[2005] IEHC 236
2003 248 jr
Applicant
Respondent
JUDGMENT WAS DELIVERED ON TUESDAY 10 MAY 2005 BY MR. JUSTICE O'NEILL AS FOLLOWS:
This is an application by way of judicial review for an Order of Prohibition. The applicant was born in 1966. The complainant was born in 1979. The complainant alleges that in 1991 on unspecified dates, three sexual assaults were perpetrated upon him by the applicant. Two of these occurred in swimming pools and one in the bedroom in his home. The applicant denies these offences.
The applicant was a friend of the complainant's family, particularly of his father, they had a shared interest in GAA games. The applicant was 12 years of age, approximately, when these alleged offences occurred. He first disclosed these allegations to a girlfriend late in 1997. He then attended a well-known psychiatrist, Dr. Fahy, for counseling, and after this, he reported the matter to the gardaí in February 1998 and made a formal statement of complaint on 6 March 1998. A garda investigation commenced but lay dormant until April of 1999 for the reasons which are set out in the affidavit of Sergeant Cryan in respect of which he was cross-examined before me.
Sergeant Cryan in due course met with the applicant by appointment on 29 April 1999 and the applicant furnished a statement on 14 May 1999 in which he denied all involvement in these offences and also denied making any admission in relation to these offences to the applicant's father. Statements were taken from three members of the complainant's family in June of 1999 and on 16 October 1999. A garda file was sent to the DPP in October of 1999 and the DPP gave a direction on 9 March 2000 and the applicant was charged with the offences in question on 30 April 2000.
The principles which apply where an application for prohibition is made in respect of a sex abuse case on the grounds of inordinate delay can be summarised as follows:
1. Where inordinate delay occurs, and it is a matter of fact in every case whether or not inordinate delay has occurred, that delay may be excused by the dominion of the accused or if the` delay is caused by the inherent psychological effects of the crime itself.
2. Where a delay is excused in this way the balance of justice between the accused right to a fair trial and the community's right to prosecute is struck by the Courts adopting the position than the accused cannot complain about presumed prejudice resulting from a delay.
In this case Mr. Grehan SC, for the applicant, did not press a challenge to the evidence of Mr. Paul Gilligan, a psychologist, who had consulted with the complainant and had read the papers on the case, and his opinion was that the delay of seven years in reporting these alleged offences was the result of the inherent effects of the alleged crimes themselves. Where, however, an accused can point to actual prejudice, and specifically, can demonstrate a defence which is no longer available or is seriously disadvantaged by the passage of time the Courts in order to protect an accused right to a fair trial, in accordance with Article 38 of the Constitution, will prohibit the further prosecution of the offences in question.
In this case the applicant makes the case that by reason of serious head injury suffered by him in a road traffic accident in July 2001 he is no longer competent to defend himself; as, if his trial were to go ahead his only possible defence would be by giving oral testimony himself in which situation he would be grossly disadvantaged in his defence.
I am satisfied on the evidence that as a result of his brain injury the applicant would have the following problems in giving evidence at his trial: He will be likely to exhibit inappropriate reactions such as glibness or depression and could inadvertently convey an appearance of callousness or indifference which would create an erroneous impression of him in the minds of the jury. Secondly, he would have a difficulty understanding questions, particularly, if there was a shifting from one topic to another as would be normal in cross-examination. He would also have a difficulty in processing information and recalling information recently imparted. Fourthly, he would have a tendency, described by Dr. O'Connell as preservation, that is, to adhere to an incorrect answer even though he might know it to be incorrect. Fifthly, he would have an intolerance of stress or anxiety which would cause him to shut down completely. He would have an inability to comprehend the abstract. That is to say, he attempts to understand things literally and deals solely in concrete terms with a consequent tendency towards rigid thinking. He has isolated pockets of memory loss, although this would seem to be, perhaps, the least of his difficulties. Mr. Grehan contends that these difficulties would give rise to a real risk of an unfair trialif his trial were to go ahead. Mr. O'Malley, for the respondent, submits that these difficulties relate only to how the applicant will present himself to a jury and do not inhibit his capacity to give evidence in his own defence. He submits that many witnesses are through the vicissitudes of life rendered less attractive as witnesses, but nonetheless, it cannot be suggested that because of the ravages of life and time that they should not have to stand trial for criminal offences. He submits that the threshold in terms of ability to give evidence must necessarily be low.
In my opinion what is crucial here is that the difficulties that the applicant now has, and it is hardly necessary to say it, that these are no fault of the DPP, would not have been there had the delay not occurred. I am satisfied in the first instance that the delay which has occurred, that is to say the seven years in reporting the offence, is inordinate.
In a sex assault case where long delay has occurred there is at the time of reporting little possibility of a real or normal police investigation where at the time of reporting, even the complainant in this case, cannot say with precision the days or dates on which the offences are alleged to have occurred. Because of this and the lapse of time it is not possible for the gardaí to ascertain the presence and availability of any witnesses. Two of the alleged offences occurred in a place where one would normally expect to find other persons present. The lack of specificity as to the time of the offence effectively denies an accused any possibility of an alibi defence. These are very real disadvantages that affect an accused person in a delayed sex case.
As I have said earlier, the courts will allow trials to go ahead in spite of all this presumed prejudice to achieve a correct balance of justice between the community's right to prosecute these offences, and hence protect children from sex abuse, and an accused right to a fair trial. However, when it can be demonstrated that an accused defence is eliminated or grossly impaired by the lapse of time the trial will be stopped.
I am satisfied that the applicant in this case would, by reason of his brain injury, be so seriously disadvantaged in the only means of defence likely to be available to him, that is to say, his own oral testimony, that there is indeed a real risk of an unfair trial. I then ask myself, 'could this disadvantage be corrected at the trial?'
Undoubtedly, expert evidence could be given which would explain the applicant's brain injury and the consequences of it. Perhaps the questioning of the applicant could be regulated by the trial judge to give the applicant the best chance of dealing with it. However, what all of this would do is simply to convey and explain to the jury that the applicant is an unreliable witness and the reasons why he is as such. It could not alter the impression or the fact that he is indeed an unreliable witness. This state of affairs would not have existed if the offences were prosecuted in the early 1990s or during the 1990s. I have come to the conclusion that the applicant has demonstrated actual prejudice in the conduct of his defence which cannot be corrected at the trial. Accordingly, I will prohibit the trial.
Approved: O'Neill J.