Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Murray J.

Geoghegan J.

Fennelly J.

101/03

BETWEEN/

D.D.

Appellant/Applicant

and THE DIRECTOR OF PUBLIC PROSECUTIONS

Defendant/Respondent

JUDGMENT of Mr. Justice Geoghegan delivered the 19th day of May 2004 [Nem Diss]

This is yet another appeal in an application to injunct the Director of Public Prosecutions from proceeding with charges of a sexual nature where the alleged offences occurred a long time ago, the period in this case being over thirty years. The application was fought in the High Court on alternative grounds some of which were not really pressed. Essentially, the case made was that the appellant/applicant was not expressly or by implication to blame for the delay and that on that account alone the prosecution should not be allowed to proceed or alternatively, that if it was considered by the court that the delay on the part of the complainant in making a formal complaint to the gardaí was reasonable in the circumstances and was contributed to by the nature of the offences themselves if they occurred, there should still be an injunction on the grounds of actual and/or presumed prejudice in the conduct of the defence.

The High Court (Kearns J.) in an ex tempore but carefully reasoned judgment refused the injunction. The appeal to this court is against that refusal.

The grounds of appeal were:

1. That the trial judge erred in law and in fact in finding that there was an adequate explanation for the delay in reporting the offences to the authorities.

2. That the judge erred in failing to attach appropriate weight to an alleged failure of the prosecuting authorities to investigate the surrounding circumstances of the offences and would thereby reduce the lack of specificity and detail of same.

3. That the judge failed to consider the issue of presumptive prejudice and was wrong in not doing so.

4. That the judge was wrong in holding that where a trial is essentially a test of credibility that is not a ground for stopping it in the circumstances that pertain in this case.

5. That the judge erred in law in failing to consider the prejudice pleaded.

6. That the judge erred in law in failing to consider all the circumstances of the case.

The proceedings in the High Court were judicial review proceedings brought pursuant to leave. It was argued by counsel for the Director of Public Prosecutions in the High Court that counsel for the applicant had made arguments which would themselves have constituted separate grounds for judicial review but that leave had not been sought or granted in respect of such grounds. By the same token, counsel for the Director of Public Prosecutions, Mr. Anthony Collins, S.C. at the hearing of this appeal argued some fundamental propositions relating to the entire jurisprudence of this court on lapse of time and its effect on the trial of sex offences. In these circumstances it is important to consider what are the limits of this appeal and in that connection it is necessary not just to look at the notice of appeal but at the grounds on which leave was granted. I do not propose to set out these grounds but I think that they can be fairly summarised as follows:

1. The delay constituted a breach of the applicant's right to a fair trial.

2. The delay contravened the applicant's right to a trial with reasonable expedition.

3. That there is actual or presumptive prejudice in the preparation and presentation of a defence.

4. That the charges are not specific enough.

5. That media publicity has prejudiced the applicant's right to a fair trial or that such trial in the circumstances would be oppressive.

6. The trial should be stopped having regard to alleged breaches of Article 6 of the European Convention.

The learned High Court judge was dismissive from a quite early stage of the complaints of lack of specificity having regard to previous decisions of this court. I think that the learned High Court judge was correct in adopting this view and I do not recall the matter being seriously pressed at the appeal.

As far as the media publicity is concerned, counsel for the applicant in the High Court did not claim that that, of itself, could be a ground for stopping the trial but merely indicated that regard should be had to it among all the circumstances. It has not seriously featured at the hearing of the appeal either.

I do not think that an issue under the Convention is relevant having regard to our own jurisprudence. Rightly or wrongly in Attorney General's Reference (No. 2 of 2001) [2004] WLR 1 the House of Lords has recently held that as a general rule, time would begin to run for the purposes of Article 6(1) from the earliest time within which a person was officially alerted to the likelihood of criminal proceedings being brought against him and that such period would only begin when a defendant was formally charged or served with a summons rather than when he was arrested or interviewed under caution. There are obiter dicta emanating from this court indicating a wider interpretation of the Article but be that as it may, the Convention was not part of domestic law at the time that this application was heard in the High Court and the appeal can be determined without reference to it.

Rather unusually the transcript of the entire proceedings in the High Court including the submissions made to the learned trial judge is available to this court. In considering this appeal I see no reason to depart from the basis on which the case was argued on behalf of the appellant in the High Court. In the High Court it was more or less assumed by Mr. Gageby, S.C. the then counsel for the appellant and by the learned High Court judge that the long lapse of time prior to complaint was legally relevant but that its effect depended on whether or not the lapse of time was caused or substantially contributed to by the applicant. This was a perfectly correct approach as that has been the accepted jurisprudence of this court for many years. In recent cases the Director of Public Prosecutions has appeared to challenge it. My present view is that that jurisprudence is correct but even if there was any doubt about its correctness, it could only be reviewed by a court of five judges considering whether particular named cases had been wrongly decided and that argument would have to come by way of appeal or cross-appeal from the Director of Public Prosecutions. I wholly reject the idea that somehow or other P.M. v. Malone [2002] 2 IR 560 has brought about a change in that jurisprudence. I will be returning to these matters in due course. First, I think it important to consider in detail the facts.

The appellant is an Irish Christian Brother who is sixty three years of age. He is charged with the commission of four acts of indecency with a boy who at the material time was an inmate of an industrial school under the care of the Christian Brothers and in which the appellant worked mainly in the kitchen. In relation to each of the four incidents there are two counts one being of indecent assault and the other being of procuring the complainant to commit an act of gross indecency. The judicial review application to stop the trial is grounded on two affidavits one by the appellant and one by his solicitor Mr. Niall O'Neill. The appellant explains in his affidavit that at the material time he was the cook and kitchen supervisor in the school and that at times up to one hundred and twenty boys had to be fed. He has no recollection of the complainant. A lady called Nora Barrett who died in the 1960s used to help in the kitchen. The appellant goes on to explain that on occasion groups of boys would be assigned to help out in the kitchen but without any regular rota. The appellant then deposes to the fact that dormitory supervision did not form part of his regular duties and that he "rarely supervised" the dormitory. He says in the affidavit that a layman was employed for dormitory supervision duty. The significance of the appellant's reference to the dormitory will become clear later in the judgment. The appellant also contests evidence of the complainant that the appellant wore a moustache and had black hair at the time of the alleged incidents. At paragraph 18 of the affidavit the appellant says that the delay in the institution of the proceedings has prejudiced his defence in that he has no clear recollection of the day to day events during the period covered by the charges and that this hampers him in relation to what could have been a crucial part of his defence. I think it relevant to make some comment on that paragraph at this stage. It is not suggested anywhere by the appellant or on his behalf that he sexually abused or could have sexually abused any other boy in the school. If that had happened memory might be relevant as to what boy he abused. But it is perfectly clear that the appellant is denying he committed any acts of sexual abuse whatsoever. If he did commit the acts complained of he would remember it. It is impossible to believe that he would not. Memory problems are often relevant where application is made to prohibit the trial of cases whether civil or criminal, on grounds of delay but in this case they can have little or no relevance to the actual offences. There may still be peripheral matters in respect of which memory difficulties could be relevant but as to whether the appellant committed these acts of indecency with the complainant or not is fundamentally a question of credibility and it is difficult to see that memory comes into it.

The affidavit then goes on to deal with the pre-trial publicity but for the reasons which I have indicated I do not intend to go into that in any detail. The appellant explains in the affidavit different respects in which he has been caused upset by the charges.

I turn now to the affidavit of Mr. Niall O'Neill. After setting out the formalities of the case he says the following in paragraph 4.

"I say that perusal of the prosecution papers furnished reveals that the allegations made by (J. R.) against the applicant consist of indecent fondling and indecent acts which allegedly took place in a storeroom beside the kitchen in St. Joseph's School when no other people were present."

It would seem entirely credible that if the offences did take place they took place in private. That being so, it is difficult to understand how the appellant would have been able to produce helpful witnesses even if the trial had taken place within a reasonable time. In paragraph 10 of his affidavit Mr. O'Neill says the following:

"I say that from my perusal of the prosecution papers, by reason of vagueness in the complainant's statement and in the charges arising therefrom it is impossible to identify sufficient facts which could be called in aid of the defence of the applicant."

This statement is probably true but I find it difficult to see why the position would be different in any material respect if the trial had taken place within a reasonable time. 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." It is quite different of course where there was some concrete and identifiable piece of potential evidence helpful to the applicant and now lost. In those cases there is a real risk of an unfair trial. In paragraph 12 of his affidavit Mr. O'Neill refers to the fact that the offences took place at where it could reasonably be assumed there would be other boys in the vicinity. But it would seem to me that this assertion is highly speculative and that as a matter of probability if the offences did occur the appellant would have seen to it that there were no boys in the vicinity.

Mr. O'Neill makes a number of other points. He says that the school record does not record the appellant's demeanour in school and that other members of the Christian Brothers Community who were in the school at the time are not now available as witnesses either because they are dead or senile or abroad and that the school itself was demolished in 1992. I find it difficult to understand why evidence of the demeanour of the applicant would be admissible and relevant or why the evidence of any other member of the community could really help the appellant. Nor do I understand why, if a current inspection of the building could be made, that in some way would be helpful. Mr. O'Neill catalogues a horrific sequence of adverse publicity etc. but I am satisfied that that would all now be long forgotten and, at any rate, as I have already indicated it was not pressed as an independent ground for stopping the trial. It may well be relevant in another connection to which I will return.

I will now explain the reference to the dormitory as it played a very major part in the case in the High Court, rather more so I think than on the appeal. In the course of the complainant's statement to the gardaí he referred to the appellant as follows:

"He would be in charge of dormitory in his turn. I was afraid to go to the toilet, when he was on in case I would meet him there. As a result I would wet the bed, this would only happen to me the nights he would be on in the dormitory. I never told anyone in the school in Tralee about this."

I will be returning to this matter when I deal with the issue of prejudice. It is sufficient to explain at this stage that in his submissions to the High Court, counsel for the appellant interpreted the words "in his turn" as meaning that the appellant was quite regularly in charge of the dormitory whereas the appellant claims that he was only occasionally in charge. On foot of Hardiman J.'s "island of fact" principle (PO'C v. DPP [2000] 3 I.R. 478) counsel argued that the gardaí were under a duty to follow up the dormitory issue and that their failure to do so must necessarily lead to an unfair trial. It would be a fair summary of the position if I stated that the learned High Court judge consistently considered that this argument was farfetched in the light of the appellant's own concession that he was from time to time in charge of the dormitory. I fully agree with this view and I will return to it in due course.

The complainant swore a replying affidavit. He explained that he was born on the 23^rd of July, 1954 the fourth of twelve children. When he was very young his family moved to a Munster town where he resided until 1967. He was then sent to the Industrial School for truancy where he remained until that institution closed down some years later. After trying unsuccessfully to find work in Ireland he emigrated to England and for most of the time ever since he has lived in England. He refers to his statement of evidence to the gardaí and then goes on to explain that prior to the end of March 1998 he had never disclosed the fact of the abuse to anyone. At that time he recalled hearing an apology by the Christian Brothers being referred to during a BBC news broadcast. He telephoned the BBC in Belfast and they gave him a telephone number for the Christian Brothers in Dublin. He made a complaint of the sexual abuse to the Brother Superior of the House which he telephoned. He then said the following:

"I felt shame, disgust, guilt and self-blame as a consequence of the abuse the applicant perpetrated upon me. The applicant bought my silence by warning me not to tell anyone about the abuse and threatening me with dire consequences were I to do so. At that time I did not suspect that this was happening to any other boy and this also secured my silence.

On leaving (……) Industrial School, I rejoined my family, which was in very poor circumstances. I was illiterate and in no position to allege that a member of a religious order had sexually abused me. I was also very wary of An Garda Síochána due to my circumstances and my experiences in (……) Industrial School, to which they returned runaways on a regular basis, notwithstanding that they must have been aware of the reasons why they had escaped in the first place. It was only on my hearing that the Christian Brothers had accepted responsibility for abuse perpetrated by some of their members that I finally felt that I could complain about what happened to me at their hands over thirty years ago in the knowledge that I would be listened to."

A second replying affidavit was sworn by Ruth Yoder, clinical psychologist at the Institute of Psychological Medicine in Dun Laoghaire. She exhibits a report in which her conclusion was stated to be the following:

"Given (Mr. R's) functional illiteracy and lack of personal resources it is not at all surprising that he did not attempt to report the abuse before watching the public apology by the Christian Brothers on television. He reports seeing many runaways being forcibly returned to (the industrial school) by gardaí. He reports that he believed the gardaí were aware of the brutality and cruelty that led to boys absconding, yet they still return them to further punishment. Thus, this fear of reporting the abuse to the gardaí lingered into adulthood. (Mr. R's) limited support system and illiteracy would neither have contributed to confidence building or promoted development of assertive behaviour. Almost universal psychological sequelae of sexual abuse are shame, guilt and self-blame, reducing the likelihood of reporting even further. The unequal relationship, even as adults, between an illiterate, unskilled, semi-migrant indigent and a Christian Brother would also inhibit (Mr. R) from making allegations of sexual abuse. Given the general climate of unbelief with regard to clergy being implicated in sexual abuse of children that existed until recent years, it is surprising that anyone would have risked ridicule, scorn and accusations of blasphemy in making such allegations. While that climate has changed considerably, it is only a few short years since the leading medical opinion was that 'false memory syndrome' accounted for alleged abuses of children in orphanages. One would have had to be a fool to go where angels feared to tread."

Ms. Yoder was cross-examined at some length by Mr. Gageby in the High Court. It emerged from that cross-examination that she appeared to be particularly struck by the complainant's total lack of interest in sex of any kind, his complete lack of sexual fantasies and denial of ever masturbating. One might have doubts about the relevance of this evidence given the general social circumstances in which the appellant was brought up and the climate of the time, but at the end of the cross-examination Kearns J. asked the witness the following. "What stopped this man coming forward earlier to complain?". She answered as follows: "He told me that he was afraid of being incarcerated in a psychiatric hospital, that he was afraid of authoritative figures, he was afraid of policemen, in particular." The judge then pointed out that the complainant had been twenty years away in England as an adult, but the psychologist nevertheless said that he was afraid of not being believed. The judge further pointed out that complaints of clerical sex abuse had been out there now for a considerable number of years. Ms. Yoder answered as follows:

"There have been some. Being illiterate, he would not be aware of a lot of them. It was a television programme that alerted him to the sort of climate of acceptability of these reports. At that time, he seems to have put all his energy into pursuing the case."

The judge then referred to the fact that since the television programme the complainant had gone to extremes in his complaints in that he wrote to the Pope, the Vatican, Buckingham Palace, Downing Street, the Garda authorities in Limerick, the President of Ireland etc. and the judge considered that this appeared to be a "remarkable transformation". He asked the psychologist "Was there some psychologically inhibiting factor" that was present which at some point in time just vanished as it were in one fell swoop? She answered:

"Fear, fear of being ridiculed, fear of not being believed. Once the fear is gone, he was, as it were, released to pursue his main interests."

There is no doubt that the complainant showed signs of being unbalanced in writing to irrelevant authorities however eminent. If anything, that supports the case of the Director of Public Prosecutions rather than the case of the appellant.

Assuming that pre-complaint lapse of time is relevant and that as a corollary to that it becomes relevant as to whether the applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be held responsible if there has been the element of dominance. The authorities certainly show that that is a main ground but it is not the only ground. By the same token however, I am equally satisfied that the authorities do not in any way go so far as to excuse lapse of time or delay merely because the complainant had a good reason for not complaining earlier. For the reason to be relevant it must arise from an inhibition of some sort on the part of the complainant preventing him or her from complaining where such inhibition arises directly from the offence.

A correct understanding of the law is, in my view, indicated in the ex tempore judgment of Kearns J. It is worth quoting in full the relevant part of the judgment.

"I am not going to prohibit the continuance of this trial because I think an adequate explanation for the complainant not coming forward earlier has been furnished on the material before the court and on the evidence I have heard from Ms. Yoder in particular.

Each of these cases, despite the well established jurisprudence does, to a very large degree, turn on their own particular facts. The particular facts of this case are that at a very young age the complainant in this case was placed in the care of the Christian Brothers in …… and it is quite clear, again from the documentation, if I can turn up the relevant pages, that the complainant was a person of very limited intelligence. His educational state at the time was recorded as being very low IQ. His background was semi-itinerant class and the family were in extremely poor circumstances. That is the reality of the situation, that is the reality of the person who was there during those years, the three years in respect of which these allegations are brought.

I have been furnished with an explanation why there was a delay in reporting the incident. Ms. Yoder has said in evidence that he did not report the alleged sexual abuse incidents because he was afraid that he would not be believed and that if he persisted in his allegations that he would be committed to a psychiatric hospital. The trigger which released him from this inhibition was the television broadcast of a public apology on behalf of the Christian Brothers for sexual abuses that occurred in their industrial schools and this seems to have galvanised the complainant into a barrage of letters in all directions, from the Vatican, to Downing Street, to Buckingham Palace and elsewhere.

Be that as it may, I think I must attach, and do attach, a great deal of significance to the factors identified by McGuinness J. in SM v. DPP, because while I do not think this is a case where the inhibition, which I think I would prefer to call it rather than disability, is attributable to dominion in the sense which that normally applies. It is very understandable, to me, in any event, that a person from the background from which the complainant comes and with a very limited education achievements and with the life history which the report discloses would be totally disinclined to bring forward a complaint of this sort unless such time as perhaps the climate was such that he felt he could do so without risk of severe frightening consequences from his point of view arising from what he might perceive as his very low status in the scheme of things and the elevated status enjoyed, until recent years, by the clergy in this country. It seems to me that that does provide an adequate explanation on the grounds of the delay in bringing the complaint, which undoubtedly was a significant delay."

Kearns J. then goes on deal with other arguments made on behalf of the applicant to which I will return later. It seems to me, however, that on the relevance of delay itself (and in this connection I am using the word "delay" interchangeably with "lapse of time") the learned trial judge both stated and applied the correct principles. It is true that this court is not bound by the inferences which the judge drew from the evidence but where a trial judge draws inferences of fact from evidence this court must at least exercise due caution before drawing a different inference. I find myself in agreement with the inference which the High Court judge did draw.

The appellant is still entitled to have the trial stopped if there is either actual or presumptive prejudice to his defence. I have already referred to the "dormitory" issue. This was the main ground of prejudice relied on in the High Court by Mr. Gageby. He continually returned to it in his submissions to Kearns J. At best it was a very fine argument because it was fully conceded that the applicant did, from time to time, supervise the dormitory. Mr. Gageby latched on to the complainant's use of the expression "in turn" to suggest that there was a substantial difference between the two pieces of evidence that would have warranted further investigation by the gardaí and he tried to make an analogy with PO'C v. DPP cited above where a crucial piece of evidence relating to the supply of keys for a piano room was not available as a consequence of the long lapse of time. The two cases in the view of the learned High Court judge and in my view are entirely different. There was no suggestion of any assault in the dormitory and the dormitory evidence was completely peripheral, so much so, that the gardaí did not think fit to ask the applicant any questions relating to the dormitory. The question of whether the music room could have been locked at the time of the offence in the PO'C case however was directly relevant to the defence. Likewise the case of the mobile home in JL v. DPP [2000] 3 I.R. 122. Kearns J. in his judgment dealt with the matter as follows:

"Equally, the island of fact which Mr. Gageby says exists by reference to the dormitory arrangements, I am not satisfied that there is an island of fact such as was capable of being pursued in the way Mr. Gageby says it should have been. Accounts available at this point in time seem to me to be equally consistent with either version of events. I do not think there is either an island of fact or a demonstrable specific prejudice in this case in so far as the accused is concerned. I do accept, and it is one of the great misfortunes of this kind of case, that there is inevitably a sense of a potential prejudice and general prejudice, but essentially this case comes down to a credibility contest between the complainant and the accused. That inevitably is the case across a spectrum of different cases. Notably, and I took this as an example, in a rape situation where the defence's consent, there are no other witnesses and it all hinges on essentially the resolution of a contest of that nature. That, of itself, cannot be a ground for stopping a case, the fact that there is simply one person's testimony against another."

It would seem to me that the learned High Court judge is clearly correct in expressing those views. Of course, the position is quite different if an applicant can point to some piece of concrete evidence which would have been available had the trial taken place earlier and which was now not available or even where such evidence might still be available had the gardaí properly investigated the matter, but I would not like to form any concluded view on that latter proposition.

Tied in with Mr. Gageby's submissions was the suggestion that Dunne v. DPP [2002] 2 ILRM 241 and Braddish v. DPP [2002] 1 ILRM 151 applied. The learned High Court judge accepted the submissions of counsel for the Director of Public Prosecutions that if that argument was sought to be made it ought to have formed a separate ground for judicial review and I think that he was right about that. At any rate, I cannot see any basis on which those cases could apply in this instance.

While at the hearing of a judicial review a court must be careful not in any way to pre-empt the outcome of a trial it nevertheless is entitled to consider all the surrounding circumstances before it would consider a discretionary order injuncting the trial. One problem which a court might be concerned about in this case would be mistaken identity in the sense that there were a number of brothers in the school at the time and, also of course, there is always the danger that a completely invented complaint was being made. There are two small matters which when taken with all the surrounding circumstances are not entirely irrelevant. One is the fact that the complainant originally complained about a brother with a name that sounded somewhat like the appellant's but was spelt quite differently. It then emerged there was no such person but that there was a brother namely the appellant with a name sounding similar. At one stage this was put forward as a point in favour of the applicant but I think that, if anything, it is against him. It is entirely credible that the complainant who was totally illiterate would only know the name by sound. On the other hand in a conspiracy to make a totally fraudulent claim it might be less likely that a name would be spelt wrong. The second small point of some relevance is that the complainant alleged in his statement to the gardaí that when he would protest to the applicant about the acts done to him, the applicant used to say back to him "if you don't shut up, I'll get your hair cut badly". In the question and answer session which the gardaí had with the applicant the question was asked of the applicant "who cut the pupils' hair" and the answer given was "myself and another man". Presumably, at a trial some use would be made by the prosecution of that combination of evidence if any issue of identity arose.

Having regard to the view which I have taken on the case it is quite clear that I am of opinion that the appeal ought to be dismissed and the High Court order affirmed. Mr. Collins, however, both in oral and written submissions has made arguments relating to what he claims to be some kind of dramatic turnabout by this court in P.M. v. Malone [2002] 2 IR 560. I think it appropriate to make some comments in the light of those submissions but I would emphasize that they will now necessarily be obiter dicta.

P.M. v. Malone was an appeal heard by this court sitting as a court of three judges only namely, Keane C.J., McGuinness J. and Hardiman J. Given the history of this jurisprudence and the well-known judgments of all three of those judges it would be surprising, to say the least, if the Chief Justice with whose judgment McGuinness J. and Hardiman J. concurred intended to convey that all previous decisions of this court which had regarded pre-complaint lapse of time relevant in considering whether a trial should be prohibited were wrongly decided and that there was to be a return to some golden age when apparently, in the view of the DPP, this court formulated the law correctly – Hogan v. President of the Circuit Court [1994] 2 I.R. 513 being given as the alleged example.

Returning to the judgment of Keane C.J. in P.M. v. Malone, it is to be noted that at the commencement of the judgment the Chief Justice refers to two "unusual features" in the case. The first of these was that the defendant was not significantly older than the complainant. In highlighting this point the Chief Justice was clearly referring back to the well established jurisprudence relating to responsibility for failure to make a complaint and which of its nature is pre-complaint lapse of time. In specifically dealing with the law at p. 572 of the report the Chief Justice says the following:

"The legal principles applicable in cases of this nature have been the subject of many decisions in the High Court and this court in recent years. However, the application of those principles to the present case requires careful consideration, having regard to the two unusual features which I mentioned at the outset of this judgment."

I perhaps should mention at this stage that the second "unusual feature" was that on one view some responsibility at least might be placed on the gardaí for "the delay in initiating the proceedings" as they had been informally aware of the allegations some years previously. The Chief Justice goes on then to reiterate the well-established law. The only novelty was that in relation to "pre-charge delay" he referred to the judgment of Lamer J. in the Canadian Supreme Court in the case of Mills v. The Queen (1986) 29 D.L.R. 161. But that was a case relating to the interpretation of an article in the Canadian Charter of Rights and Freedoms. The Chief Justice then goes on to deal with DPP v. Byrne and the well-known dicta of Finlay C.J. That passage reads as follows:

"I am driven to the further conclusion that, of necessity, instances may occur in which the delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused capacity to defend himself would be impaired. This must lead of course, to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined."

Largely because of another sentence emanating from Finlay C.J. in the Byrne case, counsel for the Director of Public Prosecutions argues that that passage has no relevance to pre-complaint delay. I will return to that later on in this judgment. At the bottom of page 574 in P.M. the Chief Justice once again refers to the fact that there exists a category of cases arising out of contacts of a sexual nature with young children in which special factors may arise which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed. He further points out that the law on this topic had been considered at length and in detail "in a number of recent decisions of this court". He then particularly referred to a passage in his own judgment in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 at 67 which read as follows:

"The approach that must be adopted by a court asked to prohibit the trial of a person charged with such offences was dealt with comprehensively by Denham J. speaking for this court in B. v. Director of Public Prosecutions [1997] 3 I.R. 140 and has been considered by her again today. It is unnecessary to traverse that ground again in any detail. Clearly, the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed. Moreover even in cases of unlawful carnal knowledge or sexual assault where the complainant is a girl under the age of consent, it is to be borne in mind that the alleged perpetrator may himself be a child. There are cases however, of which this is one, where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases there may be threats, actual or implied, of punishment if the alleged offences are reported.

The delay may also be more readily explicable in cases, where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her e.g. as parent, stepparent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred."

The Chief Justice then recalled that he had emphasised in the P.C. case that it was not simply the nature of the offence which discharged the onus on the prosecution to explain the delay but that all the circumstances of the particular case had to be considered. He then pointed out that none of the factors relevant in the P.C. case applied to the P.M. case. All of this makes it perfectly clear that the Chief Justice was in no way intending to bring about a change in the understood principles of law applicable to these cases. What seems to have led the Director of Prosecutions into thinking that P.M. was in conflict with P.C. and in particular that the two respective judgments by the present Chief Justice were in conflict with each other was the fact that the Chief Justice included the second of the two special features which I mentioned as one of the grounds for granting the prohibition. But that was entirely consistent with the view which the Chief Justice had taken as to what were the principles to be applied and represented his view as to how those principles were to be applied in that particular case. I can find no justification for the suggestion that this court has recently altered or modified the principles applicable to these cases.

Before closing this topic however, I would like to refer back to three of the older non-sexual cases which the Director of Public Prosecutions and, indeed, applicants regard as nevertheless relevant to this jurisprudence. In D.P.P. v. Byrne already cited the court was dealing with a summary offence and, therefore, subject to the six month time limit. The issue was whether it was unlawful in the circumstances of that case to have allowed a long delay between the application for the issue of the summons and the actual issuing and serving of the summons. In that sense therefore the delay referred to was not analogous to so called "pre-complaint" delay. In a literal sense the Director of Public Prosecutions is correct in continually drawing attention to that fact. It is clear from the submissions in this and in other cases that the Director of Public Prosecutions considers himself supported in the relevance of that point by the following passage in the judgment of Finlay C.J. cited at p. 243 of the report.

"The offence concerned in this case, being an offence contrary to section 49 of the Road Traffic Act, 1961, as amended, was of course an offence if it was committed, which was known to members of the Garda Síochána immediately after its commission. No question therefore arises in this case as to the rights of an accused in relation to a trial where there has been a lengthy delay between the alleged commission of the offence and the time when it was reported either to the investigating bodies such as the Garda Síochána or to the Director of Public Prosecutions. Different considerations arise in those cases and are dealt with to some extent in the recent judgments of this court in G. v. Director of Public Prosecutions [1994] 1 I.R. 374."

In my view what the former Chief Justice is referring to there is the problem relating to sexual offences in relation to young children. This is a problem which he also adverted to in his judgment in ogaH

Hogan v. The President of the Circuit Court cited above at p. 521 of the report when he said the following:

"Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and a lapse of time before they are in a position to do so cannot give to an accused a right to prohibit a trial on the basis of the defeat of his constitutional right to an expeditious trial. For example, cases consisting of charges by young children in regard to assaults on them at an early age which are not brought to the attention of the authorities by such children until very many years after they occurred involve wholly different considerations from those applicable to the present case."

This passage has been misunderstood in some quarters. What the former Chief Justice is clearly referring to there is cases of alleged prosecutorial blame or misconduct. It is wrong to interpret that passage as in any way supporting the view that a long delay in making a complaint arising from sexual assault on a child can never give rise to an order of prohibition. Finlay C.J. is simply giving an example of a situation where the gardaí could not be blamed and where prohibition could not possibly be granted on the basis of any neglect on the part of the prosecution authorities.

To complete the picture it is necessary to refer briefly to G. v. Director of Public Prosecutions cited above in the passage from Finlay C.J. in D.P.P. v. Byrne. Clearly, the former Chief Justice used the words "to some extent" advisedly because of course the application in G. v. D.P.P. was merely an application for leave to apply for judicial review and, as is the practice, the court made it quite clear that it could not at that stage express any view on the issues raised. It was confined to considering whether they were reasonably arguable. But the reality is once Finlay C.J. thought fit to refer to the judgments in that case in Byrne's case it is necessary to look to that case to see what were the "different considerations" and in what way were they "dealt with to some extent".

At p. 376 of the report Finlay C.J. refers to the grounds for seeking the injunction and prohibition and that they were:

1. The length of time which had elapsed between the date on which the offences were alleged to have been committed and the date of any trial was so long that it raised a presumption of prejudice which could not be avoided or cured.
2. Certain specific grounds for apprehending that a prejudiced or unfair trial would take place if it were permitted to continue. These grounds being summarised as follows:

(a) The lack of specificity of the dates of the alleged offences.

(b) That the facts ranging from an unspecified date twenty six years ago to one the most recent twelve years ago were so long past that it would be unjust to try the applicant.

(c) That by reason of those factors the applicant could not hope to find witnesses who could reasonably be expected to give evidence as to his whereabouts or activities in the years 1967 to 1981 as would be required if he were to seek to establish an alibi in respect of all or any of the charges.

(d) That he did not have any diary or other document which would assist him in recalling his whereabouts or activities during the period and that the only defence available to him would be a simple unsupported and uncorroborated denial.

The former Chief Justice then set out the principles applicable to the granting of leave and applying those principles, he set out his conclusions which I propose setting out in full and which read as follows:

"(a) Quite manifestly the applicant has a completely sufficient interest in the matter, being the person directly charged in the proceedings which he seeks to prohibit.

(b) The facts established by the affidavit, consisting of the dates of the alleged offences and the nature and form of the charges brought against the applicant could in my view, be capable of demonstrating a sufficient elapse of time and such a lack of precision with regard to dates as to constitute grounds for asserting a real risk of an unfair trial. I do not of course express any view as to whether upon the full contested hearing of this application for judicial review this conclusion will be appropriate.

(c) It is my view arguable, and it is not desirable that I should express any further view, that as was submitted on the hearing of this appeal the mere length of time between the offences and the trial can in this case raise of itself an inference without any other matter of unfairness of trial. There is an arguable case also on the legal submissions made that the particular matters referred to at paragraph 8 of the affidavit which I have already summarised in this judgment, could constitute proof of a risk of actual prejudice.

(d) The applicant was charged on the 6^th of April 1993, with certain charges in the Garda Station and on the 29^th of June 1993, appeared before the District Court where further charges were proffered against them and the book of evidence served. He issued his application for leave to institute proceedings by way of judicial review on the 12^th of July 1993, and I am satisfied that either he comes completely within O. 84, r. 21(1) or, if it could be said that he did not, it could hardly be argued that he should not get an extension of time.

(e) With regard to the appropriateness of judicial review as a remedy in this case, the judgment of this court in The State (O'Connell) v. Fawsitt [1986] 362 at p. 379 quite clearly endorse the principle that if a person' s trial had been excessively delayed so as to prejudice his chance of obtaining a fair trial that the appropriate remedy was a judicial review even though the court of trial also has, of course, jurisdiction to prevent the trial."

In the light of what Finlay C.J. regarded as arguable grounds in G. and having regard to his specific reference to that case in D.P.P. v. Byrne, I cannot accept the view put forward on behalf of the Director of Public Prosecutions that everything which Finlay C.J. had to say about principles of delay in Byrne's case had no relevance to cases in which there was not culpable prosecutorial delay. The broad statements of principle enunciated by Finlay C.J. in Byrne's case and with which the other judges agreed were intended in my view to apply to every kind of criminal proceeding and to lapses of time whether before or after complaint or before or after charge. I feel supported in this view by the strong reliance placed by Blayney J. in Byrne's case on the English Court of Appeal decision in R. v. Telford JJ., ex p. Badhan [1991] 2 QB 78 in which Mann L.J. set out some important principles. Blayney J. quotes the following passage of Mann L.J. in p. 91 of the report.

"This is not a case where the length of elapsed time is due to some act or omission of the prosecuting authority which is 'unjustifiable'. In such a case, which is truly describable as one of 'delay' when an accused can show on the balance of probability that he has been, or will be, prejudiced in the preparation or conduct of his defence then an abuse of process should be found… leaving aside cases (of which this is not one) where the elapse of time is due to an accused having concealed his offence or his person, we are of the view than an elapse of time for which the prosecuting authorities are not to blame (my emphasis) can be such that an accused can be heard to say that a fair trial is no longer possible and the committal proceedings would therefore be an abuse of process. The period of the elapse is that between the date of the commission of the alleged offence and the date when the accused can first formally raise the point, that is to say immediately before the proposed opening of the committal proceedings. As in a case of delay, we think the onus will normally be on the accused to show that on the balance of probability a fair trial is now impossible. How the accused is to discharge the onus upon him must depend on all the circumstances of the case."

Blayney J. goes on to point out that that case was not concerned with summary proceedings but that in his view, it applied to all types of proceedings. Further on in his judgment at p. 253 of the report Blayney J. reiterates that where the delay is excessive a prosecution may be dismissed. In such a case prejudice may be inferred and he goes on to make clear that the position is the same where there has been no delay but there has been a long lapse of time for which the prosecution is not to blame.

I have dealt with this matter at some length because in this and in recent appeals, counsel for the Director of Public Prosecutions appears to be making a revisionist submission that pre-complaint delay is irrelevant subject to the proviso that the Director of Public Prosecutions does acknowledge that a court may always prevent a trial going ahead if such a trial would be unfair.

I would reiterate that the analysis that I have just attempted to make on the authorities must in the context of the view which I have taken of this case be regarded as obiter dicta because I am of the view that applying the traditional principles the learned High Court judge was correct in refusing the injunction. I would, therefore, dismiss the appeal.

I would add this rider. The length of time since the alleged offences, the age of the applicant, the distress which he has suffered especially with regard to publicity and media attention etc. may all be relevant to sentence in the event of conviction notwithstanding that these factors of themselves do not render an injunction appropriate.