High Court of Ireland Decisions

1. This is an application brought pursuant to leave granted on 12th October, 1998 for judicial review in the form of an Order of Prohibition prohibiting the Respondent from proceeding with a prosecution of the Applicant on charges of gross indecency and indecent assault respectively alleged to have occurred between 1st October, 1977 and 1st December, 1977. Strictly speaking, an Order of Prohibition can be made only against inferior Courts and Tribunals. In this case, no Judge of the Circuit Court has been made a Respondent and the sole Respondent is the Director of Public Prosecutions. If the Court were to take the view that the Director ought not to be permitted to proceed with the prosecution, an injunction rather than an Order of Prohibition would seem to me to be the appropriate remedy. This is something which I should have averted to when originally granting leave on 12th October, 1998 but I think it reasonable to treat the Applicant as effectively seeking an injunction against the Director of Public Prosecutions.

2. In the first instance, the Applicant seeks to prevent the trial going ahead on the basis that too long a time has elapsed since the date of the alleged offences. The two alleged offences arose out of a single alleged incident. Alternatively, it is argued on behalf of the Applicant that even if the long lapse of time was not sufficient in itself to prevent the prosecutions going ahead, then the Applicant is in a position to demonstrate that he would suffer actual prejudice in the conduct of his defence. As a further alternative, the Applicant argues that there was unjustifiable delay on the part of the prosecuting authorities and that this of itself should entitle the Applicant to have the prosecution discontinued.

3. The legal principles to be applied in relation to the first two of these arguments, though not the third are to be found in the judgment of Denham J. in the Supreme Court in B. -v- D.P.P. [1997] 3 I.R. 140 and in the judgments of Denham J., Keane J. and Lynch J. in C. -v- D.P.P. (unreported) Supreme Court judgments, 28th May, 1998. In the outline written submissions on behalf of the Applicant numerous other cases and, in particular, decisions of the High Court are referred to but, in my view, they are of limited value. The settled jurisprudence is contained in the four Supreme Court judgments to which I have referred.

4. The basic facts of this case are as follows. The alleged victim of the offences claims that at the time of the offences he was 15 or 16 years of age and was employed as a helper by the Applicant on a milk round. He claims that on an occasion when he was alone in the van with the Applicant, the Applicant drove into a quiet area and engaged in homosexual activity with him. The Complainant never reported the alleged offences to the Gardaí until November 1995, i.e. some eighteen years later.

5. It has always been accepted since the obiter dicta of Finlay C.J. in Hogan -v- The President of the Circuit Court (1994) 2 I.R. 513 that the way the Courts view delay in criminal proceedings can often be different in the case 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 occur". In C. -v- The Director of Public Prosecutions cited above, Keane J. observes as follows:-

6. The learned judge goes on to explain that the delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her, e.g. as parent, step-parent, teacher or religious. In such cases dominion by the alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred.

7. But I am satisfied from a reading of the relevant judgments that, while dominance is a factor which the Courts will heavily take into account its existence is not essential for a Court to take a view that the delay was reasonable. To quote Keane J. again:-

8. In this case, a Mrs. Rosaleen McElvaney, Clinical Psychologist/Psycotherapist has prepared a report on the alleged victim. In doing so she was quite clear as to what her terms of reference were because under the heading "background to referral" there appears the following:-

9. Having had the benefit of reading that report and having had the benefit of seeing the Complainant in the witness box, I think that if the offences occurred the cause of his non reporting or delayed reporting was some kind of inhibition arising out of shame and disgust, particularly having regard to the homosexual nature of what occurred. His home circumstances and family background pre-disposed him to that position. It is true, of course, that he engaged in staggered reporting. He informed his wife and his parents-in-law about the alleged assault round about 1990, which was three years after he married. Some time after that, he reported it to a priest, Father Paul Lavelle, who suggested that he see a Counsellor, Eilish O'Donoghue, which he did in the period 1992/1993. He allegedly told his mother, brothers and sisters in 1995 and he went to a solicitor in that year. The solicitor he went to sent him to another solicitor because he was already solicitor for the Applicant. A rather strange correspondence then passed between the two solicitors which, on one view, would suggest that the complainant was intending at that stage only to bring a civil action. However, having heard his answers in the witness box, I do not think that this inference can be drawn. The nature of the correspondence between the solicitors is somewhat difficult to understand but it may have been motivated by some hope on the part of the solicitors that criminal proceedings could be avoided. However, I do not think that this was ever in the mind of the complainant. I accept his evidence that he was not familiar with the finer points of legal proceedings and he did, in fact, report the matter to the Gardai in November 1995. It is not uncommon in this type of case to have earlier reporting to intimates. Because complaints were made to members of the family and to the priest, it does not follow that the Applicant was still not inhibited from reporting to the guards. Of course he gave a reason, though not in the witness box, as to why he finally reported the matter in 1995. It is not for me, at this stage, to assess the credibility of that reason. Taking all the matters contained in Mrs. McElvaney's report and all the evidence into account I find myself unable to differentiate this case from the types of cases referred to in the judgments in the

10. But it is necessary now to consider whether, even if the prejudice cannot be presumed, there is real and actual prejudice of a kind which would prevent the Applicant having a fair trial. It is strongly contended on behalf of the Applicant that there is such actual prejudice and it is neatly summarised in paragraph 18 of an Affidavit of the Applicant sworn as recently as 26th April, 1999. He says in that paragraph:-

11. If the defence was that every aspect of the allegation was pure invention and that the Applicant had never been employed as an assistant on the milk round, etc. there might be considerable force in this objection. But I do not think that every time an applicant asserts that he would have an alibi defence based on dates and that records were not now available, he should be entitled to have a prosecution discontinued. Apparently, the dairy records would not have been available after 1986 and that would have been before the Applicant complained even to his wife. If a prosecution had been mounted, in say, 1989, I do not think that the Applicant would have been entitled to have it discontinued because of the absence of the dairy records. Evidence which may be helpful to a defendant in a criminal case may, from time to time, disappear before a trial such as, in this case, the instance of records destroyed but also, of course, the more obvious example of possibly helpful witnesses dying. These mishaps do not automatically entitle a defendant to a discharge. In each case, it depends on the particular facts and how fundamental the evidence is and whether at the end of the day he cannot get a fair trial. Furthermore, it was only in this Affidavit sworn in April 1999 that the Applicant first asserted with certainty that he had sold the milk round in February 1977 and he gives no evidence of any efforts to establish some supportive evidence of this. I think that I must also take into account that in the case of a sexual offence committed many years earlier, there could be confusion about dates. It is the actual incident rather than the precise date which is of importance and in the course of a trial, it might well become necessary to apply to the Court to amend the indictment as to the date. Yet another factor which I think I should take into account is that there is no question here of evidence having been wittingly or unwittingly destroyed by the Gardaí or prosecution authorities. I think that the necessary issues of fact are quite capable of being fairly tried by a jury, that the absence of the milk records, while it may or may not be unhelpful to the Applicant, does not lead to the conclusion that the Applicant cannot have a fair trial.

12. I move now to what I might call the third ground of attack by the Applicant, namely, the alleged post-complaint delay. In his judgment in the C. case , Keane J. refers to The State (Healy) -v- Donoghue [1976] I.R. 325 and points out that in that case Article 38.1 of the Constitution which provided that no person should be tried on any criminal charge save in due course of law was construed by Gannon J. as recognising the right of an accused person to a trial with reasonable expedition and that this view was upheld by the Supreme Court in The State (O'Connell) -v- Fawsitt [1986] I.R. 362. At p.6 of the unreported judgment Keane J. observes as follows:-

13. It is clear from this passage that Keane J. is impliedly acknowledging that different principles may apply to blameworthy delay on the part of the prosecuting authorities. Counsel for the Applicant, Mr. Rogers, argues that there was such delay in this case. I think that Mr. Rogers is clearly correct. It is not acceptable and, in my view, is a breach of a defendant's rights under Article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the prosecuting authorities. I am using this expression "prosecuting authorities" to cover the Director of Public Prosecutions and the Garda Siochana. But I want to make it clear that in this particular case the office of the Director of Public Prosecutions acted impeccably and, indeed, dealt with the case with commendable speed. No blame whatsoever can attach to that office. But I regret to say that the same cannot be said of the Garda Siochana. The whole investigation appears to me to have been conducted in a lackadaisical and slovenly fashion. The Complainant was first interviewed by the guards when he made his complaint in November 1995. Detective Inspector Shanahan who received the complaint sought and obtained permission from the Complainant to obtain a report from Ms. Eilish O'Donoghue, to whom I have already referred. That may have been a reasonable course of action for the Detective Inspector to have taken but the report was never received until 15th June, 1996 and it not known what was in it. Apparently, the Inspector may have been given a wrong address for Ms. O'Donoghue initially but, be that as it may, while that might account for some delay, I think that the garda authorities should have ensured that that report was obtained long before June 1996. But that is a relatively minor point in the investigation. Even if I am wrong in making that criticism there is ample room for criticism of other aspects of the investigation. I do not find it at all credible that the guards could not have found the Applicant and interviewed him at a stage much earlier than they did. The alleged visits to a certain named newsagents were not sufficient. Apparently, the Applicant is reasonably well known in the area. There is no evidence to suggest that he was in any sense on the run. I find it inconceivable that he could not have been properly contacted by the guards long before he was. He was ultimately interviewed on 22nd January, 1997 which was 14 months after the original complaint. Apparently, Inspector Shanahan was moved to another Garda Station in June 1996. But that, of itself, would be no excuse as obviously another member of the guards would have taken over the investigation and, in fact, the file was handed to Detective Garda McCarville. I accept that some problems did occur. Detective Garda McCarville sustained a fractured skull while on duty in March 1997, as a result of which he was off work for approximately nineteen weeks. He was not long back at work when he had to take time off again. In March 1997, a very major crime occurred in the area and Detective Garda McCarville was involved in the investigation. As a matter of common sense any Court would take these matters into account to some extent but in a case such as this extraneous events should not be allowed to cause more than a limited delay. In this case, there was a failure on the part of the garda authorities as distinct from individual members of the force properly to follow up possible witnesses and the overall delay was wholly unacceptable despite the excuses made.

14. Faced with that situation, I have to decide whether I prevent the trial from proceeding. Undoubtedly, an argument can be made that any additional blameworthy delay caused by the garda authorities would not have added to any prejudice which already existed to the Applicant's defence. The Applicant was not ultimately arrested until April of 1998. The difficulty with this argument is that it could equally be made if there was a further two years delay caused through the fault of the guards. I think that where there has been a long lapse of time as in these prosecutions for sexual offences between the alleged offences and the date of complaint to the guards, it is of paramount importance, if the accused's constitutional rights are to be protected that there be no blameworthy delay on the part of either the guards or the D.P.P. If there is such delay, the Court should not allow the case to proceed and additional actual prejudice need not be proved. This point is not really covered by the Supreme Court decisions in the B. and C. cases and, therefore, to some extent it is uncertain what the correct legal position is. But, in my view, the constitutional right has been clearly infringed and therefore the trial should not be permitted to proceed. It is unfortunate that the injunction has to be against the Director of Public Prosecutions because, as I have already pointed out, he and his office have been in no way to blame. The fault lay with the garda authorities. But procedurally it would be correct, it seems to me, to grant relief by way of judicial review in the form of an injunction against the Director of Public Prosecutions from further proceeding with these charges and that is the Order I intend to make.