High Court of Ireland Decisions

 


Neutral Citation No. [2004] IEHC 417

THE HIGH COURT JUDICIAL REVIEW

[2002 No. 268 JR]

BETWEEN

P. G.

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE MURROUGH CONNELLAN

RESPONDENTS

JUDGMENT of Mr. Justice O'Leary delivered the 10^th day of December 2004.

The applicant by way of judicial review applied on the 14^th November, 2002, for an order in the following terms:

1. An order of prohibition by way of application for judicial review of the respondents made the …….day of ……., 2002, quashing the decision of the respondents to proceed with the Trial of the applicant herein on charge sheets 34646, 33374, 35297, 35294 and 35304, Bray Garda Station in the County of Wicklow.

2. A declaration by way of application for judicial review that the decision of the respondent to proceed with the trial in the matter of the Director of Public Prosecutions -v- P. G. in the charge sheets 34646, 33374, 35297, 35297, 35294 and 35304, Bray Garda Station at Bray District Court was unjust and unfair for delay and contrary to the accused/applicant's constitutional right to a fair and expeditious trial.

3. An injunction by way of judicial review restraining the respondents from proceeding with the trial in the matter of the Director of Public Prosecutions -v- P. G. in the charge sheets 34646, 33374, 35297, 35297, 35294 and 35304, Bray Garda Station at Bray District Court on the 24th day of May, 2002.

4. A declaration by way of application for judicial review that the decisions of the respondents dated the 1st day of February, 2002, to proceed with the trial in the matter of the Director of Public Prosecutions -v- P. G. by way of trial at the District Court summarily on charge sheets 34646, 33374, 35297, 35297, 35294 and 35304 was made in breach of natural justice and constitutional justice and in breach of fair procedures and due process.

5. Such further and other order as to this Honourable Court shall deem fit and just.

6. An order pursuant to the provisions of O. 84, r. 21 of the Rules of the Superior Court, 1986, extending time in which the applicant may seek leave to apply for judicial review.

The application was based on the following grounds:

1. Grounds common to all reliefs sought:-

(a) The lapse of time between the dates of the commission of the alleged offences and the date of any possible trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

(b) The very large number of offences within the indictment.

(c) The lack of specificity and the dates upon which the alleged offences(s) were allegedly committed.

(d) By reason of the great lapse of time, the applicant cannot locate witnesses as to his whereabouts in the period between the 1st January, 1976, and the 31st December, 1977, as to establish a defence by way of alibi or otherwise to the aforesaid charges.

(e) The accused has no documentary evidence available to him as to his activities in the years referred to and the only defence available to him is a denial of all the said charges, which he cannot now support or corroborate.

(f) The Director of Public Prosecutions has further contributed to the prejudice suffered by the applicant by his lengthy and unexplained delay in the commencement, of proceedings.

(g) The delay in the institution of proceedings herein:-

(i) has prejudiced the applicant in his defence of these proceedings;

(ii) is unfair and unjust to the applicant;

(iii) violates the applicant's right to a trial with reasonable expedition;

(iv) has prejudiced the chance of the applicant obtaining a fair trial;

(v) has been excessive and prejudicial;

(vi) as violated the applicant's right to trial in due process of law.

(h) The lack of specificity in the charges has:-

(i) prejudiced the applicant in the defence of these proceedings;

(ii) is unfair and unjust to the applicant;

(iii) has prejudiced the applicant's chance of obtaining a fair trial;

(iv) has violated the applicant's right to a trial in due process of law.

(i) The documents served on the applicant pursuant to the Criminal Procedure Act, 1967 contain statements from proposed witnesses which could not be admissible at the trial of the applicant and contain exhibits which could never be admissible in the evidence of trial and violate:-

(i) The applicant's right to a preliminary examination in accordance with law, and

(ii) Constitute an unfair procedure.

Abbott J. granted leave to apply for judicial review on the above terms and on the grounds set out above but limited to paragraph 1 to 4 on 25^th November, 2002.

A further preliminary order was made extending the time for the issue of the notice of motion by Ó Caoimh J.

The respondent filed a statement of opposition dated 13^th December, 2003, in the following terms:

1. The applicant has not been denied the right to trial in due course of law or a right to trial with reasonable expedition by reason of the lapse of time between the date of the alleged offence and that of his trial.

2. The applicant has not been prejudiced in the defence of these proceedings by reason of the lapse of time in his case being brought to trial.

3. The applicant has not been prejudiced by the lapse of time in the bringing of these proceedings to the extent that he runs a serious risk of being unable to obtain a fair trial. It is denied that there is a real and substantial risk that his trial will be unfair.

4. Any lapse of time in the prosecution of the charges against the accused arises as a consequence of the nature of the abuse perpetrated by the applicant upon the complainant and the effect it had upon her. The respondent will rely upon the affidavits filed herein on his behalf for greater particularity regarding the effect of the abuse upon the complainant and the reason why she did not complain in respect thereof at any earlier date.

5. It is denied that there has been any undue delay in the investigation and prosecution of the offences with which the applicant herein stands charged.

The respondent will rely upon the affidavits filed herein on his behalf for greater particularity regarding the manner in which the investigation and prosecution of the said offences proceeded.

6. The applicant is not entitled to the relief claimed herein or to any relief.

EVIDENCE

The following evidence was before the Court in relation to the application:

1. Affidavit of P. G. dated 14th November, 2002

2. Affidavit of P. C. (complainant) dated 10th December, 2003.

3. Affidavit of Thomas O'Sullivan Garda dated 1st December, 2003.

4. Affidavit of Melissa Darmody, psychologist, dated 10th December, 2003.

FACTS FOUND AND BACKGROUND TO APPLICATION

Based on the available evidence, the facts in this application are neither in dispute or complicated.

The grounding allegation is a complaint from P. C. that the applicant herein sexually abused her in the period between 1^st January, 1976, and 31^st December, 1977. Arising from these complaints the applicant was charged with six separate offences of indecent assault contrary to common law and contrary to section 6 of the Criminal Law (Amendment) Act, 1935. The applicant denies the charges. The complainant, born on 30^th October, 1966, was between nine and eleven years at the time of the alleged incidents. The applicant was born on 6^th October, 1951, and was therefore between twenty-five and twenty-seven years at the time of the alleged incidents. The applicant was married to the sister of the complainant and, while the complainant stayed with the couple from time to time, she resided elsewhere with her mother and sibling.

The history of the complaint of the alleged offending behaviour can be constructed from the various affidavits and statements of evidence compiled by the authorities.

1. The alleged abuse occurred in the two years to 31^st December, 1977, at which date the complainant was aged 11.

2. The complainant told her best friend C. C. in March 1990 of the alleged abuse and over the following six months full details were disclosed to Ms. C. These details included the identity of the alleged culprit. The complainant was aged 25/26 at that time.

3. Complainant told her live-in partner in 1989/90 that she had been abused but gave no further details other than indicating that the perpetrator had a family connection.

4. In or about 1989 the complainant had a discussion on the alleged abuse with her sister K. (who was the one-time wife of the applicant). The context in which that discussion took place was that an allegation had been made of sexual impropriety against the applicant in relation to his daughter and the sister K. came back to Ireland to 'sort out' a care order which had been made in respect of her (and the applicant's) child.

5. As a result of this discussion the complainant understands that K. had told their mutual aunt and uncle of the abuse. At a later unspecified date the complainant discussed the abuse with her aunt directly.

6. The complainant also discussed the matter at a later unspecified date with her niece who had been the subject of the care order.

7. The complainant made a complaint to the Gardaí on 20^th July, 1999, outlining her recollections and expanded on these complaints over the following two years. The further statements were not different in character than the statement in July, 1999 but added some detail.

As is usual in these types of cases the prosecution anticipated the applicant's line of argument and consulted a psychologist to assess the following matters:

(a) The effect of the alleged offences on the complainant.

(b) The reasons for her delay in making a formal complaint about the alleged offence to An Garda Síochána.

(c) Whether these reasons can be attributed to the applicant's conduct, its

effect on her or any other identifiable factor.

(d) To offer an opinion as to whether Ms. C.'s delay in reporting those offences to An Garda Síochána was reasonable in the light of her circumstances.

By report dated 4^th September, 2003, the psychologist reported and supported that report with an affidavit dated 10^th December, 2003. The report is deficient in that it fails to address a central issue as to whether the failure to report was attributable to the effect of the alleged abuse but merely concludes:

"After reviewing the evidence and meeting Ms. C. on two occasions it is my professional opinion that Ms. C.'s delay in reporting the alleged abuse to the authorities was reasonable considering her life circumstances."

This opinion was expanded on in her affidavit where her conclusion now reads:

"As emerges from this report, in my professional opinion I consider the delay in reporting the alleged indecent assault up to the point of disclosure was attributable to the effects of the offences perpetrated against her and was reasonable in the light of her particular circumstances."

The court notes that Ms. Darmody is not a medical doctor but holds her doctorate in Counselling Psychology.

The Court has a number of difficulties with the evidence of the psychologist.

Ms. Darmody's investigation into the reasons for the late reporting to the Gardaí included (correctly) a note as to the intervening reporting. The psychologist identifies two persons who the applicant told of the sex abuse, her friend C. and her partner M. In neither the assessment nor the report arising therefrom is there mention of the practically contemporaneous disclosure to her sister, the knowledge of the aunt and uncle (with whom she had lived) which arose from the disclosure to the sister, the discussion with her aunt or her later discussions with her niece. These omissions are extraordinary as the information identifying each of these events is in the documents before the court. It can only be assumed that full documentation was not made available to the psychologist. Whatever the reason, it is clear that some 13 years after the alleged abuse a significantly larger group of people were told of the allegation both directly and indirectly than are mentioned in the psychologist's report. The scale of the discussions and consultations in Ireland and abroad, both within and without the family, were in the view of the court such that their significance should have been assessed. The failure to so do reduces the weight that the court gives to the evidence of Ms. Darmody.

It is clear that Ms. Darmody used material relating to a different complaint (that of A. G.) in order to come to a conclusion in this matter. It may have been that she was also commissioned to perform a similar function in respect of A. G.'s complaints (which would have been undesirable). In any event, she clearly includes in her source material for this assessment a statement of A.G. relating to her complaint against the applicant. The relevance of this other complaint to an assessment of the delay in reporting in this case is not clear.

The court has pointed out the limited nature of the conclusion in the report itself to the effect that the delay in reporting the alleged abuse to the authorities was reasonable considering the complainant's life circumstances. The expansion of this in the affidavit to a conclusion that the delay in reporting was attributable to the effects of the offences perpetrated against her is surprising. The court has, of course, to rely on the bona fides of Ms. Darmody in that she would not have signed the affidavit (which the court assumes was drafted for her by a lawyer) unless she agreed with its contents. It remains very surprising that in spite of the request she received, to assess the reasons for the delay, no such assessment was made within the report. Her mind apparently had to be directed to the issue a second time.

Overall the report of the psychologist is less than convincing, particularly in the absence of knowledge of the extent of the reporting after thirteen years, and further, in the absence of an assessment of the significance (if any) of the further delay of nine years in the context of that information.

COMPLAINANT'S EVIDENCE

The complainant by affidavit dated 10^th December, 2003, sets out the difficulties she had in disclosing the abuse and confirms certain of the 1989/90 disclosures. She avers that it was only after counselling in 1999 that she was able to speak for the first time in detail about the abuse she alleges.

STATEMENT OF C. C.

In her statement in the book of evidence this witness gives a very full description of the abuse alleged as related to her (with difficulty) by the complainant in 1990. This contradicts the complainant's evidence that she was only able to speak in detail about the abuse after counselling in 1999.

LEGAL ISSUES IN THIS CASE

Contact between the applicant and the complainant was not maintained

throughout the years and it appears reasonable to conclude for the purpose of this application that domination or fear of the applicant played no part in the delay process beyond the immediate aftermath of the events. In this regard it is noted that the affidavit of the applicant dated 14^th November, 2002, contains an averment (which is uncontested) that the applicant had no contact with the complainant since the late 1970s. The court is of the view that, in considering the legal position, the part played by domination and/or fear of the applicant must be factored out as being too remote given the length of the separation and lack of contact.

LAW

Jurisprudence has developed around sexual cases in which there has been a long delay in bringing to trial. While, in respect of excusing the complainant's failure to report, special circumstances apply turning on whether the reason for the delay was the responsibility of the actions of the accused, the jurisprudence itself is merely a subset of the general law relating to delay. The law was set out in a convenient form in the following extract from the judgement of Keane C.J. in P O'C v. Director of Public Prosecutions [2000] 3 I. R. 87 at page 93:

"There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious crimes. However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge 'save in due course of law' entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children and particular in case where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent, teacher or religious.

In cases coming within the last named category, the inquiry conducted by the court which is asked to halt the trial necessarily involves an assumption by the court that the allegation of the victim is true. Without such an assumption, it would not be possible for the court to conduct any such inquiry and the court would be obliged automatically to halt the trial of a person because of the expiry of a lengthy period of time, even though the failure to make a complaint was due to domination exercised by the adult over the young child during the period of the abuse and even where – as has happened in a number of cases – the abuse has been perpetrated over many years by a parent or step-parent of a child actually living in the family home with the perpetrator. Since that patently cannot be the law, the presumption of innocence which applies in its full rigour to a criminal trial cannot apply to inquiries of this nature.

If, such an assumption having been made, the court invited to halt the trial is satisfied that, as a matter of probability, the failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without more, will not be a reason for halting the trial. There remains, however, a further inquiry which must be conducted by the court in every case, i.e. as to whether the degree to which the applicant's ability to defend himself or herself has been impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier stage of the inquiry that the delay is the result of the applicant's own conduct ceases to have effect once that stage of the inquiry has been concluded. In the final stage of the inquiry, the applicant is presumed to be innocent of the offence with which he has been charged and, if he or she can demonstrate to the court that it is probable that a specific defence which might otherwise have been open to him or her is now no longer available because of the passage of time, the court may then halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge."

This judgment also gives the court assistance in the question of whether delay can of itself give rise to a right to relief in the absence of demonstrated actual prejudice (the concept of presumptive prejudice so beloved of the U.S.A. courts.)

The then Chief Justice, later in the same judgment, notes (at page 96):

"In the present case, the applicant cannot successfully rely on the general prejudice which undoubtedly affects any person who faces a trial on a serious criminal charge many years after the happening of the alleged offence, because of the nature of the particular offence and the evidence of the psychologist as to the probable effect it would have had in terms of the making of a complaint. Nor could he rely, in a case such as this, on a bald assertion that some specific prejudice has resulted to him which would give rise to a real and serious risk of an unfair trial. In the present case, his solicitor placed before the High Court material which went beyond such a bald assertion."

The court therefore sets out its findings in this case in the context of the various tests suggested.

DELAY

Delay can be of two types - prosecutorial delay and general delay (such as that brought about by late reporting). In this case, for convenience, the court will first consider the general delay point.

The question of showing prejudice does not arise under this heading. The period of time that elapsed between the date of the alleged offences and their reporting to the Gardaí was between 22 and 24 years. This is far outside the acceptable limits in respect of 'normal' offences. In cases alleging unlawful sexual activity with a young person such as this special rules apply. If it can be shown that the reason for the non-reporting arose as a result of the offending behaviour then the rules that apply normally do not apply in cases of offending sexual behaviour.

This court must first adjudicate on this matter of delay on the assumption that the offences did occur. While the total length of time must be considered it can in this case be subdivided into two parts.

Up to 1989/90, in the absence of other factors, the delay, prima facie, appears to this court to be at least consistent with the psychologist's conclusion that the complainant's inability to make a complaint resulted from the conduct alleged. Even though the complainant was by then far removed from any undue influence and/or domination by the applicant, the secrecy she maintained could of itself indicate that her reluctance to make a complaint arose as a result of the conduct of the applicant. However, this preliminary conclusion must be reassessed in the light of the explanation given to the psychologist covering at least part of this period that she felt the best way to move on from the events of her childhood was to try to forget the alleged abuse. This explanation is reinforced by the contents of the psychologist's report, which dates the determination to report to help the complainant received from a counsellor in 1999 who was dealing with issues arising from the complainant's boyfriend's drug problem. This formed the background to the ultimate reporting.

The test applied by Keane C.J. in P. O'C v D.P.P envisages the refusal of an application to halt a trial if the failure of the victim to complain of the offending conduct was the result of the conduct itself. Thus, a qualitative assessment of the reason for the delay as found by the court is necessary to adjudicate whether, in an individual case, the failure of the victim to complain was as a result of the offending conduct or otherwise. At one extreme is the case where a person is so badly affected by the experience as to be totally incapable of making a complaint. At the other end of the spectrum might be a case where a complainant decides that the making of a complaint would be merely inconvenient and changes his or her mind later in altered life circumstances. It appears to the court that the facts of this case, in so far as they relate to the failure to make a complaint up to 1989/90, bear a greater similarity to the second example above mentioned than they do to the first. That conclusion is but preliminary and is not to be taken in isolation but has to be grafted onto and considered with the position after the 1989/90 developments.

The court separately considered the issues in the context of the 1989/90 developments.

While (on the basis of what she told the psychologist) the complainant thought her mother and sister knew of the abuse, she did not tell them nor did she confide in anyone until 1989/90, at which stage she was living away from the applicant for more than a decade and did not have any contact with him. She was by then 23/24 years of age. Her mother had died. Any residual family embarrassment and/or other feeling of subservience to or dependence on her long absent brother-in-law (the applicant) had by this stage disappeared. He was by then estranged from the family. It is noteworthy that she discussed the issue with her sister at that time, in the context of her sister making an application to get her child (the complainant's niece) out of care. This niece allegedly had been taken into care as a result of abuse by the applicant. The court is satisfied to a high degree of certainty that, from that point on, the external circumstances relating to any interaction between the applicant and the complainant in no way prevented the making of a complaint. This conclusion is additional to the conclusions set out earlier in this judgment.

The court's assessment does not rest there. Of equal importance is whether, as a matter of probability, the failure of the victim to complain of the offending conduct for a further 9/10 years was the result of the conduct itself. In that task all the evidence received, including that of the psychologist, assisted the court. The court must be careful not to abdicate its constitutional responsibility to independently arrive at a conclusion based on its own knowledge and experience (assessing all the available evidence including the psychologist's report) for a policy of adopting without question the report of the prosecution's witness i.e. the psychologist. The court has made its assessment taking into account all the relevant factors including its assessment of the weight to be attached to the psychologist's report.

The court concludes that a change of significance occurred in the capacity of the complainant in 1989/90. From a position of not confiding in anyone, she discussed her experience with her sister, her partner, her neighbour in an apartment block who was her 'best friend' of one year standing and her aunt. In addition, she was aware that her uncle was also made aware of the events and some time later she discussed it with her niece. Her discussion with her sister is, in the view of this court, of great significance as it was in the context of a further abuse allegation made against the applicant by a family member. The court noted the complainant's explanation that her eventual reporting nine to ten years later arose from her wish to protect others from the applicant. This explanation is difficult to understand in the context of the circumstances of the 1989/90 discussions with her sister. If the complainant was motivated by the desire to protect others, it is reasonable to conclude, as a matter of probability, that, at the time of her discussions with her sister (whose child had already been the subject of alleged abuse by the applicant), the question of the extent to which her complaint should be disclosed to the authorities was a matter which would have been discussed between the sisters or at least privately considered by the applicant. For whatever reasons, a decision against making a complaint was made. The complainant told the psychologist that at an earlier period she felt the best way to move on from the events of her childhood was to try to forget the alleged abuse. It is hard to avoid the conclusion that the decision not to complain in 1989/90 was a continuation of that policy.

The court is satisfied that from 1989/90 the continued absence of complaints was not as a result of the offending conduct itself but a conscious judgment of the complainant based on her assessment of the benefits and disadvantages of such an action. Due to altered circumstances the complainant later changed that assessment. The right of an accused to a speedy trial cannot be set aside for such personal convenience.

As the court's assessments, both with respect to the period prior to 1989/90 and thereafter, are the same, it is obvious that when taken together in their entirety the delay in making the complaint is in breach of the applicant's right to a speedy trial. Therefore, it is clear that the applicant is entitled to succeed having regard to the test of general delay laid down in P.O'C. v Director of Public Prosecutions by Keane C.J.

Further consideration is not necessary but so as to fully consider the issues raised the court also assessed the question of prosecutorial delay and prejudice specific to this case as a result of delay.

PROSECUTORIAL DELAY

The following are the relevant dates in this case:

1. The offences were allegedly committed in the years 1976 and 1977.

2. The complaint was made on 20^th July, 1999.

3. The investigation was completed on or about 12^th April, 2001, and the file sent to the Director of Public Prosecutions.

4. At the direction of the Director of Public Prosecutions, a further statement was taken from the complainant on 3^rd November, 2001.

5. The applicant was arrested on 1^st February, 2002, and charged.

6. The case has proceeded at a normal pace since the applicant's arrest.

Two years and six months elapsed between complaint and charge. In ordinary circumstances this would be unremarkable. However, there is, in the view of the court, a special duty on the prosecutors in 'old' cases to expedite the investigation and minimise the delay. Any delay must be explained.

In this case, Sergeant Thomas O'Sullivan by affidavit dated 1^st December, 2003 explains the delays between reporting and charge. Two periods are noteworthy, namely, a delay of six months in assigning the investigation to Sergeant O'Sullivan when the original Garda left through illness and a delay of nine months in contacting witnesses including the complainant. The complainant had left Ireland without leaving a contact address. The total of fifteen months taken by these matters explains in full the excess time taken. The prosecuting authorities are entitled to some leeway in their investigation and, taken in the context of the rest of the investigation, such delay as occurred appears acceptable. The applicant fails under the heading of prosecutorial delay.

ACTUAL PREJUDICE

The applicant maintains that his defence is compromised by:

1. The delay of 25 years.

2. The scattering of the fellow residents of the house, in which he and his wife occupied one flat of seven. The applicant anticipates difficulty in contacting any of these potential witnesses.

3. The complainant's parents are deceased and they had made no complaints against him. They would have been potential witnesses.

4. The failure of attempts to date by the applicant to contact witnesses.

5. The lack of specific dates for the alleged offences.

These may appear to be serious and substantial points but do not lie at the heart of the case. In a case such as this, the central thrust of the trial would be the complainant's evidence and the applicant's rebutting evidence (should he so choose). It is unlikely that others would be able to contribute any details of the allegations themselves. Unfair as this may seem, it is the consequence of the nature of the allegations. Even very shortly after the alleged events, complete alibis are unlikely as the precise date of the occurrences such as those alleged (which of their nature are secret in execution) would not be known unless the occasion of an offence was remarkable for some other reason. There are no such remarkable events disclosed in this case relating to these charges. The applicant's capacity to meet the case would be limited more by the nature of the allegations themselves rather than the absence of witnesses who could only give general evidence, as the dates of the alleged occurrences are not specific. In other cases of this type, the prospect of success under the heading of actual prejudice would be greater if the allegations related to a particular identifiable day for which a particular witness could provide a complete alibi. That is not the case in this application where the charges would be proved or not proved largely based on the evidence of the principal or principals. It is true that the absence of specific dates places the applicant in a difficult situation but the common good relating to the prosecution of offences of this kind permits the laying of charges with a wide spread of possible dates. It is a matter for the trial judge to ensure that no prejudice to the rights of the accused follows.

The applicant has failed in the view of this court to demonstrate actual prejudice under this heading.

The court, for the reasons set out above relating to delay, will make an order in the terms of paragraph 1 of the leave granted on 25^th November, 2002.

Costs to follow the event.

Approved: O'Leary J.