High Court of Ireland Decisions

Judgment Title: R. -v- D. P. P.

Neutral Citation: [2009] IEHC 87


High Court Record Number: 2008 449 JR

Date of Delivery: 20 February 2009

Court: High Court

BETWEEN

M.R.

Judgment of O’Neill J. delivered the 20th day of February, 2009.

On the 21st April, 2008, leave was granted to the applicant by this Court (McGovern J.) to apply by way of an application for judicial review to seek an injunction, restraining the respondent from proceeding further to prosecute the applicant in respect of the charges upon which the applicant has been returned for trial to the Dublin Circuit Criminal Court on Bill no. DU 476/2007 on the following grounds, as set out at para. (e) of the statement of grounds:-


(1) The applicant cannot receive a fair trial in due course of law by reason of the passage of time since the date of the offences alleged in the said charges to have been committed by him.

(2) The applicant cannot receive a fair trial in due course of law by reason of the delay on the part of the respondent, his servants or agents, in the investigation and prosecution of the said charges.

(3) The applicant cannot receive a fair trial in due course of law by reason of the failure of the respondent, his servants or agents to conduct any or proper or adequate investigation of the allegations made against the applicant and/or the failure of the respondent, his servants or agents, to ensure that such investigation had taken place.

(4) The applicant cannot receive a fair trial in due course of law by reason of the failure of the respondent, his servants or agents, to ensure that the testimony of all necessary witnesses, having regard to the lapse of time since the date of the alleged offences, will be available to the court and jury trying the allegations against the applicant.

(5) Without prejudice to the generality of the foregoing, the applicant cannot receive a fair trial in due course of law by reason of the failure and refusal of the respondent, his servants or agents, to seek a statement from the mother of the complainant.

(6) By reason of his advanced years and state of health and of the effect of the allegations made and of the delayed and inadequate investigation of the said allegations and for all of the preceding matters or circumstances, it would be unfair and unjust to put the applicant on trial.


A stay was granted on the further prosecution of the applicant pending the determination of these proceedings.

Facts
The applicant is a Roman Catholic priest who is now retired from active ministry. He was born in 1925 and is 83 years old. He was ordained as a priest of the Archdiocese of Dublin in May of 1951. He was the parish priest in a Dublin parish from 1977 to 1981.

The complainant was born in 1966. She is one of a family of six children. On the 27th February, 2006, she met with Mr. Philip Garland, Director of the Child Protection Service of the Dublin Archdiocese and alleged that on three occasions between the 1st March, 1977, and the 30th September, 1978, before she went to secondary school, that the applicant indecently assaulted her. The complainant alleges that these incidents, which allegedly involved indecent touching and attempted intercourse, took place at the applicant’s house when she was alone with him. The applicant was aged eleven to twelve years old and the applicant was in his early fifties at the time of these alleged offences.

In the account of the complainant to Mr. Garland, which is contained in a statement exhibited at “MR2” in the affidavit of the applicant sworn on the 18th April, 2008, she recounts that her family was involved in the church and that the applicant was a trusted friend of her family. She recalled that she was a member of the church choir and helped with the church collection. She said that she was also a member of the Legion of Mary and, as such, used to do housework in the applicant’s house. Her recollection of the three incidents, in her statement of the 27th February, 2006, to Mr. Garland, may be summarised as follows:-

One Friday night she and the applicant visited the D. family in South County Dublin, who were friends of the applicant. They played cards at this house. The applicant drove her back to his house. She believes the applicant entered the house via the side entrance but she stated that she could not be sure on which occasion this occurred. She has no memory of how she got upstairs into the applicant’s bedroom or how she became semi undressed. She said that the applicant was also naked from the waist down. She recalled that she was lying on the bed. She alleges that the applicant began to touch her breasts and attempted intercourse a couple of times but did not succeed. She said that the applicant asked her not to tell anyone. She does not recall getting dressed but she remembers that the applicant drove her home afterwards. She recalled returning to her house at about 11pm or 11.30pm.

A few weeks later the complainant said that she and the applicant were in the applicant’s bedroom and that he said that they would try this again. She thinks that she undressed herself at the lower level. The applicant began to touch her breasts and told her that her mother would be bringing her for a bra soon. The applicant attempted penetration but was unsuccessful. She recalled a cross hanging over the applicant’s bed.

The complainant alleges that the same thing happened again a few weeks later.

The complainant stated that she had told her brother about these events a few weeks prior to making the complaint to the diocese after he had told her about a different priest they knew against whom allegations of sexual abuse were made. Her brother, who is also a priest, encouraged her to make an official complaint. In her statement to the diocese the complainant also named family members and friends in whom she confided about these matters over the years but she stated that her mother did not know of them. The complainant’s father is deceased.

The complaint made to the diocese in February 2006 was passed on to the gardaí on the 23rd March, 2006. The complainant then made a statement to Detective Garda John Campbell on the 25th April, 2006, which is exhibited at “MR3” in the affidavit of the applicant sworn on the 18th April, 2008. In it she reiterated the allegations made by her to the diocese and she named family members and friends who she had told about these alleged incidents. Referring to the first alleged incident she stated to Detective Garda Campbell that she and the applicant had entered the house through the side door of the house. She also described the applicant’s bedroom as being medium sized with free standing mahogany wardrobes on the left wall.

The complainant’s brother made a statement to the gardaí two days later. He indicated that he had been very friendly with the applicant and was unaware of his sister’s complaint until 2006.

The applicant was voluntarily interviewed by Detective Garda Campbell and Detective Sergeant William McKenna on the 15th May, 2006. He denied all the allegations.

On the 7th June, 2006, one of the complainant’s sisters gave a statement to the gardaí. She indicated that the complainant had told her around 1983 that she had been abused by the applicant but that the complainant had not wanted to make a complaint as she did not want their parents to find out.

On the 14th June, 2006, a file was sent by the gardaí to the respondent. This file contained the statements of the complainant, of her brother and sister, together with statements from the two above-named gardaí. On the 18th December, 2006, the respondent directed that three charges of indecent assault should be brought against the applicant. On the 25th January, 2007, a warrant was sought in the District Court. The applicant was arrested two days later on the 29th January, 2007. The applicant was returned for trial on the 3rd April, 2007.

The applicant’s solicitor, Mr. Molloy, wrote to the respondent by letters dated the 9th May, 2007, and the 22nd June, 2007, expressing concern that no proper investigation had taken place, in that, the gardaí had failed to seek out and preserve relevant evidence in line with their obligations, as identified by the Supreme Court in Braddish v. Director of Public Prosecutions [2001] 3 IR 127 and in Dunne v. Director of Public Prosecutions [2002] 2 IR 305. Specifically, Mr. Molloy pointed to the fact that not all of the relevant family members and friends who had been told by the complainant of the alleged incidents had been interviewed by the gardaí with a view to exploring the consistency of the allegations she had made. Mr. Molloy complained also that no effort appeared to have been made to elicit the precise detail of the allegation made to the complainant’s brother, as was evident from the content of his statement. Mr. Molloy noted that members of the D. family whom the applicant and complainant had visited prior to the first alleged incident had not been interviewed nor had the applicant’s niece who had stayed in the applicant’s house in 1981, nor had the complainant’s mother who had supposedly consented to her daughter staying over in 1981. Mr. Molloy stated that the evidence before the respondent consisted mostly of “mere assertion by the complainant” and in such circumstances the applicant was in danger of not receiving a fair trial.

By letter dated the 16th October, 2007, the respondent wrote to the applicant’s solicitor indicating, inter alia, that the complainant was anxious that her mother would not be informed of these allegations as she was 73 years old and one of her daughters was terminally ill. The respondent rejected any suggestion that the taking of a statement from the complainant’s mother was a prerequisite for a fair trial. The respondent confirmed that further witness statements had now been taken and that a further statement would be taken from the applicant’s brother when he returned from the United States in December 2007. Statements from three of the complainant’s friends, the complainant’s husband and a priest who she had told about the alleged incidents were enclosed with the letter. Further statements were served as additional evidence on the 13th November, 2007, including statements from two members of the family visited before the first alleged incident and statements from two of the applicant’s nieces. A further letter was received by the applicant’s solicitor on the 17th November, 2007, containing handwritten copies of the said statements and further disclosure. The further statement of the complainant’s brother was served with a notice of additional evidence on the applicant’s solicitor by letter erroneously dated the 20th December, 2008. It presumably should have read the 20th December, 2007. It was marked received by the applicant’s solicitors on the 2nd January, 2008. The applicant instituted these proceedings on the 21st April, 2008.

Evidence as to the applicant’s health was given by Dr. Maureen Hillery, Community Ophthalmic Physician in her affidavit sworn on the 8th December, 2008. Paragraph 5 reads as follows:-


“For clarity, the present position is that Fr. R suffers from advanced chromic simple glaucoma with bilateral central retinal vein thrombosis and early lens opacities. He also suffers from diabetes mellitus and systematic hypertension. He is now registered blind with the National Council for the Blind of Ireland.”

A letter from the applicant’s general practitioner dated the 1st April, 2008, was exhibited in the applicant’s affidavit sworn on 18th April, 2008 at “MR 13” which stated that the applicant:-

“…suffers from glaucoma and is almost blind. He also suffers from Type 2 diabetes, hypertension, hyperlipidaema and low grade renal impairment.”

Was there delay on the part of the applicant in seeking judicial review?

Ms. McDonagh S.C., counsel for the respondent, submitted that the applicant had delayed in seeking judicial review and had not demonstrated good reason to extend the three month time limit in O.84 r. 21(1) of the Rules of the Superior Courts 1986 and that relief should be refused on this basis. She argued that time ran against the applicant from the date he was sent forward for trial on the 3rd April, 2007, as he was aware at that time of the case being made against him and the evidence being relied upon by the prosecution. She contended that the applicant should have sought prohibition promptly or within three months of that date. She submitted that the applicant failed to seek judicial review on the basis that he wanted certain matters to be investigated further so as to avoid having to institute judicial review proceedings. She noted that those matters had been addressed and she submitted that it was unclear as to why prohibition was sought. She surmised that the applicant wanted to delay his trial for as long as possible and in all the circumstances relief should be refused on this ground.

Mr. Gageby S.C., for the applicant, rejected this argument and submitted that the respondent’s conduct revealed delay on its own part. He submitted that the applicant was entitled to wait to see the outcome of the entire investigation before instituting judicial review proceedings and that time began to run against the applicant in January 2008, when the final witness statement was received by the applicant’s solicitors, thereby bringing the investigation to a close. He stated that the Court has a discretion to permit this application to proceed even if it does find delay on the part of the applicant if there are good reasons for it and he relied on De Róiste v. Minister for Defence [2001] 1 IR 190 in this regard.


Decision
Following the return for trial on the 3rd April, 2007, the applicant requested that certain steps be taken in the investigation. I am satisfied that he was entitled to await the final outcome of the investigation when the full case being made against him was apparent before instituting judicial review proceedings. The investigation concluded at the end of December, 2007 when the statement of the complainant’s brother was served on the applicant’s solicitor. This statement was marked received in the applicant’s solicitor’s office on the 2nd January, 2008, and came to the attention of the applicant’s solicitor on the 9th January, 2008. The application to institute judicial review proceedings was made on the 21st April, 2008.

In my view, time for the purpose of O.84 r. 21(1) of the Rules of the Superior Courts 1986 ran from the 9th January, 2008. Thus the applicant was ten days outside the time limit when he made his ex-parte application for leave. I am satisfied, having regard to the manner in which the investigation proceeded in the criminal process, that there was a need for consultation between the applicant and counsel after the completion of the investigation in January 2008 to consider whether to bring these judicial review proceedings. Making due allowance for the applicant’s age and infirmity, I am satisfied that the short period of delay mentioned is adequately explained and that there is good reason for extending the three month time limit as set out in O.84 r. 21(1) of the Rules of the Superior Courts 1986.

Was there prosecutorial delay?

Mr. Gageby submitted that there was delay on the part of the respondent in carrying out the investigation and that the applicant suffered prejudice, stress and anxiety as a result. He noted that it took six months for the respondent to direct that charges be brought and that the investigation did not conclude until December 2007, approximately twenty months after the matter first came to the attention of the gardaí.

Ms. McDonagh submitted that the investigation had been conducted expeditiously and that it could not be said that there was blameworthy delay on the part of the prosecution. In this regard she relied on the affidavit of Inspector McKenna, sworn on the 13th November, 2008, which set out the course of the investigation and she noted that Inspector McKenna had not been cross-examined on this evidence. Ms. McDonagh pointed out that if prosecutorial delay is not established then no prejudice and/or stress and anxiety arises by virtue of that delay. She further submitted that even if it was accepted that there had been prosecutorial delay, the applicant had not demonstrated that this delay caused any relevant prejudice such as pre-trial incarceration, unusual stress or anxiety or impairment of his defence.


Decision
The complaint was received by the gardaí on the 23rd March, 2006. Statements were taken and the applicant was interviewed. The file was forwarded to the respondent on the 14th June, 2006. Directions were received by the gardaí to prosecute the respondent on the 19th December, 2006. The applicant was arrested on the 29th January, 2007 and was returned for trial on the 3rd April, 2007. At this point the applicant requested that certain matters to be investigated. This was duly carried out and concluded in January 2008. The applicant himself called for further witness statements to be taken with a view to potentially assisting his defence. In these circumstances the applicant cannot complain of prosecutorial delay in this regard. In any event the time frame in question between the referral of the complaint to the gardaí on 23rd March, 2006 and the conclusion of the investigation in January, 2008 is, in my opinion too short, having regard to the nature of the investigation to give rise to a finding of prosecutorial delay, and hence I conclude that the applicant has not demonstrated that there was prosecutorial delay.

Is there a real risk of an unfair trial?

An issue arises from the allegation on the part of the applicant that the prosecution has not discharged its duty under the Braddish v. Director of Public Prosecutions and Ors [2001] 3 IR 127 line of authority, which permits the courts to intervene to protect the constitutional right of an accused person to a fair trial where it is proved on the balance of probabilities that there is a real and substantial risk that he will face an unfair trial due to a failure on the part of the gardaí to preserve evidence or to seek out such evidence.

Mr. Gageby submitted that the applicant runs a real risk of undergoing an unfair trial and being prejudiced as no thorough and proper criminal investigation was carried out in his case. Instead, in his submission, a deeply flawed criminal investigation took place with no attempt to seek out those named in the complainant’s statements as persons with whom she had discussed the alleged incidents in order to ascertain the consistency of the allegations.

He argued that certain steps need to be taken in order to ensure a fair trial in cases involving old allegations of sexual offences that may not be necessary in the cases involving more recent allegations. This went beyond, in Mr. Gageby’s submission, the obligation to “seek out and preserve” all material evidence as established in Braddish v. Director of Public Prosecutions [2001] 3 IR 127 and Dunne v. Director of Public Prosecutions [2002] 2 IR 305. He relied on the judgment of Hardiman J. in J.B. v. Director of Public Prosecutions [2006] IESC 66 (Unreported, Supreme Court, 29th November, 2006) in this regard, where the practical steps to be taken by the prosecuting authorities in investigating cases of this kind were set out in order to ensure a fair trial. These included a full record being taken by video taping or otherwise of the allegation as originally made and of any altered, additional or supplemental allegation with a view to establishing consistency and the identification and isolation of “islands of fact”. Mr. Gageby contended that there was no attempt made in this case by the prosecuting authorities to isolate and engage with “islands of fact”, which he submitted were as follows:-


1. In respect of the first incident, the complainant stated in her statement to the gardaí that she and the applicant entered the house through the side door. The applicant’s recollection was that he always used the front door as there was a stereo system obstructing the side door entrance.

2. One member of the D. family thought that the complainant may have visited them on a Sunday but not on a Friday evening and with other members of her family

3. The complainant described the wall behind the applicant’s bed as having a crucifix hanging on it. When the applicant was interviewed by the gardaí he agreed with this. Some time afterwards, however, he decided that he was wrong in this. He believes that he had a picture of the Blessed Virgin hanging over the bed. In this regard he exhibited a photograph at “MR 9”of his affidavit sworn on the 18th April, 2008, which was taken around the time of the alleged offences which demonstrates the end part of a picture frame hanging on the wall in question.




In essence, it was submitted that the applicant would be placed at an immediate disadvantage at trial due to his former status, the age of the complainant at the time of the alleged offences and the admitted friendly relationship with the applicant and the complainant’s family. It was further submitted that the lack of detail in the allegations made by the complainant, which amounted to bare assertion, added to his disadvantage as he was denied the usual means of defending himself by reference to the surrounding factual circumstances. He argued that the recollection of the complainant was flawed itself, in that, she was not certain whether she and the applicant had entered the house through the side door prior to the first alleged incident when making her statement to the diocese but that she seemed to be sure that they had in her statement to the gardaí. In addition, he argued that the paucity of detail in her account of these alleged events clearly indicates that her recollection is grossly deficient. He further contended that the recollections of the relatives and family members regarding when and what the complainant told them in their statements to the gardaí were so vague and unclear as to severely hamper the applicant in challenging the consistency of the allegations. Mr. Gageby also considered the refusal on the part of the gardaí to interview the complainant’s mother to fall far short of the standard of investigation required to ensure a fair trial in the case. Similarly, he submitted that reliance on the discrepancies between the complainant’s account of the visit to the D. family on the night of the first alleged incident and the accounts given by G.D. and L.D. in their statements, is difficult and hazardous for the applicant, because of vagueness and lack of certainty due to frailty of recollection because of the passage of time.

Mr. Gageby submitted that the paucity of the file sent to the respondent by the gardaí, on foot of which the respondent directed that charges be brought against the applicant, was a matter of grave concern. That file contained the statement of the complainant; the statement of her brother; the statement of her sister; the statements of two gardaí and a record of the interview with the applicant. Mr. Gageby noted that the book of evidence itself only contained two substantive documents (the complainant’s statement to the gardaí and the statement of Detective Garda Campbell). He submitted that the applicant is being asked to undergo a trial in which the investigation proper post dated the book of evidence.

Ms. McDonagh refuted the suggestion that the investigation carried out by the gardaí was inadequate. She stated that it was not for this Court to substitute its view as to what investigative steps should be taken or what evidence should be tendered. She submitted that the credibility of the complainant is a matter for the jury at the trial, as per Denham J. in D.C. v. Director of Public Prosecutions [2006] 1 ILRM 348. She stated that it was the applicant who asked for certain persons to be interviewed and statements were, in fact, taken from these persons. This did not demonstrate that the respondent had failed to carry out an effective investigation, in her submission. She emphasised that the courts have no role in the investigation of crime and that it is a matter for the respondent alone to decide upon what evidence he will prosecute any particular charge. In this regard she relied on the dicta of Gannon J. in O’Flynn v. Clifford [1988] 1 I.R. 740 at 745 and McGuinness J. in Blood v. DPP [2005] IESC 8 (Unreported, Supreme Court, 2nd March, 2005).

As to the failure to take a statement from the complainant’s mother, Ms. McDonagh contended that the applicant was aware when he was returned for trial that no such statement would be taken and that the reasons for this refusal were valid. She submitted that, in any event, the complainant’s mother has no relevant evidence to give as she was not informed about the allegations and the incidents did not take place in her house.

Addressing the lack of detail complained of by the applicant in the description of the incidents, Ms. McDonagh submitted that, as with offences of this kind, the credibility of the applicant will be in issue but that this cannot be a bar to the applicant facing trial.

As regards the “islands of fact” identified by the applicant, Ms. McDonagh noted that statements were taken by the gardaí from the applicant’s nieces which indicated that they stayed over at the applicant’s house on a number of occasions and both of these persons could give evidence at the trial as to the furnishings and layout of the house, in particular, as to whether a crucifix hung over the applicant’s bed. She also pointed out that the complainant’s brother, in his statement to the gardaí, confirmed that there was a stereo unit up against the side door but he stated that the unit could easily have been moved from this position. She stated that the complainant’s brother and the applicant’s two nieces would be available to give evidence at trial in respect of these matters.


Decision
This case is concerned with allegations of sexual abuse which allegedly occurred more than thirty years ago. It is clear that the investigation of such allegations is markedly different to investigations into more recent allegations or an investigation into other types of crime. The prosecution would not normally have to conduct an investigation into collateral credibility issues. Older sexual abuse cases invariably take the form of a contest between bare assertion and mere denial, in an empty landscape disconnected from the normal matrix of surrounding physical and circumstantial detail. There may only be the evidence of the complainant as against that of the accused on the central facts in issue, though this, of itself, could not prevent a fair trial taking place as noted by Geoghegan J. in D.D. v. Director of Public Prosecutions [2004] 3 I.R. 172 at 178:-


“It has never been the law that a charge of rape or gross indecency or indecent assault cannot be tried if, to use a colloquialism, the trial is tantamount to ‘one person’s word against another’.”



Collateral evidence in the form of witness statements from friends and relatives whom the complainant told about the alleged incidents was not sought out prior to charging or returning him for trial. In Braddish and in Dunne the missing evidence in question was a video tape showing the commission of the crime, which was found by the Supreme Court in both cases to constitute directly relevant evidence. Hardiman J. made the following observations in Braddish in respect of collateral evidence at p.135:-


“…in cases where the evidence is not of such direct and manifest relevance, the duty to preserve and disclose it has to be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71, the duty to preserve evidence is to do so ‘so far as is necessary and practicable.’ A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly, it cannot be interpreted as requiring the gardaí to engage in disproportionate commitment of man power or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.”

McGuinness J., in her judgment in Dunne at p.309, noted that in cases where prohibition was sought on the basis of the alleged failure to seek out evidence, it would firstly have to be shown to be “clearly relevant” and “that there was at least a strong probability that the evidence was available” and “that it would in reality have a bearing on the guilt or innocence of the accused person” and that a real risk of an unfair trial would have to be demonstrated by its omission. In his judgment in that case, Hardiman J. stated that at pp. 323-324 there must be “not a possibility or a mere probability but a near certainty” that the evidence be such as to bear vitally on the question of guilt or innocence.

Having regard to the particular importance in cases involving old allegations of sexual abuse, of evidence which bears upon the credibility of either the complainant or the accused, I am satisfied that the witness statements of the complainant’s friends and family members were clearly relevant, and had a bearing on the guilt or innocence of the accused and there would be a real risk of an unfair trial by their omission. However, they are not missing as, at the request of the applicant’s solicitor, these statements were taken and subsequently furnished to the applicant. Although the prosecution was tardy, if not deficient, at the time the applicant was returned for trial, that omission has now, in large measure, been rectified as a result of the prompting of the applicant’s solicitor.

What is still missing, however, is a statement from the complainant’s mother. Counsel for the applicant suggested at hearing that the complainant’s mother could deal with a number of matters relevant to the complainants credibility, namely, the complainant’s visits to the D. family; the days of the week when this occurred; what other members of the complainant’s family (if any) were present; the demeanour of the complainant following the alleged first incident and later when the invitation came in 1981 to stay for the weekend with the applicant. The failure to investigate these matters and obtain a statement from the complainant’s mother is a very important matter to which I will return later in this judgment.


The Lapse of Time Issue
The applicant makes the case that as a result of the passage of time i.e. thirty years, that he will suffer prejudice to such a degree that it would render his trial unfair or unjust. It was submitted that the test governing delay in child sexual abuse cases, as formulated by Murray C.J. in S.H. v. Director of Public Prosecutions [2006] 2 I.R. 575 at 620, was satisfied, namely, that the applicant would suffer an unfair trial as he would be prejudiced in the conduct of his defence due to the lapse of time. The task of the Court in delay cases involving allegations of child sexual abuse was stated by Murray C.J. in S.H. v. Director of Public Prosecutions at pp. 620-621 to be as follows:-

“The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case.

Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the complainants’ complaints against an applicant no longer arises. The inquiry which should be made is whether the degree of prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon the circumstances of the case.”

The prejudice the applicant complains of includes the memory deficiencies and vagueness which permeate the complainant’s statements and the witnesses’ statements and also the frailty of his own memory, compounded by his age and infirmity. Because of the poor quality of memory, the applicant apprehends that it will prove very difficult for him to challenge the credibility of the complainant relying upon the parts of the statements of various witnesses which appear favourable to his defence. That, allied to the paucity of detail in the allegations of the complainant together with the inevitable predisposition of jurors in light of the welter of revelation in recent times of clerical child sex abuse, would, he fears, greatly prejudice his prospect of mounting a defence which would appeal to a jury.


Decision
Cases involving old allegations of sexual abuse will inevitably involve fading memories and an absence of surrounding circumstantial detail. However, the accounts of the complainant to the diocese and to the gardaí, especially with regard to the second and third alleged incidents, are unusually bereft of relevant detail. There is no information as to events leading to the bedroom, as to how both allegedly became undressed and events immediately afterwards. In addition, the descriptions of the alleged assaults are unusually sparse on predictable detail.

Further, the witness statements from the complainant’s friends and family members, the members of the D. family and the applicant’s family members are, for the most part, vague and wanting in detail that would almost certainly be there but for the long elapse of time. The applicant’s own failure to recollect the item hanging on his bedroom wall at the time, with the resulting potential damage to his credibility illustrates the difficulty in defending these allegations at such a remove of time.

Insofar as there are “islands of fact” around which an attempt could be made to test the credibility of the complainant or of the applicant if he chose to give evidence, these are confined to the first alleged incident. The second and third incidents are entirely bereft of any surrounding circumstantial detail. The complainant, in her statement, describes a visit to the D. family on a Friday night and coming home alone with the applicant in his car. This is a critical part of the history given by the complainant. In his statement G.D says the following:-


“…Fr. R continued to visit us particularly Friday nights that DB was with him on several occasions. He may have visited on Sundays as well. I knew DB but not that well. There was another fella called Big S with Fr. Ryan and DB on occasions when they visited. I think when I was in my early 20s I recall AB being in our house. I think she was with Fr. R and members of her family. She was not there very often and may have been at our house with her brother D as well and I think A’s mother as [sic.] in our house… It would have been in the 70s and early 80s when D and A visited our home. ”



L. D., in her statement, says the following:-

“While he was in B he was a regular visitor to our house, particularly on Friday nights, and he attended our house when there was a family occasion. Anything that was ever on he was there. We had him for Christmas dinner for many years. …I got to know DB through visits to the Fr R’s house in B. DB was at our house with Fr R at one stage or another. I have met AB probably in B when I visited Fr R. I have a feeling that AB was out of [sic.] our house on a Sunday with her mother, only the once. I do not ever remember AB coming out to our house with Fr R on any Friday night.”

Of great importance in any assessment of credibility would be the accuracy of the complainant’s statement to the effect that she was with the applicant in the D. house on the Friday night in question without any other members of her family. Essential to the credibility of her allegation in respect of the first alleged incident, is the fact that she traveled home with the applicant and that no other members of her family were present. As is apparent from the statements of G.D. and L.D., there is the strong suggestion that the complainant may only have been in the D. house with other members of her family and may not have been there on a Friday night.

Because of the lapse of time it is very difficult or impossible for members of the D. household to have a clear or reliable recollection of these matters which are important in the context of this case, but otherwise would be inconsequential or trivial information. No doubt if the allegation made in these criminal proceedings were tried in a timely way after the events, the surviving members of the D. household and others who may have been present at the time in question would have clear recollection of these matters.

At this point in time, however, all of that is now lost beyond retrieval in the obscurity of the past. Insofar as the crucial issue of credibility in the trial of the applicant is concerned, this is a very significant loss of evidence, which, in my view, imperils the applicant’s defence. It must be borne in mind that the whole purpose of a trial is to conduct an enquiry to determine forensically the guilt or innocence of the accused. Implicit in this is the understanding that this process can be accomplished. This means, inter alia, that issues of fact can be explored and tested by means of normal methods, namely, examination and cross examination. Essential for that purpose is the availability of evidence relevant to the issue in dispute. The problem in old sex abuse cases is that evidence through which credibility can be tested is frequently no longer available because of the passage of time. What is left in the dispute between the contending parties is simply bald assertion on the part of a complainant countered by a bare denial on the part of an accused.

In this forensically barren landscape, one must face the question of whether the trial process as we know it can be meaningfully accomplished or are the allegations made by the complainant, now beyond the reach of normal forensic enquiry. Is there a risk that what will take place will, in the words of Henchy J. in O’Domhnaill v. Merrick [1984] 1 I.R. 151 at p.158, be an “abrogation of basic fairness”, or as said by the same learned judge in O Keefe v the Commissioners of Public Works [unreported Supreme Court 24th March 1980], would it be “a parody of justice”.?

I am satisfied that the loss of evidence discussed above is of the utmost significance because it relates to the only island of fact through which the credibility of the complainant could actually be tested. The issue as to the entry through the side door of the house could be said to be a neutral feature as the stereo could, apparently, be easily moved. Similarly, the dispute as to whether there was a crucifix or a picture on the wall of the bedroom would probably turn out to be a neutral feature, being easily explained by reference to different times.

In all of these circumstances I am satisfied that because of the loss of the above evidence due to the lapse of time since the offences are alleged to have occurred, there is a real risk that the applicant cannot get a fair trial.


Omnibus test
An alternative argument advanced by Mr. Gageby was that the facts of this case gave rise to wholly exceptional circumstances, as envisaged in the S.H. v. Director of Public Prosecutions [2006] 2 I.R. 575, which would render the trial of the applicant unjust. He observed that this part of the test was applied in an omnibus way by Denham J. in the Supreme Court decision of P.T. v. Director of Public Prosecutions [2007] IESC 39 (Unreported, Supreme Court, 31st July, 2007) and by Finnegan J. in D.D. v. Director of Public Prosecutions [2008] IESC 47 (Unreported, Supreme Court, 23rd July, 2008). This test involves identifying factors relevant to the applicant’s situation so that a balancing exercise can be carried out between these and the right of the public to have crimes prosecuted. Orders of prohibition were made in both cases referred to on the basis of wholly exceptional circumstances which merited the prohibition of the respective trials. It was submitted that the following factors should be taken into account cumulatively in assessing the applicant’s position:-


1. The delay since the time of the alleged offences.

2. The lack of a real investigation taking place prior to the requests by the applicant’s solicitor for certain steps to be taken after the applicant was returned for trial.

3. The difficulty in defending the allegations owing to the lack of detail in the complainant’s recollection, particularly of the second and third allegations.

4. The difficulty of ascertaining the accuracy of accounts the complainant has given to various relatives and friends over the years.

5. The evidence of the D. family members is degraded by frailty of memory because of the lapse of time.

6. The loss of the complainant’s mother’s evidence.

7. The fact that the complainant’s subsequent relations with the applicant were not explored.

8. The effect of the delay on the applicant’s memory. For example, he initially agreed that a crucifix hung from his bedroom wall but upon reflection denied that this was the case. The applicant may be forced to give evidence that he made a mistake at interview with the gardaí which would have a prejudicial effect on his case.

9. The applicant’s interview with the gardaí is not part of the book of evidence and no notice of additional evidence has been served in respect of this.

10. The distress the allegations have caused to the applicant may impact on him giving evidence and unjustly tarnish his credit with a jury.

11. The applicant is 83 years old.

12. The applicant is almost blind and is in poor general health and his ability to concentrate has been significantly diminished, such that it would very difficult for him to meaningfully participate in and give instructions where appropriate during the trial. In addition, his ability to give evidence will be hampered by his blindness, declining health and poor concentration.


Ms. McDonagh submitted that the fact that the applicant may not be in good health does not mean that he should not stand trial and that it would be inappropriate to extend the “wholly exceptional jurisdiction” set out in S.H. v Director of Public Prosecutions [2006] 2 I.R. 575 to include the facts of this case.


Decision
Of all of the features advanced above as amounting cumulatively to exceptional circumstances, one stands out as requiring particular consideration and that is the loss of the evidence of the complainant’s mother. Describing it as a loss may not be accurate, because it is not known whether she would have relevant evidence to give, for the simple reason that the prosecution have adamantly refused to find out. In my view this refusal is extraordinary and in the circumstances of this case wholly unjustifiable. As said earlier, the only real island of fact through which credibility can be tested is the account given by the complainant of her movements before the first alleged incident. Insofar as there is a potential witness who even at this remove of time could have a recollection of whether the complainant was in the D. house on a Friday night when she was eleven years of age or whether she was ever there without other members of her family, it is, of course, her mother who, in all probability, was, at the time, acutely aware of the complainant’s movements, particularly late at night.

In my view, the refusal to obtain a statement from the complainant’s mother concerning these matters is in itself a wholly exceptional circumstance and taken in conjunction with the other factors listed above, in particular, the applicant’s age, his blindness and state of general health, cumulatively, in my opinion, warrants prohibiting the trial of the applicant on the ground that there is a real risk that he would not get a fair trial.

For all of these reasons I am satisfied that I should grant the relief sought.