High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant seeks an Order of Prohibition against the Director of Public Prosecutions restraining him from taking any further steps in the criminal proceedings which had been brought against the Applicant together with an Order prohibiting the District Court from proceeding further with the charges against the Applicant which are now before the Court.

2. A number of grounds for the relief claimed are set out in the Applicant’s Originating Statement dated 3rd February, 1998 but the central issue is one of delay or the lapse of time from the dates of the commission of the alleged offences to the date of any trial.

3. The Applicant has been charged with 23 offences contrary to Section 62 of the Offences Against the Person Act, 1861 and two offences contrary to Section 47 of the Offences Against the Person Act, 1861. The charges relate to offences of alleged sexual and physical abuse against six named complainants. The allegations arise from a period between 1967 and 1974 when the Applicant was the principal teacher at a school in Galway and the six complainants were, during that period, young boys resident as pupils of the school. The school was a residential facility of the type generally known as an industrial school and was under the management of the Christian Brothers and largely staffed by them.

4. The alleged offences were not reported at the time.

5. The charges brought against the Applicant stemmed from an inquiry carried out by the Western Health Board and in particular by Mr. G.F. and Mr. P.G. social workers, into allegations made by former care residents of the school. The details of this investigation are set out in the affidavit of Sergeant Dominic Conway sworn on the 9th April, 1999. The Applicant was questioned by the Gardai in connection with the alleged offences on 28th June 1995 and 8th October, 1996. In his grounding affidavit sworn the 3rd day of February, 1998 the Applicant avers that the allegations are completely untrue and that he is at a loss to explain how the allegations came to be made. In his affidavit the Applicant also points out that taken as a whole the charges made against him cover a period from 1st January, 1963 to 31st December, 1976. While the Applicant was a member of the Christian Brothers Order from 1st January, 1963 to 31st December, 1976 he was resident at the school only from August, 1967 to August, 1974. It is accepted by Counsel for the Respondent that if it is established that the Applicant was present in the school only between those dates any charges covering times outside that period cannot be proceeded with.

6. The Applicant exhibits with his affidavit the Book of Evidence with which he has been served which contains inter alia statements of evidence from the six complainants. It also contains memoranda of the various interviews which the Gardai held with the Applicant in June, 1995 and October, 1996.

7. The Respondent has, together with the Statement of Grounds of Opposition, filed a number of medical and psychiatric reports concerning the six complainants together with affidavits sworn by the medical experts exhibiting these reports and affidavits of the six complainants verifying the facts contained in the reports. The medical, psychiatric and psychological assessments of the complainants were carried out by Dr Mary Concannon-Bluett of Galvia Hospital, Galway, Ms Noreen Keane, Counselling Psychologist and Psychotherapist, of 33 Ballantyne Place, Limerick and Rosaleen McElvaney, Clinical Psychologist and Psychotherapist of the Dubhlinn Institute, Glasnevin, Dublin 9. None of these deponents were cross examined on their affidavits. There is, it seems to me, no necessity to go into each report in detail here. While both the facts related and the symptoms described vary to some extent it was found that all the complainants suffered from emotional and psychological symptoms which would normally be typical of the results of child sexual abuse. Most suffered from post traumatic stress disorder. All had had considerable difficulty in disclosing the abuse. The three expert witnesses gave explanations as to why there had not been an early disclosure of the alleged abuse by each of the complainants. With regard to the general situation of persons who are sexually abused in childhood the position is perhaps most clearly set out by Dr Mary Concannon-Bluett in her supplemental affidavit sworn the 31st day of March, 1999. In this affidavit Dr Mary Concannon-Bluett states inter alia as follows:-

8. Dr Concannon-Bluett goes on to conclude in regard to the complainant B.C. whom she had examined, “having regard to the foregoing and my assessment of the aforementioned individual I find it understandable from a psychological point of view why a long period of time has lapsed before a complaint was made in this case.”

9. The phenomenon of delayed disclosure of child sexual abuse has been considered in a number of judgments both of this Court and of the Supreme Court, in particular in the judgment of Denham J. in the Supreme Court in the leading case of B -v- The Director of Public Prosecutions [1997] 3 IR 140. In these cases evidence similar in nature to the evidence of Dr Concannon-Bluett, Ms Noreen Keane and Ms Rosaleen McElvaney has been accepted as valid. In view of the fact that the evidence of the three expert witnesses in the instant case has not been challenged in cross examination and in the context of the various cases decided both by this Court and by the Supreme Court, I have no difficulty in accepting the evidence in the instant case as explaining the reasons for the length of time which elapsed before the various complainants disclosed that they had been abused.

10. Counsel for the Applicant, Mr. Comerford, made a number of submissions in regard to the facts of the instant case which, he argued, would lead to the conclusion that the Applicant would be deprived of his right to a fair trial. He accepted that the decisions of the Supreme Court in both B -v- DPP and the later case of C -v- DPP (unreported 28th May, 1998) established that lengthy delay in disclosure would not necessarily lead to the prohibition of the trial of a person accused of child sexual abuse. Nevertheless in the Applicant’s case there were a number of factors which should lead to the conclusion that even within the parameters of the decisions of the Supreme Court he could not receive a fair trial.

11. Mr. Comerford drew attention in the first place to the sheer length of the delay and the time which has elapsed since it is alleged the offences took place. The first of the alleged offences would have taken place in or about mid 1967, some 32 years ago. This was a longer lapse of time than in many of the previous cases decided by the Courts. He also drew attention to the lack of particularity in the charges both as regards place and time. Nor was there any indication as to which charge referred to which of the specific incidents alleged by the six complainants. This would make it extremely difficult for the Applicant to defend himself. In addition there had been considerable delays in the actual investigation even after the complainants had made their complaints. The Applicant had first been interviewed by the Gardai in June, 1995 in regard to three of the complainants but in respect of the other complainants there had been delays of in or about one year between the time of the complaint and the time when the Applicant was interviewed by the Gardai in October, 1996. The warrant for arrest in respect of the complaint by T.M. had been issued on 16th July, 1997, over two years after the Applicant had been questioned in respect of the alleged offences.

12. Mr. Comerford also drew attention to the fact that all the complaints of child sexual abuse had arisen through the investigation of the Western Health Board which investigation was largely administered and organised by G.F., social worker. Mr. F. had administered questionnaires and at least to some extent encouraged the complainants to make complaints. Mr. F. had at one time been employed in the school and it could well appear to the Applicant or to other persons against whom allegations had been made that he had a particular viewpoint in organising the inquiry on behalf of the Western Health Board. Mr. Comerford said that he was not alleging that the inquiry and the evidence of the complainants was collusive but he felt that the way in which the inquiry had been carried out suggested a risk of contamination of the evidence as between the various complainants.

13. Counsel for the Applicant also pointed out that while there was a comprehensive and detailed Garda investigation of events subsequent to 1974 in the school there was a complete lack of Garda investigation of the period prior to 1974, which was the period during which the Applicant had served as a teacher there. There was therefore, little or no evidence about matters connected with the school in the pre-1974 period available to the Applicant. The Applicant had been served with a quantity of unused material in connection with the Garda investigation which included a large number of statements by no means all of which accepted that there had been abuse of the children in the school. However, of all this unused material only two statements referred to the relevant time during which it was alleged that the Applicant had abused the complainants. One of these referred only to the records of a doctor who had attended at the school but who was now deceased. To the best of the Applicant’s knowledge a large number of possible witnesses such as doctors, nurses etc who had attended at the school were now either deceased or otherwise unavailable.

14. Apart from the evidence of witnesses who would have been present in the school at the relevant time, there was also the difficulty that there would be an almost complete lack of evidence about the physical surroundings and structure of the school at the time. A number of the complainants had made specific allegations about incidents alleged to have occurred in storerooms, showers and other specific locations. It would now be impossible to establish whether such incidents could have taken place in those locations in the context of the way in which the school had been administered.

15. Senior Counsel for the Director of Public Prosecutions, Mr. McGuinness, referred to the general principles applying to delay in the trial of an accused person. He referred to the case of DPP -v- Byrne [1994] 2 IR 236 where the Supreme Court had laid down guidelines in regard to the issue of delay. The Chief Justice in that case at page 244 of the judgment had stated:

16. Mr. Justice Blayney in the same case accepted that where the period of delay is long then it can be legitimate for the Court to infer prejudice without proof of specific prejudice, and where a lapse of time is a long one it may be inferred that a fair trial is no longer possible. Whether it is legitimate to draw the inference would depend on the circumstances of the case.

17. Mr. McGuinness submitted that the appropriate test to be applied in a case such as the present was set out by the Supreme Court in the case of D -v- The Director of Public Prosecutions [1994] 2 IR 465 and further elucidated by the same Court in the case of Z -v- The Director of Public Prosecutions [1994] 2 IR 746. In the Z case Finlay C.J. referred to the D case as having “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.” The Chief Justice went on to explain 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.

18. Mr. McGuinness went on to submit that the Courts had long held the view that delay in cases relating to allegations of sexual abuse of children and young people fall into a special category. He referred to the judgment of Finlay C.J. in Hogan -v- The President of the Circuit Court [1994] 2 IR 513 where the learned Chief Justice stated at page 521:

19. Mr. McGuinness went on to refer in some detail to the cases of B -v- DPP [1997] 3 IR 140 and C -v- DPP (unreported Supreme Court 28th May, 1998). He argued that the instant case fell well within the parameters of those judgments and that the Court should therefore not grant the Orders sought.

20. I would in general accept Mr. McGuinness’s submissions in regard to the law on delay in the context of charges of child sexual abuse. Indeed, Mr. Comerford largely also accepts this analysis of the law, but argues that that the particular facts of the present case create a real risk of an unfair trial.

21. In the leading case of B.-v- D.P.P . [1997] 3 I.R. 140 Denham J., identifies a number of particular factors which must be considered in relation to the special category of alleged sexual abuse of children. At page 197 the learned judge stated:-

22. The learned judge laid particular stress on the issue of dominion. If, on the facts, it was established that a complaint was not made due to the particular relationship of domination or dominion which the accused exercised over the complainant (which meant that the complainant was prevented from making complaint due to the influence and authority which the accused exercised over him or her) then the accused was barred from arguing that the delay was unreasonable while such dominion existed. In these circumstances the delay was attributable to the accused as a consequence of his alleged actions.

23. It seems to me that in the present case the concept of dominion is of peculiar importance. The children who were placed in the care of the Christian Brothers in this school were invariably suffering from deprivation of one sort or another; many of them came from very troubled families. They were, in general, particularly vulnerable children. They were permanently resident in the School; they had no available parents or other relatives to whom they could make complaint. The teachers and other staff in the residential school were part of a systematic structure of authority; it appears that there was no person independent of that authority structure to whom the complainants could turn. As described by the complainants in their interviews with the doctors and psychologists, it appears that both physical and sexual abuse were a regular feature of life at the school and the young inmates, more or less, accepted that this was normal.

24. The Applicant raises the question as to whether such domination could continue for the many years that have elapsed since the complainants left the school. The evidence of the doctor and the psychologists would suggest that it certainly could. As far as the law on the subject is concerned, it seems to me that the dominion exercised in a situation such as that obtaining in the school is even more likely to be lasting than the dominion exercised by the accused bus driver in C. -v- D.P.P ., which was accepted as lasting by the Supreme Court.

25. As far as dominion and dominion related delay is concerned, therefore, I accept that the present case falls squarely within the parameters of B. -v- D. P. P. The adult life of the complainants has been adversely affected in a striking way by their experiences not alone of physical and sexual abuse but also of the way of life as a whole in the school and therefore I cannot accept that the delay in making their complaints should lead to the prohibition of the trial of the Applicant.

26. However, this is not the end of the matter. To attribute blame for the delay to dominion exercised by the Applicant is, to an extent, to presume that the Applicant is guilty of the offences as charged, whereas in reality the Applicant is entitled to the presumption of innocence. This difficulty was considered by Keane J., in his judgment in C. -v- D. P. P. He suggested that the Court must firstly consider

27. If the Court was so satisfied the Court must then proceed to question:

28. It is in the context of these principles that one must consider a number of the matters raised by Mr. Comerford on behalf of the Applicant.

29. I would accept that the lack of particularity in the charges does give rise to some difficulty for the Applicant in preparing his defence. However, it has been consistently held both by the Supreme Court and by this Court that this particular type of charge may legitimately be brought in cases concerning the sexual abuse of children and that it is not a ground upon which prohibition ought to be granted or a basis for concluding that a trial is likely to be unfair (see E.F. -v- D.P.P. Supreme Court February 1994 Egan J., D. O’R. -v- D.P.P. [1997] 2 IR 273 and B. -v- D.P.P .)

30. It is clear that the Western Health Board has carried out a systematic investigation of many of the former pupils of the school. On reading the material which was presented to the Court in the present case it seems to me that there was perhaps rather too great an emphasis on “encouraging” the former pupils to disclose incidents of sexual or physical abuse, but I do not think that the methods used by the Health Board went near to offering inducements to make complaints or putting pressure on persons to make complaints - both of which would of course render evidence of complaint in an adult rape case inadmissible. It seems to me that both this factor and the role of Mr. G.F., Social Worker, could be effectively dealt with through cross-examination at the trial of the Applicant. While there has been a degree of delay in the actual investigation of the complaints this is explicable on the grounds that so wide an investigation was being carried out both by the Health Board and by the Gardai and the delay at this point is not such as to render the Applicant’s trial unfair. The Applicant has not made any admissions of guilt in his interviews with the Gardai and has indeed consistently maintained his innocence. The record of these interviews, therefore, will not create any difficulty for the Applicant at the time of his trial.

31. While the length of time which has elapsed since the alleged offences will of course create difficulties for the Applicant in regard to availability of witnesses and the lack of material covering the period prior to 1974, this does not seem to me to raise a special or particular difficulty which would take the case outside the parameters of previous cases in which the Supreme Court has held that the trial will not be unfair. These decisions are, of course, binding on this Court. The Supreme Court has repeatedly stated that these disadvantages arising from delay can be dealt with by appropriate rulings and directions on the part of the trial judge. Again the decisions of the Supreme Court on this aspect of the matter are binding on this Court and it does not appear to me that the disadvantages which may be suffered by the Applicant in defending himself at his trial are different in quality and degree from those which would have been suffered by the general run of accused persons in cases of alleged child sexual abuse where there has been a considerable lapse of time between the alleged offences and the trial.

32. Thus the Applicant has failed to discharge the onus of establishing that there is a real risk of having an unfair trial and I therefore refuse the reliefs sought.