High Court of Ireland Decisions

1. On 21st August, 1995 the Applicant was arrested and questioned with regard to alleged sexual offences against the Complainant A.M. He was subsequently charged on five counts of indecent assault on dates unknown between 1st September, 1982 and

2. On 22nd May, 1996 the Applicant was granted leave by Laffoy J. to issue Judicial Review proceedings seeking an Order prohibiting the Respondent from further dealing with the prosecution of the Applicant on the various charges and an Order in the nature of an Injunction restraining the Respondent from taking any further steps in the criminal prosecution entitled The Director of Public Prosecutions -v- P.C. .

3. The grounds set out in the Applicant's Statement grounding his application for Judicial Review are as follows:-

4. A statement of opposition was filed by the Respondent on 13th December, 1996. The grounds of opposition inter alia are as follows;-

5. The remaining grounds of opposition were not in fact argued at the trial before me.

6. The Complainant A.M. was born on the 12th December, 1969 and lived in Carrickmacross with her parents. She was educated at first in a local national school and for her secondary education she attended the St. Louis Convent in Carrickmacross. She successfully passed her leaving Certificate in 1988. At that stage she proceeded to third level education in University College Dublin, where she obtained a B.A., an M.A. and subsequently a Higher Diploma in Education. At present she is employed as a teacher in a private school in Switzerland. As will be seen from this brief history of her educational career, she ceased to reside in Carrickmacross in or about the Autumn of 1988 and has not resided there since. In or about February 1995 she complained to the Gardai in Harcourt Street Garda Station that she had been sexually abused during the years 1982 to 1984 by the Applicant. She apparently felt unable to make a full statement at the time. On the suggestion of the Gardai she sought advice from the Rape Crisis Centre, who referred her for counselling Ms. Anne Fitzmaurice, Psychtotherapist. Ms. Fitzmaurice has sworn an Affidavit in these proceedings on which she was cross-examined by Counsel for the Applicant. On the

7. The Applicant is a coach operator who works locally in the Carrickmacross area. During the period when the Complainant was attending the St. Louis convent, the Applicant drove a number of girls from the school, including the Complainant, to the Monaghan Swimming Pool each Saturday, where they were learning to swim. It appears that from time to time he used to join the school girls in the pool and assist them in their swimming lessons, but not, of course, in a professional capacity.

8. At the time when the Complainant brought her complaints to the Gardai in Dublin in 1995 the Applicant was severely ill with stomach cancer, which at the time was believed to be terminal, a fact of which the Complainant was apparently aware. The Applicant appears to have recovered somewhat in health, although the Court had no detailed evidence before it as to his present state of health.

9. The Complainant's allegations of her sexual abuse by the Applicant are fully set out in her statements contained in the Book of Evidence and are verified and to some extent commented upon in her affidavit sworn in these proceedings. I am conscious of the problem which arises in cases such as the present where the Court gives a synopsis of the allegations made against the accused person. This was referred to by Budd J. in his comprehensive judgment in CB -v- D.P.P. (unreported 9th October, 1995) where he stated:

10. I am in complete agreement with the learned Budd J., and the position in the present case is rendered more problematic by the fact that a large number of the statements included in the Book of Evidence are hearsay of a type which could never be admissible at any trial of the Applicant on the counts with which he is charged. In surveying the factual background therefore I will endeavour to keep in mind Budd J.'s warning.

11. The Complainant in her statement says that she started attending St. Louis Convent in Carrickmacross in September 1982. On Saturdays she went swimming with other girls in Monaghan Swimming Pool. The girls were brought to Monaghan by the Applicant in his bus. At times he swam with them, holding them up in the water and helping them in their efforts to swim. He was a very friendly person. After a time the Applicant started to seek occasions where he would be alone with the Complainant either in the bus or in its vicinity and he began to touch the Complainant's body in an increasingly sexual manner both outside and inside her clothing. He praised the beauty of her body and said that she was the kind of girl who would not go and tell people about what was happening, unlike other girls. These episodes are set out in some detail by A.M. in her statement. They gradually increased in seriousness, and culminated in a number of episodes when the Applicant had full sexual intercourse with her. One of these episodes is described by her as taking place in the Applicant's family home when his wife was absent; another took place in the Complainant's own family home in the absence of her parents and another in the back of the Applicant's car. Shortly before her sixteen birthday, which was in December 1985, A.M. describes the Applicant as saying to her that "this would all be legal soon when I was sixteen" . This had a considerable effect on her as she apparently had been unaware that what the Applicant had been doing was illegal. All the episodes took place in an atmosphere of secrecy. The Complainant says that on occasions she lied to her parents saying that she was going to visit a school friend when in fact she had arranged to meet the Applicant; on other occasions she left the school premises without permission in order to meet him. There is no suggestion, however, that the Applicant threatened her with any dire consequences should she tell anyone what was happening.

12. According to the Complainant's statement once she became aware that what she and the Applicant had been doing was illegal she began to avoid getting into situations where she would meet the Applicant. She gave up swimming and gradually saw less and less of him. The relationship with him ended. She did not, however, inform her parents or anyone in authority at that stage.

13. About one year later, in or about 1986 to 1987, the Complainant had a boyfriend J.D. with whom she did not have sexual relations. She told J.D. about her sexual abuse by the Applicant and apparently spoke to him about it regularly but did not tell her parents.

14. In the early part of 1988, before A.M. sat her Leaving Certificate, she spent the night at the house of a school friend, J.J., whose father was a Garda Sergeant. Another school friend O.N. was also there. The three girls sat up late at night talking about sexual matters, and A.M. told her two friends that she had been sexually abused by the Applicant. They were greatly upset and subsequently informed their own parents, including Sergeant J. The following day the three girls did not attend their school classes and were found together by a teacher in another part of the school premises. Not unnaturally trouble ensued. A.M. says that in order to explain the situation she told her story of sexual abuse to her teacher

15. Ms. Coleman. Ms. Coleman was very supportive and offered to arrange counselling for A.M. A.M. recalls Ms. Coleman talking to her about the D.P.P. and asking her did she want to tell anybody about the situation. At her own request A.M. repeated her story to the school principal Sr. Noreen Murphy. This she did, she says, in order to prevent the school from using the Applicant's bus in the future on account of the possible danger to other young girls. Sr. Murphy did not feel that she was in a position openly to make accusations against the Applicant but she agreed gradually to discontinue use of his bus, which she apparently did.

16. Ms. Coleman and Sr. Murphy eventually persuaded A.M. to inform her parents of the sexual abuse and she did this shortly before her Leaving Certificate in 1988. They were naturally very upset but following the disclosure A.M. states that her parents were really not able to discuss matters with her as on any occasion when either her father or her mother brought the subject up she would get extremely upset. She refused to go to counselling and the matter was not really discussed. She decided that she wanted to get on with her life and put the whole thing behind her.

17. By this stage the Complainant's disclosures were quite widespread but no attempt was made by anyone to report the matter to the Garda Siochana. Even Sergeant Joyce , although a felony had been reported to him, took no action. In his somewhat laconic statement (which, though inadmissible, is contained in the Book of Evidence) he says that he became aware that A.M. had alleged that she was interfered with by the Applicant who was known to him. He told her that if she had any problems with him she should inform her parents immediately but he never heard another word about it until this investigation began.

18. The Complainant then sat her Leaving Certificate (with success) and in the Autumn of 1988 left Carrickmacross for her studies in University College Dublin. She says that she had decided to put the matter of the sexual abuse behind her; It was too late to do anything about it. The evidence of the counsellor Ms. Fitzmaurice was that A.M. had decided to complete her education and get a job and her own money and then to deal with the sexual abuse by going to the Gardai. Ms. Fitzmaurice makes the rather curious suggestion that A.M. delayed making a complaint until she had her own money because the case against the Applicant would be a financial burden on her parents. Given the general nature of the evidence of Ms. Fitzmaurice I am not at all certain whether it was A.M. or Ms. Fitzmaurice herself who held the erroneous belief that the costs of a prosecution by the State would fall on A.M.'s parents. At any rate A.M. makes no such suggestion in her own statements or affidavit.

19. In considering the question of delay in this case, therefore, there are two distinct periods of delay. The first period is between the mid-1980's when the alleged abuse was taking place and the summer of 1988 when A.M. told her story to her school friends (and indirectly to their parents), to the school teachers and to her parents. The second period is from the summer of 1988 to February/July 1995. Counsel for the Applicant, Mr. McEntee, relies most heavily on the second period of delay, when the Complainant had already informed persons in authority, when she was no longer residing in Carrickmacross, and when she was in no way under the dominance of the Applicant, with whom, on her own account she had had no relationship since late 1985 or early 1986.

20. Counsel for the Respondent, Mr. O'Caoimh, when dealing with the reasons for this delay, relies on the evidence of Mr. Alex Carroll, Senior Clinical Psychologist, employed by the Midland Health Board. Mr. Carroll in his affidavit sets out his views on the dynamics of child sexual abuse generally together with the reasons why the victims of child sexual abuse may fail to make a complaint for a long period of time. He goes on to exhibit a psychological report on A.M. the major part of which is headed "interview with A.M." . I shall refer to Mr. Carroll's affidavit evidence later in more detail.

21. An Affidavit was also sworn by Ms Anne Fitzmaurice who had counselled A.M. over a considerable period. Ms. Fitzmaurice sets out in her affidavit matters which had been told to her by A.M. and states that A.M. is at present in therapy and presents what she describes as "issues which are consistent with research done on victims of sexual abuse" .

22. Ms. Fitzmaurice was cross-examined on her affidavit by Counsel for the Applicant. Her replies to cross-examination reflected what are now widely accepted theories on the affect of child sexual abuse on victims in their later life, but she had great difficulty in elaborating with any degree of logic or scientific method what lay behind those concepts. she was vague about the nature of the organisation from which she had received her qualifications and also about the process whereby she treated those whom she counselled. While I have no difficulty in accepting that Ms. Fitzmaurice is a person of good will who is using her best endeavours to assist persons suffering the trauma undoubtedly caused to victims of sexual abuse, I had difficulty in accepting that she was sufficiently qualified to be an expert witness as to what lay behind A.M.'s delay in making her complaint to the Gardai in this particular case. In reply to cross-examination Ms. Fitzmaurice completely rejected any idea that her role might include any investigation or background research in regard to her clients other than personal interviews with the clients themselves. This is in complete contrast with the practice of psychiatrists and psychologists assessing children and families, for instance, in family law cases. In my experience such a system includes many interviews with other parties, visits to the children's homes and/or schools and the general building up of a balanced picture through collateral histories. I do not doubt that Ms. Fitzmaurice's therapy may well be of considerable assistance to the Complainant; I merely feel that her evidence is not of very great use to the Court in reaching a decision in the issues before it.

23. As I have said affidavit evidence was also provided by Mr. Carroll, Senior Clinical Psychologist. He was not cross-examined on his affidavit.

24. In the first part of his affidavit he set out in clear form the general situation where an adult is able to abuse a situation of dominance and power implicitly or directly to coerce a child into a sexual relationship. He states that it is not possible to over emphasise the significance of the exploitation and misuse of accepted primal relationships when assessing the impact of sexual abuse on a child, including the failure or otherwise of the child to disclose the fact of the abuse at the time it was taking place. He then sets forth a number of reasons why the victims of child sexual abuse may fail to make a complaint in relation thereto for a long period of time.

25. Mr. Carroll is a person with experience of providing evidence in this type of case. In his judgment in the case of D. O'R -v- D.P.P. (unreported 27th February, 1997), which is also a case of delay, the learned Kelly J. quotes at some length from an affidavit sworn by Mr. Carroll in that case (at pages 6 to 8 of the judgment). That affidavit is clearly extremely close both in content and in actual wording to Mr. Carroll's affidavit sworn in the instant case - although the factual circumstances of the two cases are, of course, very different. Some of the general statements made by Mr. Carroll in the first part of his affidavit are of only marginal relevance to the facts of the present case. However, I have no difficulty in accepting in general terms the position as regards the relationship between child sexual abuse victims and their abusers as set out by Mr. Carroll and I have no doubt that a position of dominance, where it exists, has a very real effect in preventing the victim from disclosing sexual abuse.

26. Mr. Carroll then exhibits his psychological report on A.M. which as I have said mainly consists of an account of what is stated to be an interview with A.M., which is of course the normal primary method of psychological or psychiatric assessment. However, in a subsequent affidavit sworn by A.M. herself, in which she corrects some factual inaccuracies in Mr. Carroll's affidavit, she states in regard to a particular inaccuracy:

27. At paragraph 3(C) of her affidavit she states:

28. I am somewhat concerned that Mr. Carroll did not himself state in his affidavit that he did not go through all the details of the Complainant's history with her himself and that he was relying on a statement which appears to have been provided to him by the Gardai or by the prosecution in advance of his interview with the Complainant. This does not strike me as the most desirable way of carrying out an in-depth psychological assessment in a matter of such crucial importance both to the Complainant and to the Accused. I conclude that I accept the general theory put forward in the first part of Mr. Carroll's affidavit while maintaining a degree of reservation in regard to his assessment of A.M. herself.

29. The question of delay in criminal trials where the accused is charged with sexual offences which are alleged to have been committed against young children has been considered in a number of cases in recent years, both in this Court and in the Supreme Court. These would include G. -v- D.P.P. [1994] 1 IR 374, O'C -v- Judge Smith and Another (unreported Barr J. 17th November, 1994), O'C -v- Judge Smith and Another (unreported Supreme Court O'Flaherty J. 24th January, 1997) and B.O'R -v- D.P.P. (unreported Kelly J. 27th February, 1997). In his comprehensive and thorough Judgment in C.B. -v- D.P.P . (unreported 9th October, 1995) the learned Budd J. surveyed the authorities both here and in other jurisdictions and there is no need for me to cover that ground again.

30. Counsel for the Applicant relied particularly on the Judgment of Keane J. in this Court in E.O'R. -v- D.P.P. and Judge Sheehy (unreported 21st December, 1995) in which the learned Judge after careful consideration of the authorities granted an Order of Prohibition on grounds of delay. In that case, as in the present case, the alleged abuser did not live in the same house as the victims - although he was in fact their uncle - and he considered that this "rendered the likelihood of dominion by the Applicant over them significantly less" (page 9 of the Judgment). He added that in addition :

31. Keane J.'s decision was overturned by the Supreme Court in a brief

32. The various decisions, most of them unreported, on the topic of delay in these cases have culminated in a decision of the Supreme Court in the case of B. -v- D.P.P. , which fortunately is now reported at [1997] 2 ILRM 118. In her Judgment in this case, with which a full Court concurred, Denham J. analysed the law on the right of an accused to a reasonably expeditious trial in the context of alleged offences of sexual abuse of young children in past years, dealing in particular with the concept of dominion or domination. It is unnecessary to quote extensively from the Judgment, almost all of which is relevant in considering the law and the facts in the instant case. However, a number of passages should be stressed.

33. The learned Judge points out that statute law places no limitation in time on the prosecution of the alleged offences. Any such statute of limitations is a matter for the Oireachtas. The Constitution places relevant parameters on a criminal trial in cases of unreasonable delay. Under the heading "reasonable expedition" she goes on to say:

34. Having listed a number of factors which should be included in determining the issues Denham J., under the heading "Community's Right" states (at page 127 of the Report):

35. She then goes on to acknowledge that delay in cases relating to allegations of sexual abuse of children and young people fall into a special category and to quote Finlay C.J. in G. -v- D.P.P . [1994] 1 IR 374. where he stated (at page 380):

36. In listing the matters relevant to B.'s case the learned Judge considered a list of seven factors which should be considered before a reaching a decision that the relief of prohibition should or should not be granted. Most of these factors are also relevant, or alleged to be relevant, to the present case and it would be helpful to consider them in relation to the facts in the present case as compared with the facts in B's case. The factors are as follows:

37. These are inter-personal relationships between the Accused and the Complainant. In B.'s case the relationship was that of father and daughters and is described as Denham J. as

38. In the present case the Accused has no such close relationship with the Complainant. He was simply the bus driver who took the school girls to the swimming pool and sometimes swam with them. As submitted by Counsel for the D.P.P., Mr. O'Caoimh, this is a relationship of some authority and trust between an adult and young girls but the degree of authority and of trust is not at all of the same importance or effect as that of a father/daughter relationship.

39. In B.'s case the trial Judge had found on the evidence that B had a violent, dominant and menacing personality, and during their childhood the complainants had been completely dominated by him and had been living in fear of him. His behaviour towards his wife was such that she obtained an indefinite barring order against him in 1982, but even after he had left the house his dominance was such that his daughters were unable to make their complaints until after the death of their mother in 1991. "This dominion, " states Denham J. at page 130,

40. These facts do not bear any relationship to the facts in the instant case. There is no suggestion that the Applicant is a person of general bad character or a menacing, dominant or evil person. If he were it is hard to image that the

41. St. Louis nuns would hire him to drive a party of school girls to their swimming. He had not the same opportunity to dominate the Complainant as would a father or other close relation. He did not live in the family home and there is no suggestion that he was a regular visitor there or a close friend of the Complainant's parents. The Complainant herself states that once she realised that what they were doing was illegal (in December 1985) she withdrew from her relationship with him and ceased to go to swimming lessons. This is not, in my view, evidence of the type of "dominion" which is dealt with in B.'s case, or indeed in the other cases to which I have been referred. In all of these the accused was closely related to the complainant or was at the least a close family friend.

42. I am aware that Mr. Carroll and Ms. Fitzmaurice in their affidavits describe a type of "kindly" domination, but I feel that their views contain an element of rationalisation by hindsight. This Court cannot accept that a situation of domination exists automatically in all cases where a person is accused of sexual offences. The presumption of innocence has to play a part in the Court's considerations and the Court must base its decision on the actual evidence before it.

43. As in B.'s case, there is no suggestion here of delay on the part of the State once the Complainant had made her statement to the Gardai in July 1995.

44. There are two periods of delay, firstly the period from 1985 to 1988, before A.M. told the school authorities and her parents. This is generally understandable and Counsel for the Applicant did not strongly suggest that this period of delay was unreasonable. However, in 1988 A.M. told her school friends, her teacher, her school principal and her parents. Sergeant Joyce was also informed of her complaint. Yet no action seems to have been taken either by herself or anyone else concerned. Apparently her parents tried to raise the matter with her on a number of occasions but without success. She left Carrickmacross and lived in Dublin where the Accused could not possibly have exercised any particular influence over her. She stated that she wanted to put it all behind her. She apparently told Ms. Fitzmaurice that she wanted to complete her education, get a job and have her own money before making a complaint to the Gardai. I am far from suggesting that these feelings would not be understandable or that one could not feel sympathy for them. Nevertheless they have to be looked at in the context of the effect such delay would have on the possibility of a fair trial for the Accused.

45. I cannot but conclude that the delay from 1988 onwards, however understandable, was the Complainant's own delay and to a lesser extent that of the persons to whom she made her complaint in 1988. There is no factual evidence that the delay from 1988 to 1995 was caused by the Accused. This is in stark contrast to the facts in B.'s case.

46. When sexual abuse is taking place in the home, Denham J. in B.'s case analyses the situation thus:

47. In this case the alleged sexual abuse did not take place in the home and the family dynamic militating against disclosure would not exist. This particular onus, therefore, does not lie so heavily on the Accused. the standard, however, is still the balance of probabilities.

48. In B.'s case and in other cases where the alleged abuse has taken place within the family or in the home, both this Court and the Supreme Court have held that in the nature of these cases alibi evidence is unlikely to be relevant. This is not necessarily so where specific incidences and occasions of abuse outside the home by a non-relative are alleged. Had the complaints been made at an early stage, or at least in 1988, one would have expected that a teenage girl would have been able to recall dates and times which would enable more specific charges to be brought. At that stage and in those circumstances the Accused might well have been able to seek alibi evidence, an opportunity which is clearly not available to him after a lapse of some twelve years since the last of the alleged offences.

49. Much the same applies here as in the case of alibi evidence. One would not suggest that actual episodes of sexual abuse would take place otherwise than in private. However, an early complaint which was more specific as to dates and times might well allow for witnesses as to the details of the trips to the Monaghan Swimming Pool, the general behaviour of the Accused with the other girls, the alleged absences from the school premises by the Complainant and other circumstantial matters. This was urged with considerable cogency by Counsel for the Applicant and must be weighed when considering possible prejudice to the Accused at his trial.

50. In B.'s case the Accused had made a partial admission of guilt to the Gardai. This is irrelevant in the instant case where the Accused has maintained his complete innocence of the charges at all times.

51. I have followed the Analysis so carefully laid out by the learned Denham J. and compared the facts in that case with the facts in the instant case at some length. I have done this in large part because I consider that there may be a danger that B. -v- D.P.P. and the unreported cases to which I have also been referred might be taken as authority for the proposition that in all cases where an accused is charged with sexual abuse of a child or young person which took place some years ago, any claimed prejudice on account of delay can be negatived by a claim that the Accused exercised "dominion" over the Complainant.

52. In years gone by, accusations of rape or any kind of sexual assault were treated with considerable suspicion. The orthodox view was that accusations of rape and sexual assault by women against men were "easy to make and hard to disprove" and Judges were required to give stern warnings in their charge to the jury of the need for corroboration and the dangers attached to convicting on the evidence of the Complainant alone.

53. No one today would support this orthodoxy of the past and there has been a great increase in the psychological understanding of sexual offences generally.

54. Nevertheless, it would be unfortunate if the discredited orthodoxy of the past were to be replaced with an equally rigid orthodox view that in all cases of delay in making complaints of sexual abuse the delay can automatically be negatived by dominion. this is emphatically not the ratio of the B. -v- D.P.P . Judgment. In fact the learned Denham J. is most careful to repeat at several points in her judgment that each case must be analysed and decided on its own circumstances and facts as she herself has done in B.'s case.

55. I consider that in the instant case there is a real risk that the Applicant, by reason of the delay, would not obtain a fair trial and that the Applicant is not on the evidence prevented from asserting his constitutional right to a reasonably expeditious trial either by his own actions or by the factors which generally fall to be considered in cases where the accused is charged with sexual offences against children or young persons.

56. Two other matters arise. Firstly, it is submitted by the Respondent that the risk of an unfair trial may be avoided by careful rulings and directions to the jury to be given by the trial Judge. This has been accepted by this Court and by the Supreme Court in a number of cases, both where there has been a problem of delay and where there has been excessive pre-trial publicity.

57. Mr. McEntee submits that in the case of delay such dicta are "without content" as it is impossible to frame effective warnings and directions to the jury in such a case. While I would not go so far as does Mr. McEntee, I would accept that, while warnings and directions in the pre-trial publicity cases are relatively simple and, one hopes, effective, the position is more difficult in delay cases. One reason for this is that evidence of late complaints and other relevant evidence may, at the actual trial, be inadmissible.

58. The second matter is that of the nature of the Book of Evidence served on the Accused in this case. The Applicant claims that the fact that the Book of Evidence contains statements from proposed witnesses which could never be admissible at the trial of the Applicant violates the Applicant's right to a preliminary examination in accordance with law and constitutes an unfair procedure. The Respondent claims that these matters can be dealt with by the District Judge who will be in a position to assess whether the documentation discloses a prima facie case in law against the Applicant.

59. There is no doubt that the Book of Evidence in this case does not comply with Section 6(1)(c) and (d) of the Criminal Procedure Act 1967. The Section provides that the documents to be served on the Accused should include inter alia

60. The vast majority of statements of proposed evidence in this case consist solely of hearsay and such witnesses could not be called at any proposed trial. A medical report (which is not proved) is presented as an "exhibit". It is clear that Mr. O'Caoimh from his own considerable expertise and knowledge is conscious of these defects and candidly admits them. It would seem to me that such a book of evidence should not be left to the district Judge to rule on; it should be withdrawn and a fresh book issued. However, as I have decided this case on other grounds such action will be unnecessary.

61. I am satisfied for the reasons set out above that the Applicant has established his claim and as a result he is entitled to the order of prohibition which he has sought.