High Court of Ireland Decisions

1. This matter comes before the Court pursuant to an Order made on the 23rd January 1998 by the President of this Court (Morris P.) whereby the Applicant was given leave to apply by way of judicial review for an Order of Prohibition or in the alternative an injunction restraining the Respondents from further proceeding with the prosecution of the Applicant on the charges which have been preferred against him. The grounds upon which the Applicant seeks such relief are:-

2. The Applicant was arrested on the 2nd September 1996 and was charged with various counts of indecent assault. He was subsequently brought before the District Court and in due course the Director of Public Prosecutions directed that the trial of these charges should be heard on indictment. The indictment contains five counts alleging that the Applicant assaulted Padraic Keane on five different dates between the 1st day of January 1982 and the 31st day of December 1983. The Complainant Padraic Keane was born on the 8th day of December 1972 and would have been nine years of age at the time of the first alleged assault.

3. The Applicant was served with the Book of Evidence pursuant to the provisions of the Criminal Procedure Act 1967. This Book contained a statement from the Complainant alleging that he had been assaulted on various occasions while attending music lessons at the College of Music where the Applicant was his music teacher. The alleged assaults consisted of fondling the Complainant's private parts in the course of the lesson during which it is alleged that the door of the room was locked. The Book of Evidence also contained statements from a Declan Lonergan who stated that the Complainant had made an allegation of sexual assault in relation to the Applicant in August 1995. A statement from the Complainant's parents indicated that during the course of an argument with his father in August 1995 the Complainant suddenly indicated that he had been abused and that he then went on to say that the Applicant had carried out this abuse. The Complainant was not in a position to nominate specifically the dates on which these assaults were carried out and it appeared that no complaint had been made until 1995 which was approximately twelve years after the last assault complained of.

4. The Applicant taught in the College of Music from January 1981 to June 1986; the Complainant was a pupil of the Applicant there from early 1981 to June 1986.

5. Mr Garrett Sheehan, Solicitor for the Applicant, averred in an affidavit sworn on the 23rd January 1998 that on receiving instructions from his client he made enquiries from him in an attempt to ascertain whether it might be possible to interview witnesses or collate evidence which might be of assistance in defending him against the allegations made against him.

6. Mr Sheehan was unable to gather any evidence which would help to disprove these allegations and in particular was not able to discover if and when keys had been made available to the various tutorial rooms in the College of Music. It appears that keys were available to staff in the college only from a date in 1984, although locks had been fitted to at least some of the rooms from 1981 onwards. Prior to 1984 it appears that keys were held by the college porter. Enquiries were made of Mr Frank Heneghan, who was Director of the College of Music at the time, but he was unable to throw any further light on the matter, stating in a letter to the Applicant that " details such as those you seek constitute the minutiae that fade from the memory simply because they seem of no particular import at the time ." Detailed information in regard to the provision of locks and the availability of keys was important because the Complainant alleged that the Applicant had locked the door of the room while the alleged assaults were carried out. Other details in regard to the day to day running of the College of Music at the time were equally unascertainable.

7. The case against the Applicant was first listed for trial in the Dublin Circuit Criminal Court on the 23rd July 1997. On the day of the trial a copy of Additional Evidence dated the 22nd day of July 1997 was served on the Applicant. This contained the opinion of Dr. Paul McQuaid, a Psychiatrist, as to why the Complainant might have delayed in making his complaint. The report was dated the 24th day of June 1997. As was pointed out by Senior Counsel for the Applicant, Mr Gageby, this proposed evidence consists in large part of hearsay; it is also highly prejudicial since it is clearly based on an assumption that the Applicant is guilty of the offences with which he is charged.

8. The learned Trial Judge in the Circuit Court adjourned the trial on the application of the Applicant because of the delay in serving this evidence and in order to give the Applicant's Counsel and Solicitor time to consider it. A new trial date was subsequently fixed for the 15th day of October 1997 and this was subsequently changed to the 16th day of October 1997.

9. At the opening of this trial Counsel for the Applicant applied to the Trial Judge to rule out the evidence of Declan Lonergan, whose statement in the Book of Evidence dealt with a purported complaint made to him by the Complainant in August 1995. Having heard submissions the Trial Judge ruled that evidence of this complaint was inadmissible on account of the delay between the alleged offences and the making of the complaint.

10. Subsequent to this ruling, on the 18th October 1997, the Prosecution served a notice of additional evidence consisting of a statement from one Kenneth Walsh which had been made on the 17th day of October 1997. This statement contained details of a complaint allegedly made by the Complainant to Kenneth Walsh in or about June 1990. An objection was made on behalf of the Applicant to the late introduction of this evidence on the basis that this was trial by ambush. The Trial Judge upheld this objection, discharged the jury, and put back the case to allow for the fixing of a new trial date. This date was fixed for 26th January 1998. The Applicant issued the present judicial review proceedings on the 23rd January 1998.

11. The first-named Respondent filed a statement of opposition on the 17th July 1998. The stated grounds of opposition included, inter alia , that:

12. The Respondents' Statement was supported by a brief Affidavit of the Complainant, an affidavit of Superintendent Noel White of the Garda Siochana and an affidavit of Elaine Fitzgerald, Senior Clinical Psychologist of the Institute of Psychosocial Medicine, Dun Laoghaire. Ms Fitzgerald in her affidavit exhibits a report which she wrote following an interview with the Complainant on the 16th June 1998. It appears from the introduction to this Report that Ms Fitzgerald was asked by the Chief State Solicitor's Office to assess whether the sexual abuse of which the Complainant had complained "has had any, and if so, what. effect (including long and short term) on him and in particular whether any, and if so, which effect may have inhibited him complaining of this said abuse until relatively recently". Ms Fitzgerald also gave oral evidence before this Court and was cross-examined.

13. Ms Fitzgerald is clearly a highly qualified witness of considerable expertise in the area of Child Sexual Abuse. Her evidence was more cogent and more impressive than that presented before me by the State in an earlier case of a similar nature heard by me. I accept her evidence in regard to the reasons which in general lie behind delay in the reporting of sexual abuse by victims who are young children at the time of the abuse. Her explanation of the particular reasons why the Complainant in the instant case did not make a complaint at an earlier date is credible within the general theoretical framework.

14. In her psychological report Ms Fitzgerald reports the Complainant as saying that the Applicant told him that this was "our little secret" and because he colluded in this he felt that he too was a guilty party. The Complainant said that it did not occur to him to speak to anybody about the abuse in the early years. The Applicant left the school when the Complainant was twelve years of age and he began to have a growing awareness that what had been done to him was wrong. He described his embarrassment and shame growing over the years rather than diminishing and found it more and more difficult to disclose what had happened to him. Ms Fitzgerald reports him as saying that he was reluctant to speak of the matter to his parents, not because he felt that he would not be believed but because he felt his parents would be upset and blame themselves. He said that these matters had been playing on his mind over the years and with his growing awareness that he was not the guilty party he began to confide in his friends. With their support he made the decision to tell his parents. Ms Fitzgerald concludes that it is not possible to prove retrospectively that Mr Keane was psychologically "disabled" in the most narrow legal sense of the word, but in terms of his emotional development and taking into account the context of the alleged abuse, it was more than reasonable that his disclosure was delayed.

15. This court, however, must always bear in mind that the entire of Ms Fitzgerald's assessment is based on her acceptance of the Complainant's account of events as given to her; to put it in another way, her conclusions derive from an assumption both that the Complainant was sexually abused and that it was the Applicant that abused him. She herself stated in evidence that she had to assume that what the Complainant was saying was true, and in the course of cross-examination accepted that what she found was that the delay was explicable "if you accept that the abuse took place".

16. In drawing attention to this factor I am by no means critical of Ms Fitzgerald or of her evidence; she carried out the instructions she was given in a highly competent and professional manner and was at all times fair in replies to Counsel. The difficulty which I have referred above stems from the nature of these cases; it is the Court's difficulty and not that of Ms Fitzgerald.

17. In his submissions to the Court Counsel for the Applicant, Mr Gageby, accepted in regard to onus of proof that the onus was on the Applicant to demonstrate that, as a result of the delay in prosecuting him for the alleged offences, there is a real risk that he will not obtain a fair trial if the prosecution against him is allowed to continue. Such a real risk might exist where the accused's ability to defend himself had been impaired, for instance, by reason of the lack of specificity of the charges brought, the unavailability of witnesses, the inability accurately to recall events or the unavailability of other exculpatory evidence. A real risk could also arise by reason of the efflux of time even where no specific prejudice was shown.

18. He submitted that there were two periods of delay in the instant case: firstly, a delay from the 1st January 1982 to August 1995 by the Complainant in making a complaint against the Applicant, and secondly a delay from August 1995 to the 26th January 1998 in the prosecution of the applicant for the alleged offences.

19. Mr Gageby listed four specific ways in which the Applicant was prejudiced in the conduct of his defence as follows:-

20. In addition, Counsel for the Applicant submitted that this case can be distinguished from the other cases of this nature which have been decided by the Superior Court in that the allegations do not relate to persistent and repeated abuse over a prolonged period of time but rather are of five occasions of abuse only over a period of two years. He referred to the judgment of the learned Keane J. in C v DPP (unreported Supreme Court 28th May 1998) where, at page 10 of his judgment, the learned Judge stated:-

21. Mr Gageby re-emphasised that in the instant case, apart from the fact that the alleged abuse is said to have occurred on five occasions only, the Applicant has suffered specific prejudice in regard to the evidence relating to the locks on the music room doors.

22. Mr Gageby also submitted that while in the cases of C v DPP (supra) and B v DPP [1997] 3 IR 140 it was held that as a result of the dominant position held by the Applicant over the Complainant the Applicant was responsible for the delay in bringing proceedings and such delay was thereby rendered explicable, in the instant case the Applicant did not hold a position of dominance over the Complainant nor was he responsible for any delay in the bringing of the prosecution against him. He also submitted that, since the Applicant stood indicted before the Circuit Criminal Court of criminal offences, and the application was to prohibit the trial of those offences, the Applicant was entitled to the presumption of innocence in these proceedings in the same way that he would be entitled to such a presumption if he were applying to the Trial Judge to exclude evidence on the grounds of delay. He argued that any observations to the contrary in the C v DPP case as regards the presumption of innocence were clearly obiter and did not form a necessary part of the decision in that case.

23. In addition, even if the Court found that the Applicant was responsible for the delay or that the delay was otherwise explicable, the Court would still have to examine whether there was a real risk that the Applicant would not receive a fair trial by reason of efflux of time.

24. Finally, Mr Gageby submitted that there were no rulings or directions that the Trial Judge would be able to make which would avoid the trial of the Applicant being unfair. There was no common law or statutory rule that permitted a judge to rule evidence inadmissible merely on the basis that it was old. There was no legal rule or precedent which required a Trial Judge to caution as to the considerable time between the date of the commission of the alleged offences and the trial. Further, there was no legal requirements that a jury be cautioned on the dangers of convicting on the basis of uncorroborated testimony. Jurors took an oath to try a case on the evidence. Any direction to the jury asking them to consider the difficulties in the case because of the delay would be inviting the jury to try the case on what the evidence might have been. Further, inviting the jury to consider what evidence might have been presented, and what difficulties the delay had caused the Applicant, would be to ask the jury to decide what this Court was asked to decide; it would make the jury the arbiters of fairness in the trial. Also there was no special question that could be put to the jury on the subject of delay or prejudice which the jury would be capable of answering without speculating on what evidence might have been available, or what recollections witnesses might have had, if the prosecution had been brought at a date nearer to the alleged commission of the offences.

25. Counsel for the Respondent, Mr O'Caoimh, referred to the report of Dr Paul McQuaid and to the report and evidence of Elaine Fitzgerald as offering an explanation for the Complainant's delay that was consistent with the type of emotional and psychological reaction that commonly occurs in abuse of the nature alleged.. He accepted that the Courts would restrain a trial where there was a real or serious risk that the accused could not obtain a fair trial and referred to D v The Director of Public Prosecutions [1994] 2 IR 465.

26. In regard to the appropriate test to be applied in cases such as the instant case, he referred to the judgment of Finlay CJ in Z v DPP [1994] 2 IR 476 (at pages 505-507) where the learned former Chief Justice stated that the Supreme Court in D v DPP had "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 went on to say "with regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in D v Director of Public Prosecutions that where one speaks of an onus to establish a real risk of an unfair trial it 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."

27. Mr O'Caoimh referred to a number of earlier cases in regard to delay where the allegations were those of sexual abuse. These included B v Director of Public Prosecutions [1997] 3 IR 140, EO'R v The Director of Public Prosecutions High Court [1996] 2 ILRM 128 Supreme Court (unreported) 18th March 1997 and O'C v The Director of Public Prosecutions High Court (Barr J.) 17th November 1994 Supreme Court (unreported) 27th January 1997. With regard to the alleged difficulty of an accused in defending a case such as the instant prosecution Mr O'Caoimh referred to the ex tempore judgment of O'Flaherty J. in the Supreme Court in the EO'R v DPP case where he stated (at page 8):

28. As regards lack of specificity in regard to the dates of the offences Mr O'Caoimh pointed out that the Supreme Court had identified this situation in a case of the Director of Public Prosecutions v EF (unreported Supreme Court 24th February 1994) and did not consider the trial to be unfair by reason of the lack of specificity in the charges in that case. This position had been re-asserted by the Supreme Court in a number of subsequent cases. Mr O'Caoimh finally submitted that there had been no undue delay in the case and no basis existed for the Court to grant the Applicant the relief sought. While there had been some delay occasioned by the difficulties surrounding the trial of the Applicant the only period for which the Court should have regard was the period from July 1997 when the first trial was due to commence to the 28th January 1998 when the Applicant's trial would have proceeded but for the Applicant's own application for judicial review and the consequent stay of the proceedings.

29. It is common case between the parties that there is no time bar to the prosecution of the offences with which the Applicant is charged and that the onus of proof is on the Applicant to demonstrate that, as a result of the delay in prosecuting him for the alleged offences, there is a real risk that he will not obtain a fair trial if the prosecution against him is allowed to continue. I also would accept that it is settled law that as stated by Finlay CJ in D v Director of Public Prosecutions "where one speaks of an onus to establish a real risk of an unfair trial it 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." (at page 507).

30. There is now a considerable body of case law as to the circumstances in which delay may defeat a prosecution and as to the applicability of the general principles to the special and peculiar circumstances of sexual offences against children and young persons. The applicable principles in such cases were considered in some detail by the Supreme Court in B v DPP [1997] 2 ILRM 118 and more recently in C v DPP (unreported 28th May 1998). Both these cases, in common with other Supreme Court decisions, deal with cases where the Supreme Court refused an Order of Prohibition, the grounds for the refusal as set out in the B case being considerably widened in the C case. It is, perhaps, unfortunate that, so far as I am aware, there has been no recent decision of the Supreme Court in which an Order of Prohibition has been granted in a case where the Applicant was charged with sexual offences against a minor, as such a decision would provide authority and guidance in regard to the circumstances in which this Court might be entitled to prohibit such a prosecution.

31. In his judgment in C v DPP the learned Keane J. admirably summarised the traditional jurisprudence in regard to the right of an accused person to a reasonably expeditious trial as follows (at page 1):-

32. In her judgment in B v DPP the learned Denham J. dealt with the same background, pointing out that the Constitution places relevant parameters on the criminal trial in cases of unreasonable delay. She went on to say (at page 125):

33. In the instant case the delay between the first alleged offence and the complaint to the Gardai was some fourteen years. The Applicant has at all times denied that he had committed any of the alleged offences.

34. However, it is clear that this case belongs to the special category where the accused is charged with sexual offences against a child and therefore different considerations must apply. Keane J. in his judgment in C v DPP sets out the approach that should be adopted by a Court asked to prohibit the trial of a person charged with such offences. He refers to the judgments of Denham J in that case and in the previous case of B v DPP and goes on to state (at page 4):

35. This formulation must surely apply in virtually every case where the accused person is some years older than the Complainant and/or is in any position of moderate authority over the Complainant - once, of course, the assumption is made that the accused person is guilty of the offence. Given this authority, which is binding on me, it seems to me that on the facts of the instant case and on the evidence before me, and assuming the complaint is truthful, the Complainant's delay as a matter of probability is explicable. The Applicant was the Complainant's music teacher; he was known to the Complainant's parents and moved in the same musical circles as they did. The dynamics behind his delay in complaining are clearly set out in Ms Fitzgerald's report and evidence, which I accept. On the authorities, therefore, the delay in the Complainant's making of his complaint was referable to the accused own actions.

36. However, this is not the end of the matter. The considerations which apply have again been set out by Keane J. in his judgment in C v DPP where he states at page 6:

37. This also was the course followed by the learned President of this Court in John O'Connor v The Director of Public Prosecutions (unreported) 25th November 1998) where the learned President stated that he was satisfied on the balance of probability that the Complainant's delay in reporting her abuse flowed from the Applicant's conduct and that he could not rely on that delay in seeking the relief which he claimed. However, the learned President went on to prohibit the trial on the ground that, for a number of other reasons including the death of a possible witness, the Accused's lack of opportunity of co-relating his whereabouts to the dates of the alleged offences, and his age and ill-health, the Applicant would be deprived of a fair trial in accordance with his constitutional rights. He therefore prohibited the trial.

38. In many cases of this type the Court has found that because of the very nature of the offence there is a likelihood that there would be no witnesses to a series of acts which occurred in private over a long period of time. Therefore the trial would, regardless of whether or not there had been any delay, be in its essence a contest between the evidence of the Complainant and that of the accused person. There would be no "specific prejudice" against the accused receiving a fair trial.

39. The position in the instant case is somewhat different. The charges against the Applicant are far more specific as regards number and time than in most sexual abuse trials - five occasions during a two year period. Also the place in which the incidents are alleged to have taken place is relatively public in nature and there would have been considerable numbers of persons going to and fro in the building. The timing of any incident such as those alleged by the Claimant would be subject to the exigencies of the timetable of the activities in the college. More importantly, as highlighted by Counsel, there is the question of the locks and keys of the music room doors. All of these matters would be clear in the memory of the Applicant and his colleagues in the College of Music had his trial taken place in the immediate aftermath of the alleged offences or even shortly thereafter. All of these details have by now faded from the memory of the Applicant and of his erstwhile teaching colleagues, and of the school administrators. A concrete example is the reply given by Mr Heneghan to the solicitor's query concerning the locks and keys.

40. Referring to the final question of prejudice in the C v DPP case, the learned Keane J. said (at page 10 of his judgment):

41. It seems to me that the situation in the instant case is very different, and that for the reasons set out above there is specific prejudice which is peculiar to this case.

42. To this must be added the fact that the Applicant's trial has had to be aborted on two occasions due to no fault of his own. On the second occasion a jury had actually had been sworn and had to be discharged. Failure of the State to have all of its necessary witnesses available when the Applicant's trial was originally listed for hearing may be explicable, but in a case such as this, where a hitherto respected and established teacher is charged with serious sexual offences, further unnecessary delay of his trial cannot but have a damaging and traumatic effect on him, adding further to the difficulties of his offence.

43. In essence it appears to me that the trial of the Applicant in these circumstances and after so long a delay would be unfair.

44. I now turn to the question as to whether this basic unfairness can be avoided by proper rulings and directions to the jury by the Trial Judge during the course of the trial.

45. There are circumstances where it is clear that a jury may be given directions aimed at eliminating potential unfairness in a trial. A good example is the situation where there has been undue and prejudicial pre-trial publicity. Here the Trial Judge, who in any case would be reminding the jury that they must, in accordance with their oath, tried the case on the evidence which is given before them, can stress the need to ignore all extraneous material and concentrate solely on the evidence which they hear at the trial. (See, for example, Z v DPP [1994] 2 IR 476).

46. Over the years, also, the Courts, often under the direction and guidance of the Supreme Court or the Court of Criminal Appeal, have developed rules as to when, for instance, a Trial Judge should direct the jury as to the need for or the desirability of corroboration.

47. Prosecutions for sexual abuse which was perpetrated against a child many years in the past have arisen as a regular occurrence only in recent years. While a number of Judges in the Supreme Court have indicated that the prejudice against the Accused arising from delay before the making of a complaint may be greatly reduced and perhaps eliminated by proper directions to the jury by the Trial Judge, no guidance has yet been given as to how such directions might be framed or at what point in the trial the jury should be so directed. I feel sure that Judges who try this type of case both in the Circuit Criminal Court and in the Central Criminal Court would welcome some explicit guidance from the Supreme Court as to the exact nature of the directions which should be given by the Trial Judge in these "delay" cases.

48. For myself, I accept the weight of the considerations raised by Mr Gageby on behalf of the Applicant in his submissions in regard to this point. There is at present no legal requirement for a Trial Judge to caution the jury as to the considerable delay between the date of the commission of the alleged offences and the trial; nor is there any legal requirement that a jury be cautioned on the dangers of convicting on the basis of uncorroborated testimony. A direction to the jury asking them to consider the difficulties in the case because of the delay has the danger of inviting the jury to try the case on what the evidence might have been rather than on the evidence which they have heard. This would arise particularly if the Judge were to attempt to point out the specific matters (as outlined above) where it has not been possible for the Applicant to obtain evidence because of the efflux of time. In the instant case I believe it would not be possible on a practical level for the Trial Judge to off-set the unfairness of the trial by proper rulings and directions.

49. It would appear to me, therefore, that the proposed trial of the Applicant on these charges would be unavoidably unfair.

50. I will therefore grant the relief sought.