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L. (J.) v. D.P.P. [1999] IEHC 233 (8th June, 1999)
URL: http://www.bailii.org/ie/cases/IEHC/1999/233.html
Cite as:
[1999] IEHC 233
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L. (J.) v. D.P.P. [1999] IEHC 233 (8th June, 1999)
The
High Court
JL
v Director Of Public Prosecutions
1998/209
JR
8
June 1999
GEOGHEGAN
J
By
Order of 18th May, 1998, Mr Justice McCracken granted leave to the Applicant to
bring this Judicial Review proceeding and he extended the time for doing so.
The Applicant seeks certain declaratory and injunctive reliefs but the reliefs
are all directed to the same purpose. that is to say, to restrain a prosecution
going ahead against the Applicant for alleged rape and buggery which allegedly
occurred between June 1979 and September 1980 at a certain place in Dublin. The
alleged victim of the crimes would have been 7 or 8 years of age at the time.
The Applicant would have been a young adult. The Applicant denies the offences
and claims that a trial would be unfair in that he at this late stage would not
be able to gather up the evidence necessary to enable him properly to defend
himself.
If
the trial goes ahead the evidence of the complainant will be that at the time
there as a caravan on a building site in which two men lived, the younger of
whom was the Applicant. The evidence will be that on the alleged occasion the
Applicant only was in the caravan and the complainant recalls going into the
caravan and sitting on a kind of settee. She alleges that the Applicant put his
fingers inside her vagina and anus at the same time. The Applicant then left
the room for a short time and came back with an exposed penis. The complainant
claims that she next recalls lying on her back and that he was on top of her
and engaged in vaginal and anal penetration. She claims that he told her she
was a lovely little girl and that this was "our secret" and that she was "not
to tell anyone". Shortly after the event the complainant told a friend of hers
what happened to her but did not tell any adults until in 1994 she did tell an
adult.
The
Applicant admits that he did have a caravan on the site in question but he
claims that he sold it to a couple living in Co Kildare some three months prior
to the earliest date on which the offence is alleged to have been committed. He
merely gives the Christian names of this couple, namely, Paddy and Evelyn and
he adds the following:-
"I
have been unable to trace the said Paddy and Evelyn to fully substantiate my
defence in this regard."
The
Applicant gives no details whatsoever of any alleged attempts to trace this
couple and I will have more to say about this later on in this judgment.
The
jurisprudence to be applied in Judicial Review applications seeking to stop
trials for sexual offences is now reasonably well-established by the Supreme
Court by B. -v- The Director of Public Prosecutions, [1997] 2 ILRM 118 and by
P.C. -v- The Director of Public Prosecutions, (unreported judgments delivered
28 May. 1998). The position has been summarised by Keane J in his judgment in
the P.C. Case delivered 28th May. 1998. After pointing out that the mere fact
that the offence charged is of a sexual nature is not of itself a factor which
would justify the Court in disregarding delay however inordinate and allowing
the trial to proceed goes on to observe as follows:-
'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."
Keane
J goes onto point out of course that the delay may be more readily explicable
in cases where not only is there a significant age difference but there is a
quasi position of trust such as parent, step-parent, teacher or religious. It
is implicit in the judgment however that there need not be this special
position of trust. Age disparity alone may have the effect of inhibiting the
child from reporting. Again, quoting Keane J in the same judgment: "But the
issue is not whether the Court is satisfied to any degree of proof that the
accused person committed the crimes with which he is charged. The issue in
every such case is whether the Court is satisfied as a matter of probability
that the circumstances were such as to render explicable the inaction of the
alleged victim from the time of the offence until the initiation of the
prosecution. It is necessary to stress again that it is not simply the nature
of the offence which discharges that onus. All the circumstances of the
particular case must be considered before that issue can be resolved."
I
am satisfied on the evidence of the clinical psychologist/psychotherapist, Ms
Roseleen McElvaney, that if the complainant's allegations are true there are
sound psychological reasons why she did not make an earlier complaint. It would
have been an off-shoot of the Applicant's own alleged misconduct which would
have inhibited an earlier complaint.
However,
that is not the end of the matter. I must now consider in the words of Keane J
"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". As has been
frequently pointed out there are rarely witnesses to sexual offences and for
that reason it may not be any more difficult to defend them a long number of
years after they were allegedly committed than it would have been if the trial
had taken place within a short period. However, a serious alibi defence which
could no longer be availed of for some reason or other might well be a ground
on which a Court would prevent a trial going ahead. That is the importance of
the allegation in this case that there had been a sale of the caravan three
months before the earliest time at which the offence is alleged.
I
am quite satisfied however that in this case the alleged alibi is not a ground
on which I should take the view that there is a serious risk of an unfair
trial. First of all, although there is a presumption of innocence in relation
to the Applicant, he nevertheless has to discharge a certain onus of proof in
the Judicial Review application in order to satisfy a Court that as a matter of
probability there would be a serious danger of an unfair trial. It is very easy
to invent a dead or lost alibi. I am not impressed by the bald statement in the
Affidavit that he has been unable to trace "Paddy and Evelyn" "to fully
substantiate his defence. No details whatsoever are given of any attempt to
locate these people and I have no reason to believe that any attempt was in
fact made. I think that I must balance against this bald allegation the
evidence that the Applicant moved into a particular house with a particular
given address on or about 7th March. 1979. That should be very easily
corroborated at least if not absolutely provable by title documents and
possibly other documentary evidence. I must also take into account that the
Applicant admits that he lived in a caravan in the site alleged and that the
only dispute about this is whether he had moved out at the time of the offence.
I should also take into account that the address he allegedly moved into was
very close to the site where the caravan allegedly was. I think that a Jury
will be well capable of sorting all of this out and I cannot see that. there is
any risk of an unfair trial.
It
is true that even by the standard of some of these recent cases the alleged
offences in this case have been committed a very long time ago. Nevertheless. I
think that on the principles enunciated by the Supreme Court and for the
reasons which I have indicated, I should not prevent the trial going ahead and
I accordingly refuse Judicial Review.
© 1999 Irish High Court