedings setting out the sexual abuse alleged and the reasons why a complaint was not made earlier. He deposed:

    2.

    .... Between 1967 and 1969 H the applicant herein, was assigned to teach our class of about 40 boys ....

    3.

    I clearly recall the applicant. He used to wear fancy clothing and drove what would then have been [known] as flashy cars. Throughout the two-year period during which the applicant was my teacher, he sexually abused me about once a month. The abuse took place in a seat located at the back of the classroom. We were taught in a prefabricated classroom situated beside the main school building. The applicant would sit me down beside him. I was wearing shorts, as were the rest of the class. The applicant would put his hand on my thigh and move it up to touch and pull at my penis. This would go on for about five to ten minutes. I didn’t understand why he was doing this, but I was very frightened and said nothing about it. Whilst this was going on, the applicant would instruct the rest of the class to keep their heads down doing exercises. I also recall the applicant abusing other pupils in a similar fashion. I also clearly recall another occasion on which the applicant abused me in the school hall. For greater particularity, I beg to refer to copies of statements that I made to Garda Dave Nolan and Garda Ciaran McEneaney ....

    4.

    I felt terrible about what the applicant was doing to me. I was too frightened to report it. I felt that if I had told my parents I would have been disbelieved and given a hiding. For this reason it did not even occur to me to report the matter to the school authorities.

    5.

    The applicant’s activities made me hate school and I avoided attending class whenever possible. I lost any trust I had in teachers, which had a very negative impact upon my performance in school. Although as I grew older I tried to cope with the abuse by putting it to the back of my mind. I never forgot what had happened to me. As I grew older I felt that I was unable to speak about this abuse to anyone, as a result of feelings of shame and guilt. I never mentioned it to family members or friends or sought professional help to deal with its effects. The abuse also continues to have severe effects upon my personal life.

    6.

    In May or June of 2001 I became aware through conversations with former pupils of .... School that a complaint had been made against the applicant by other former pupils of .... School. When I was informed that the applicant was still teaching, I felt that other children needed protection from him. This factor enabled me to overcome my reluctance to speak about the abuse. In July 2001 I approached An Garda Síochána at Raheny concerning the abuse. This was the first occasion on which I disclosed the fact of the abuse to another person. On 21st February 2001 I made the statements exhibited at paragraph 3 of this affidavit.

  16. As a consequence of these proceedings E.B. attended a counselling psychologist whose report was before the Court. The complainant requested the Court to refuse the relief sought. E.B. was cross-examined also. His evidence as to why he did not make a complaint earlier included the following, on 1st July, 2004, Day 2, commencing at question 211:

    Q

    Why did you decide not to make a complaint some time earlier?

    A

    In those days I don't think this type of thing was ever heard of, so I didn't know the procedure, I didn't know what to do.

    Q

    When you say 'those days', you are talking about the 60's and 70's, are you?

    A

    I am talking about the last thirty years. In 1960, I could not tell my parents because my parents would have killed me, they would not believe me.

    Q

    They would not have believed you even if you brought in three or four of your school mates and said 'this is what [is] happening to us, too, and we want something [done] about it'?

    A

    In those days, no.

  17. The applicant was detained for questioning in respect of this complaint on the 31st May, 2001. An investigation file was despatched from Swords Garda Station to the Director of Public Prosecutions on the 16th July, 2001. On the 1st November, 2001, the respondent directed that the applicant be charged. The applicant was charged with these offences on the 12th December, 2001.

  18. Dr. Melissa Darmody prepared a report for the Court, as did psychologist Ann Loughlin, they had seen the complainants at the request of the respondent. Further affidavits were sworn by Dr. Harry Ferguson, and he was cross-examined on his reports and affidavits. Dr. Ferguson is a professional social worker, who was contracted by the Office of the Chief State Solicitor. The learned trial judge, referring to his evidence, stated:

    [Dr. Ferguson] indicates from his research the fact that from the 1930s until the 1980s child sexual abuse was not reported. There appeared to be no recorded prosecutions for the same. He has relied essentially on records of the Irish Society for the Prevention of Cruelty to Children, formally the Dublin Society of the Prevention of Cruelty to Children.

    THE HIGH COURT

  19. Having been charged with these offences the applicant sought an order injuncting the trials which on the 7th July, 2004, the High Court refused. In his judgment refusing to grant orders injuncting the trial Ó Caoimh J. stated that by two orders of the High Court (on the 11th March, 2002, and 29th July, 2002,) the applicant was given leave to apply by way of judicial review for injunctions restraining further prosecution of him of fifty charges of indecent assault alleged to have been committed against four complainants all of whom alleged that they were abused by him when they were in his care and under his dominion in circumstances where he was a teacher at a school in Dublin and in circumstances where the abuse is alleged to have taken place when the complainants were of tender years being between seven and ten years of age. The High Court recorded that the four complainants had sworn affidavits and that three of them were cross-examined on their affidavits before the High Court. L.W. was not cross-examined but in his affidavit he detailed the abuse perpetrated upon him on two occasions and the fact that he witnessed others being abused in the classroom.

  20. On the reasons for the delay in making the complaints the learned High Court Judge held:

    In light of the evidence in this case, and having heard three of the complaints, and the fourth not having been cross-examined, insofar as they deal with the issue of delay I am prepared to accept their evidence and I believe that each of them has explained in a cogent manner the circumstances giving rise to their delay, and that their evidence has been supplemented by the testimony of the two psychologists who have been cross-examined on their evidence before this court.

    In light of their evidence I believe that I must conclude that the delay complained of is one which is referable to the applicant's own conduct, having regard to the test propounded by Keane J. on p. 68 of the report in the P.C. case.

    PROSECUTORIAL DELAY

  21. The issue of prosecutorial delay arose because it was submitted that J.M.’s mother had made a complaint when he was 8 years old. In addressing this issue the High Court referred to the report of Dr. Ferguson stating:

    He has presented a very lengthy report to the court and was cross-examined on his affidavit and the report. It appears that his report and research was based entirely on the records referred to, of the ISPCC and the DSPCC, going back possibly 100 years. While he has not checked records in the possession of the Attorney-General or the Director of Public Prosecutions, I accept that the picture, illustrated by reference to the records examined, demonstrate the absence of reporting of child sexual abuse in the past, in the absence of the prosecution's suggestible situation where complaints were not made to the Gardaí. Whether complaints could be made to the Gardaí may be described as something of a moot point, but in the circumstances of this case it appears that whatever approach was made by J.M.’s mother to the Gardaí it did not result in the taking down of a written statement from her, or the making of any formal complaint leading to any criminal investigation.

    While the evidence before this court suggests that the name given of the Garda to whom the alleged abuse was notified may be incorrect and that no person of that name served in the Force, I believe that it is clear that nothing considered to have been a formal complaint was made or, if made, was not treated as such. The evidence of shouting in the Garda station suggests that the Gardaí did not receive any formal complaint at the time and no record exists to show such to have been made or any action having been taken by the Gardaí on the foot of any such complaint.

    The applicant's case is ground upon allegations of general delay and prosecutorial delay. The allegation of prosecutorial delay related to the alleged failure to deal with the complaint made to the Gardaí by J.M.’s mother when he was eight years of age. I am satisfied that no case has been established to amount to prosecutorial delay, as no complaint in the normal understanding of that term leading to a criminal investigation was made or entertained at the time.

    PREJUDICE

  22. The learned trial judge then proceeded to say that the remaining issue was as to whether the circumstances relied upon by the applicant amounted to prejudice such that notwithstanding the passage of time and explanation for it the Court should restrain the further prosecution of the applicant.

  23. The learned trial judge held:

    The issue then remains as to whether the prejudice relied upon by the applicant, or the circumstances relied upon as to [sic]amount to prejudice or such that notwithstanding the passage of time and the explanation for it that this court should restrain the further prosecution of the applicant.

    I have considered the evidence put before this court. The circumstances of people connected in some way with the events having died is not unusual and this has arisen in a number of cases addressed by the superior courts, but I believe that in the instant case the situation canvassed in relation to the death of witnesses is somewhat remote. The events in question are alleged to have taken place not in the presence of any adult but in the circumstances in the classroom where only other pupils were present. Furthermore, the court notes the fact that the evidence proposed to be tendered in the trial includes evidence of other persons who are not complainants in the proceedings but apparently can give evidence in relation to what was the position in the school. There may indeed have been physical changes in the school and the removal of prefabricated classrooms, but I believe that that circumstance of itself, or even taken together with the other matters referred to, is not such as to amount to a situation where a fair trial cannot be had by the applicant.

    ....

    The complaints in this case, as has been indicated, relate to habitual sexual abuse, generally taking place in the classroom, although in the case of one of the complainants it seems to have related to simply two events. But it is not a situation of one isolated event. It is quite clear that the applicant was in a position of authority and dominion over the complainants. It is very clear that the effect of the alleged abuse has been of a very long-term nature.

    In all the circumstances of the case, having considered the matters advanced by counsel on behalf of the applicant, I do not believe, notwithstanding the length of the delay in this case, that it is such, or that the circumstances relating to the case are sufficient, that a fair trial cannot be had. In the circumstances, I believe that the applicant has failed to establish to the satisfaction of this court that there is a real or serious risk that a fair trial cannot be had in the circumstances. In those circumstances, I refuse to the applicant the relief which he seeks.

    GROUNDS OF APPEAL

  24. The applicant lodged a notice of appeal. The grounds of appeal filed on behalf of the applicant were that the learned trial judge erred in law and in fact:

    1. In holding that the prosecuting authority was not guilty of culpable delay in prosecuting the applicant in respect of the charges.

    2. In holding that the serious delay on the part of the complainants was explicable by reference to the nature of the crime itself, that is by reference to the applicant’s own action.

    3. In holding that the applicant’s ability to defend himself against the charges concerned has not been impaired to the extent that the trial should not be allowed to proceed.

    4. In holding that the applicant has not been deprived of his right to a trial with due expedition because of the delay between the commission of the alleged offences and the proposed trial of the applicant on the charges that have been preferred against him.

    5. In holding that the applicant has not been prejudiced by the delay in his being brought to trial on the charges that have been preferred against him.

    LAW

  25. This case was decided in the High Court on the jurisprudence which was developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged actions, the complaint and the prosecution. At the request of this Court, counsel made submissions, written and oral, on the relevant principles of law. The Court has taken this opportunity to consider the developing jurisprudence on the issue of delay in cases relating to the sexual abuse of children.

  26. The need for such a jurisprudence was signalled in G. v D.P.P. [1994] I.R. 374 where the special position of sexual offences with a child was noted by Finlay C.J. Referring to the delay which may occur in prosecuting such a case he stated at p. 380:

    The court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order.

  27. It became recognised that delay in cases relating to allegations of sexual abuse of children fell into a special category. Thus in Hogan v President of the Circuit Court [1994] 2 I.R. 513, a case of delay in a fraud case, Finlay C.J. stated at p. 521:

    .... cases consisting of charges by young children in regard to assaults on them at an early age which are not brought to the attention of the authorities by such children until very many years after they occurred involve wholly different considerations from those applicable to the present case.

  28. The development in the law reflected changes in society where issues of child sexual abuse were discussed widely and openly for the first time and prosecutions were brought in relation to events which occurred many years ago. Thus there were changes both in that the issues were coming to the fore in society generally and that prosecutions were being brought in the courts.

  29. The wave of prosecutions relating to child sexual abuse which arrived at the courts in the 1990s was a new phenomenon. In B. v Director of Public Prosecutions [1997] 3 I.R. 140 the issue of a trial in such circumstances was considered. The facts were that in May, 1992, B. was arrested in connection with offences alleging indecent assault and rape on three of his daughters between the years 1962 and 1974. In October, 1993, he was charged with the offences alleged. An indictment containing 69 counts was received by his solicitor in March, 1994. The complaints had not been made until after the death of B.'s wife in March, 1991. B. sought an order of prohibition restraining The Director of Public Prosecutions from prosecuting on the grounds, inter alia, that the lapse of time between the dates of the commission of the alleged offences and the date of a possible trial was so great as to give rise to the unavoidable and incurable presumption of prejudice against B; and of the very large number of offences alleged on the indictment. Denham J. (with whom Hamilton C.J., O'Flaherty J., Barrington J. and Keane J. (as he then was) agreed) held at p. 196 that:

    The test is whether there is a real risk that the applicant, by reason of the delay, would not obtain a fair trial, that the trial would be unfair as a consequence of the delay. The test must be applied in the light of the circumstances of the case and the law.

    The extant case-law on the constitutional right to reasonable expedition, as developed, applies in this case. However, in addition there must be analysis of new factors.

  30. It was in the analysis of new factors that a special category of law developed. Thus issues of relationship, dominion, and the question of whose delay it was, arose and were analysed. It was accepted that a delay of between twenty and thirty years was an inordinate delay but that it should be considered in light of the special factors of this new type of case. The delay was placed in the context of the facts of the case and considered as to whether it was a bar to the trial. It was held at p.203:

    There is no explicit prejudice of the applicant's defence proved. There has been a general plea of presumptive prejudice, i.e. a prejudice which, as the applicant submits, should be inferred, having regard to the length of time which has elapsed, even in the absence of specific prejudice based on evidence. It is self evident that a trial which takes place approximately thirty years after the commission of the alleged offence (in the case of the earliest one charged) must present problems, not merely for those conducting the defence of the accused, but also for the prosecution. There must be weighed in the balance, however, against that presumed prejudice, not merely the absence of proven specific prejudice, but also the extent to which the delay was due to the conduct of the accused.

  31. Thereafter the constitutional principle that a trial would be prohibited if there was a real or serious risk of an unfair trial was applied: D. v Director of Public Prosecutions [1994] 2 I.R. 465. However in tandem there grew a specific jurisprudence which addressed the reason for the delay. Initially the case law reflected the evidence before it - that of dominion of a child by an adult. However, this expanded as cases came before the courts raising other issues of relationships. Thus in P.C. v The Director of Public Prosecutions [1999] 2 IR 25 the High Court held that where a court was asked to prohibit the trial on grounds of excessive delay it could take into account the extent to which the applicant had contributed to delay in the reporting of the offence to the prosecution authorities. The factors to be taken into account included whether there was a close personal relationship between the applicant and the complainant which might prevent the making of a complaint, whether there was evidence of the complainant having a position of dominance such as might delay the making of the complaint. The Supreme Court held that the complainant's inability to make a formal complaint until 1995 (if the complaint was true) was a consequence of the alleged abuse and was therefore not the complainant's fault or delay. The fault for the delay lay with the alleged perpetrator of the crime and that he could not obtain a benefit from delay caused by his crime.

  32. In P.C. v The Director of Public Prosecutions Keane J. (as he then was) set out the steps to be taken by the court. The "other cases" referred to are those where child sexual abuse is alleged.

    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 an 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 determined 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. That is a necessary inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial.

  33. In P.O'C v The Director of Public Prosecutions [2000] 3 I.R. 87 it was held that in such delay cases the court should inquire as to the reasons for the delay and whether it was satisfied as a matter of probability that the failure of the victim to complain of the offending conduct was the result of the conduct itself. This inquiry conducted by the court necessarily involved an assumption by the court that the allegation of the victim was true. The court should then conduct a further inquiry as to whether the degree of prejudice to the defence was such as to give rise to a real and serious risk of an unfair trial.

  34. The jurisprudence continued, from the concept of dominance of a child to that of an inhibition of the complainant. Thus in L. v Judge Buttimer & D.P.P. [2004] 4 I.R. 494, Geoghegan J. held at p. 570:

    If there has been a long delay but no actual prejudice can be proved the court will not normally prevent in advance such a trial if it is established, that if the facts are true, the complainant was inhibited by the conduct of the accused from reporting the alleged crime earlier. There is obviously an immediate clash of interests here. On the one hand if that is in fact the case, it would be unjust that the accused should escape trial. It will normally be perfectly reasonable in those circumstances for the court to permit the trial to go ahead given that the trial judge will always be at large in ensuring that the accused is not subjected to an unfair trial. On the other hand nobody should ever have to undergo an unfair trial. But it may not be possible to form a judgment in advance as to whether a potential trial would be fair or unfair and if in those circumstances the court balancing the relevant considerations takes the view that it should not injunct in advance of the trial, it will then be for the trial judge to ensure as best he or she can that the trial is in fact fair.

  35. This jurisprudence on the reason for complainant delay developed from the initial examples of dominance of a complainant to the analysis of an inhibition. In D.D. v D.P.P. [2004] 3 I.R. 172 at pp. 181 – 182 Geoghegan J. held:

    Assuming that pre-complaint lapse of time is relevant and that as a corollary to that it becomes relevant as to whether the applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be held responsible if there has been the element of dominance. The authorities certainly show that that is a main ground but it is not the only ground. By the same token however, I am equally satisfied that the authorities do not in any way go so far as to excuse lapse of time or delay merely because the complainant had a good reason for not complaining earlier. For the reason to be relevant it must arise from an inhibition of some sort on the part of the complainant preventing him or her from complaining where such inhibition arises directly from the offence.

  36. Such an inhibition was also considered where there was a significant age difference between the applicant and the complainants. The courts recognised this as a factor to be considered. As Keane J. (as he then was) stated in P.C. v D.P.P. [1999] 2 IR 25 at p. 67, referring to B. v D.P.P. [1997] 3 I.R. 140:

    There are cases, however, of which this is one, where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases there may be threats, actual or implied, of punishment if the alleged offences are reported.

  37. Thus, the courts developed a jurisprudence to meet the growing number and knowledge of cases on child sexual abuse. This illustrates the strength of a common law system where the law may grow to meet the developing needs of the community it serves. This is a continuing process.

  38. In this case an affidavit was sworn by Professor Harry Ferguson an expert in the social history of child welfare. It is an interesting document on the development of public information on child sexual abuse. He touched upon the social position of the making a complaint in the middle part of the last century. He stated in his affidavit sworn on the 20th day of April, 2003:

    On or about the 17th December 2002 I was contacted by the Office of the Chief Prosecution Solicitor with a view to offering an expert opinion on the history of child sexual abuse and child protection in Ireland, with particular emphasis concerning the situation that pertained in the late 1960’s and the perceived legitimacy of any allegations of sexual abuse made by parents or children and response to them at that time. In the light of my expertise in this area and having read the relevant evidence of the victims of childhood abuse in this case, especially the evidence of J.M. whose mother tried to bring his abuse to the attention of An Garda Síochána in the late 1960’s, it is my opinion that it cannot be said the child sexual abuse had a sufficient public or official reality at that time such that would have made it possible for a victim to successfully initiate a complaint and/or bring a case against an alleged perpetrator. Any ‘disclosure’ of sexual abuse that occurred in decades prior to the late 1980’s and 1990’s cannot reasonably be defined or treated as a disclosure in the sense that that term is understood today, given the massive social pressure that existed which rendered the child’s statement illegitimate and a protective response unthinkable. I therefore conclude that, with respect to the evidence of J.M. especially, Mrs. M’s attempt to alert An Garda Síochána to the sexual abuse of her son by H. in 1968 cannot be regarded as constituting a complaint of sexual abuse in any meaningful sense and that it was only in 1999 that it can be said that a meaningful complaint of sexual abuse was made by him or on his behalf. In order to substantiate that opinion, I have drawn upon my own original research into the history of child abuse and protection and other scholarly work in this field.

  39. In this case, the learned High Court judge had the benefit of reading the affidavits of the complainants and of seeing and hearing the evidence of three of the complainants, and watching their demeanour. He concluded that:

    In light of the evidence in this case, and having heard three of the complainants, and the fourth not having been cross-examined, insofar as they deal with the issue of delay I am prepared to accept their evidence and I believe that each of them has explained in a cogent manner the circumstances giving rise to their delay, and that their evidence has been supplemented by the testimony of the two psychologists who have been cross-examined on their evidence before this court.

    In light of their evidence I believe that I must conclude that the delay complained of is one which is referable to the applicant's own conduct, having regard to the test propounded by Keane J. on page 68 of the report in the P.C. case.

  40. This determination by the learned trial judge is based on his findings of fact as to the reasons for the delay in making the complaints and the application of the law as it has been developed over the last decade.

  41. The views of Professor Ferguson above correlate with the experience of the Court. Moreover, the Court’s experience extends to a broader set of issues and it has found that there is a range of circumstances extending beyond dominion or psychological consequences flowing directly from the abuse which militate or inhibit victims from bringing complaints of sexual abuse to the notice of other persons, in particular those outside their family and even more particularly the Gardaí with a view to a possible trial.

  42. Over the last decade the courts have had extensive experience of cases where complaints are made of alleged sexual abuse which is stated to have taken place many, many years ago. It is an unfortunate truth that such cases are routinely part of the list in criminal courts today.

  43. At issue in each case is the constitutional right to a fair trial. The Court has found that in reality the core inquiry is not so much the reason for a delay in making a complaint by a complainant but rather whether the accused will receive a fair trial or whether there is a real or serious risk of an unfair trial. In practice this has invariably been the essential and ultimate question for the Court. In other words it is the consequences of delay rather than delay itself which has concerned the Court.

  44. The Court approaches such cases with knowledge incrementally assimilated over the last decade in some of which different views were expressed as to how these issues should be approached. In such cases when information was presented concerning the reasons for the delay it was invariably a preliminary point to the ultimate and critical issue as to whether the accused could obtain a fair trial. In all events, having regard to the Court’s knowledge and insight into these cases it considers that there is no longer a necessity to inquire into the reason for a delay in making a complaint. In all the circumstances now prevailing such a preliminary issue is no longer necessary.

  45. This particular case illustrates the extensive affidavits and oral evidence along with psychological and medical reports which have come before the Court for the purpose of explaining the reason for an elapse of time between the alleged offence and the making of a complaint. Yet, in the end, what concerns the Court is whether an accused will receive a fair trial or whether there is a real or serious risk of an unfair trial.

  46. These cases have come before the Court after a decision to prosecute has been made by the Director of Public Prosecutions. The Director is independent in the performance of his functions. The decision to prosecute may be a complex decision involving the balancing of many factors.

  47. Article 30 of the Constitution specifies that prosecutions for serious crimes “shall be prosecuted in the name of the People ....” This provision reflects the fact that the prosecution of serious crimes is vital to the public interest. The State can only initiate a prosecution when it is aware that a crime has been committed and there is sufficient evidence available to charge somebody with it. Once that happens the State has, in principle, a duty to prosecute. Although the bringing of a prosecution may undoubtedly be central to vindicating the rights or interests of a victim of a crime the interests of the People in bringing a prosecution is, in the interest of society as a whole, of wider importance. The fact that a person who was the victim of a serious crime had delayed in bringing the commission of that crime to the notice of the State authorities is not of itself a ground upon which the State should refuse to bring a prosecution or the courts to entertain one. In particular circumstances delay in reporting such a crime, because of its extent or in combination with other factual matters, may be considered to affect the credibility of a complainant. That could not in general be a ground for prohibiting a trial proceeding. It is a matter in the first instance for the prosecuting authorities in deciding whether there is evidence of sufficient weight to warrant a charge being preferred. It is also the duty of the Director of Public Prosecutions, in exercising his independent functions with regard to the bringing of a prosecution, to consider whether, in all the circumstances, a fair trial can be afforded to an accused. This is an onerous and strict duty since, as some of the decisions of this Court demonstrate, there are circumstances in which the bringing of a prosecution in respect of offences that are alleged to have happened very many years ago would be to visit a serious injustice on the person accused of them. Where a prosecution is in fact brought following a complaint made after a long lapse of time since the alleged offence any issue concerning the credibility of a complainant by reason of a lengthy delay is a matter to be considered at the trial should the defence raise such an issue. There is no reason why the prosecution of serious offences involving sexual abuse of minors should be treated differently from other serious offences in this regard.

    TEST

  48. The test to be applied by a court in such an application has been an evolving one. In B. v Director of Public Prosecutions [1997] 3 I.R. 140 the test was described as:

    The test is whether there is a real risk that the applicant, by reason of the delay, would not obtain a fair trial, that the trial would be unfair as a consequence of the delay. The test must be applied in light of the circumstances of the case and the law.

    The extant case law on the constitutional right to reasonable expedition, as developed, applies to this case. However, in addition there must be analysis of new factors.

  49. The 'new factors' referred to became issues such as dominion, inhibition, disparity between the ages of the accused and the complaint, etc. In view of the knowledge and experience gained over the past decade these 'new factors' are now well recognised. A very considerable volume of evidence has been given and case law made explaining circumstances and reasons for delay in making complaints by victims of child sexual abuse.

  50. As Murray J. (as he then was) stated in P.O’C v D.P.P. [2000] 3 I.R. 87 at p. 105:

    Expert evidence in a succession of cases which have come before this Court and the High Court has demonstrated that young or very young victims of sexual abuse are often very reluctant or find it impossible to come forward and disclose the abuse to others or in particular to complain to Gardaí until many years later (if at all). In fact this has been so clearly demonstrated in a succession of cases that the Court would probably be entitled to take judicial notice of the fact that this is an inherent element in the nature of such offences.

  51. The Court’s judicial knowledge of these issues has been further expanded in the period since that particular case. Consequently there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer 'new factors'.

  52. Therefore, the Court is satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the Court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court would thus restate the test as:

    The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case.

  53. Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the complainants’ complaints against an applicant no longer arises. The inquiry which should be made is whether the degree of prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon the circumstances of the case.

  54. There is no doubt that difficulties arise in defending a case many years after an event. However, the courts may not legislate, the courts may not take a policy decision that after a stated number of years an offence may not be prosecuted. Also, as the legislature has not itself established a statute of limitations that itself may be viewed as a policy of the representatives of the People. Thus each case falls to be considered on its own circumstances.

    DECISION ON PREJUDICE AND DELAY IN THIS CASE

  55. In this case the learned High Court judge held:

    In all the circumstances of the case, having considered the matters advanced by counsel on behalf of the applicant, I do not believe, notwithstanding the length of the delay in this case, that it is such, or that the circumstances relating to the case are sufficient, that a fair trial cannot be had. In the circumstances, I believe that the applicant has failed to establish to the satisfaction of this court that there is a real or serious risk that a fair trial cannot be had in the circumstances.

  56. The Court would affirm this decision.

    MULTIPLE COMPLAINTS

  57. The issue of the multiplicity of the complaints was also an aspect of the applicant’s case. It was submitted on behalf of the applicant that the multiplicity of complainants, and complaints, was significant in determining whether the relief should be granted.

  58. The courts have referred previously to instances where there was a single complainant or a single complaint in such a manner as to give the benefit to an accused because of the sole nature of the complaint. While it would always be a matter for consideration in all the circumstances of a case, the converse would also be a relevant factor on an application for judicial review. If there were multiple complaints that too may be a factor. The learned trial judge distinguished this case from a situation where there was an isolated event alleged. He stated:

    The complaints in this case, as had been indicated, relate to habitual sexual abuse, generally taking place in the classroom, although in the case of one of the complainants it seems to have related to simply two events. But it is not a situation of one isolated event. It is quite clear that the applicant was in a position of authority and dominion over the complainants. It is very clear that the effect of the alleged abuse has been of a very long-term nature.

  59. The Court is satisfied that in the same way as the fact that there is one complaint is a relevant factor, so too is the fact that there are a multiplicity of complaints a relevant factor for consideration by the court in determining whether to grant the relief sought.

    CONCLUSION

  60. In this case the developing jurisprudence as to delay in bringing a prosecution for offences of child sexual abuse was considered by the Court. The Court is satisfied that in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in making a complaint. The issue for a court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court does not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial.

  61. In this case the Court is satisfied, as the learned High Court Judge found, that the delay has not resulted in prejudice to the applicant so as to give rise to a real or serious risk of an unfair trial. Further, no wholly exceptional circumstances arise in this case whereby it would be unfair to put the applicant on trial. Consequently, the Court would affirm the order of the High Court and dismiss the appeal of the applicant.


Cases

G. v D.P.P. [1994] I.R. 374

Hogan v President of the Circuit Court [1994] 2 I.R. 513

D. v Director of Public Prosecutions [1994] 2 I.R. 465

P.C. v The Director of Public Prosecutions [1999] 2 IR 25

P.O'C v The Director of Public Prosecutions [2000] 3 I.R. 87

L. v Judge Buttimer and the D.P.P. [2004] 4 I.R. 494

D.D. v D.P.P. [2004] 3 I.R. 172

B. v Director of Public Prosecutions [1997] 3 I.R. 140


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