Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> R. (K.) v. D.P.P. [2004] IEHC 603 (30 January 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/603.html
Cite as: [2004] IEHC 603
[New search] [Printable RTF version] [Help]
Neutral Citation No: [2004] IEHC 603
HC 81/04
[2001 No. 490 JR]
BETWEEN
APPLICANT
RESPONDENT
[2001 No. 253 JR]
BETWEEN
APPLICANT
RESPONDENT
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 30th of January, 2004.
By order of 31st July, 2001, the applicant K.R. was given leave to institute these proceedings seeking an order in the form of an injunction restraining the respondent from dealing further with the prosecution of the applicant in respect of charges preferred against him in Bill No. CC0118/00 on charges of rape preferred against him.
The grounds upon which the applicant seeks the aforementioned relief are as follows:
1. That the lapse of time between the dates of the commission of the alleged offences (between 1st January, 1970 and 30th September, 1976) and the date set for trial (17th December, 2001) is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.
2. The delay by the respondent in charging and prosecuting the applicant in respect of the above alleged offences is, either by itself, or in conjunction with the lapse of time since the date of the alleged commission of the alleged offences so great as to be oppressive, unfair and unjust to the applicant and in violation of his rights to a criminal trial in due course of law under the Constitution.
3. The lapse of time between the alleged dates of the alleged commission of the alleged offences and the date of trial is so great as to have caused and to continue to cause the applicant to suffer prejudice in the preparation and presentation of his defence.
The applicant K.R. has sworn an affidavit in which he states that he was arrested on 27th September, 1999 by Detective Sergeant Roche of An Garda Síochána and later that day was charged before the District Court. He says that the matter was subsequently before the District Court in November 1999 and in the months of January, May, June, July and October 2000. A book of evidence was served of him in June of 2000 and on the 11th October, 2000, he was returned for trial to the Central Criminal Court. He says that he was subsequently given a proposed hearing date in that court of the 17th September, 2001. He says that his solicitor wrote to the State Solicitor on 19th October, 2000, and made a complaint with regard to the impossibility of the applicant being in a position within fourteen days of the return for trial to account for each day of his life for a period of at least four hundred days at a remove of almost thirty years from the alleged incident in the context of a necessity to present a notice of an alibi within fourteen days of the return for trial. He says that at the time his solicitor requested other documentation, which might in some way assist him to jog his memory in respect of the dates of the alleged offences.
He says that he was not furnished with any documentation and that on 24th January, 2001, his solicitor again wrote to the State Solicitor requesting documentation and indicating that he was prejudiced in the preparation of his defence due to the lack of disclosure. He points out that his solicitor received a response from the Chief State Solicitor by letter of 8th March, 2001. He says that despite the acknowledgment therein that the documentation would be forthcoming the same has not been furnished. He says that with regard to one specific charge of indecent assault on A.K. in the presence of M.C. he advised the Gardaí that M.C. was in the United States of America and that he knew where he was and that he would help him contact the Gardaí to make a statement, which he understood he later did.
The applicant said that he is severely prejudiced in and about the delay in bringing the allegations for the following reasons:
1. He says that it is clear from the complainant's statements that his mother and father employed her to do work in the house. He says that he was very close to his parents and that if there was any foundation to the allegations she is now making, she would have made same to his parents and to her own mother or indeed her brothers or sisters or indeed any other members of his family. He says that his father died in 1988 and his mother died two and a half years before the bringing of these proceedings at the age of 90 years. He says that he is not in the position therefore to call his parents to give evidence on his behalf to contradict the allegations against him. He says that if he had raped the complainant as alleged that his mother and father would have noticed the change in her demeanour, if as she alleges, she was very conscious of something wrong and the feeling of disgust and shame of which she alleges.
2. He says that the complainant's father and mother split up and that her mother went to live in England and that the complainant also went to live in England. He says that he got on well with the complainant's father and when her father's house had been burnt down, prior to their marital break-up, he, along with other members of the community, helped to rebuild their family home. The complainant did not visit her father after she left. He said that the complainant's father became ill and that he along with other people from the locality visited him regularly in hospital. He points out that the complainant's father has since died and he claims to be prejudiced in not being able to call him to give evidence.
3. He states that to the best of his knowledge and belief the complainant left home at a young age to go to a boarding school and went to Galway city and worked in a shop and thereafter went to live in Dublin and subsequently in London. He says that there is no justification for the delay in bringing these complaints against him, apart from the fact that there is no foundation or basis for same, and that to bring these allegations now at a time when the only possible witnesses who could have given evidence, namely, his mother, father and her father, are dead and this has greatly prejudiced his defence to the prosecution. The applicant further states that the complainant wrote to him by registered post some time previously making these allegations and saying things which he says are indicative that the complainant had a severe mental problem. He says that the clear impression he got from the correspondence was that the complainant wished him to give her money for her silence. He says that he refused to answer the correspondence and burnt same. He says that the complainant made her complaint subsequent to this incident.
4. The applicant says that he is greatly prejudiced in his defence of the action by the delay and lack of specificity in the charges and because of the death of witnesses who he would call to give corroborating evidence of the demeanour of the complainant in or around the time the complainant is alleged to have suffered a significant sexual assault and rape, allegedly perpetrated by him on her, which he denies. At the time of the alleged offences other members of his family were living away from home and cannot help him and he knows of no other person who can throw light on the allegations and prove his innocence. This is an insurmountable barrier to his gathering evidence and he is simply not in a position to do so and is not in a position to defend himself properly to show that he is innocent of all the charges against him.
In the correspondence exhibited by the applicant, the Chief State Solicitor indicated to his solicitor that the State will make no objection to a late alibi notice, with the proviso that it allows sufficient time for the Gardaí to carry out the necessary follow up investigations.
A statement of opposition has been filed on behalf of the respondent in which it is pleaded, inter alia, that the lapse of time complained of is not so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant; the lapse of time arises as a consequence of the nature of the abuse perpetrated by the applicant upon the complainant; the respondent has not delayed in prosecuting the applicant in respect of the charges against him; the time between the date of the offence and the time when the existence of these complaints first came to the attention of An Garda Síochána and the date on which the applicant was charged as a consequence of those complaints is not so great as to be oppressive, unfair or unjust to the applicant or in violation of his constitutional rights.
An affidavit has been sworn by Detective Sergeant Roche of An Garda Síochána in Galway on behalf of the respondent. He says that at all material times he has been the member of An Garda Síochána charged with investigating allegations of sexual assault made by A.K. against the applicant. He points out that in October of 1997 A.K., then resident in London, telephoned the Garda Síochána in Dublin for the purpose of making a complaint alleging that the applicant had committed various sexual assaults upon her. He states this was the first occasion in which these matters had come to the attention of An Garda Síochána. He points out that on 18th and 19th October, 1997, W.P.C. Theresa Langley took a statement of complaint from the complainant at her residence in London.
He says that the statement was subsequently forwarded through INTERPOL to the Garda Síochána in Galway in the district in question in which the offences are alleged to have been committed. He points out that in December 1997 he was attached to the local Garda station as a uniformed sergeant. He says that he was charged with investigation of these offences. During December 1997 and January of 1998 he contacted the complainant on a number of occasions by telephone in connection with her complaint.
On the morning of 21st January, 1998, accompanied by other members of the Garda Síochána he went to the applicant's home and informed him that A.K. had made a statement of complaint alleging that he had raped her in or about 1980 at his house and in a field at the back of his house. He says he then arrested the applicant on suspicion of having raped A.K. and cautioned him. He says that the applicant was detained in the Garda station under the provisions of s. 4 of the Criminal Justice Act, 1984 and that the notes of interviews, which the applicant refused to sign, are exhibited as set out in the book of evidence, exhibited by the applicant's solicitor. He says that in the course of the same day he visited the applicant's house, the scene of the second rape alleged. He says that the applicant was released from custody without being charged at 4.00 p.m. on that same day.
On 28th February, 1998 Detective Sergeant Roche interviewed M.C., then resident in Brooklyn, New York, U.S.A., who had returned to Ireland on holidays. He took a statement from him since he had been mentioned as having been present at one of the alleged rapes complained of by A.K. and he inquired as to whether he had been in contact with a solicitor regarding making a statement. He cautioned M.C. in the usual manner. He was told that M.C. had not seen a solicitor but had told his brother Kevin about the allegations and had asked him to see a solicitor about the matter. Mr. P.R. agreed that he should speak with the solicitor Mr. Sherry about the matter.
On 19th June, 1998, he spoke with Mr. Sherry who informed him that he would not be acting for P.R. as his brother, the applicant herein, had instructed him. On 17th July, he returned to P.R.'s house concerning the allegations made against him. Being unable to find him at home he located him in a public house. He declined to make a statement. He indicated that he had instructed a Mr. Justin Sadlier to act on his behalf. He subsequently contacted the solicitor in relation to the allegations made against P.R. and asked him if his client wished to make a signed statement or reply to the allegations. Mr. Sadlier informed him that his client denied the allegations and therefore had no statement to make.
The Detective Sergeant indicates that having obtained medical reports he took various statements from other members of An Garda Síochána involved in the investigation of the offences. He prepared a file which he submitted to the superintendent's office for the respondent's directions on 22nd October, 1998.
On or about 20th August, 1999, he received the respondent's directions in the matter of the complaint. On 20th September, 1999 he swore on information before Judge O'Dea at his home in Galway for the purpose of obtaining a warrant for the arrest of the applicant. After inquiring to the matter Judge O'Dea issued the warrant for his arrest. On 27th September, 1999, accompanied by Detective Gardaí Henry Burke, Jarlath Burke and Gardaí John McDonough and Paul McWalter he went to the home of the applicant. The applicant opened the door but Detective Sergeant informed him that he had a warrant for his arrest for the alleged rape of the complainant in 1972. He showed him the warrant and asked him if he understood this. The applicant said that he did but he thought that it had all been sorted out. He said that he then spoke with the applicant's brother and arrested him in turn. The two gentlemen were then conveyed to the Garda station. The charges were read over to the applicant and after caution he replied that he had nothing to say in reply to each charge. The applicants were then brought before the District Court where evidence of arrest, charge and caution was given. They were then admitted to bail and released from custody.
Detective Sergeant Gerard J. Roche has sworn an affidavit in relation to the application of P.R. which is substantially the same as that sworn by him in the case of the applicant K.R. He indicates that on the 21st January, 1998, he spoke to the applicant P.R. outside a public house in an unmarked patrol car and informed him of the complainant's allegations of sexual abuse against P.R. from the time she was eight or nine years of age until she was sixteen years old when she worked at the applicant's farm. He states that the applicant denied the allegations. He advised them to contact a solicitor and told them he would speak to him in a few days about whether he wished to make a statement. He says that they cautioned him for a second time. He undertook to see Mr. Sherry, solicitor. He refused to sign the notes of his interview.
On 27th March, 1998, he interviewed the complainant's brother at Galway Garda Station where he took a statement from him. Three days later he interviewed another brother of the complainant and took a statement from him. He also obtained the complainant's permission to obtain medical reports from her doctors and receive these from her general practitioner on 11th June, 1998.
He says that since the remainder of the complainant's family and the complainant lived in the London area he applied for permission to visit London for the purpose of conducting interviews with them. On 26th May, 1998 he travelled to London where together with a member of the London Metropolitan Police he interviewed the complainant at Hampstead Police Station in London. He states that the interview took three days to complete over May 26th, 27th and 28th, 1998. He states that during this time the complainant described in detail her allegations of sexual abuse at the hands of the two applicants. She then made a formal statement which he took down in writing from her during the remainder of 27th and 28th May, 1998. He indicated that throughout the three days the complainant was very upset and broke down on numerous occasions, necessitating frequent breaks in the interview. He indicates further that on the occasion of his visit to London he interviewed two other brothers of the complainant, as well as a sister and the mother of the complainant.
On 11th June, 1998, he returned to P.R.'s home for the purpose of interviewing him. He was not there but was located nearby in a public house. He informed him of the allegations made against him by the complainant and inquired as to whether he had been in contact with a solicitor regarding the making of a statement. He cautioned him in the usual manner. The applicant P.R. said he had not seen a solicitor but had told his brother K.R. about the allegations and had asked him to see Mr. Sherry about the matter. P.R. agreed that the detective sergeant should speak with Mr. Sherry about this matter. This he did on 19th June, 1998, when he was informed that he would not be acting for P.R. as his brother K.R. had instructed him.
An affidavit has been sworn by Isolde Doyle of the Office of the Director of Public Prosecutions. She indicates that she is a Professional Officer in the office. At all material times she was the person responsible for dealing with the file pertaining to the criminal proceedings against the applicant. On the 20th November, 1998, she received an investigation file from An Garda Síochána for the purpose of giving instructions and directions thereon. She indicates that the file consisted of interviews with three suspects (including the applicant, two statements from the injured party (of 14 and 19 pages respectively), a minute of an interview with the injured party, psychological reports and various other statements and documents. She states that, after reading and considering the contents of the file, a request for further information from An Garda Síochána issued to the State Solicitor on 8th February, 1999. She indicates that the further information sought was forwarded under cover of a letter from the State Solicitor dated 13th April, 1999, which she received two days later. Ms. Doyle indicates that on 6th May, 1999, she submitted the file to the Deputy Director of Public Prosecutions, who returned it to her with his observations on 18th May, 1999. She states that at that juncture she read the file for the purpose of drafting charges against two of the suspects. She said that these charges were subsequently drafted and finalised. She indicates that final directions issued on 5th August, 1999 directing that the first applicant be charged with three charges and that the second applicant be charged with 28 charges arising from the same file.
On 23rd April, 2001, the applicant P.R. was given leave to apply by way of application for judicial review in respect of the relief of an injunction restraining the respondent from taking up and dealing further with any of the charges against him on the grounds as follows:
1. The lapse of time between the dates of alleged commission (1st January, 1970 to 30th September, 1976) of the offences alleged and the likely date of trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.
2. The delay by the respondent in charging and prosecuting the applicant in respect of the above alleged offences is, either in itself or in conjunction with the lapse of time since the date of alleged commission of the offences alleged, so great as to be oppressive, unfair and unjust to the applicant and in violation of this right to a criminal trial in due course of law under the Constitution.
3. The lapse of time between the dates of alleged commission of the offences alleged and the likely date of trial so great as to have caused and to continue to cause the applicant to suffer prejudice in the preparation and presentation of his defence.
4. The lack of particularity in relation to the offences alleged for which it is proposed to try the applicant is such, either in itself or in conjunction with the lapse of time since the dates of the offences alleged, as to cause the applicant to suffer prejudice in the preparation and presentation of his defence.
The applicant P.R. has sworn an affidavit in which he refers to having been arrested at his home on 27th September, 1999, and taken to the Garda Station and thereafter to the District Court where evidence of arrest charge and caution was given. He refers to the matter having been adjourned in the District Court on various occasions and the Book of Evidence having been served on him at the end of June, 2000. It appears that he was returned for trial on the 11th October, 2000, to the Circuit Court at Galway commencing on the 21st November, 2000. He indicates that the matter did not proceed before the Circuit Court because other trials were proceeding but when it was called his counsel pointed out to the court that he was raising the issue of delay and that there would be an application for judicial review. He indicates that at the time of swearing his affidavit he had not been served with a copy of an indictment. The charges against this applicant are charges of indecent assault of A.K. between 1st January, 1970 and 31st March, 1970 and similar offences in respect of each subsequent period of three months until 30th September, 1976, save that in relation to the period of three months from 1st July, 1974 to 30th September, 1974 a similar offence was also alleged to have taken place at a different location.
The applicant refers to having been advised by the solicitor that it was better for him to say nothing at the time when he was in the Garda Station. He says that for the most part he had adhered to this advice but at times found the constant reading of allegations against him so disturbing that he could not resist comment.
The applicant states that on 21st January, 1998 outside a public house in Co. Galway he was interviewed by members of An Garda Siochána and told of allegations being made against him by the complainant. He says that he totally denied these and said that she used to be in their house doing work for his father and mother. He states that she told them that she was paid for the work every week and that he did not bring her home or go to a location alleged or abuse her in a shed. He indicated that on the second occasion on or about the 11th June, 1998, outside another public house he was again interviewed by a member of An Garda Siochána. He says that on this occasion he was asked if he had seen a solicitor and he said that he had not and that he would see one. He states that there were no other interviews of him by members of An Garda Siochána. The applicant states that he was born on 6th March, 1937, and that the allegations are of an offence alleged against him when he was 27 or 28 years of age and that this happened in 1968 or 1969. He points out that the first allegation in the charge sheet is in respect of a period commencing in 1970. He states that he attained 31 years of age of 6th March, 1968, and attained 33 years of age on the same date in 1970. In his affidavit the applicant denies what is stated by the complainant in relation to the abuse allegedly perpetrated by him. The applicant alleges that he is greatly prejudiced in dealing with the numerous allegations made by the complainant against him because his parents are not available to him to give evidence. Insofar as the allegations made by the complainant suggest that this applicant ejaculated over her clothing, he states that his parents would have noticed some change in her demeanour or the soiling or disturbance of her clothes or some sign of what she alleges. The applicant refers to the death of another person with whom he went to another location and visited a public house in circumstances where the complainant states that she was brought by this applicant to that same location on one occasion when she was 13 or 14 years of age.
The applicant states that there is no justification for the delay in making of the complaints against him. He states that there is no foundation or basis for the complaints and that to bring them now, at a time when the only witnesses who could give evidence, namely, his parents and one P.K. are dead and when it is virtually impossible for people to remember where they may have been at various dates all of which are now almost significantly over 25 years distant, greatly prejudices his ability to defend these charges. The applicant also states that the said P.K. had some form of relationship with the complaint A.K. and claims that P.K. asked that he should bring the complainant with him to the location referred to on the occasion where he states he entered a public house with P.K. The applicant says that it seemed to him that A.K. and P.K. had a strange relationship and yet she makes no mention of him nor any complaint about him in her statement of evidence.
This applicant refers to the allegations made by the complainant against his brother K.R. and the correspondence sent by the complainant to him and his wife. He states that A.K. may be acting out of some malevolence towards his family which he cannot explain and that for this reason she has made the various allegations against him which she now makes and which he says are unfounded. The applicant refers to difficulties in relation to his defence insofar as there is a lack of specificity in the charges.
He states that it is impossible for him to produce evidence to contradict such allegations and the difficulty is greater for him because he has suffered from a drink problem over the years.
He states that it is impossible for him to recall or indeed, having regard to the lapse of time, for anybody else to recall periods when he was away from home working or on holidays or for any other purpose and thereby establish that during these periods he could not have committed the alleged offences. He states that at the time of the alleged offences the members of his family, apart from his parents and his brother K., were living away from home and therefore cannot help him. He says he knows of no other persons who can assist after so long and in the circumstances the delay that has occurred in making the complaints and thereafter creates an insurmountable barrier to the gathering of evidence for his defence. He says that it is simply impossible for him to gather such evidence and to defend himself properly so as to show that he is innocent of all the charges brought against him.
Mr. Eamon Murphy, Senior Clinical Psychologist, of Newtownsmith in the City of Galway has sworn in affidavit. He describes himself as a senior clinical psychologist employed by the Western Health Board for the past 26 years. He states that during the past fifteen years he has treated more than fifteen hundred cases of child sexual abuse. He is Director of the Galway Family Guidance Institute, located at Newtownsmith, Galway. He is a registered psychologist and holds an M.S.C. degree in psychology from Trinity College, Dublin University. He states that he is a registered member of the Psychological Society of Ireland. He lectured in psychology at the Institute of Public Administration, Dublin and the National University of Ireland Hospital in Galway.
Mr. Murphy indicates that on 25th October, 2001, he met and assessed A.K. the complainant herein. He says that due to the fact that she is resident in London he subsequently conducted four lengthy consultations with her by telephone. He says that he interviewed her in order to prepare reports setting out:
(a) the effect of the alleged offences upon her,
(b) the reasons for her delay in reporting the offences alleged against the applicant, and
(c) his view as to whether the delay in reporting those offences to An Garda Síochána was reasonable in light of her individual circumstances.
He indicates that he was provided with a copy of the book of evidence served upon the applicants in the substantive criminal proceedings, the statements required to ground the application for judicial review and the affidavit grounding same sworn by the applicants. He says that he was also provided with reports prepared concerning the complainant by Dr. Clare Parkes, Dr. Jean Piggott, Dr. Ronan Torres, and Dr. Georgina Parkes. She states that following his interviews with the complainant he had prepared a report which he exhibits with his affidavit.
The complainant has sworn an affidavit in which she indicates that she was born in 1960. She indicates that she lived with her parents, her four bothers and sister. She says that from the age of nine years of age she used to go to a neighbouring farm owned by the R. family in Co. Galway. She states that this was situated approximately a mile from her parent's farm and could be accessed by a small road between the two farms. She says that at that time four people lived on the R. farm, namely, the applicants and their parents. She says that at that time she used to go to the farm every Saturday between 11.00 a.m. and 6.00 p.m. and during school holidays. She states that her mother made this arrangement with Mrs. R. since Mrs. R's daughter had in turn assisted her when she was young. She says that her duties on the R. farm involved general domestic tasks such as sweeping the floor, washing, dusting, churning butter, feeding the hens and gathering eggs. She says that she worked on the fields particularly at harvest time. She says she was generally happy with her work in exchange for which she would receive two shillings, later half a crown, this increased to pounds but never more than five pounds on Saturdays which was hers to spend. She said she used to wear clothing appropriate to the tasks she was carrying out, such as trousers.
The complainant states that in the early 1970's, the first applicant was in his early 20's. She says that unlike his brother P., who worked on the family farm on a full time basis, the first applicant worked away from the farm during the day and was present there only from about 5:30 p.m. She says that although he was slightly shorter than his brother he looked physically stronger. She describes him of medium build, with short fair wavy hair. She states that most of the time he ignored her completely. The complainant refers to being accosted by the applicant when she was 11 years of age when he kissed her on the mouth and on another occasion when she says he kissed her putting his tongue into her mouth. She says that, as far as she could, she sought to avoid him and tried to finish her work before he returned to the farm. She remembers hiding behind the barn to avoid seeing him coming in from work. She states that, about a year after the incidents that she described, on a summer's evening in 1972, she was in the kitchen of the R. house at about 6.10 p.m., the applicant had just returned from work and was about to leave when his mother turned to her and asked her to get cattle from a certain field. She went with the applicant to the field. She says that she entered it and turned right to the right corner of the field. She says there were no cattle there. She says on two sides of the field it was surrounded by a wood and on one side by hedge and on the fourth side was a lake. She said that the grass was quite high. She describes being pushed to the ground by the applicant who held her on the ground and pulled at her clothes while holding her hands with his other hand. She says that she began to struggle but got nowhere with the struggling and started crying and asked him to leave her alone and stop. She says he did not stop and she continued to struggle. He moved his legs on hers to pin her down. She then describes being raped by him. She says it was very painful and she had never experienced anything like that before. She says that when this concluded she put back her clothes and shouted at the applicant that she was going to tell her father. She says that he kept saying 'Don't tell'. Don't tell', in a rage. She says that she ran and he ran after her. She ran back in the direction of the R. house and beyond it. She says that she ran home to tell her father. She says that when she arrived at the front door which was open, she saw her parents arguing and thought that there was nothing for her there either. She says she wasn't able to tell her parents and felt that there was no point in telling them because there was no one there.
She refers to having had an unhappy family background in that her parents constantly fought and eventually separated. In particular, her father was violent and abusive towards her mother.
She headed towards the river. She stayed there for two hours and when it was dark she returned home. Her mother asked her why she was late in returning but she did not answer. She states that the rest of the night is a blur. About two weeks later she says that the applicant came home from work and gave her a bag of sweets in the kitchen which he had never done before. She says she was surprised and took them. She says that his mother was present and said that somebody actually liked her. She states that thereafter she avoided the applicant at all costs. She refers to another incident having occurred near Halloween in 1972 when the applicant frightened her by waiting outside a wood where she was hiding from him, but there was no physical contact between them on that occasion.
She says that in or about September of 1997 she was sent away to boarding school having been expelled from the local convent school because of rebellious behaviour. She states that she used to come home during the holidays and worked in a local shop on those occasions. She states that during her time at boarding school she became withdrawn. She says that the memories of the rape and the abuse at the hands of the applicant's brother were very hard to deal with. She turned to alcohol to numb the pain during her teens and early 20's. Eventually she felt she had to do something about the drinking which she finally did when she was around 22 years of age.
The complainant states that the next occasion which she had a direct encounter with the first applicant was in or about October of 1979. She had then finished boarding school and was working in a shop in the town in question. She indicates that she and her sister would regularly meet at the shop and thumb a lift home for about 9.00 pm. She says that on this occasion they were standing for about five or ten minutes when a light coloured mini pulled up. She says that she knew the applicant owned the car. M.C. was in the passenger seat. She states that both men were dressed in work clothes. M.C. got out and let them in. The complainant's sister entered first and sat behind the applicant whilst the complainant sat behind M.C. She stated that the applicant had been married for three years at the time. She says that the car turned into the drive of his new house which was partially furnished. She says that they were invited in for tea. Having left the room to go to the toilet, the applicant grabbed her by the waist from the behind, lifted her off the ground and brought her down the hallway. She states that he carried her down the hallway to the end room of the left hand side and kicked the half open door. She says that she blocked the way with her legs but he forced her with one push onto the bed. He went to switch on the light as he did so. She states that as she turned to get up from the bed he landed back on top of her. She then describes being raped by him. She states that she does not remember going home. She remembered being very upset in the bathroom at home. She washed in the bath and burnt her knickers. She remembered her sister asked her what was wrong but she did not tell her. She was worried that she might have been pregnant but said fortunately this did not happen. She did not see the applicant after that, except after a hurling match. After this incident she became increasingly withdrawn. In 1983 she moved to Dublin and visited her parents less frequently. On these visits she took care to avoid meeting the applicants. In 1984 her parents separated and her mother left the family home. In 1986 when she was 26 years of age she went to London where she currently resides. She hoped by leaving Ireland behind, the pain and memory of the abuse would abate but she discovered that this was not the case.
The complainant indicates, in the context of the proceedings taken by P.R., that he worked on the farm on a full time basis. She recalls him being considerably older than her. She states he was a tall man of medium build, with short black hair, slightly wavy on top, and dark brown eyes. She refers to the fact borne out by his affidavit borne that he is about 23 years her senior.
While the complainant states that she does not recall precisely when this applicant commenced to abuse her, he began when she was about ten years of age. It continued on a regular basis and systematic manner until she was about sixteen years old. The abuse consisted of fondling her private parts, kissing and licking her vaginal are, being required to masturbate the applicant, the applicant using her body to ejaculate, and other acts of this nature. She indicates that the abuse always took place in private, and the applicant was anxious to ensure that others, particularly his parents, were unaware that it was taking place. She verifies her allegations by confirming the details given by her in her statements made to the police both in relation to the nature of the abuse and the circumstances in which it had occurred.
The complainant indicated that at the time she told no-one of this abuse. She felt disgusted and ashamed, being the object of the applicant's attention in this manner. As she grew into her teens, she became aware that what the applicant was doing to her was wrong. Nonetheless she felt helpless. The applicant was an adult and in a position of authority over her. She indicates that since her father was regularly abusing her mother both physically and verbally, there was no support to be found in the family home.
The complainant states that this abuse ceased when she no longer worked at the applicants' parents' farm. This came about in her mid teens when she was sent away to boarding school in Co. Galway, having been expelled from the local convent school for rebellious behaviour. She used to come home during the holidays only. On those occasions she worked in the local shop.
The complainant indicates that during her time at boarding school she became withdrawn. The memories of the abuse and the rape at K.R.'s hands were very hard to deal with. She turned to alcohol to numb the pain during her teens and her early 20's. Eventually she felt she had to do something about the drinking, which she finally did when she was around 22 years of age.
At this time she was working in Galway city and used to come home to visit her parents at weekends. On those occasions she avoided meeting the applicant and his brother or visiting their parents' farm. After being raped by K.R. for a second time in 1979, she became increasingly withdrawn. In 1983 she moved to Dublin and visited her parents less frequently. On these visits she took care to avoid meeting the applicants.
Since leaving Ireland she has returned to the locality on a limited number of occasions only. She has experienced feelings of upset and fear on the few occasions she has encountered the first applicant there since. She states that some time after she moved to London she told her mother that she had been abused at the farm in question but gave her no details of what had happened. She states that she became depressed and continued to experience difficulties coping with life. In early 1991 she attended a doctor in London Dr. Jean Piggott in connection with these difficulties. In June of 1992 she commenced therapy in London, at about that time she wrote and sent two letters to the first applicant and his wife telling them what he had done to her. She did not go into detail concerning the abuse that she suffered at his hands, but simply wanted to let him know that she had not forgotten about it. She states that in or about 1987 on a return visit to her home she described in detail what the applicant did to her when she was about 12 years of age to her brother. She states that she did not disclose the other abuse she suffered at the hands of both this applicant and his brother until very much later. Despite the therapy and disclosure of certain matters to her mother and brother it took an enormous effort for her to make any complaint about the abuse to the authorities.
In October of 1997 she telephoned the Garda Síochána in Dublin for the purpose of making a complaint alleging that the applicants had abused her. It was only at that point that she felt she was in any way ready to confront the very painful memories and the emotions resulting from this abuse. On 18th and 19th October, 1997, W.P.C. Theresa Langley took a statement of complaint from her at her home in London. On 26th, 27th and 28th May, 1998 at Hampstead Police Station, London, she made a further statement in the presence of an officer of the London Metropolitan Police and Detective Sergeant Roche. She states that on both occasions she found giving the statements to be very difficult, upsetting and traumatic. She confirms as true the contents of these statements.
The complainant refers to having returned to Galway on 25th October, 2001, in order to attend Mr. Murphy the senior psychologist. She refers to having had a lengthy telephone consultation with him thereafter. She confirms as true the matters of fact relating to her personal circumstances as referred to in his report.
In his report Mr. Murphy refers to the complainant's medical history as evidenced in reports before the court. He states that compared to ten years ago the complainant has gained considerable control over her life. He concludes that she is still suffering from the sexual abuse of her childhood but she stated that her main objective was to put the trauma to rest. Mr. Murphy indicates that there was no doubt that the complainant had benefited from the therapeutic help she received over recent years.
Mr. Murphy indicated other serious events in her childhood that might bring about an unstable personality. He refers to the fact that she grew up in a most unhappy family, her parents constantly fought and where she often heard her violent and abusive father threatening to kill her mother. She had found early school life fearful where she was often beaten and ridiculed by her teacher.
Mr. Murphy indicates that when she was about seven years of age her older brother began to sexually abuse her and her sister whenever the opportunity arose and this has continued infrequently until she was about nine years of age. Worse was to follow when at the age of ten years she was sent to work for the applicants' family. The complainant absolutely denied that she could have confused the sexual by her brother with what she had alleged had taken place with the applicants. The allegation was of systematic and persistent abuse and that the first applicant had raped her, an event she could never forget.
Mr. Murphy indicates that her exceptionally detailed account of sexual abuse perpetrated by the brothers is compelling and impressive. He indicates that such detail could also be regarded as suspect, especially if such abuse happened infrequently and during the most common years when children are abused and often find recall difficult. He points out, however, that in this particular case the abuse was systematic and continued until she was about sixteen years, finally ending with rape when she was 19 years.
Mr. Murphy refers to the complainant's own statement in relation to why she appears not to have taken any action to stop the abuse alleged. He states that there is a psychological explanation as to why children are powerless to stop continuous sexual abuse. He states that when a child is sexually abused even once, this has the effect of emotionally disarming that child. Generally thereafter it will find itself unable to do anything about it. As in this case, children even go so far as to protect the abuser out of fear in most cases that nobody would believe them. He states that in order to protect what little of their lives is left intact by the trauma of sexual abuse, children lend their bodies to the abuser and almost become onlookers at what takes place. It is frequently, therefore, only much later in life that they recover sufficiently to deal with their emotional trauma. He states that such helplessness is clearly seen in this case where even at the age of 19 years the complainant found herself acting like a helpless child and took a lift in the car of a man whom she alleged had raped her as a child and was later raped a second time.
He states that in his experience a very large proportion of victims of sexual abuse are often as old or even older than this woman when they finally recover enough to deal with the trauma they suffered as children. He adds that delays in reporting sexual abuse for many individuals of the complainant's generation was usually compounded by the fact that such victims found it extremely difficult to trust anyone. They frequently came to therapy for reasons that ostensibly have nothing to do with sexual abuse. He refers to the complainant presenting problems initially with Dr. Piggott which concerned issues she had with her tutor. He says that he found that to be the case with most victims of sexual abuse.
Mr. Murphy states that a disclosure of a history of sexual abuse in childhood will frequently take place in the course of therapeutic intervention for other symptoms when sufficient confidence and trust is built up. He states that literature in this field is, however, heavily documented with cases of false or unreliable memories of sexual abuse which can emerge in the course of treatment. He says that these cases usually refer to very young children, often subjected to extremely poor therapy by inexperienced therapists with a particular agenda in mind. He states that there are other cases where no memories are initially present but later adduced usually with malicious intent. However, he indicates that in this particular case he is confident in stating that the complainant has provided a reliable, consistent and accurate account of her childhood.
The therapy she received particularly provided her with sufficient psychological recovery to deal with issues that had virtually destroyed her life since childhood. Mr. Murphy described the action of writing to the applicant to remind him of the sexual damage he had caused her as a twelve year old child by raping her as being an indirect first step intended to resurrect issues that she could never forget even if the applicant had. He states that it would be stretching matters to describe the letter as a confrontation. He says that clients in these circumstances are often asked to write such letters as an aid to eventual confrontation even if they never send them. He says it is very clear that at the time she wrote this letter she had a long way to go before she had sufficiently recovered to actually confront the two individuals. He states that it is essential to bear in mind that she had lived in fear of them all her life. It is stated that as her recovery progressed over the next few years so did her anger concerning the two brothers. She now appeared to be able to direct her anger outwards against them gradually losing her fear. He expresses his opinion that this would be a normal sequence of events which slowly led her to make a formal statement of complaint to the Gardaí in 1997. He adds that accepting the truth of the complainant's allegations it would certainly be the case that the brothers could be classified as dangerous paedophiles and a serious menace to young children. He also states that it is his opinion that a serious distinction has to be drawn between the two brothers. The applicant K.R. caused the complainant grave physical damage in the course of a savage rape which also robbed her of her virginity. It was mainly for that reason that she wrote to him. She has never fully recovered from this assault and believes it to be responsible for the serious sexual difficulties in her adult life.
Having defined the nature of sexual abuse Mr. Murphy states that it is a well-known fact that children who are sexually abused keep their "secrets", some throughout most of their adult lives. When disclosures finally take place, it is usually in a therapeutic encounter where the presenting problems have no obvious connection with the abuse. He adds that in recent years much has changed by media coverage of sexual abuse and the availability of helping services.
Mr. Murphy states some of the psychological effects of sexual abuse and he then addresses the effect of psychosexual therapy which he says is aimed at restoring all of the effects of sexual abuse. He indicates that victims find it difficult to trust anyone since, as children, trust resulted in these appalling consequences. He says that they also find it difficult to disclose that which they had hidden for most of their lives. He adds that in therapy each effect of sexual abuse is thoroughly explored with the victim. The victim is gradually encouraged to express the distress suffered as a child;
a bridge is built between her stultified emotional development in childhood and the grown up individual who must function with adult and normal emotions; sexual boundaries are fixed so that the individual can interact with sexual safety where others are concerned; a normal range of personal defences are restored to enable the person to project a clear, self-definition to others; the person addresses the hurt, rage and historical frustrations and gradually projects these outwards, thus, furthering her own life and learning to respect the boundaries of others.
Mr. Murphy addressed two issues:
(a) whether the complainant's allegations are believable in the circumstances already referred to, and
(b) to establish that she did not suffer from the psychiatric disorder leading to delusions about her past history.
He indicates that the doctors who previously dealt with her all accepted that her depression, low self esteem and poor confidence arose from physical and sexual abuse for a long period during her childhood. He adds that the evidence that he has seen, together with information from his consultation with the complainant, leaves him with no doubt that she was subjected to a horrific sexual abuse by the two applicants for several years in her childhood as she has described. He states that he is also confident in stating that this level of gross abuse had adversely affected much of her adult life and was the main cause of her depression.
He refers to the fact that the complainant has undertaken to pursue her education and is now taking A levels in English, Philosophy and History. He states his general opinion of her to be that she possesses a keen, balanced mind and intellectually that she is of at least average if not above that level of functioning. He states later in his report that the complainant had in his opinion, no motivation to fabricate a bizarre story about the sexual abuse perpetrated by the applicants and must therefore have been relating a true account of her experiences.
On the second issue he states that there is absolutely no evidence that she ever suffered from a psychiatric illness associated with delusions about her past. He refers to the fact that she was described by Dr. Richmond as "very fragile and vulnerable and that she needs ongoing support". He states that her disastrous childhood in her own home, her brother's abuse and the physical and violent abuse of her father and teacher could have contributed to this vulnerability. He describes that what is alleged to have taken place with the applicants is, however, a completely different order of violence. He refers to the fact that the complainant herself believes that these latter assaults mostly contributed to any illness she had suffered since childhood. He states that her evidence about this period of her life seems to be consistent throughout and could not have come from some concoction of her imagination. He found her objective and coherent and a now sufficiently recovered from the fear of her abusers to pursue her stated aim.
Dealing with the impact Mr. Murphy indicates that the complainant is perhaps fortunate in that she is well on the road to full recovery but can rightly claim to have lost out on her normal adult life for the past thirty years. He indicates that she requires a substantial amount of therapy. He states that a victim such as the complainant would normally live a very isolated and secluded life, trusting nobody. The abuse ruined any chances she might otherwise have had to establish a heterosexual relationship in her adult life. He adds suppressing the disgusting events of the abuse is the only way left for a child to cope. Putting it out of mind is a survival technique which, as the child grows into adult life, will eventually break down. When, as in this case, her strategies of managing her trauma gave way, she had to get help and come to terms with it. The past few years have mostly been taken up with recovery. He concludes his report as follows:
"All her life she has been haunted by two men who have made her life a hell since she was a young girl. What they did has left her confused about her sexual orientation and, in her view, she is not sure which sex she finds herself attracted to. However, at least now she is beginning to feel that those she is in contact with understand and support her. I will conclude by stating, despite what she has lost over the past 30 years, she is a woman of immense courage and resilience, and, perhaps somehow she will find a way of turning her adversity into an opportunity."
Mr. Murphy was cross-examined on his evidence. Mr. Murphy indicated that no accusation of rape was made by the complainant to him with regard to the applicant P.R. Notwithstanding this it appears that in a report of Dr. Parkes she indicated that the complainant had referred to having been raped by the younger brother (which apparently is referable to P.R.) at page 14.
The witness indicated that the person who first invaded her personal space was her brother who had abused her. This had the immense significance in disarming the child emotionally, making her vulnerable and consequently, if there are other abusers, she would be quite easy prey to abuse. The witness indicated that the complainant came from the most disastrous dysfunctional home where her father threatened to kill his wife and frightened the complainant when she was a little child. This happened long before her brother abused her or even before the subject matter of the allegations against the applicant. The witness indicated that in the context of sexual abuse that once there is sexual abuse it leaves the victim vulnerable in all sorts of ways. This includes being vulnerable to being bullied, not to function in school, and to be open to be abused by other people other than the initial abuser. It generates low self-esteem, poor confidence and an inability to fit in. The witness indicates that children who are sexual abused always feel different to those around them, especially other children.
The witness was referred to a letter of complaint written by the complainant to the applicant K.R. in which the complainant referred to an "attempted rape" when she was nine years of age. The witness indicated that he didn't specifically address any distinction between rape and attempted rape but addressed it on the overall context of an allegation of sexual abuse. The witness indicated that he accepted what the complainant had said to him. The witness indicated that he did not address the contents of the letter from the complainant when he interviewed her.
While it is stated by Dr. Georgina Parkes in her report that the complainant came to the United Kingdom in 1986 for a termination of pregnancy, this was not explored by the witness with the complainant.
Dealing with the delay in reporting the witness indicated that at the time these incidents are alleged to have taken place there was no place to go in the first place and it wasn't even accepted socially that such thing as could happen to children and especially in this country. The witness indicated that children up to very recently kept these things secret, believing that nobody would trust them. He indicated that in the past ten years when matters became a little bit more public people gained confidence to try and deal with what happened to them.
The witness indicated that he did not discuss the complainant's fear with her. He considered that it was not his function to do so. She stated that she was in fear of the two applicants. Her fear is one of the reasons for the delay in the instant case.
The witness was cross-examined in relation to what steps he took to ascertain whether the complainant was suffering a degree of psychosis. He indicated that he did not taken any steps and counsel put it to him that his report had no validity unless he did this. The witness did not in fact believe that she was suffering from a psychosis. He indicated that she suffered from depression but was able to live a normal life, work for herself, and educate herself especially in the latter number of years. He indicated that a person suffering from chronic psychosis would not be able to be employable, would not have a grip on reality, while the reports on the applicant indicated that she seemed to be coping and looking after herself.
The witness indicated that the delay on the part of the complainant in coming forward is no different in this case to a multitude of other people who were either too scared to report the allegations or are too traumatised to do it. He indicated that this would seem to be the case with the complainant. The witness accepted at face value the reasons given by the complainant herself for the delay. However, he indicated that he questioned her in relation to what he was told by her.
Submissions
On behalf of the applicant it is submitted by Mr. Giblin S.C. that this court should not rely on the evidence of the psychologist Mr. Murphy. It is submitted that he did not conduct an inquiry sufficient to express the opinion which he purports to express in these proceedings. Counsel refers to the fact that he failed to explore the reference to attempted rape in the light of the documentation furnished to him, and in light of the explicit description of violent rape as set out in the statement of the complainant herself. Counsel also refers to the fact that a report of a brother having raped her at twelve years of age. Counsel submits that the differences in regard to these accounts should have been explored.
Counsel submits that to ignore this evidence would be wrong from the point of view of the psychologist. Counsel complains that he didn't seek an explanation from the complainant. Counsel further states that he does not know whether any Irish medical records or others in the United Kingdom exist. The psychologist did not seek any clinical notes in the United Kingdom and he did not investigate whether there was a diagnosis of clinical or psychotic depression. It is submitted that he should have sought access to these records. Counsel submits that the psychologist is required to take all steps to ascertain all the relevant surrounding steps. It is submitted that it was incumbent upon him to speak to other members of the complaint's family.
Counsel refers to cases in which the Superior Courts have been critical of the approach of consultant psychologists in giving evidence to this court and in particular to the decision of McCracken J. in the case of F. v. Director of Public Prosecutions (Unreported, High Court, 5th December, 1997). It is submitted that the observations of the learned trial judge in that case, insofar as they refer to the duty of a psychologist, are apposite to the role that should have been pursued by the psychologist Mr. Murphy in the instant case.
Counsel refers to the decision of the Supreme Court in the case of J.L. v. Director of Public Prosecutions [2003] I.R. 122 and in particular to the judgment of Hardiman J. in that case. This is that one must proceed on the basis that P.C. v. Director of Public Prosecutions [1999] 2 IR 25 is correctly decided. On this basis the court makes the assumption that the complaints are true.
Counsel submits that there is no indication of any repression or suppression in the instant case, and further submits that there is no evidence of continuing dominion having been exercised by either of the applicants on the complainant. Counsel submits that the evidence of fear resulting from any dominance that may have been exercised is all based on supposition and that there is no evidence as such of same. Counsel refers to the approach taken by Hardiman J. to treat the evidence of the psychologist with caution.
Counsel refers to the judgment of Kearns J. in A.W. v. Director of Public Prosecutions (Unreported, High Court, 23rd November, 2001) where the learned High Court judge held that the psychologist in that case had fallen down to a significant degree. He felt that there were serious ambiguities and omissions to be found in the psychological evidence which the evidence of the psychologist failed to resolve. In that case he held that the court should be extremely cautious and slow to accept or act on opinions or conclusions offered by such an expert, even in the absence of evidence in contradiction called on behalf of the applicant. In the course of his judgment at page 30 thereof Kearns J. stated:
"Where and when requested to carry out a psychological assessment, it is in my view incumbent upon a psychologist to discharge such a function, in detail and depth, even if his brief is mainly to enquire into factors explaining delay. It is not sufficient, in my view, to set out a list of general principles relating to complaints of this nature and then attach them to a particular complainant without some understanding of the psychological makeup of the individual in question which would suggest whether these general principles, or some of them, were particularly apt or appropriate, or perhaps even irrelevant to the particular complainant."
In the instant case counsel submits that this court should take a similar view and submits that the psychologist failed to pursue obvious and convenient lines of inquiry. Counsel submits that the appropriate test is whether, as the result of delay, there is a real and serious risk of the applicants not obtaining a fair trial.
In reference to P.C. v. Director of Public Prosecutions [1999] 2 IR 25 where the court indicated, assuming the complaint to be truthful, that if it concludes that the delay in making it was referable to the accused's own actions, the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired, such that the trial should not be allowed to proceed.
In this case counsel refers to the death of the various witnesses as referred to in the affidavits of the applicants themselves. Counsel refers to the fact that the offences are in the main stated to have been committed at the applicants' home and on the lands owned by the family. It is submitted that any indication of upset is one which would have been observed by the parents who would have been the essential witnesses. It is submitted that it is clear on the balance of probabilities that certain lines of defence are not now available which would have been available had the prosecution been brought at an earlier time. Counsel submits than the applicants are now totally reliant on their own evidence and that this is an unjust state of affairs. It is submitted that this court has a duty to vindicate the applicants' right to a fair trial. It is submitted that the applicants have been deprived of the opportunity of calling three central witnesses, namely, the complainant's father and the parents of the applicants themselves. It is submitted that all these are lost due to the delay complained of in these proceedings.
Counsel submits that there is no explanation for the delay in the instant case in the absence of the evidence of the psychologist Mr. Murphy. Counsel further submits that the respondent has failed to demonstrate that the delay complained of has been caused by the applicants or either of them.
Dealing with the sequence of events since the matter came to the attention of the Gardaí, counsel complains that the prosecution has been guilty of delay in bringing this matter before the courts. Counsel refers to P.P. v. Director of Public Prosecutions [2000] 1 IR 403 and complains that there has been delay in the instant case between the time of receiving the complaint and the charging of the applicants. It is submitted that the case did not involve a complicated investigation. Although one witness was interviewed in the United States and it was necessary to go to London to interview others, it is submitted that all the necessary statements were available at a fairly early stage in the investigations. It is submitted that the onus of proof lies on the respondent to show that the delay in question is reasonable. It is submitted that there has been no explanation forthcoming for this period of delay and there must be considered to be culpable delay in which circumstances there is no onus on the applicant to establish any prejudice. It is submitted that there is an onus on the prosecuting authorities to move the case with all expedition.
In reply on behalf of the respondent it is submitted by Mr. Anthony Collins S.C. that the period from October 1997, when the complaint was received, to September of 1999, when the two applicants were charged, being a period of 23 months, does not show any lack of expedition on the part of the Gardaí in investigating the matter having regard to the fact that it was necessary to interview a witness from the United States and to visit London. It is submitted that unless the applicants can establish "blameworthy delay" on the part of the respondent and/or the Garda Síochána in the prosecution and the investigation of these complaints, they are not entitled to the relief sought on that basis. It is submitted that the lapse of time between the making of the complaints and the arrest and charge of the applicants is fully explained in the affidavits filed on behalf of the respondent.
With regard to the issue of actual or presumed prejudice it is submitted that this falls to be determined even where this court is satisfied that the delay in making a complaint has been fully explained.
It is submitted that the applicants bear the onus of proving, on the balance of probabilities, that, due to the lapse of time, they will be prejudiced to such degree as to give rise to a real and serious risk of being deprived of a fair trial. It is submitted that the material put before this court does not go so far as to establish any such risk. It is submitted that even if it could be shown that the death of any potential witness prejudiced the defence, this factor does not in itself lead to the conclusion that a fair trial will be impossible. It is submitted that even if the trial had occurred a short time after the commission of the alleged offences, for example three or four years, similar difficulties might well arise. It is submitted on the facts of the instant case that the applicants fall short of identifying material factors which would indicate the existence of a real and serious risk that they will not obtain a fair trial. It is submitted that the lapse of time of itself is not sufficient to establish any automatic inference of prejudice. Counsel refers to the sworn evidence of the complainant in the instant case insofar as she sets out what she alleges occurred. Her evidence is of the offences having been committed in private. It is submitted on this basis that there is no evidence that the persons now dead would, if alive, be in a position to give evidence directly relating to the guilt or innocence of the accused.
Counsel submits that the applicants need to show circumstances of real risk of not obtaining a fair trial. Counsel refers to the fact that the complainant has not been cross-examined on her evidence in either case.
Dealing with the psychological evidence, counsel accepts the observations of Kearns J. in the case of A.W. v. Director of Public Prosecutions (Unreported, High Court, 23rd November, 2001) and the decision in V.D. and J.O'F v. Director of Public Prosecutions (Unreported, High Court, 23rd November, 2001) insofar as they pertain to the appropriate standards of psychological evidence. Counsel submits that the circumstances warranting the criticism in the A.W. case is not present in the instant case. Counsel refers to that portion of the judgment of Kearns J. in A.W. v. Director of Public Prosecutions where at page 30 thereof he stated:
"It would be unfair to expect a trawl by a psychologist of every event, illness or sexual contact of a complainant from the age of maturity to the time of complaint, but some insight into the psychological development of a complainant in adulthood is surely relevant."
Counsel submits that it is wrong to expect a psychologist in a case such as the instant case to engage in a validation or verification exercise. Counsel refers to the test propounded by the Supreme Court in the case of P.C. v. Director of Public Prosecutions [1999] 2 IR 25 which applies tests which proceed on the basis of certain assumptions. These include assumptions that the complainant's version of events is true in the first instance. Counsel refers to the nature of the report sought from the psychologist in the instant case. Counsel submits that he carried out an exercise in fact beyond the parameters of his brief. It is submitted that it is clear that if there are serious discrepancies identified in the course of the assessment that these may require further investigation. It is submitted that the essential matter does not change, namely, whether on the complainant's evidence there can be said to be psychological difficulties which resulted in a delay in making the complaints. It is submitted that the psychologist in the instant case applied the relevant principles to the individual circumstances of the complainant.
Counsel refers to the time taken up in cross-examination in regard to various matters, which it is alleged were not properly investigated. It is submitted that there is no clear evidence of psychotic depression having being suffered by the complainant. Counsel submits that it may be a situation where certain of the allegations are inconsistent with the allegations of rape. Counsel, however, submits that this case must proceed on the basis of an assumption of truth of the complaints made by the complainant herself. It is submitted that on the evidence of the psychologist that the applicants are responsible for the delay complained of. It is submitted that the psychologist acted properly insofar as he obtained medical records going back as far as 1991 in relation to the complainant and took those into consideration. It is submitted, given the limitations outlined by him in the exercise, that he has discharged his duty to the court given the nature of the investigation directed. Counsel refers to the evidence insofar as it details the difficulty experienced by the complainant in making her complaint.
Counsel submits that this is not a case of recovered or repressed memories. Counsel refers to the obiter dicta of Hardiman J. in J.L v. Director of Public Prosecutions [2000] 3 I.R. 22. It is submitted that the observations of Hardiman J. have to be seen in the context of the particular facts of that case. Counsel refers to the fact that the psychologist in the instant case refers to the danger of false reporting.
Counsel submits that even if this court were to discount the evidence of the psychologist Mr. Murphy, this court can rely upon the evidence of the complainant herself. This was the approach adopted by Kearns J. in A.W. v. Director of Public Prosecutions (Unreported, High Court, 23rd November, 2001). Counsel further refers to the judgment in the case of V.D. and J.O'F v. Director of Public Prosecutions (Unreported, High Court, 23rd November, 2001). Counsel submits that the complainant's own evidence is an ample basis upon which this court should refuse the applicants the relief which they seek. Counsel submits that on the evidence of the complainant herself it took an enormous effort on her part to make the complaint. It is submitted, therefore, that the reason why the complainant did not come forward at an earlier stage has been adequately explained and is reasonable. It is submitted therefore that the delay complained of must be attributable to the allegations complained of.
Dealing with the evidence of the psychologist Mr. Murphy, counsel refers to the fact that he indicated certain matters that he would have attended to had he been treating the complainant. He indicated the issues which he addressed in his report relate to the matters requested of him. While he has indicated the limitations of his report insofar as the complainant was living in London at the time, it is submitted that the exercise was validly carried out by him. It is submitted therefore that there are no serious deficiencies such as identified by Kearns J. in of A.W. v. Director of Public Prosecutions (Unreported, High Court, 23rd November, 2001). Counsel submits that one can always find some deficiencies but the issue is whether on the evidence the exercise carried out by the psychologist can be said to fall short of the appropriate standards.
Finally counsel submits, even if the court were to reject the evidence of the complainant and the psychological evidence in the instant case, that this is a case where this court should refuse the applicant the relief which he seeks. It is submitted that the delay is not such as to give rise an inevitable prejudice on the part of the applicant in either case. On this basis it is submitted that the lapse of time is not sufficient in itself to give rise to an automatic inference of prejudice.
Conclusions
In the first instance of this case it must be viewed in light of the decision of the Supreme Court in the case of P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and to the appropriate tests as laid down in the judgment of Keane J. in that case. While the applicants have each identified matters which they contend show that by reason of the passage of time it will be more difficult to defend the charges against them, the delay complained of must be viewed in light of the evidence of the complainant herself, who has not been cross-examined on her evidence. It is clear that on her evidence the complaints in relation to the applicant P.R. are of habitual child sexual abuse. The complaints against K.R. although of less frequency are of a more serious order.
I am satisfied from the affidavit of the complainant herself that she has explained the reason for delay in coming forward and making the complaints. She indicates that she left Ireland when she was 26 years of age and went to London where she currently resides. She hoped that by leaving Ireland behind the pain and memory of the abuse would abate, but she discovered that this was not the case. She indicates that, having gone to England, she became depressed and continued to experience difficulties coping with life. She indicates having attended Dr. Piggott in 1991 in connection with these difficulties. She thereafter commenced therapy and it is clear that she wrote to the applicant K.R. and to his wife she did not set out the details of the abuse at that time.
It is clear that even in 1987 when the complainant described in detail to her brother what K.R. allegedly did to her when she states she was twelve years of age, she did not disclose the other abuse which she suffered at the hands of the applicants until very much later. In her affidavit she indicates that it took an enormous effort for her to make any complaint about the abuse to the authorities. The affidavit of Detective Sergeant Roche also indicates the clear difficulties she had in making the complaint at the time.
I am, therefore, satisfied on the complainant's own evidence that the delay complained of has been adequately explained. In addition to this evidence I have the evidence of the psychologist Mr. Murphy. While he has indicated the limitations of his report, in particular the circumstances where the complainant herself was living in England and he was in Ireland at the time, I am satisfied that his evidence is of further assistance to his court in its assessment of the matter. I am satisfied that it was not his function to engage in an exercise of validation of the complaints. This evidence enables this court to conclude that the delay complained of is one which must be visited upon the applicants themselves.
With regard to the alleged prejudice put forward by the applicants I am satisfied that the absence of certain witnesses identified by them is not such as to give rise to a situation where a fair trial cannot be had by them, I am satisfied in circumstances where the offences are alleged to have been committed in private that the absence of these witnesses is unlikely to result in a situation of an unfairness in the trial procedure itself.
In find no case of prosecutorial delay to have been established in light of the evidence of Detective Sergeant Roche.
Finally, taking all the matters into consideration, I am satisfied that the applicants in each case, notwithstanding the difficulties that may be experienced by them having regard to the passage of time, have failed to demonstrate that such difficulties as may be experienced by them in defending the charges will result in a situation where there is a real and serious risk that they cannot obtain a fair trial. In light of these conclusions I am satisfied that I must refuse to the applicants the relief which they seek.
Aindrias Ó Caoimh
17th February 2003