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Cite as: [2004] IEHC 424
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Neutral Citation No: [2004] IEHC 424
Neutral Citation No: [2004] IEHC 424
[Record No. 2002 185 JR]
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT by Mrs. Justice Macken delivered on the 21st day of December, 2004
This is a case in which the applicant seeks, in judicial review proceedings, certain Orders against the respondents, arising out of allegations of sexual abuse which are the subject of criminal proceedings commenced by the first named respondent and at present before the second named respondent.
On 15th April, 2003, McKechnie, J. gave leave to the applicant to apply by way of judicial review for (i) an injunction restraining the first named respondent from pursuing the prosecution of the applicant on foot of an indictment namely "The People (at the suit of the Director of Public Prosecutions) against R. B." and (ii) for an Order of Certiorari quashing the Order of the second named respondent made on 9th November, 2001 returning the applicant, as accused, for trial on all of the charges contained in the Book of Evidence arising from the aforesaid prosecution.
The factual background to the case is reasonably straightforward. The applicant is a man of 69 years who, in the relevant period, was a priest at a school for boys in Leinster run by the Order of which he was member, in Leinster.
He was charged in 2001, on indictment, with several counts of indecent assault against four complainants, all of whom were at the time students of the school, contrary to S. 62 of the Offences Against the Persons Act, 1861.
The complaints made to the Gardai by the four complainants were made in the late 1990s and concern allegations of sexual abuse on several dates in the period from early 1973 to mid 1981. The several charges are all in identical terms, six in respect of one complainant, four in respect of another, and one in respect of each of the two others. By the date of this judgment the events are between 23 and 31 years old.
The circumstances surrounding the alleged commission of the offences against each of the complainants are very similar. All were students at a school at which the applicant was, among other things, their spiritual counsellor and sex education advisor. The alleged abuses occurred, for the most part, in the applicant's room when no one else was present, and in the school sports complex, and commenced at a time when the complainants were about 12 or 13, continuing in the case of some of them until they were about 16 and 17, depending on the particularities of each complainant's case.
It will be helpful if I set out a short synopsis of what each of the complainants say. According to the statements made by the first complainant, he went as a boarder to the school in question at aged 12 in the month of September, 1974. He was part of a class of about 30 boys and very shortly thereafter the applicant introduced himself saying that any of the boys could talk to him about anything at any time, that he was very keen on sport and that he ran the sports shop. The captains of teams, who would be chosen to serve his Masses, would be called to his rooms in the evenings to discuss how they got on.
This complainant says that the applicant touched him in a sexual way on the very first occasion on which he was called to his rooms, and that this continued over a lengthy period of time as the relationship between him and the applicant became more intense. This complainant says he looked up to the applicant as his spiritual and moral advisor and although confused initially, he came to trust him, but later invented ways to avoid being called by the applicant, including giving up sports and pretending to have illnesses, even illnesses requiring hospital treatment. The intensity of the sexual abuse became more marked over time with the applicant insisting on a mutual relationship of a sexual nature which the complainant said he could not avoid and which continued for several years. He estimated that between 1977 and the end of 1978 there were approximately 40 occasions on which these incidents occurred, and overall about 100 such events.
The other complainants gave accounts of a similar nature. In the case of the second complainant, the events are alleged to have occurred between September, 1980 when this complainant first attended the school, and mid 1981. He was a day boy, but there was a study period after formal schooling finished and day boys did not leave the school until 7.15 p.m.. He said that all first year students attended the applicant for sex education classes. He says he too was called to the applicant's rooms from study period, and that all the abuse, save on a few occasions, took place there, the other occasions being in the sports complex. This complainant stated that initially the applicant touched him sexually, but this changed at some time to a forced mutually sexual relationship between them. He believed he had more than twenty such encounters between September, 1980 and mid 1981.
The third complainant was also a border at the school, arriving in September, 1972, and he repeats a story similar to those above, namely being called to the rooms of the applicant, the applicant touching him sexually and an increase in the intensity of the sexual contact, which lasted until the end of his first school year.
In the case of the fourth complainant, he went to the school in 1974 when he was about twelve. He spoke of similar experiences to those of the others, of the sexual abuse commencing very early and continuing over a period of time, of it finishing at a particular point, and of being ill and in the school infirmary as a result.
All complainants say they were in thrall of the applicant and/or felt unable to do anything about his behaviour, for reasons which are considered further in this judgment, save the third complainant who did tell his mother, who in turn complained to the school and shortly thereafter the abuse did cease against that complainant.
The applicant seeks to restrain further steps being taken in the criminal proceedings on the basis of the delay involved in the matter. His complaint relates to three specific periods of time, namely (a) the period between the dates of the alleged offences and the dates on the which the complaints were made to the Gardai, (b) in so far as concerns the first complainant the period between 1995 and 1998 when the complaints were in fact made, and (c) prosecutorial delay between 1998 and 2001 when he was actually charged. In all three periods he says that the time which elapsed was unreasonable and was in breach of his legal and constitutional right to a speedy trial. In the case of the first period, he alleges that the lapse of time between the date of commission of the alleged offences and the date of trial is now so segregated as to give rise to an unavoidable presumption of prejudice against the applicant.
There was a further complaint raised originally in the proceedings on behalf of the applicant which concerned the question of a preliminary investigation, pursuant to Section 2 of the Criminal Justice Act 1999, and on the consequences flowing from Section 23 of the said Act. Counsel on behalf of the applicant indicated during the course of his opening of the case before me that this aspect of the judicial review proceedings would not trouble the Court as it was now accepted by the Respondents that such preliminary investigation would, if the trial proceeded, take place. On this matter, having regard to the judgment which I am about to deliver on the remaining aspects of the case, I will make such orders, if any, as may be required.
Before dealing with the applicant's legal argument in detail, I will refer to the applicant's grounding affidavit in which he sets out his position. His complaints on affidavit relate (i) not only to the lengthy period of time which elapsed between the dates of the alleged offences and the service of the book of evidence, as already mentioned, but also (ii) to the invidious position he is in, it being extremely difficult for him to gather evidence as to specific day to day activities carried on in the school and whether or not those activities would have placed him or the complainants in the place where the offences are alleged to have occurred. He claims therefore that there will be considerable difficulty in testing the accuracy of the evidence of the complainants because of the efflux of time. He also avers in his affidavit to matters relating to specific delay between 1995 and 1998 on the part of the first complainant.
The applicant bases his claim on two separate legal arguments. As his primary argument, Mr. Hartnett, S.C. on his behalf, argues that the question of delay falls squarely within the ambit of what he calls the cornerstone of our criminal law system, namely, the principle of innocence. He says it is a fundamental principle of our criminal law system that a person charged with a criminal offence is presumed to be innocent of that offence, and that this presumption remains until a jury determines otherwise by its verdict. He argues that the leading authorities on the issue of delay go no further than holding that the application of the principles involve a suspension of the presumption of innocence, and adopts the analysis of this presumption and the role it plays in delay cases in the judgment of Hardiman, J. in J.O'C, (2003) I.R. 480 at 519, and of the apparent differences between judgments on this issue.
He further argues that the fact that the Book of Evidence contains a statement allegedly made by an accused person is not determinative of his guilt or innocence. He submits, therefore, that the fact that alleged admissions exist in the book of evidence in the instant case is not relevant to the proceedings, but is relevant solely to his guilt or innocence within the criminal trial process. Mr. Hartnett contends that it is wholly inappropriate for the respondent to refer to the contents of the statement for the purpose of seeking to establish any facts or draw any inferences from its contents.
In regard to this specific aspect, counsel for the first named respondent draws the Court's attention to the fact that, although the applicant swore an affidavit in these proceedings he does not state in that affidavit that he will dispute the admissibility or the accuracy of any the statements which he has made in his pending trial. He says the admissions are both detailed and frank, and points to the decision of the Supreme Court in the case of D.W. v. D.P.P., 31st October, 2003, unreported., in which McGuinness, J. considered the relevance of admissions in the context of an application to stay a trial stating that:
"The applicant is fully entitled to the presumption of innocence in regard to all the charges which have been brought against him. However, when considering whether his trial on these charges is to be prohibited, his own attitude to the charges is a relevant factor."
On this aspect of the case, I must find that the presumption of innocence remains clearly available to an accused whether or not an application is made to stay a trial. An accused may withdraw his statement or in some way challenge it during his trial, and this Court should not prejudge that possibility in any way. Nor does a statement made by an accused, even one containing alleged admissions, constitute, per se, proof in the criminal trial of the matters allegedly admitted.
But in the case of an application to stay a trial, the attitude of the applicant, if known may be a relevant factor to be taken into account in assessing whether any specific defence which might otherwise be open to the applicant is no longer available, and it may therefore be relevant to have regard to the content of statements in deciding the way in which this court should exercise the discretion it has to grant or refuse the orders sought. It may be no more than an additional factor, not in any way determinative in itself, but one to be considered together with other factors as part of the exercise being undertaken.
I do not therefore accept that the presumption of innocence, well established, and properly protected in criminal proceedings, is automatically jeopardised by the court including among the factors to be considered, the content of the statement made by the applicant. I will not, however, consider the statement other than for the purposes of ascertaining whether there is any defence which would otherwise be open to him that is now no longer available to him by reason of the delay involved in this case and I deal with the case on that basis.
Secondly, relying on the constitutional principle that every person is entitled to a trial with due expedition, Mr. Hartnett argues that it must follow from this principle that any delay of the type encountered here, being unreasonable, even without any evidence of prejudice to the applicant, must lead to the injunction sought being granted. That is to say, delay simpliciter, with nothing more, suffices because, he says, it is so inordinate that the Court must consider presumed prejudice in such circumstances to exist.. In support of this contention he relies inter alia on the decision of this Court in P.M. v. Malone & D.P.P., (1994) 2 I.R. 236.
Mr. Hartnett further argues that, apart from inordinate delay which, per se, entitles him to the orders sought, the applicant has also suffered specific prejudice in the form of a missing witness who, it is claimed, received a complaint from one of the alleged injured parties, and who is now dead. Accordingly, he says, that the assertions made by that complainant cannot be tested with reference to the individual who is now dead.
For the first named respondent counsel says that the principles governing delay in the case of sexual abuse allegations are now well established. Mr. McDermott B.L. submits that it is only in exceptional cases that a trial, duly prepared by the first named respondent, should be the subject of an intervention to prohibit or prevent it from taking place. He contends that any applicant seeking relief therefore carries the onus of establishing that there is a real risk he will not receive a trial in due course of law as guaranteed by the Constitution. He argues that whereas every judge presiding over a criminal trial must take all necessary and appropriate steps to ensure that the trial is conducted fairly, it forms no part of this Court's function to formulate a policy regarding the propriety of a trial proceeding after five, ten, fifteen or twenty years. Such policy matters are for the Oireachtas, and he says that every case must therefore be decided on its particular facts.
Counsel says that this principle is now well established, and invokes Finlay C.J. in Z. v. D.P.P., (1994) 2 ILRM 481 at 498:
"This Court in the recent case of D. v. D.P.P. 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.
. . . an onus to establish a real risk of an unfair trial … 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."
As to the question of specific risk, I can deal with this quite briefly at the outset. The specific prejudice which the applicant invokes is firstly, the absence of a witness to an allegation made by one of the complainants that he, the complainant, told the now dead witness he was being abused. The first complainant says in his statements that, subsequent to a period of time during which the applicant allegedly abused him, his school work was badly affected and he was addressed by the now dead witness in relation to that. The complainant says that after some exchanges, he eventually blurted out that he was being abused by the applicant. He says that this was poorly received by the now dead witness who called him "a liar", among other things. That is the extent of the evidence which that complainant makes, at least at this point in time.
Given that the vast majority of the alleged abuses took place in the study of the applicant behind closed doors, during the students' study period from which they were called, and while each complainant and the applicant were alone (save in two or three instances when it is said more than one student was allegedly involved), as one would normally expect in offences of this nature, I do not find that the absence of the witness in question is critical to the defence of the applicant or to the likelihood that his right to a fair trial will be jeopardised. It is for the judge handling the trial to instruct a jury in relation to such matters. Moreover, it is not clear how the evidence of such witness, had he been available at the trial would assist a defence, there not being before me at present any indication of the defence (other than a defence of a total denial) which the applicant may wish to make to the charges, and counsel for the applicant did not indicate how this witness might have been material to the defence of the applicant. The only argument made is that the applicant would not be able to test the complainant's assertion that he had informed the now dead witness that he was being abused, but this does not bring the matter further, and can properly be dealt with by the trial judge..
Secondly, as previously indicated in this judgment, the applicant makes an allegation of a second matter of specific prejudice. He argues he cannot gather evidence as to specific day to day activities carried on in the school and as to whether or not those activities would have placed him or the complainants in the place where the offences are alleged to have occurred. Having regard to the above description of where and when the alleged abuses took place, and to the fact that at this stage of the matter, I must accept the truthfulness of the complaints, again I am not satisfied that the absence of this evidence is critical to any defence which might be available, nor was it explained how it might prejudice the defence. In that regard, I adopt the dictum of McGuinness, J. in the case of D.W. v. D.P.P., (citation) where she stated:
"The applicant's case in this regard is that school records and time tables and general evidence about, for example, the usage of the medical room, will no longer be available. This may well be so, but these matters can be drawn to the attention of the jury by the trial judge."
The trial in this case will depend very largely on the credibility of the parties, given where and when most of the abuses allegedly occurred, and this is precisely the situation which would have arisen even if the complaints had been made within a short period of time after the alleged abuse occurred and the applicant had been charged at that time. I do not find that either alleged claim of specific abuse is such as to make it probable or even likely, on the information available, that a fair trial could not be assured.
In the circumstances I do not consider that the applicant has made out a case of specific prejudice arising from the absence either of the witness in question or of evidence of the day to day activities carried on in the school, due to the delay in making the complaints.
There remains, of course, the perhaps much larger question as to the very lengthy time delays which have occurred, even if there is no evidence of specific prejudice to the applicant. It is true that, in the area of child sexual abuse, on the issue of delay in bringing proceedings for such alleged abuses, the jurisprudence of the courts in this jurisdiction, as well as in other jurisdictions, has been of an evolving nature. In recent decisions both of The High Court and of The Supreme Court, it is clear that mere delay, of itself, does not generally give rise to an automatic entitlement to an injunction, notwithstanding the constitutional right of an accused to have a speedy trial, although if the delay was of such length that no fair trial could possibly occur, mere delay with nothing more may properly lead to an injunction to restrain further steps in a prosecution. On the other hand, the fact that the offences are sexual offences against children does not automatically entitle the prosecution to proceed notwithstanding long delay.
Rather than consider each and every one of the several cases invoked by counsel for the respective parties, in support of one or other view of the jurisprudence on this matter, I refer to one of the most recent judgments, in which the Supreme Court, by unanimous decision, considered the principles and the manner in which they should be applied in cases such as this.
In the case of T.W. v. The Director of Public Prosecutions, 28th July, 2004, unreported, the Supreme Court stated:
"In a succession of judgments this Court has set out the principles of law which should be applied in deciding whether, in the circumstances of a particular case, a trial of the accused should be permitted to proceed. These judgments acknowledge that there is a balance to be struck between the public interest in seeing that persons are tried for serious offences where it has been found that there is sufficient evidence to warrant that person being put on trial and the constitutional right of a citizen to a trial in accordance with law, that is to say a fair and expeditious trial."
And further, the Court referred to the case of Hogan v. President of the Circuit Court, (1994) 2 I.R. 513 at 521 in which Finlay, C.J. stated:
"Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and elapse of time before they are in a position to do so cannot give an accused a right to prohibit a trial on the basis of defeat of his constitutional right to an expeditious trial. For example, cases consisting 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 occurred involve wholly different considerations . . ."
And, the court continued, in its exposition of the applicable principles:
"The kind of considerations which may fall to be considered were referred to, again by Finlay C.J., in G. v. Director of Public Prosecutions, (1994) 1 I.R. 374 when he stated at p.380:
'The Court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order.'
The Supreme Court stated:
"These issues have tended to arise mainly in the context of persons who have been charged and sent for trial for sexual offences against young children. The considerations which arise in such cases was further dealt with by Keane J. (as he then was) in P.C. v. Director of Public Prosecutions, (1999) 2 IR 25 at 67:
'The approach that must be adopted by a court asked to prohibit the trial of a person charged with such offences was dealt with comprehensively by Denham J., speaking for this court in B. v. Director of Public Prosecutions, (1997) 3 I.R. 140, and has been considered by her again today. Clearly, the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed. . . . 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. In addition, of course, in individual cases they may be threats, actual or implied, or punishment if the alleged offences are reported.
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.
This is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. 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 the onus. All the circumstances of the particular case must be considered before that issue can be resolved.
Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial; that, after all, is what is meant by the guarantee of a trial 'in due course of law'. The delay may be such that, depending on the nature of the charges, a trial should be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own action.
If that stage has been, the final issue to be determined will be 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. That is a necessary inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial'
The Supreme Court, having adopted these principles as those which ought to apply in such cases, confirmed also that they have more recently been reaffirmed in a number of the judgments of the Supreme Court and in particular in P.O'C v. Director of Public Prosecutions,(2000) 3 I.R. 87, and then continued:
"The two primary questions for consideration in this case therefore are whether the long delay between the commission of the offences and the reporting of them to the authorities assuming the complaint to be truthful, is referable to the accused's own actions. The second is whether, if the delay is explicable by reference to the conduct of the accused, whether notwithstan-ding the explicable delay, the circumstances disclose that the trial of the accused would be prejudiced in such a way as to give rise to a real and serious risk of an unfair trial."
"The court asked to prohibit the trial of a person on such offences, even after a very long period, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order."
I propose to adopt this very helpful reaffirmation of the principles to be applied in cases such as these, to the facts at issue in the matter before me.
In the jurisprudence, it is possible to decipher two separate but related concepts. The first is the influence of "dominion", in the strict sense of the word. That is to say, that the delay is caused by the fact that the accused in some way had dominion over the complainants at the time of the commission of the offences, and also that that dominion may have continued after the events, such that the complainants were unable to make the complaint earlier. The applicant denies that he exercised any dominion over the complainants, either while they were at the school or later.
From the jurisprudence, dominion may be implied as existing between, for example, a parent and child, teacher and child, or in situations in which the, usually adult, party exercises control or significant influence, over the, usually, child. Typical would be the parent, teacher, priest, scoutmaster, the games mistress, the grandfather or other adult family relative, the adult childminder, and so forth.
Cases in which dominion of a continuing nature subsequent to the events of abuse are not too frequent, although there have been a few in which, because of the close continuing liaison between the alleged abuser and the complainant, continuing dominion in the true sense of the word existed even after the actual abuse ceased. In cases where such dominion continued so as to prevent a complaint being made, the jurisprudence suggests that delay may generally be excused.
The second, related, concept is one which in the jurisprudence is sometimes called "dominion", but which needs to be looked at differently from the issue of true dominion, as considered above. It arises where, although the parties may have been in a relationship of dominion at the time of the abuse, and although that formal dominion has ceased, perhaps long ceased, nevertheless the complainant cannot complain because the traumatic psychological or psychiatric sequelae are of such a nature as to prevent or significantly interfere with the possibility of doing so earlier. This is best categorised as failure to complain arising "from the conduct of the abuser" as it is called in some of the jurisprudence.
The applicant denies that at the time the complainants were in school, he was in a position of dominion over them, or that he exercised any influence over them after their leaving school. He does accept that if it can be shown that the failure to complain was due to his dominion over them, then the delay in complaining may be excused. As to the period in school, he says that two of the complainants complained, to a parent or to another priest, while they were still in school, and therefore this supports his contention that there was no dominion over them, even during that time..
As to the period after they left school, he argues that when the complainants did complain, they explained their reluctance or failure to do so by reference to influences of family or to job opportunities, social or related matters and not by reference to any influence or dominion on the part of the applicant on them.
I do not accept that the applicant did not exercise dominion, in the true sense, over the complainants while they were students. The position of the applicant as a sex education adviser, as a religious counsellor, as a sports organiser, as a priest for whom the students served at his daily Masses, or even as a priest whose presence was regular and interactive with the students, cannot be considered as anything other than one of dominion over school students, bearing in mind that at the time of the commencement of the alleged abuse the boys were new at the school and aged 12 or 13. Indeed, it could be said that the applicant, among others, would be considered to be taking the place of the parents in the day to day lives of the boys, even if not their official guardian or a person designated as being in loco parentis to the boys. I reject the argument made on his behalf that he was not in such a position.
As to the fact that one of the complainants did complain to another priest, as set out above, the evidence I have at the moment, is that this was blurted out in the course of his being admonished for his poor work. This cannot be categorised as proof that the applicant did not exercise dominion over the complainants. As to the complainant who, according to the statements made, having been pressed by his brother because of the numbers of occasions on which he was called to the applicant's rooms from study period, eventually told his parents, who complained to the school and the abuse against him stopped, again I find it difficult to understand how it follows that such a situation did not mean the applicant was not in a position of dominion over the student, and I do not find that it affected that relationship. I do not find in this evidence any indication that the applicant did not exercise dominion over the complainant.
However, I also accept that this case is not one of continuing dominion, in the sense used above, over the complainants after they left school, and certainly not in the 1995 or 1998 when they first complained to the authorities, and there is no evidence to suggest it could be so considered. This case can only be dealt with under the "conduct of the applicant" category, that is to say, the question is whether as a result of the abuse of the complainants, its consequences and effects on them were such as to prevent the complainants from being able to make complaints to the authorities earlier than they did.
In these latter cases, expert reports of psychologists and psychiatrists are frequently furnished to the court, and they were here also.
So far as the expert reports are concerned, counsel for the applicant objects to the fact that in them some of the deponents speak about the "reasonableness" of the complainant's failure to complain sooner, and says that these expert reports do not in any event support the contention that the complainants were unable to report the alleged abuse earlier than they did.
As to the expert evidence adduced, counsel for the first named respondent invokes the affidavit evidence of the psychiatrists and psychologists who saw and examined the complainants, which he says provide a compelling reason for refusing the applicant the relief he seeks.
Although liberty was granted to cross-examine those experts, as well as all the complainants and all the Gardai involved in the investigation of the complaints, in fact, the expert witnesses were not cross-examined during the course of the hearing before me. In respect of the assessment of their evidence, counsel for the first named respondent referred to the findings of McGuinness, J. in D.W. v. D.P.P., 31st October, 2003, unreported, in which she stated:
"All such evidence is open to challenge in cross-examination. It must, however, be borne in mind that it is not the task of the expert witness to assess the credibility of the complainant or the guilt or innocence of the applicant. The truth or otherwise of the complaints is to be tested at the trial of the applicant."
And further, having commented on the practice of tendering to court evidence of psychologists or of psychiatrists, as to the reasons for the delay, she continued:
"It seems to me that there are two ways in which expert psychological evidence can be of assistance to the court in these cases.
In certain cases there is ample ordinary evidence which would assist the court in understanding, from its own commonsense and general experience of life, why for example, a child did not immediately report sexual abuse by an adult. The case of B. v. D.P.P. is one example. In such cases, it seems to me, any expert evidence could be limited to general exposition of the reasons for delay in reporting in these cases. The numbered list of factors set out by the expert witness in the case of K. v. Judge Groarke and the D.P.P. at page 3-4 of the judgment of Denham, J. in that case is a good example.
It would then be for the Court to form its own opinion of the influences of these factors within the parameters of the other evidence in the particular case.
In some cases, however, the reasons for the delay are less clear and less readily ascertainable. In such cases expert evidence in greater depth may be required and further may be considered appropriate"
There was before the court in respect of each of the complainants, reports of expert witnesses and affidavits from each of the complainants in which they verified the truth and accuracy of the statements in the reports of those experts (which inter alia set out what had been told to them by each complainant).
In the present case, the expert evidence may be summarised as follows:
(a) As to the first complainant, the evidence is that Dr. Michael Corry, a consultant psychiatrist, examined him on several occasions, namely on 5th June, 1998, 9th July, 1998 (wrongly referred to on affidavit as 1988) on 1st November, 2001 and finally on 18th July, 2002, the last one after the commencement of these proceedings.
Dr. Corry also had access, inter alia, to the sworn statements of the complainants as furnished to the Gardai.
(b) In his report, Dr. Corry refers to the sexual abuse as occurring between 1974 and 1978, having first commenced when the complainant was 12 years old. He reported the detailed expose given by him of his family life and his school experiences, and he examined the course of his life up to the time of the report.
(c) He assessed, following standard professional procedures normally adopted in these matters, the post traumatic stress and other psychological sequelae of his life including, but not limited to, the childhood sexual abuse, which according to his interviews with this complainant included over 100 incidents of abuse by the applicant.
(d) He recorded the complainant's ongoing mental turmoil, high levels of anxiety, vivid intrusive thoughts relating to the abuse and nightmares, the content of which concerned the abuse in question. He also recorded, through the several interviews, the complainants' indications of depression, inability to form intimate relations and lack of social interaction, as well as panic attacks.
(e) Dr. Corry found the complainant to be, on occasion, during the interviews, extremely distressed, sweating profusely, and he recorded this complainant's ongoing feelings of being drained, hopeless, desolate and depressed, with an inability to recover between the panic attacks.
(f) In particular, Dr. Corry indicated that at the consultation of 18th July, 2002 the complainant indicated for the first time that he was ready to start dealing with the unresolved matters "now".
Having recorded these ongoing developments, Dr. Corry furnished his opinion which can be summarised readily. He found this complainant to be suffering from symptoms consistent with an unresolved post traumatic stress disorder. He indicates that the complainant had experienced mental turmoil and intense self questioning as to whether or not he "colluded" with the applicant and as such was "guilty". He had doubted his sexual orientation and Dr. Corry believes that this period of sexual dysfunctioning arose out of the fact that he would experience "flashbacks" to the applicant's room, hearing his voice uttering clichés and phrases that accompanied the abuse.
Dr Corry continues:
"He is extremely fearful that if it becomes public knowledge that he was sexually abused parents may feel, since he himself is a teacher, that their children are at risk. He is painfully aware of the cliché that "those who are sexually abused, abuse others".
(The complainant) remains a deeply traumatised, fragile and damaged individual who has been struggling most of his life to deal with the impact of being prematurely sexualised by (the applicant) and how it virtually eclipsed his subsequent sexual life and coloured irreversible how he developed as a human being.
It is only when one attempts to stand in the shoes of (the complainant) and see himself and the world from behind his eyes, can we get a pale glimpse of what he has suffered. ... It is only when I last saw him that he felt he was able to engage in a therapeutic process. Years of in-depth psychotherapy lie ahead ..."
Dr. Corry was not cross-examined on his affidavit and I therefore take the content of his report and assess its value to the Court in terms of considering whether it supports the complainant's claim that he was unable to make a complaint until he did, by reason of the conduct of the applicant.
While it is true that in certain reported cases, the expert has stated that in his/her opinion it was quite "reasonable" for the complainant not to complain, it seems to me that this is not really the correct approach. It may be that such experts are asked by legal advisers to give an opinion as to whether it is or is not reasonable not to complain having regard to the effects of abuse. I believe however it is preferable for the expert to set out for the Court in as clear language as possible those factors concerning the complainant which will allow the Court to decide whether it was explicable and excusable by reference to the applicant's abuse, for the complainant to refrain from complaining at an earlier point in time.
In so far as concerns the first complainant, the evidence presented by Dr. Corry, which I have merely summarised, is sufficiently cogent to support a finding that the complainant was so badly affected by the abuse that the delay in making the complaint was due to the effects of that abuse, and is therefore explicable. And it also supports that complainant's own averments as to his inability to complain sooner.
As to the second complainant, he too was examined by Dr. Corry, and also on several occasions, first on 27th May, 1999, then on 8th June, 2000, on 7th December, 2001 and finally on 1st August, 2002. Again the findings can be summarised as follows:
Dr. Corry recorded that he presented as a tense, articulate, individual who outlined succinctly the history of sexual abuse, its impact on him and how it had shaped his life.
(a) He recorded the complainant's attitude to himself after the abuse, as being overwhelmed with feelings of guilt, shame and a hatred of himself, having a miserable teenage existence, and being con-taminated in some way and depressed.
(b) During his youth he drank heavily, had suicidal thoughts as well as persistent nightmares, and had suffered unwanted male to male sexual experiences.
(c) He, according to Dr. Corry, became more tense and angry as the consultations continued, and had suffered deep depression with alcohol being his only relief, with feelings of being trapped, had continuing suicidal thoughts, and feelings of total inferiority.
Dr. Corry described this complainant as being gentle, vulnerable and depressed, who experiences himself as being emotionally stunted and finding it difficult to deal with the demands and responsibilities of normal life, and he refers to his continuing suicidal thoughts. Dr. Corry says that this complainant feels pro-foundly guilty for his lack of emotional availability to both his wife and children, that he has no clear sense of his sexual identity, and lacks the specific energy required to fully function in the world. He perceives himself as "damaged goods."
Dr. Corry continues:
"He worries obsessively over the belief that when the case goes into the public domain, because he is a teacher he may himself be labelled "an abuser". It was for this reason that he attempted to change careers. . . .
(The complainant) suffers from an unresolved post traumatic stress disorder which dominates his life. He feels that his ability to live a happy normal and balanced life, with some sense of life purpose, has been stolen from him. ...
He harbours a deep anger and sense of injustice which he has not been able to channel. 'I can feel it building up inside in me and the impulse to engage in self destructive acts is difficult to control.'
...
He requires years of in depth psychotherapy with a view to helping him to come to terms with his trauma. However he is painfully aware that because he is unable to accept what has happened to him the healing is unattainable.
It is my view that his prognosis is bleak and it is difficult to see how he can avoid living out the rest of his life as a tortured individual. . . ."
An analysis of this report of Dr. Corry makes it clear that this complainant is, according to the expert, and had never been, in any real position emotionally or otherwise, to have made a complaint to the Gardai about the applicant at any earlier stage than he did.
I am satisfied that this expert's view, following several interviews and considering the detailed report, which I have outlined only briefly, and his opinion, are sufficient reasons for accepting that the inability of this complainant to complain to the authorities was entirely consequent upon the abuse and therefore flows from the conduct of the applicant.
I now turn to the report on the third complainant which is dated 21st October, 2002 and is also that of Dr. Corry. He was seen by Dr. Corry in April, 1999, on 11th January, 2002 and on 3rd October, 2002. Again Dr. Corry took a history of him and his family and life after he had left the school. His findings can be summarised readily:
(a) He recalled the abuse commencing in his first year when he was 12 years old. It occurred once or twice a week. He related that his brother had become aware of the fact that the applicant called the complainant to his rooms on a number of occasions, and questioned him, but he felt confused and thought it was his fault and so did not tell him. He did, however, talk to two other boys and agreed with them to tell their respective parents over the Easter holidays, and he did so, by telling his brother, who in turn, told his parents. His mother complained to the authorities at the school and the abuse subsequently stopped.
(b) According to Dr. Corry the complainant was an extremely anxious individual with a speech dysfluency. He found it very difficult to talk about his experiences with the applicant and its impact. He indicated that at that time, in April 1999, he had only just disclosed it to his wife. He considers himself to be an emotional wreck.
(c) Dr. Corry recorded that he had feelings of confusion, anger and loathing over the years in connection with the above and often wondered whether he had given some sort of signal to the applicant, or why he was picked on.
(d) The expert noted that he spends an enormous amount of energy trying to put his abuse and its implications "into the background", and would not be able to deal with psychotherapy for some time.
Dr. Corry indicates in his opinion that the complainant, who had no knowledge of sexual matters at aged 12, had a skewed version of sexuality. One of the biggest issues which he had to deal with was his notion that "I must be wrong and he is right".
In his opinion, Dr. Corry reports that this complainant has an implicit mistrust of authority figures, and dealing with people, even to the extent of being unable to attend parent-teacher meetings because images of how he was abused are triggered by such meetings.
He, according to Dr. Corry, is a reserved, complex individual who finds it extremely difficult to put words on his feelings. This is made more difficult by his speech impediment which developed during his early years at the school where he was abused. He is suffering from unresolved post traumatic stress disorder whose effect continues. Dr. Corry felt that he would benefit from a programme of in-depth psychotherapy, but not before the complainant is able to do so.
At first glance, it might be considered that this report of Dr. Corry is not as strong as those in relation to the first two complainants, but on reflection it is clear that this is a complainant who, according to the report, is even less close to being able to deal with his abuse than either of the first two. Certainly there is nothing in the report from which the Court could conclude that he would have been in a position to formulate complaints to the Gardai or deal with that possibility at an earlier time.
In so far as these three complainants are concerned, the first and second were also further assessed by Mr. Michael Dempsey, clinical psychologist, predominantly to consider further the reasons why they did not report the abuse sooner. So far as the first complainant is concerned, Mr. Dempsey reported by letter dated 16th April 2003, having interviewed him on 9th and 10th April, 2003. He examined and assessed him in accordance with standard methods in use at the time, and he reported, inter alia, as follows:
"(The complainant) reported that he stayed at the boarding school at weekends. His parents would visit every third Sunday for a few hours and he had not told them because he felt that they would not believe him. He reported that his parents had great respect for the … Order as his brother had attended (the school) before him. He felt that if he had reported the alleged abuse he would be expelled from the school and his parents would be ashamed. He reported that even if he had told his parents and even if they had believed him, that they would regard him as having been equally as wrong as (the applicant). He reported that his parents were proud that he was attending (the School) and that they had made financial sacrifices for him to attend there and this further inhibited him from complaining to them about the alleged abuse. He reported that he never told his mother and father about it and that they are now both deceased.
... He reported that he was inhibited from complaining about the alleged abuse because he feared that if he did so that people in the locality would know that he had been abused. A further factor that caused him to delay reporting the alleged abuse was that the parents and pupils in his own school might regard him as a pervert.... and that his brother was a teacher at (the school) and that it might have a negative effect on his brother's career.…
Mr. Dempsey also recorded that this complainant had, after school, avoided going to universities where there were students from (the school) but had deliberately gone to a teacher training college because he knew no one from (the school) was attending it, and therefore he could avoid being reminded of the abuse. He had tried to put the abuse out of his mind, and had even gone to work as a teacher abroad for three years in an effort to forget it, but he had been unsuccessful in doing so.
Finally Mr. Dempsey reported:
"He reported that in 1995 he eventually told his wife about the alleged abuse and told her that he wanted to initiate an action against (the applicant). His wife was vehemently against this course of action as she feared that any publicity in relation to the alleged abuse would bring disgrace on their family. Eventually after three years he persuaded her to allow him to complain about the abuse.... He eventually made a complaint to a firm of solicitors in relation to the alleged abuse. . . . His solicitors had advised him to complain to the Gardai. In my view the reasons that he put forward for the delay in com-plaining about the alleged abuse are understandable in terms of his own individual life circumstances."
While this report does not give the precise basis for the finding that the delay was "understandable", I am not certain that the addition of this word really makes any difference. What is important is that the Court should be in a position to understand from the reports filed in the case that the delay in making the complaint was due to the conduct of the applicant. Reading this report together with the report of Dr. Corry I am satisfied that the correct interpretation to be taken from them is that the delay was indeed caused by the conduct of the applicant.
It was suggested in the course of the cross-examination of this complainant by counsel for the applicant that all of the decisions for the delay were due to factors outside the conduct of the applicant, but the complainant did not accept or concede this. Counsel for the applicant suggested to this complainant that the reasons for the delay in reporting were reasons logically chosen by him (the complainant), such as the effect on his school pupils, his community, his brother's teaching role, his wife's abhorrence of the idea of disclosure of the above, etc and that these factors had nothing to do with the applicant's continuing dominion over him.
I am not satisfied that this is an appropriate criticism. Of course the applicant is entitled fully to cross-examine the complainant, even vigorously, as was the case here, and if in the course of that it becomes clear that the complainant was indeed, on the evidence, able to make complaints at a much earlier stage, then the matter would be different. But here the argument on behalf of the applicant is put on the basis that, if the complainant is inhibited in making a complaint, for example, because parents of students at the school where he teaches might consider him also to be an abuser or a pervert, these factors are unrelated to the abuse and are to be considered as external to it, being influenced exclusively or logically by social or family matter rather than resulting from the conduct of the applicant.
I do not agree that this is the correct approach in this case. It may well be that such social or family pressure, encountered entirely outside the scope of any history of abuse, have all the appearances of being logical and rational choices, and may in fact be such choices. However, my finding from a reading and analysis of the expert reports is that, seen against the existence of abuse and its consequences, according to the subjective views of the complainants and the objective opinions of the experts, these choices cannot be seen in a vacuum, external to the above, but must be considered and assessed as being related to, or even an integral part of the consequences of the abuse and therefore attributable to the conduct of the defendant.
In the case of the second complainant, Mr. Dempsey concluded as follows:
"He reported that he told his mother about the alleged abuse at around 19 or 20 years. He reported that he had told his wife about it at an early stage of their relationship. It was not until a colleague told him that he had complained about the alleged abuse that he finally got the courage to complain himself. In my opinion (the complainant's) delay in reporting the alleged abuse to the Gardai is reasonable. He appears to have been struggling, since the alleged abuse ended, with the emotional consequences of it. His drinking would in my opinion also account for some of the delay in complaining to the Gardai as his drinking enabled him to avoid confronting it. Avoidance is a common way of dealing with traumatic events."
The fourth complainant was assessed by Dr. Gillian Moore-Groarke, in 2002, and by Dr. Dempsey later. Her report was prepared for certain civil proceedings but was presented also in this case to support his contention that he was unable to complain at an earlier date.
Dr. Moore-Groarke adopted a similar methodology as the other experts, setting out his family background and his experiences of the abuse, as well as his subsequent life history. This complainant reported, in the same way as some of the others, of feigning illness to avoid contact with the applicant, of being sent to hospital, and of taking a number of years to complete his third level education, and had never disclosed the abuse to anyone until 1999 when he was approached by the Gardai. He suffered from drug addiction which he attributes to the abuse, and reactive depression, together with symptoms of anxiety and panic attacks, as well as several other sequelae which I do not have to record in detail. Dr. Moore-Groarke's opinion was that his symptoms are similar to most victims of child sexual abuse. She said that he had carried his symptoms into adult life because he had never addressed them until recently, and that he would require regular therapy to assist him in dealing with the problems.
As to this last, and fourth complainant, (the third complainant was not seen by Dr. Dempsey) Mr. Dempsey concludes:
"He has a history of addiction and from his account he would appear to drink alcohol to excess. Studies have identified substance abuse as a long-term effect of childhood sexual abuse (with citations).
Assessment indicated that he has tended to avoid dealing with the alleged abuse since leaving school and avoidance is a common reaction to traumatic events. It is possible to understand his drug addiction and alcohol use as part of this avoidance. However memories of the abuse and his emotional reaction to it were again triggered by the telephone call from the Garda investigating allegations of abuse by (the applicant). Had she not contacted him it is possible that he would never have initiated a complaint himself."
Counsel for the applicant suggested to the Court that this last sentence was one which supports his contention that this complainant was not in any hurry to complain and had no intention of doing so. That may be so, but the question which has to be answered is whether, having made the complaint, the delay in doing so is explicable and can be excused as having been caused by the conduct of the applicant. I read this report as indicative of a person who had not yet reached the stage where he was in a position to make a complaint, and also, when read together with the report of Dr. Moore-Groarke, confirms that he was not in a psychological position to do so, due to the abuse suffered, and therefore due to the applicant's conduct.
Further, it is of course the case that while the applicant was at all times free to adduce his own expert evidence, by which he might have challenged the expert evidence submitted to the Court, by questioning the methodology used, or by asserting the absence of material factors, or by undermining the approach adopted in the reports, no such expert evidence was adduced by him.
I am satisfied from the foregoing that in so far as concerns all four complainants, and having given very careful consideration both to their statements and the expert reports furnished in respect of each of them, it is sufficiently clearly established on the evidence before me, that the delays in making complaints were explicable as being due in each case to the traumatic consequences of the sexual abuse which they suffered and therefore may properly and correctly be attributable to the conduct of the applicant.
Nevertheless, I must now see whether, notwithstanding my finding that the delay was due to the conduct of the applicant, the delay in reporting of the alleged offences until 1998 or 1999 is such as to give rise to presumed prejudice against the applicant's interest so that, as a result, he could not be guaranteed a fair trial.
The delay in these cases is certainly very lengthy indeed, even inordinate. As is only to be expected, because of that delay, the applicant complains, as I have stated above, that he has suffered specific prejudice in two areas. I have, however, already found that these two matters will not jeopardise his guarantee of a fair trial, and will not prejudice his defence, and that these matters may be controlled adequately by appropriate directions of the trial judge.
Sometimes it may be very difficult to make a clear distinction between presumed prejudice and specific prejudice. In the present case, the applicant invokes in his grounding affidavit only one ground of specific prejudice, although argument was made on the second ground. Apart from these, the argument of counsel for the applicant has been confined to the mere length of time which has passed. Although in relation to mere length of time, the case law considers such matters as the anxiety caused to the accused and to his possible loss of liberty of the accused, neither of these issues was canvassed before me on behalf of the applicant.
Before, however, coming to a final decision on delay I have to consider two further issues raised by the applicant .
The first of these concerns the period between the dates on which the com-plaints allegedly could have been made by the first complainant to the Gardai in 1995 up to the time in 1998 when they were in fact made. It is clear from the outline of events set out above, that the complainant first made the abuse known (apart from the blurted disclosure to a priest at the school) in 1995. It will be recalled that he disclosed it at that time to his wife and she was vehemently against his notifying it to the Gardai. In so far as it is material to this issue, he was able, over a period of about three years, to persuade his wife to change her mind.
He went to a firm of solicitors. In that regard he was cross-examined as to why he did so, and it was put to him that he was satisfied to disclose the abuse to them for the purpose of a civil action and therefore ought to have been able to complain to the Gardai at that time also, but did not do so until 1998.
In the course of the cross-examination, this complainant emphasised that when he first went to the firm of solicitors, he had no idea what if anything he could do legally, that he wanted to take the right steps, and that he needed legal advice as to the different choices which he had. He stood firm in his responses, even when challenged strongly, and insisted that he could not have, with the extent of his knowledge of legal matters at the time, known or even understood, whether he was obliged to take one approach or another. He said he always took the advice of his solicitors, and that he had first gone to the solicitors in 1998. He said that when the "Swimming Tribunal" (The Enquiry into Chief Sexual Abuse in Swimming, reported on by Murphy, R., Senior Counsel), was established he decided that he would like to give evidence at that, and he recalled that he did so sometime in 1997. He said he had prepared a document for Mr. Murphy and he gave a copy of this to the solicitors. It was a statement he had prepared for himself, over a period of time, adding to it as he went along.
While counsel for the applicant suggested that this complainant had only gone to the Gardai when he was advised to do so by his solicitors, he gave evidence that it was entirely his decision to make a complaint to the Gardai, but that his solicitors told him it was the right thing to do. He asked them for the name of a Garda to whom he could talk, but one not from his own area as he wanted to avoid any possibility of the information getting out locally, and his solicitors made enquiries and gave him the name of the Garda in question, from which time he made the various statements referred to already.
Counsel on behalf of the applicant suggests that these delays are inexcusable. He characterises them as being decisions based, not on the traumatic consequences of abuse on the complainant, but on rational decisions made under social or family pressure. I have already rejected this submission, in a more general way above. Moreover, I do not find anything in the exchanges between counsel for the applicant and the first complainant in the course of cross examination which establishes that this complainant was in a position to complain earlier than he did. It is true that the main stumbling block, as counsel for the applicant says, appears to have been his attempts to persuade his wife to support him in his efforts, which took some time. But once he had commenced his approach to the Swimming Tribunal in 1997, he then approached a solicitor in 1998. Again, after approaching the solicitor, very little time passed – save for the purposes of getting the name of a non-local Garda to whom he could speak – before he made the complaint which gave rise to these proceedings..
To find otherwise is to suggest, just as in the case of the other criticisms made which I have considered above, that a person who has been abused should be in a position to take all of the most rational steps which a person not abused should or might take. I do not accept that this is in accordance with the expert opinions furnished in this case, and indeed they are to the contrary.
I am satisfied that in relation to this complainant, there was no additional delay, not caused by the conduct of the applicant, between 1995 and 1998 when he made his first formal statement to the Gardai.
The third delay complained of is prosecutorial delay, that is to say, delay in charging the applicant after the complaints were made. In the present case it involves a period between late 1998 and April 2001, or about two and a half years. It covers two separate sub-periods, the period for the investigation of the complaints, and the period during which the first named respondent was considering the matter.
The applicant cross-examined Garda Murrell, on her affidavit, on the progress of the investigation, and on the delays which had occurred in this period, with a view to establishing that this continued delay interfered with the applicant's constitutional right to a speedy trial.
As to the first period, the complaint of the applicant is that there was no good reason for the delay. Before dealing with the matters arising in cross-examination or with the arguments made, I should first explain what was averred to on affidavit. In the affidavit of Garda Murrell, sworn on 16th May, 2003, she avers to the fact that the first complainant came to the Gardai in October, 1998 and statements were taken, on several occasions, which continued up until the end of March, 1999. These statements are all exhibited and are detailed and lengthy and set out a history of the events complained of.
She avers that the second complainant came forward on 23rd April, 1999, the third complainant contacted the Gardai in February, 1999 and made his statement in May, 1999, and the fourth complainant made a statement in July, 1999, as a result of his name being first mentioned by the first complainant.
Garda Murrell swore that the investigation into the allegations was a difficult and complex one. She said that statements were taken from many persons other than the complainants, that there were more than four possible complainants and that finally the file was forwarded in its complete form to the appropriate state authorities on 27th March, 2002. She exhibits a report dated in May, 2002 which sets out the history of the investigation. That report consists of six papers of closely typed information given in synopsis and chronological form and detailing the pertinent enquiries and dates and events in the course of the investigation.
The report commences with statements about the difficulties in finding certain witnesses after the length of time which had elapsed, of the approaches made to the school for information and so forth. After the dates indicated above, the report details approaches made in April, 1999, early May, 1999, on the 3rd , 4th , 5th, 20th May, 22nd May and 2nd June, all for the purposes of taking statements of witnesses related to the complainants. These continued with interviews or statements on 13th July, 1999, 15th, 16th July, 1999 and on 28th July, involving also travel to part of the country. On 2nd August, 1999 these investigations again continued, as well on 5th , 6th, 7th and 10th August, as well as on 13th , 17th, 18th, and 22nd August, 1999.
During the entire month of August of that year, in addition to the foregoing, attempts were made to meet with the Minister Provincial of the Order which ran the school to secure assistance in locating the applicant. These attempts were not successful.
The investigations continued into the month of September, 1999 when the applicant was finally arrested. Further interviews took place on 9th and 10th October, 1999, in one case with a possible witness in the United States, and again on 11th October. Over a period of two months efforts were made to arrange for the release of records relating to the complainants. Further enquiries were made in the same month, with the consent of the applicant, concerning the attendance of the applicant at an institute in Dublin, which at the time of the report had not been replied to.
In early November, 1999 solicitors forwarded a copy of a statement of one of the complainants.
Eventually when the statements were complete the file was forwarded to the Chief State Solicitor's Office, in line with usual practice, to be forwarded to the office of the first named respondent, which occurred in March, 2000. In line also with usual practice, enquiries were made in the period of 2000 and into early 2001, and Garda Murrell went to fulfil a commitment to certain UN duties in Bosnia in February, 2001.
I have set out this detail, because notwithstanding the furnishing of a detailed timetable of events, Garda Murrell was cross-examined in considerable detail. Although she was challenged about the length of time the actual investigation took, she explained that there were several people to be questioned, statements to be secured from others (such as the solicitors of the first complainant), those statements examined and even retyped because of their poor nature and so forth. In re-examination on behalf of the first named respondent she indicated that the file itself which was sent to the Chief State Solicitor for onward transmission to the first named respondent was large, complex and detailed and that the investigation was made more difficult due to the lapse of time since the events first occurred. She also explained that notwithstanding the work done on this investigation, she was engaged during the period in pursuing investigations in other cases.
It is undoubtedly true that, even if the earlier delay is, as I have found, explicable and due to the conduct of the applicant, the Gardai, the first named respondent and any other state authorities engaged in the investigation and in the preparation of a case for an eventual charge, are also obliged to proceed with appropriate speed. That is not to say that there is an obligation to proceed within a specified period of time, and it must always depend on the particular facts of the case, its complexity, and even the difficulties which may be compounded by the delay previously occurring.
Nothing in the cross examination of Garda Murrell has led me to believe that there is any sustainable reason to find that in the period between 1998 when the first complaint was made and the end of the month of March, 2000 when the file was sent to the office of the Chief State Solicitor for onward passage to the first named respondent, there was excessive or unreasonable delay. On the contrary, having regard to the contents of the report, and its appendices, I find that the investigation, up to that point, was carried out with considerable alacrity, taking into account its nature, the numbers of witnesses involved, the time which had elapsed, and the diffusion of witnesses or others, including the applicant and his superior, to many parts of the country and abroad.
As regards the period between late March, 2000 and when the applicant was charged in early April, 2001, during which time the file was with the first named respondent for final consideration, counsel on behalf of the applicant argues that this period constituted a prosecutorial delay period which was wholly unreasonable. The Garda who was cross-examined was unable to bring the matter further since she was not in any position to speak for the first named respondent on this aspect of the matter. Counsel argued that while delay was pleaded as a ground in support of the orders sought, no explanation for this delay has been tendered.
He further argues that the first named respondent has previously indicated, in the course of other, but unrelated proceedings before this Court, that a period of four to six weeks is the mean period during which a case furnished to his office can be considered and decided upon. Therefore he argues that the period of time allowed to elapse in this case, being 13 months, is necessarily unreasonable. On the other hand, counsel for the first named respondent says that the delay is not inordinate having regard to the nature of the complaints, and to the complexity and size of the file, as indicated in the evidence before the Court.
I am not entirely convinced by the argument on behalf of the applicant. On its face it seems attractive, because if the mean period is four to six weeks for such en-quiries or decisions, the period in the present case, is very significantly beyond that. It is true that it would have been preferable to have had an affidavit sworn on behalf of the first named respondent indicating the reasons why it took so long to determine the matters in the present case, if it can be said with justification that the mean, stated to be so in one set of proceedings, can automatically be transposed to another, and I am doubtful it can. It would, in my view, be more telling to have information on the length of time this type of case usually takes, rather than seeking to compare it with any "mean".
But even allowing for the application of a mean, it is clear that it can only be applied to the usual or average case, that the time must of necessity be much shorter in some case and will be exceeded, even by a substantial margin, in much more complex proceedings. It has not been suggested to me that the file was not complex, nor difficult. What was suggested on behalf of the applicant is that it was not as complicated as, say, a fraud file, but even in that case counsel on behalf of the applicant did not suggest that the time scale was longer than in such a case.
Even without having specific evidence from the first named respondent, it is not difficult to accept that, on the examination of the file as compiled by the Gardai, the first named respondent would have to be careful to examine all statements, all indications of evidence, and in this case there were very many many statements made, several if not the vast majority of them emanating from persons other than the four complainants in the case. And I have the evidence of Garda Murrell that the file was large, complex and accompanied by a substantial amount of material which had to be considered. Moreover it is clear that continuing material was necessary, even after the original file was sent.
I am not therefore satisfied, although with some slight hesitation, that the applicant has established that the alleged mean should apply to this case. Even if, however, I am incorrect in this view, and am obliged to accept that inordinate delay must be taken to be established for this period, because there is no evidence presented to the contrary on behalf of the first named respondent, I am not satisfied that that the period between late March, 2000 and the beginning of April, 2001, namely a period of 13 months, was so inordinate as to constitute, on its own, delay which is unreason-able, or that this additional period is such as to give rise to a real risk of an unfair trial.
In relation to these last periods of time there is no suggestion on behalf of the applicant that the delay is indicative of an improper motive or gross carelessness on the part of the prosecuting authorities, or was likely to cause a significant or serious impairment of the applicant's capacity to defend himself. No suggestion was made that any evidence which, or any witness who, might have assisted the defence existed during the period in question but no longer exists because of the further delay in the period from 1998 up to April, 2001. Where those factors are absent, it is more diffi-cult to find that the delay under consideration is of such a nature as to constitute a violation of the applicant's constitutional right to a reasonably speedy trial which necessitates the prohibition of the trial.
Having regard to all of the foregoing, I am satisfied that this is not a case in which it has been demonstrated that the capacity of the accused to defend himself at a trial will or is likely to be impaired by reason of delay. In particular, find that the applicant has not established that any prejudice that may have been occasioned by reason of the passage of time, is not such as to give rise to a real or substantial risk that the applicant cannot obtain a fair trial in the circumstances. Moreover, although the delay has been lengthy, indeed very lengthy, even inordinate, it is not so long as to persuade me that the trial should not, on the basis of presumed prejudice arising from delay, continue in the normal way..
In light of these findings, I must refuse the injunction and certiorari reliefs sought by the applicant.
Approved: Fidelma Macken
24th February, 2005