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2005 IEHC 431

THE HIGH COURT

JUDICIAL REVIEW

[2005 No. 292 JR]

BETWEEN

C.D.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EX-TEMPORE JUDGMENT of the Hon. Mr. Justice John Quirke delivered the 15^th day of December, 2005.

By order of this court dated the 18^th March, 2005, the applicant was given leave to seek relief by way of judicial review including an injunction restraining the respondent (hereafter "the DPP") from taking any further steps in the prosecution of the applicant in respect of 85 charges of indecent assault contrary to the provisions of s. 62 of the Offences Against the Person Act, 1861 and one offence of gross indecency contrary to the provisions of s. 11 of the Criminal Law Amendment Act, 1885.

85 charges relate to alleged offences committed against M.C. between January 1982 and September, 1983 when the applicant was a Brother at a school in Waterford and M.C. was a pupil at that school.

The remaining charge relates to an offence allegedly committed between September, 1983 and June, 1984, by the applicant against D.C. who was a brother of M.C. and was also a pupil in the same school at the same time.

FACTUAL BACKGROUND

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

The applicant was born on 12^th March, 1935 and is now seventy years old. He is now a priest but was, at all times material to these proceedings, a Brother at the primary school in Waterford.

M.C. was born on 11^th January, 1972 and is now 32 years old. D.C. was born in 1974 and is now 30 years old. Both M.C. and D.C. were pupils in the primary school in Waterford between January 1982 and June 1984.

On 3^rd November, 2002, M.C. made a statement to the Garda Síochána at Waterford Garda Station. He complained that on a number of occasions between January 1982 and September, 1983, the applicant indecently assaulted him whilst he was a pupil at the primary school in Waterford.

On 7^th November, 2002, M.C.'s brother D.C. made a statement in which he complained that the applicant had subjected him to a sexual assault between September, 1983 and June 1984 at the same school.

On 18^th December, 2002, the applicant was interviewed by the Gardaí at Henry St. Garda Station in Limerick. He had left the order and become a priest and was living in Co. Clare.

He denied the allegations made by both M.C. and D.C.

The Gardaí commenced an investigation and took statements from a number of witnesses.

On 27^th May, 2003, the Gardaí sent a file to the State Solicitor for Waterford who referred the matter to the Director of Public Prosecutions on 3^rd June, 2003.

The Director of Public Prosecutions raised a query on 25^th July, 2003 and the State Solicitor responded to that query on 20^th October, 2003.

The query had required the State Solicitor to seek further information from the Gardaí. The information was transmitted to the Director of Public Prosecutions.

On 7^th January, 2004, the Director of Public Prosecutions raised a further query with the State Solicitor which was transmitted to the Gardaí who replied on 18^th February, 2004.

A further issue was raised by the Director of Public Prosecutions on 12^th May, 2004, to which the State Solicitor responded on 27^th May, 2004.

On the 24^th August, 2004, final directions were received by the State Solicitor to prosecute the applicant in respect of the offences alleged against him and these were conveyed to the Gardaí on the 25^th August, 2004.

On 7^th October, 2004, the applicant was charged with the offences and the matter was adjourned to the 18^th November, 2004, when a Book of Evidence was served upon the applicant and he was returned for trial.

The Book of Evidence contains a statement by M.C. in which he states that whilst he was a pupil in the primary school in June 1982, the then Headmaster (or School Principal) was replaced by the applicant.

He was about nine or ten years old at this time and took up hurling with the school GAA club.

In his statement he alleged that whilst travelling in the applicant's motorcar on the way to hurling matches the applicant indecently assaulting him. These assaults became increasingly frequent and increasingly serious.

M.C. alleged that whilst most of the initial assaults occurred within the applicant's motorcar but the applicant then commenced to assault him in the school in the evenings when the applicant would ask M.C. to help him with various tasks. A number of offences are alleged to have occurred within the applicant's office where, M.C. stated that "…once we were inside he would lock the door. Nobody could see into his office because there was frosted tape on the door panes."

M.C. said that the assaults stopped when he was eleven or twelve years old after an incident in M.C.'s mother house when M.C. struck the applicant with a hurling stick on his hip.

In a statement contained within the Book of Evidence D.C. alleged that on a Friday between September, 1984 and June, 1985 the applicant indecently assaulted him on a stairs within the school. He said that the applicant committed this offence having placed D.C. on his knee.

In evidence M.C. averred that he only became aware of the extent to which the abuse had affected him when he grew older. He said that he was too ashamed and embarrassed to mention what had happened to him for many years. He said that he first reported it to a friend in 1996. This occurred because he had been drinking during an entire evening and night and decided to confide in his friend.

Approximately a year later, in 1997, he confided in his wife who lent him support and encouragement.

He confirmed his original statement in relation to the windows on the applicant's office. He said that they were "frosted" and continued "the frosted tape was on the door panes so none of the boys could look in".

Mr. Paul Gilligan who is a clinical psychologist averred in evidence that he interviewed M.C. on the 19^th May, 2005 and 24^th May, 2005 and consulted with Dr. McCann who was M.C.'s general practitioner, Ms Fran Hayes and Ms. Michelle O'Neill who have been M.C.'s therapeutic counsellors and Dr. Robert Daly who is a consultant psychiatrist.

He confirmed the contents of his report dated 1^st June, 2005, which he said, was a report of an assessment carried out on the instructions of the Director of Public Prosecutions for the purposes of assessing

(a) the effect of the alleged offences upon M.C.,

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

(c) whether the failure to report was referable to the effects of the alleged abuse or to the nature of the applicant's relationship with M.C.

Mr. Gilligan reported that M.C. had carried the memories of the abuse at the back of his mind until 1996 when they caused him distress and difficulty. At that time he began to have nightmares and sleeping difficulties and became preoccupied with the alleged abuse.

He also began to have sexual difficulties and drank excessively. His marriage broke down and he required treatment and counselling which began two years ago.

Mr. Gilligan reported that the factors which influenced the impact of the abuse were, (a), the type and duration of the abuse of a twelve month period, (b), the fact that M.C. was ten or eleven years old which was a crucial age for the development of self worth, sexual identity, gender relationships and self image and (c), the age difference between M.C. and the applicant (Mr. Gilligan felt that by virtue of his relationship the applicant was in a position of authority and trust which would have contributed to M.C.'s compliance).

Mr. Gilligan reported that the main initial impact of the alleged abuse on M.C. was to make him quite withdrawn and fearful. He did not want anyone to know that he was being abused in case they would think he was homosexual. He was ashamed of what was happening and as a teenager tried to forget about the abuse by abusing alcohol and experimenting with solvents. Mr. Gilligan felt that the main delayed impact of the abuse was shame, embarrassment, nightmares, depression and a preoccupation with the abuse. In 1996 he suffered distress and became more depressed and emotional. He was diverted from an apparent suicide attempt by a phone call from his wife.

A report from Dr. Daly who is a consultant psychiatrist apparently confirmed that M.C. suffered a range of psychological symptoms including recurrent low mood, frequent intrusive nightmares, avoidant feelings, decreased confidence and inter-personal difficulties. Dr. Daly's report confirmed a formal diagnostic impression of "recurrent depressive episodes" and confirmed that "a major causative factor would appear to be the re-emergence of feelings of emotional stress, fear and avoidance which began in his childhood years as a result of the abuse which he reports having experienced".

Mr. Gilligan reported that the effects of the alleged abuse on M.C. were consistent with the research findings in this area which identified depression, shame, humiliation, sleep problems, sexual difficulties and alcohol abuse as factors arising in adult victims of childhood sexual abuse. M.C. had completed psychological testing which was consistent with his history as presented by him and was reflective of a chronic post-traumatic stress disorder and sexual post-traumatic stress response. His profile also reflected a depressive personality style.

Mr. Gilligan felt that M.C.'s failure to report the abuse was consistent with the research on the area relating to male victims of childhood sexual abuse. He believes that M.C. did not disclose the abuse as a boy because he did not know who to tell and feared that he would not be believed. He said that M.C. did not report the abuse as an adult because he felt ashamed and embarrassed. His shame began to impact on him most significantly in 1996 and he began to have nightmares and a number of other symptoms which caused him to become isolated and more depressed, to abuse alcohol and to have sexual and relationship difficulties.

Mr. Gilligan's conclusion was that the alleged abusive behaviour has had a lasting psychological impact upon M.C. That impact has been a significant inhibitory factor on his reporting the abuse to the Garda Síochána.

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, and many others. It is accordingly unnecessary to restate them herein. They have been discussed most recently in T.S. v. D.P.P. and Ors (Supreme Court, Unreported, 22^nd June, 2005).

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 M.C. and D.C. in making complaints to the prosecuting authorities in relation to the offences of which they complain, and

2. By inordinate and excessive delay on the part of the prosecuting authorities in allowing a period of 16 months to elapse between the 27^th May, when the Garda filed was submitted to the State Solicitor on behalf of the Director of Public Prosecutions and the 18^th November, 2004, when the applicant was returned for trial to the Circuit Criminal Court.

The applicant contends that by reason of pre-complaint delay on the part of M.C. and D.C. in making their complaints, 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 certain witnesses and, perhaps of greater importance, physical evidence which is central to his defence and of importance to the conduct of that defence.

The applicant also contends that by reason of delay on the part of the prosecuting authorities in completing their investigation into 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 an 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 am satisfied that the period of 16 months which elapsed between the 27^th May, when the Garda file was submitted to the State Solicitor on behalf of the Director of Public Prosecutions and the 18^th November, 2004, when the applicant was returned for trial to the Circuit Criminal Court was not excessive in the circumstances of this case.

On the evidence of Sergeant Pettit and Francis Hutchinson, who is the State Solicitor for Co. Waterford the prosecuting authorities acted with reasonable expedition and efficiency.

The State Solicitor referred the matter to the Director of Public Prosecutions on the 3^rd June, 2003. The matter was considered and a query was raised on behalf of the Director of Public Prosecutions on 25^th July, 2003. The State Solicitor responded to that query on 20^th October, 2003. The State Solicitor had to seek further information from the Gardaí arising out of the query. That information was duly transmitted to the Director of Public Prosecutions.

On 7^th January, 2004, the Director of Public Prosecutions raised a further query with the State Solicitor which required to be transmitted to the Gardaí. That query was answered by the Gardaí on 18^th February, 2004.

An additional issue was raised by the Director of Public Prosecutions on 12^th May, 2004, to which the State Solicitor responded some 12 days later. After further consideration, final directions were received by the State Solicitor to prosecute the applicant. These directions were conveyed to the Gardaí on 25^th August, 2004.

On 7^th October, 2004, the applicant was charged and on 18^th November, 2004, he was returned for trial to the Circuit Criminal Court.

Ms. McDonough B.L. has relied upon the decisions of the High Court (Gannon J.) in O'Flynn v. Clifford [1988] I.R. 740 and the Supreme Court (McGuinness J.) in Blood v. DPP (Unreported 2^nd March, 2005) as authority for the proposition that:

"It is no part of the function of the courts to participate either in the investigation of criminal offences or the supervisory direction of those engaged in that work. The courts must remain detached and independent in relation to all matters antecedent to the laying of the charge of a person of a criminal offence." (See O'Flynn v. Clifford (Supra)).

I am not satisfied that either of the cases just referred to can be construed as providing a licence for prosecuting authorities to conduct the investigation of criminal offences in a "slovenly and lackadaisical" fashion, and that consequently the principles identified by the High Court (Geoghegan J.) in P.P. v. DPP no longer apply.

I am satisfied, however, that the manner in which the prosecution of the applicant in this case was conducted by and on behalf of the prosecuting authorities was not of the kind which would warrant the intervention of this court to prohibit the applicant's trial on the grounds that his right to a trial with reasonable expedition has been infringed.

If delay by the prosecuting authorities has been established in evidence, (and I am by no means convinced that it has) then it was certainly not of the "culpable" nature identified by Geoghegan J. in P.P. v. DPP.

Accordingly, and having regard to the principles identified in that case and in the cases of O'Flynn v. Clifford and Blood v. DPP (supra) it follows that the applicant is not entitled to the relief which he seeks on the grounds of prosecutorial delay.

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 hÉireann. 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 complaints, (of M.C. and D.C.), were truthful, the delay in making them was referable to the actions of the applicant.

Reversing the presumption of innocence (enjoyed by the applicant in every other aspect of these proceedings), 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 M.C. and D.C. at the time of the commission of the offences alleged. I am satisfied further that the applicant's dominion over M.C. and D.C. probably continued for a period of time, (perhaps a few years), after contact between the applicant and M.C. and D.C. ceased. I make that finding with reference to the age difference between that parties and the position occupied by the applicant.

It is contended on behalf of the applicant that D.C chose not to report the offences alleged until 7^th November, 2002 and that, in the absence of an adequate explanation for his delay in doing so the applicant should not be put on trial in respect of the offence alleged against him.

No evidence whatever has been adduced in these proceedings to explain a delay (which probably exceeded fifteen years), on the part of D.C. in reporting the offence which alleged against the applicant.

In the absence of any evidence I am satisfied that the delay on the part of D.C. in reporting the alleged offence was not referable to the conduct of the applicant.

Prima facie the delay was inordinate and unreasonable. For the reasons which I have outlined in T.F. v. DPP and Anor. (Unreported 18^th January, 2005), I am satisfied that the right to an expeditious trial has a separate existence independent from the right to a fair trial. That view appears to be fortified by the decisions of the High Court (Geoghegan J.) in PP v. DPP (supra) and the Supreme Court, (Keane C.J.), in P.M. v. DPP and Malone [2002] 2 I.R. which suggests that the courts will intervene to prohibit the trial of criminal offences on the sole ground of inexplicable or "culpable" delay on the part of prosecuting authorities in bringing accused persons to trial.

It follows from what I have just found that there has been a breach of the applicant's constitutionally protected right to an expeditious trial of the offences alleged against D.C. The applicant is, therefore, entitled to an injunction restraining the Director of Public Prosecutions from taking any further steps in the prosecution of the applicant in respect of the charge preferred against him of indecent assault against D.C.

The position in relation to M.C. is different. Mr. Maher has challenged the testimony of Mr. Gilligan on the grounds that he is now principally employed as the director of a well known children's charity The Irish Society for the Protection of Cruelty to Children. He also questioned his independence on that ground.

I cannot accept Mr. Maher's contentions.

Mr. Gilligan was testified on oath as to his qualifications. They included B.A. and M.A. degrees and a B.C.S. Diploma in clinical psychology. He has averred in evidence that he worked for many years as a clinical psychologist and retains a practice as a working clinical psychologist (albeit on a reduced scale).

His qualifications and independence have not been challenged by way of evidence adduced on behalf of the applicants. There is, accordingly, no reason why this court should doubt his professional competence, his qualifications or his professional capacity to adduce independent expert testimony for the benefit of this court. (See Galvin v. Murray (2001) 1 I.R. 331)

On the evidence adduced by Mr. Gilligan I am satisfied that M.C.'s failure to report the abuse as a child occurred because he did not know who to tell and feared that he would not be believed.

I am satisfied also that he did not report the abuse by reason of chronic post-traumatic stress disorder and a sexual post-traumatic stress response which caused him to feel ashamed and embarrassed.

I am also satisfied that his shame began to impact upon him significantly in 1996 when he had nightmares and a number of other symptoms which caused him to become isolated and more depressed, to abuse alcohol and to have sexual and relationship difficulties.

I am satisfied also on the evidence of Mr. Gilligan that the factor which caused M.C. to report the abuse was his conclusion that the psychological, sexual and other difficulties which he was experiencing between 1996 and 2002 could not be resolved until he had first confronted and resolved the psychological sequelae arising from his abuse at the hands of the applicant.

I am satisfied also, on the evidence of M.C. and the evidence of Mr. Gilligan that his disclosure to his friend in 1996 and to his wife in 1997 were not indicative of a capacity to report the abuse to the prosecuting authorities. I accept the evidence of Mr. Gilligan that these disclosures were probably intended to "test" the effect of disclosure. This is, apparently, not uncommon in male victims of childhood sexual abuse.

Finally I accept the conclusion of Mr. Gilligan that the alleged abusive behaviour has had a lasting psychological effect on M.C. and has been a significant inhibitory factor in his failure to report the abuse until he did so. It provides an adequate explanation for his failure to report the abuse to the prosecuting authorities.

It follows that I am satisfied that the failure on the part of M.C. to report the abuse complained of to the prosecuting authorities until 3^rd November, 2002, was the result of conduct referable to the applicant. Accordingly, the applicant's constitutional right to a trial with reasonable expedition has not been breached by the delay since it was referable to his own conduct.

SPECIFIC PREJUDICE

It is claimed on behalf of the applicant that his constitutional right to a fair trial has been compromised by reason of the delay for two reasons:

(a) because witnesses who would have been able to provide relevant evidence in support of the applicant's defence will not now be available to him by reason of decease, illness or unavailability,

(b) because physical evidence, central to the applicant's defence will not now be available by reason of structural and other changes to the building when many of these offences are alleged to have occurred and in particular to the office which the applicant occupied whilst he was principal in the school in Waterford.

WITNESSES

The applicant claims that he will be specifically prejudiced by reason of the deaths of two persons who lived within the house and school between 1977 and 1984. They are D.D. (who died on the 28^th April, 1990), and another resident A.F. (who died on 1^st August, 1996).

Furthermore two brothers (Brothers M. and M.), are now so elderly and infirm that they are not capable of providing testimony. Both were apparently resident and teaching within the school during relevant periods.

A general allegation is made that cleaners and caretakers who might have been able to give assistance are no longer available and cannot be contacted to provide evidence.

However on the evidence adduced by Sergeant P., (which has not been challenged), there are many other Christian Brothers available to provide such testimony.

Furthermore the applicant's solicitor suggests that the applicant will now be "unable to recall the names of the children who would have accompanied the plaintiff to and from hurling".

However no particular child is identified as having a particular relevance in that respect and the records of the school are available for the purpose of identifying names.

The evidence adduced of alleged prejudice to the applicant on the grounds of the absence of witnesses is general in nature and is directed towards the possibility of undermining the credibility of M.C.

As such, it comes within the category of evidence of prejudice identified by the courts repeatedly which is speculative in nature the absence of which will not give rise to a specific prejudice sufficient to warrant prohibition of a trial.

It follows that this court is not satisfied that the absence of the witnesses referred to will give rise to a real or serious risk that the applicant will not receive a fair trial in respect of the charges preferred against him.

It is contended on behalf of the applicant that he will be exposed to the risk of an unfair trial because he will be deprived of the opportunity to demonstrate, by way of physical evidence, that some of the offences alleged with which he has been charged could not have been committed in the manner alleged.

He says that the structural alterations to the school have resulted in alterations to the door of the office where many of the offences are alleged to have occurred.

In a statement provided to the prosecuting authorities M.C. declared that the windows on the applicant's office were "frosted" and continued "the frosted tape was on the door panes so none of the boys could look in".

The applicant's solicitor has averred to the belief that the glass panels on the door "…were clear in nature and were uncovered, allowing unrestricted observation to and from that room".

He has not identified the source of his belief but presumably the applicant told them that that was the case.

The applicant himself has not adduced evidence in these proceedings.

Two Christian Brothers, (Brothers C. and G.), have averred that between 1983 and 1984 the glass panels were partly obstructed in that six panels at the lower level were frosted. However, three panels at a higher level were clear. In consequence children could probably not see through the glass but adults could do so.

Other physical details of the layout of the office were provided by the two Christian Brothers.

Their evidence has not been challenged in these proceedings.

Mr. Maher, understandably relies upon the decision of the Supreme Court (Keane C.J.) in P O'C v. DPP [2000] 3 I.R. 87 as authority for the proposition that the D.P.P. is obliged to "…place before the High Court material which might or might not have shown that there was no substance in the difficulties upon which the applicant sought to rely…".

However Ms. McDonough B.L. has pointed out that the DPP has placed before this court evidence, (in particular the evidence of Brothers C. and G.), of the physical layout of the office at the relevant time and the extent of visibility through its door. The applicant has chosen not to challenge that evidence so it is difficult to see how he will be disadvantaged by the evidence.

Mr. Maher says that the applicant should not be placed in the position of having to call two Christian Brothers in order to provide evidence of the physical characteristics of the room.

That is at variance with his contention that delay has deprived him of an opportunity to adduce evidence which would support the applicant's defence.

It is claimed on behalf of the applicant that the delay in reporting the complaints has resulted in the absence of material evidence because of alterations in the physical layout of the applicant's office. Alterations could have occurred at any time resulting in the need for extrinsic evidence of the physical layout.

In this case the DPP does not intend to rely upon the physical layout of the applicant's office in support of the charges preferred against the applicant. It is the applicant who wishes to rely upon the characteristics of the office in support of his defence. The evidence in these proceedings has demonstrated that he has not been deprived of evidence which will enable him to identify the physical characteristics of the office. The evidence which is available to him remains available and has not been challenged.

It follows from what I have just found that I am satisfied that the applicant did not suffer specific prejudice by reasons of the absence of evidence of the physical characteristics of the office and will not be exposed to the risk of an unfair trial on that ground.

Accordingly I am satisfied that the relief sought by the applicant in these proceedings should be declined.

Approved by: Quirke J.