High Court of Ireland Decisions

Neutral Citation No: [2005] IEHC 410

THE HIGH COURT

JUDICIAL REVIEW

[2003 No. 742 JR]

BETWEEN

S.F.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

EX TEMPORE JUDGMENT of Quirke J. delivered on the 23^rd day of November, 2005

By order of the High Court (O'Donovan J.) dated 20^th October, 2003, the applicant was given leave to seek relief by way of judicial review comprising an order of prohibition restraining the respondent from proceeding further with the prosecution of the applicant in respect of three charges of indecent assault contrary to the provisions of s. 6 of the Criminal Law (Amendment) Act, 1935.

Two of the offences are alleged to have been committed on unknown dates between 1^st March, 1973 and 1^st March, 1974 and a further offence is alleged to have been committed on an unknown date between the 1^st January, 1983 and 31^st December, 1983.

All three of the offences are alleged to have been committed at S. B. P., Navan in the County of Meath.

FACTUAL BACKGROUND

The facts which are relevant to these proceedings are as follows;

1. The applicant is an uncle, (by marriage), of R.S. who is now 40 years old. R.S is married and is the mother of three children. Her eldest child is now eight years old. 2. On 10^th June, 2002, R.S. made a statement to the Garda Síochána at Slane Garda Station. She complained that almost 30 years earlier, when she was approximately eight years old, the applicant had entered her bedroom and had indecently assaulted her with his finger for a period of approximately five minutes. She said that a number of other similar incidents took place around this time but these incidents then stopped.
2. She stated that approximately ten years later in 1983 while she was babysitting at the applicant's home the applicant entered her bedroom where she lay in bed, lay on the blankets on top of her and made simulated sexual movements. She said that he then placed his hand on her breasts inside the blankets.

She said that this continued for "a few minutes". The applicant's wife then called him and he immediately got up and went away.

3. An investigation was commenced by the Garda Síochána and on the 8^th August, 2002, statements were taken from F.McK. who is the applicant's mother and M.S. who is now the applicant's husband.

On 11^th September, 2002, the Gardaí obtained a statement from Fr. P.G.

4. On 10^th October, 2002, the applicant was interviewed after caution in his home by Sergeant M.T. He made a statement in which he denied the assaults complained of.

In his statement the applicant denied having inappropriately touched the applicant on any occasion but stated that he could have done so accidentally and was prepared to apologise to the applicant for any harm or grief caused to her over the years.

5. On 15^th October, 2002, a statement was made in the investigation by Sergeant M.T. This was followed on 15^th November, 2002 by a statement made by Garda V.S.
6. On 26^th November, 2002, a file was forwarded to the Director of Public Prosecutions for his consideration.

On 16^th January, 2003, and on 19^th February, 2003, further statements were made by R.S. to Garda S. On 20^th and 21^st February, 2003, further statements were made by F.McK. and Garda V.S.

On 22^nd February, 2003, the file was returned by the Garda Síochána to the State Solicitor. The Gardaí were seeking directions from the Director of Public Prosecutions.

7. On the 15^th July, 2003, the Garda Síochána received instructions from the Director of Public Prosecutions to prosecute the applicant in respect of the offences alleged and on 23^rd July, 2003, the applicant was arrested, cautioned and brought before Navan District Court.

After remand in the District Court from time to time, the applicant was returned for trial on 3^rd September, 2003, to the Circuit Court at Trim in the County of Meath.

8. In evidence R.S. stated that on an unidentified date not long after the incidents which are alleged to have occurred in 1973, she was in a field on her father's farm with her cousin J.D. when she heard a shot and the sound of a pellet passing her left ear.

She said that when she looked around she saw her father with the applicant.

The applicant had a pellet gun in his hand. She concluded that the gun had just been discharged by the applicant. She interpreted the discharge of the firearm as a threat intended to keep her silent about the applicant's offences.

9. Shortly after the offence which is alleged to have been committed in 1983 the applicant reported all of the incidents to her mother and father. She said that her mother and father went to the applicant's house and confronted the applicant and his wife. She said that when they returned home her father told her that she had lied about the incidents. She said that her mother believed her but seemed ambivalent on the issue.
10. The applicant told her present husband M.S. about the incidents when both were teenagers before they were married. M.S. believed her fully and has, at all material times, been supportive of her.

On 31^st January, 1988, M.S. and R.S. went to live in London where they both worked for some time.

11. In October 1988, R.S. met Fr. P.G. in London. She told Fr. P.G. about the incidents which are the subject of these proceedings. He believed her and was shocked.
12. In 1994, R.S. told the applicant's wife, T.F., about the incidents. T.F. believed the applicant and confronted her husband who denied the incidents.
13. In the statement of evidence of R.S. which was adduced in evidence in these proceedings she stated inter alia that:-

"In March, 1997 and March, 1998 there were family celebrations. …( S.F). ..was not invited by me. ( Father P)... approached me on two occasions to ask if I would forgive…( S.F..) and allow him to attend. I refused. In December, 1998 I returned home with my family. I informed T.F. not to allow (S.F.) to come near my family home as I was there.

14. R.S. has never suffered from any kind of psychiatric illness, learning disability or adverse psychological symptoms. She has never received or sought treatment or advice or counselling in respect of any matter which arises out of the alleged offences.
15. In evidence, the applicant stated that she had not reported the incidents between 1988 and 2003 because:

(a) Her father had not believed her when she first reported the matter to her parents,

(b) she feared the applicant by reason of the incident shortly after the incidents in 1973 when he appeared to discharge a gun as a warning to her and

(c) because she believed that the Garda Sergeant in Slane Garda Station (Sergeant C.) was friendly with the applicant and, for that reason, would not believe her complaints.

16. Mr. Michael Dempsey who is a senior clinical psychologist interviewed R.S. on 30^th January, 2004 and on 11^th February, 2004, for the purpose of assessing:-

(a) the effect of the alleged offences upon R.S.,

(b) the reasons for the delay in reporting the offences and

(c) whether the delay in reporting the offences was reasonable in the circumstances.

In his report, which was adduced in evidence, Mr. Dempsey was of the opinion that the applicant exercised dominion over R.S. from the time of the alleged offences until she reported the abuse to her parents at the age of 18.

He said that when she did so her father did not believe her. This would have inhibited her from making the complaint to the Gardaí.

He said that R.S feared the applicant and did not want to cause hurt to his wife who was her aunt and her godmother. Also, B.S., who is a brother of R.S., worked with the applicant for a number of years.

He said that a further reason for her delay in reporting the matter to the Gardaí was the fact that she believed that a Garda Sergeant in Slane Garda Station was friendly with the applicant. Because of that she felt that her complaint would not be entertained.

He said that in those circumstances it was his opinion that the delay in reporting the abuse was reasonable.

17. Professor Patricia R. Casey, who is a professor of psychiatry in the Mater Misericordiae Hospital, gave evidence by way of comment on Mr. Dempsey's report.

She was also of the view that the applicant exercised dominion over R.S. from the time of the first incident of abuse until she was 18 years old. However, she pointed out that R.S. had left Ireland for ten years between 1988 and 1998. She said that during that period she would have been removed from any influence the applicant might have exerted upon her family, either practical or emotional.

She found it surprising that R.S. did not seek advice from a solicitor or a non-governmental organisation or from the police in either Britain or Ireland concerning the reporting of sexual abuse.

She concluded that there were a number of reasons which can delay reporting alleged abuse, including dominion, severe psychiatric illness, learning disability or the reception of concurrent therapy. She said that none of those factors applied in relation to R.S.

THE LAW

The general principles of law which apply to applications to prohibit, on grounds of delay, the prosecution of offences of a sexual nature allegedly committed against children (and reported only after very substantial periods of time) are now well settled. They have been identified by the courts within this jurisdiction on countless occasions and are to be found in such cases as Barker v. Wingo 407 U.S. 514 [1972], B. v. Director of Public Prosecutions [1997] 3 I.R. 140, P.C. v. Director of Public Prosecutions [1999] 2 IR 25, PO'C v. Director of Public Prosecutions [2000] 3 I.R. 87, J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122, J.O'C v. Director of Public Prosecutions [2000] 3 I.R. 478, P.L. v. Judge Buttimer and the Director of Public Prosecutions (Supreme Court, Unreported, 20^th December, 2004), P.M. v. District Judge Malone and the D.P.P. [2002], 2 I.R. 560, T.S. v. D.P.P. and Ors (Supreme Court, Unreported, 22^nd June, 2005) and many others.

It is accordingly unnecessary to restate them herein.

THE APPLICANT'S CLAIM

The applicant claims that his constitutionally protected right to a trial with reasonable expedition has been violated in two respects, that is:-

1. By inordinate and inexcusable delay on the part of R.S. in making a complaint to the prosecuting authorities in relation to the offences of which she complains, and

2. By inordinate and excessive delay on the part of the prosecuting authorities in allowing a period of 11 months to elapse between the date when the applicant was first interviewed in connection with the alleged offences on 10^th October, 2002 and the date when the applicant was returned for trial on 3^rd September, 2003.

18. The applicant contends that by reason of pre-complaint delay on the part of R.S. in making her complaint the applicant has suffered, not only an unavoidable presumption of prejudice in his capacity to defend himself in respect of the charges preferred against him but also express prejudice because he has now been deprived of evidence relevant to his defence by reason of the unavailability, through illness and decease, of witnesses central to his defence and of importance to the conduct of that defence.
19. The applicant contends that by reason of delay on the part of the prosecuting authorities in completing their investigation of the offences and bringing him before the courts for trial he has suffered a real and serious risk that he will not receive a fair trial.

PROSECUTORIAL DELAY

It is the contention of the applicant that there has been inordinate and inexcusable delay on the part of the prosecuting authorities in investigating the offences alleged against the applicant and bringing him before the courts for trial in respect of those offences. I do not accept that contention.

The period of 11 months which elapsed between the date when the applicant was first interviewed on 10^th October, 2002 and the date when he was returned for trial on 3^rd September, 2003, was by no means inordinate or excessive in the circumstances. I am quite satisfied, on the evidence, that Sergeant T. acted with expedition and efficiency in the circumstances.

After the applicant was interviewed on 10^th October, 2002, further statements were taken on 15^th October, 2002, 26^th November, 2002, 16^th January, 2003, 19^th February, 2003 and 20^th and 21^st February, 2003.

The file was then sent to the D.P.P. for instructions which were duly received on 15^th July, 2003. On 23^rd July, 2003, the applicant was arrested, cautioned and brought before Navan District Court. After remand in the District Court on a number of occasions the applicant was adjourned for trial on 3^rd September, 2003.

In the light of the foregoing it is clear that the prosecuting authorities acted with considerable speed and efficiency in processing the case and in returning the applicant for trial in respect of the charges preferred against him. I am accordingly, quite satisfied that there was no inordinate or other delay of any kind in the prosecution of the applicant in respect of those offences.

SPECIFIC PREJUDICE

The applicant claims that he has suffered express prejudice in his capacity to defend himself in respect of the charges preferred against him because he will be deprived of the potential testimony of his wife, T.F., who is disabled by reason of Parkinson's disease.

It is contended also that by reason of the death of the father of R.S. the applicant has been deprived of potentially relevant testimony.

It is also argued that it is now difficult for the applicant to discover witnesses who can assist him in fixing a point in time when he first purchased his home in order to demonstrate a possible inconsistency in the testimony of R.S. as to the precise time when the first offences are alleged to have occurred.

The evidence of prejudice alleged on behalf of the applicant is of a general nature directed towards undermining the credibility of R.S.

As such it comes within the category of evidence of prejudice identified by the courts repeatedly as evidence which, by itself, does not amount to specific prejudice sufficient to warrant the prohibition of a trial.

It follows that this court is not satisfied that the applicant has established on the evidence that he has suffered specific prejudice so grave that, of itself, it would warrant the prohibition of his trial in respect of the offences alleged.

PRE-COMPLAINT DELAY

The right of an accused person to a trial with reasonable expedition is well settled. It has been recognised by the courts in this jurisdiction repeatedly (see The State (Healy) v. Donoghue [1976] 1 I.R. 325, The State (O'Connell) v. Fawsitt [1986]

I.R. 362 and many other cases).

The right is derived from Article 38.1 of Bunreacht na hEireann. It is also protected by Article 6 of the European Convention on Human Rights.

In P.C. v. Director of Public Prosecutions [1999] 2 IR 25 the Supreme Court, (Keane.J.) observed (at p. 68) that:

"…... The delay may be such that, depending on the nature of the charges, a trial should not 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 are 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 actions.

If that stage has been reached, 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."

Applying the test in P.C. to the facts of the instant case I am satisfied that this is a case where "…the first inquiry must be as to what are the reasons for the delay and…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".

I am required therefore to inquire into the reasons for the delay and determine whether the court can be satisfied as a matter of probability that, assuming the complaint, (of R.S.), was truthful, the delay in making it was referable to the actions of the applicant.

Reversing the presumption of innocence (enjoyed by the applicant in every other aspect of these proceeding), as I must for the purposes of applying the test identified in P.C. I am satisfied on the evidence and on the balance of probabilities that the applicant occupied a position of dominion over R.S. at the time of the commission of the offences alleged. I am satisfied further that the applicant's dominion over R.S. continued until the applicant reported the abuse to her parents some time in 1983.

The testimony of both Mr. Michael Dempsey and Professor Patricia Casey confirms that the applicant could have exerted no significant influence upon the complainant after the time when she left Ireland in 1988 and went to reside with M. S. in England.

It is contended on behalf of the applicant that R.S chose not to report the offences alleged until June, 2002. The applicant points out that this was 19 years after she had reported the abuse to her parents and fourteen years after she had left Ireland and she had been totally removed from any contact with the applicant.

In the circumstances and on the evidence adduced in this case I am satisfied on the balance of probabilities that the delay on the part of R.S. in reporting the offences alleged against the applicant was prima facie excessive and inordinate in the circumstances.

In T.S. v. Director of Public Prosecutions and Ors. (Unreported, Supreme Court 22^nd June, 2005) which was opened by both parties in these proceedings, McCracken J observed (at p14):

"In my view neither the evidence given by the complainants, which is very general, and vague, nor the matters set out in Ms. McElvaney's report come anywhere near justifying the gross delay in the present case. What has to be shown is that there is some very good reason, normally psychological, which made her incapable of complaining. If there is a conscious decision by a complainant not to make a complaint, albeit for a very good reason in her circumstances, or indeed if it simply never occurs to her to make a complaint, that will not be sufficient to excuse the gross delay of a type found in the present case…it is also relevant that both the complainants had, as young women, left the neighbourhood to pursue their careers, and had returned voluntarily with their families to live in close proximity to the appellant. They both apparently lived a normal happy married live in such circumstances and without suffering any psychiatric consequences.

I would emphasise again that in my view the greater the delay, the greater the need for an adequate explanation for that delay. I am quite satisfied that no sufficient explanation has been given in the present case."

In this case the court must, therefore, determine whether there has been some very good reason which made R.S. incapable of, reporting the alleged offences to the prosecuting authorities until the 10^th June, 2002.

I am quite satisfied, that R.S. was not prevented or inhibited from reporting the offences by reason of any psychological or psychiatric illness or therapy or by reason of any medical or learning disability.

I am satisfied that any dominion exercised by the applicant over R.S. ceased before 1988 and never recommenced.

The reasons advanced on behalf of the respondent for the delay on the part of R.S. in reporting the offences alleged are:

(a) that her father had not believed her when she first reported the matter to her parents and

(b) that she feared the applicant by reason of the incident shortly after the offences in 1973 when the applicant appeared to discharge a gun as a warning to her and

(c) because she believed that the Garda Sergeant in Slane Garda Station was friendly with the applicant and for that reason would not believe her complaints.

Mr. McDermott on behalf of the applicant contends that the principal reason was her fear that she would not be believed. He argues that her fear was grounded upon the failure of her father to believe her in the first instance and her belief that the applicant was friendly with the Sergeant in charge of Slane Garda Station.

He says that another reason was the fact that she was in fear of the applicant by reason of the incident when she believed the applicant had discharged a firearm close to her head as a warning to keep silent.

I am satisfied that her father's refusal to believe her complaint in 1983 was hurtful to R.S. and would have inhibited her from complaining to the Gardaí at that time.

However, in every case of this kind where, as in this case, the person

accused denies the commission of the offence the complainant bears an inescapable risk that the complaint will not be sustained.

Also it should not be overlooked that R.S. said that her mother did

believe her when she first complained and, whilst initially her father's disbelief cast a shadow upon her mother's belief, she was satisfied that with the passage of time her mother believed her fully.

Furthermore, her husband, M.S totally accepted her complaints as did Fr. P.G when told about the allegations in 1988.

When R.S. told her brother about the alleged abuse in the early 1990's he accepted her account as did the applicant's wife when she was told in 1995 or 1996.

During the ten year period between 1988 and 1998 when R.S. lived with her husband in England she had the benefit of advice and support from her husband, friends and family. She also had the benefit of such support and advice from Fr. P.G. from 1988. The evidence indicated that both R.S. and her husband have had access to professional help and advice at all material times when that was needed.

It is difficult to understand how, in such circumstances, she could have remained under the impression that the only person within the prosecuting authorities to whom she could make a complaint was the sergeant in charge of Slane Garda Station.

It has been contended that the fear of disbelief entertained by R.S. was referable to the conduct of the applicant because he did not admit the commission of the offences when confronted by the parents of R.S. I cannot accept that contention. It could be advanced in all cases of this kind. The reversal of the presumption of innocence is applied for the purposes of the particular test identified earlier. It does not extend to a requirement that the presumption should be abandoned altogether in these proceedings. As I have indicated earlier every complainant who is faced with a denial is exposed to the risk that the complaint will not ultimately be sustained.

The other explanation offered on behalf of the respondent for the delay in reporting the offences between 1988 and 2002 was the evidence of the applicant that she feared the applicant by reason of the incident in 1973 when she believed that the applicant had discharged a gun as a warning to her.

I am not satisfied that this explanation adequately explains the delay.

Having lived in England between 1988 and 1998, R.S. and her husband moved back to live in close proximity to the applicant. In March, 1997 and March, 1998 R.S. was approached by Fr. P.G. who asked if she would forgive the applicant and allow him to attend a family gathering. R.S. refused to do so. The evidence adduced in these proceedings does not suggest that her refusal was in any way based upon a fear that the applicant posed a threat to her safety.

No evidence has been adduced indicating that the applicant ever threatened R.S. in any respect at any time between the commission of the offence alleged and the date of these proceedings. The applicant did not require advice, treatment or counselling associated with any fear of the applicant.

I am satisfied on the evidence that if R.S. was in fear of the applicant or feared that her complaints would not be believed then her fear was unwarranted and insufficient to justify her delay in reporting the offences to the prosecuting authorities. I am satisfied therefore that the delay in reporting the offences was not referable to any conduct of the applicant.

In T.F. v. Director of Public Prosecutions (Unreported, High Court 18^th January, 2005) I took the view (at pp. 19 to 21), that the right to an expeditious trial is a right which has a separate existence independent from the right to a fair trial. I was satisfied that the right of an accused person to a trial with reasonable expedition must always be vindicated by the courts. I indicated that, if my view, as stated was incorrect then it would be corrected in due course.

I have found that there has been inordinate and excessive delay on the part of R.S. in reporting the offences. The delay was not referable to the conduct of the applicant. It follows that the applicant is entitled to the relief which he seeks.

Approved: Quirke J.