Supreme Court of Ireland Decisions

 


THE SUPREME COURT

Record No.180/2003

Murray C.J.

McGuinness J.

Hardiman J.

Geoghegan J.

McCracken J.

BETWEEN/

DO'R

Appellant/Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered by Mrs. Justice McGuinness on the 30th day of July 2004 [Nem Diss]

In these judicial review proceedings the applicant sought an order prohibiting the Director of Public Prosecutions from taking any further steps in or further proceeding with the prosecution of the applicant on foot of sixteen charges of indecent assault and three charges of rape as set out in Bill No. CC35/2000. He also sought a number of related injunctive and other reliefs. The applicant was granted leave to issue his judicial review proceedings by order of O'Higgins J. on 5^th February, 2001 and the matter was heard and decided in the High Court by Gilligan J. By judgment and order dated the 11^th April, 2003, Gilligan J. refused the relief sought. It is against this judgment and order that the applicant has now appealed.

The applicant in his judicial review proceedings sought relief on two main grounds. The first was that the delay between the date of the alleged offences and the date of his proposed trial on the charges brought against him unavoidably prejudiced his right to a fair trial. The second ground was that the said delay had put the applicant at risk of an unfair trial due to publicity arising out of his plea and sentencing in relation to similar offences in 1997/8 and in 2000.

The facts

The factual background to the proceedings is set out in detail by Gilligan J. in his careful and comprehensive judgment. The facts may be briefly summarised here. The applicant is a man in his fifties who was employed as a swimming coach in a swimming club attached to a secondary boarding school between 1971 and 1993. The complainant, who was born in 1960, was a pupil at the school between 1971 and 1977. The complainant was a very talented swimmer. In her affidavit sworn 6^th July, 2001, she states that soon after her arrival at the school as a boarder she was invited to try swimming training by the applicant. Matters progressed from there until she was in almost daily contact with him. She states that for the four years between early 1975 and later in 1977 she was the victim of repeated incidents of sexual abuse at the hands of the applicant. She exhibits with her affidavit three statements which she made to Detective Garda Sarah Keane in August, 1999, October, 2000 and April, 2001 which provide a detailed account of the relationship which the applicant developed with her and the progress of his abuse of her which, she avers, was carried out under the guise of individual training for her successful swimming career. She was a boarder at the school and isolated from her family. Her swimming training took up the majority of her free time. The applicant exercised a high degree of control over her and was in a position of trust over her.

The complainant left school in 1977 and her evidence is that the applicant's sexual abuse of her ended in or about that time. However, she continued to be coached by the applicant for competitive swimming until in or about the end of 1979 or the beginning of 1980. At that time she suddenly abandoned her swimming career, changed her employment and went to live outside this jurisdiction. She subsequently married and has three children. Her evidence is that when she left her swimming career she attempted to deal with the abuse by putting it to the back of her mind and pretending that it had never happened.

In his judgment, the learned trial judge sets out the subsequent history of the complainant as follows (at p. 17 of the judgment):

"In the mid-1990s she says that she remembered watching a television drama about sexual abuse and about the same time read a newspaper article stating that another applicant, charged with the type of offences the subject matter of the within proceedings, had won his judicial review. Both of these incidents upset her. Her husband noticed this and asked whether she was alright. She told him that she had been affected. She remembered him comforting her but now knows that he did not understand what she meant. She felt that if she recounted what had occurred with the applicant it would end up the same way as the case against the other applicant.

On the day the applicant was sentenced on charges of child sexual abuse in January 1998, her husband brought home a newspaper. It contained a full picture of the applicant and a report of his conviction. The complainant's mother telephoned her and asked her had the applicant abused her and the complainant admitted this to her without going into any detail. The complainant also told her husband. He wanted her to go straight to the police but this was not possible because she was living in ( ). Soon afterwards, she discovered she was pregnant. In March and April 1998 she attended a Miss Radford from a counselling service for counselling. She was reluctant to make any complaint until the pregnancy had been concluded against a background where that while she has three children she had a total of six pregnancies. In June 1998 she was referred by her general practitioner to Ms. Ferguson, psychiatric social worker of Home First Community Trust, and Ms. Ferguson was the second person to whom she confided details of the abuse perpetrated upon her and she refers to a copy of the report as prepared by Ms. Ferguson on November 18^th 1999."

During 1998 the complainant contacted Detective Inspector Thomas Dickson and informed him that she had been abused by the applicant. At this time, however, on account of her pregnancy she did not wish to pursue her complaint until after her baby was born. In May 1999, she was contacted by Detective Garda Sarah Keane in connection with other investigations in relation to the applicant and in August, 1999 she made a formal statement of complaint to the gardaí. This was followed by a further statement made in October 2000. In addition she handed to the gardaí diaries covering the period of her connection with the applicant and also a number of letters from the applicant to her. These letters form part of the book of evidence which is exhibited in the affidavit of the applicant's solicitor, Ms. McGeever.

By arrangement with the respondent the complainant attended Domhnall Casey, a psychologist from the Institute of Psychological Medicine. Mr. Casey produced a report and swore an affidavit exhibiting this report. He was cross-examined in the High Court by counsel for the applicant and the transcript of his cross-examination has been provided to this court.

In his report he dealt in some detail with the complainant's background and childhood. Her parents and in particular her father were somewhat distant figures and "had a Victorian attitude to children". The applicant was charming and attractive and became a surrogate father to her. She was a passive child and even as an adult, Mr. Casey found her to be unassertive; she was suffering from bullying in her current employment.

Mr. Casey dealt with the reasons for the complainant's delay in reporting the applicant's abuse of her as follows:

"Her way of dealing with the alleged abuse was to 'walk away from the situation'. This was of a piece with, for a start, it would seem, the family's way of dealing with things. In her father's words, it was time 'to put it behind you'.

It was also MC's best way of coping. She almost literally walked away, to work, to (name of place). She physically tried to distance herself from the events, but that of course is not a solution and sooner or later they would have to be faced up to.

There is also the matter of shame. MC, to be sure, was bullied and seduced into 'collaborating' with the alleged abuse. But it is the element of 'collaboration' that paralyses victims and helps ensure their silence.

In my opinion, all of these factors played a part in keeping MC from coming forward. It takes time, if it ever happens, for all the integrating forces to gather in order to deal with outstanding issues like the trauma of sexual abuse in childhood."

In her affidavit the complainant also exhibits the psychiatric social work report by Joyce Ferguson, whom she attended for counselling in 1998/99. The learned High Court judge refers to this report in his judgment and it appears that no objection was raised to references made to it in the High Court despite the fact that Ms. Ferguson herself did not swear an affidavit. This report is more in the nature of a victim impact report rather than an analysis of the complainant's delay in reporting the abuse. It illustrates the present difficulties suffered by the complainant. These are listed in the judgment of the High Court.

As has already been pointed out the applicant's judicial review proceedings are grounded both on the issue of delay and on the issue of prior publicity concerning previous offences. In 1997 the applicant was charged with offences alleged to have occurred between 1991 and 1994 comprising unlawful carnal knowledge, indecent assault and sexual assault against a number of young females. In December, 1997 the applicant pleaded guilty to these charges in the Circuit Criminal Court. On the 30^th January, 1998, he was sentenced to a total of twelve years imprisonment. He is still in prison. His sentencing resulted in a large amount of dramatic and prejudicial publicity.

In June, 1998 there was considerable publicity arising from the publication of the Report by Roderick Murphy, S.C. (as he then was) on the extent of sexual abuse in Irish swimming. While the applicant was not named in the Report it dealt at length with allegations made against him.

In March, 2000 and May, 2000 the applicant pleaded guilty to further charges of sexual offences. On 28^th July, 2000 the applicant was sentenced to a further four years imprisonment on each of the charges then before the court. Again, his sentencing was followed by widespread and damaging publicity. Samples of the publicity concerning the applicant are exhibited in the affidavit of his solicitor, Ms. McGeever. It is notable that in some extracts the applicant is referred to as a "rapist" despite the fact that he had not been convicted of rape and that one charge of attempted rape had been withdrawn on the entering of a nolle prosequi by the Director.

The charges the subject matter of this application are the third set of charges against the applicant. It is of significance that the applicant was arrested and charged with these offences on 13^th March, 2000 while the second set of charges were still before the Central Criminal Court. On a number of occasions when either the second or the third set of charges were before the Central Criminal Court, counsel for the applicant sought orders restraining publicity on the grounds that such publicity would endanger the applicant's right to a fair trial on the third set of charges, to which on 26^th May, 2000 he had pleaded not guilty. Apart from a temporary order restraining publicity made on the 24^th March, 2000 which was reversed six days later no restraining order was made. In the High Court and in this court counsel for the applicant complained that counsel for the prosecution failed to support (though he did not oppose) these applications to restrain publicity. The learned High Court judge, correctly in my view, held that counsel for the prosecution had no necessary role in such applications as the making of such orders was a matter purely for the discretion of the trial judge. It must, however, be accepted that the result was a further flood of adverse and sometimes inaccurate publicity which was prejudicial to the applicant.

Detective Garda Sarah Keane in her affidavit refers to the fact that on January 20^th 2000 she travelled to the Curragh Prison in the company of Detective Garda Declan O'Brien to interview the applicant and she also refers to a cautioned statement made by him on that occasion. In this cautioned statement, which forms part of the exhibited book of evidence, the applicant stated that for the most part what the complainant had said was accurate and he also said that he wished to cooperate fully with the investigation. In the statement he went on to detail his version of certain factual matters accepting that he did have full sexual intercourse with the complainant on more than one occasion.

The judgment of the High Court

In his comprehensive judgment the learned High Court judge firstly set out the factual background in detail and then surveyed the psychological evidence as set out in the report of Ms. Ferguson and in the report and evidence of Mr. Casey. At p. 27 of his judgment, the learned judge refers to a question which he himself put to Mr. Casey:

"Mr. Casey was asked by me as to the basis on which he came to the conclusion that it was reasonable for the complainant not to make any complaints prior to the date when she did so and he referred to the fact that it is quite common, normal, if you like for it to stay dormant in them for a long time, years even. He said 'it is just a normal thing when people are abused, either some children blurt it out if they are strong and they have strong ego defences and a strongly developed ego. The complainant did not have a very – she has a background which I am sure you know about, Your Honour, so that when this happened she did not have the strong ego defences to say first of all, no, do not do this and secondly when it did happen or if it did happen for the first time, to stand up and say go to the police, go to her parents, go to someone else in authority. It is just the way it is. Kids are like that. Humans are like that when they have been violated in that way'."

Gilligan J. then went on to state that the legal issues for determination were delay and pre-trial publicity.

In regard to delay he outlined the submissions made on behalf of the applicant and the respondent. He went on to summarise the relevant legal principles applicable to delay in child sexual abuse cases, referring to a number of judgments both of this court and of the High Court. I will refer to these decisions at a later stage in this judgment.

Under the heading of pre-trial publicity the learned trial judge again outlined counsel's submissions and set out the relevant legal principles contained in such cases as D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and Z. v. Director of Public Prosecutions [1994] 2 I.R. 476.

Having considered the submissions and the law on delay, the learned trial judge concluded that the evidence satisfied him that "… on the balance of probabilities, as of the 28^th July, 1998 when the complainant presented to Ms. Ferguson she was still very much under the 'dominance' of the applicant, and that he was still psychologically maintaining a fetter on her capacity to face up to the situation which he caused by his actions. Resulting from the intervention of Detective Garda Keane and following upon counselling, she was able to make a formal complaint by way of a statement taken over two days on the 13^th and 14^th August, 1999 and on the evidence available, I would not criticise how personally in any way in relation to the delay in her actually making a complaint, and I consider that the delay is reasonable against the background where the delay was caused by the very actions of the applicant and resulted directly from his sexual abuse of the complainant."

Gilligan J. went on to hold that there was no element of prosecutorial delay in the matter and that no grounds had been advanced which would satisfy him on the balance of probabilities that the further prosecution of the applicant should be prohibited on the basis that there was a real and serious risk of an unfair trial due to delay.

With regard to pre-trial publicity Gilligan J. accepted that the general publicity afforded to the applicant was adverse to his character and prejudicial to him. The most serious aspect of this was that the applicant was wrongly referred to as a rapist. However, the court of trial would have available to it powers pursuant to s. 15(3) of the Juries Act, 1976 and would also be able to give all appropriate warnings to the jury. The learned judge concluded (at p. 62):

"In all the circumstances notwithstanding that there is in this case a risk of an unavoidably unfair trial I am not satisfied on the evidence adduced before me that on the balance of probabilities the applicant will be prejudiced to such a degree as to give rise to a real and serious risk of being deprived of a fair trial. I am satisfied on the balance of probabilities that the risk of an unavoidably unfair trial can be avoided by the appropriate handling of the applicant's trial by the trial judge putting into place the various procedures which are specifically designed in circumstances such as arise in this case to give an accused such as the applicant herein a fair trial."

The learned judge held that he was not satisfied that the applicant had discharged the onus of establishing on the balance of probabilities that the pre-trial adverse publicity would lead to a risk of an unavoidably unfair trial. He refused the reliefs sought by the applicant.

The notice of appeal

In his notice of appeal the applicant sets out twenty two grounds of appeal. A number of these, however, were not specifically pursued either in the written legal submissions on behalf of the applicant or in the oral submissions made by senior counsel for the applicant to this court. The main grounds of appeal which were relied upon related firstly to the reasons for the complainant's delay in making her complaint, including the question as to whether this delay could be laid at the applicant's door, and secondly, to the danger that due both to the delay and to pre-trial publicity the applicant could not receive a fair trial.

The following grounds as set out in the notice of appeal appear particularly relevant.

(iv) That the learned trial judge erred in fact and in law in determining that the appellant/applicant had failed on the balance of probabilities to establish the risk of an unfair trial.

(v) That the learned trial judge erred in law and in fact in finding that there was an adequate explanation for the delay of the complainant in reporting the alleged offences to the authorities.

(vi) That the learned trial judge erred in law and in fact in finding that the delay on the part of the complainant was caused by the wrongful actions of the appellant/applicant and resulted directly from his sexual abuse of the complainant.

(vii) That the learned High Court judge erred in law and in fact in failing to attach appropriate weight to the evidence before the court that the complainant herein had applied reason in deciding not to complain to the gardaí.

(xvi) That having held that there was considerable publicity which contained very dramatic material which was adverse to the applicant's character and prejudicial to him, the learned trial judge erred in law in refusing to grant the relief sought.

(xxi) That the learned trial judge erred in fact and in law in refusing to consider the nexus between the delay in the making of the complaint and the prosecution of the appellant/applicant and the prejudicial pre-trial publicity in assessing whether or not the appellant/applicant could have a fair trial on the offences alleged.

Submissions of counsel

Senior counsel for the applicant, Mr. Gageby, summarised the issues before the court. The facts were not to any great extent in issue. There was a lapse of over twenty years between the date of the final charge of indecent assault brought against the applicant and the date of the complainant's first statement to the authorities. The first issue that arose was whether that delay could be laid at the door of the applicant.

The second issue was whether the factors of delay and of pre-trial publicity either separately or in combination led to a situation where there was a real and serious risk of an unfair trial.

As far as the first issue was concerned Mr. Gageby submitted that the psychological evidence did not demonstrate that the complainant was incapable of complaining but rather that, at least from 1994 onward, she made an informed choice not to complain. In 1994 the complainant became aware of the charges of sexual abuse brought against another well-known swimming coach and of the fact that he had succeeded through judicial review proceedings in prohibiting his trial. At that point the complainant made a reasoned decision that it was too late for her to make a complaint about the applicant. In her affidavit she averred that she felt that if she recounted what had occurred with the applicant it would end up the same way as the case against the other coach. Mr. Gageby pointed out that had the complainant made her complaint in 1994 or shortly thereafter her case would have been dealt with along with the other matters with which the applicant was charged in 1998, thus avoiding the storm of pre-trial publicity.

Counsel drew attention to the reply given by Mr. Casey in cross-examination in regard to his instructions (transcript of 20^th February, 2003 page 4 question 1) where he said that he was to give his view as to whether the complainant's delay in reporting the alleged incidents was "reasonable". This formulation was reflected in the conclusions of the learned trial judge at page 55 of his judgment where he said:

"When dealing with the complainant, he (Mr. Casey), considered it very reasonable to assume that the revelations concerning the other applicant would knock her off course and in this regard the complainant advised him that in respect of the other applicant's case, she felt very isolated. I accept Mr. Casey's evidence in this regard and for the avoidance of any doubt, I find it reasonable for the complainant not to have made any complaint to the garda authorities in the mid-1990s."

Mr. Gageby argued that the learned trial judge had applied the wrong test. It was not sufficient to find that the delay was reasonable; it was necessary to find that the complainant was incapable of complaining at an earlier date.

Mr. Gageby also drew attention to the effect of the complainant's delay on the charges which were faced by the applicant. The first three charges of indecent assault related to a time when the complainant was under fifteen and therefore no question of consent could arise. However all the remaining indecent assault charges and the three rape charges related to a time when the complainant was aged between fifteen and seventeen years. Had complaints been made at an early stage it was likely in the circumstances of the case that the applicant would have been charged with unlawful cardinal knowledge, a much lesser offence. The offence of unlawful carnal knowledge was, however, statute-barred after a period of twelve months. As a result the applicant was faced with a charge of rape which carried a maximum penalty of life imprisonment.

Mr. Gageby referred to the applicant's statement to the gardaí in January, 2000. The fact that the applicant acknowledged that the complainant's history of events was "for the most part accurate" did not, as assumed by the learned High Court judge, amount to an acknowledgement that the applicant had admitted to offences of rape and indecent assault. As far as all alleged offences occurring after the complainant was aged fifteen were concerned, an issue of consent arose and this was a defence which was open to the applicant at a possible trial.

Counsel for the applicant dealt in some detail with the applications to restrain publicity which were made in 2000 to the Central Criminal Court. The situation was somewhat confused by the fact that the relevant orders could not be traced either by the defence or by the prosecution. Had the restraining orders been made the second wave of publicity which was more damaging because it was more recent would have been avoided. The publicity relating to the applicant had been constant since the early 1990s. It had featured in every organ of the media. The applicant had been filmed and photographed going in and out of the courts and media reports had frequently referred inaccurately to him as a rapist while accurately recording graphic details of the offences and the circumstances surrounding the offences to which the applicant previously pleaded guilty.

The nature of the pre-trial publicity in this case was focussed on the applicant's previous convictions. This is a factor which is considered so prejudicial in trials of this nature that it is not normally admissible prior to sentencing. This amounts to recognition by the law of the risk of prejudice arising from such information which cannot definitely be rectified by directions from the trial judge.

Finally, Mr. Gageby submitted that this was not a case where the so called "fade factor" applied. Once the facts of the offences alleged against the applicant were opened to the jury, the likelihood was that the jury would be reminded of his previous offences and would find it impossible to eliminate this knowledge from their consideration of the offences with which he was now charged.

Senior Counsel for the Director, Mr. McDonagh, relied on the reasoning and conclusions of the learned High Court judge. He pointed out that the complainant had not been cross-examined on her affidavits. Although Mr. Casey had been cross-examined his conclusions had not been challenged. The complainant's own evidence showed clearly that she had been very much under the control of the applicant. She was an isolated child; her relationship with her parents was distant. She was in boarding school and the evidence was that the applicant ensured that swimming and swimming related activities took up virtually all her time. He became her surrogate father. He was in a position of trust and used that position to abuse the complainant. When she was away from him he maintained his control over through his letters. This control, or dominion, remained a force in her life right up to the time when she eventually made her complaint.

With regard to the dangers of an unfair trial on account of delay, Mr. McDonagh stressed that the issue at the proposed trial appeared to be one of consent. A defence of consent in a sexual offence case was virtually always a matter of the credibility of the two parties concerned; a delay would make no difference here. The nature of the alleged offences meant that they were not witnessed by third parties. In any case the applicant acknowledged the general accuracy of the complainant's account. The applicant had made no claim with regard to independent evidence which might no longer be available to him.

With regard to the pre-trial publicity issue Mr. McDonagh relied in particular on the cases of D v. The Director of Public Prosecutions [1994] 1 ILRM 435 and Z v. The Director of Public Prosecutions [1994] 2 ILRM 481. He submitted that the circumstances that led to the prosecution of the applicant in Z v. The Director of Public Prosecutions were the subject of more publicity, both nationality and internationality, than any other case in Ireland since the foundation of the State in 1922. The trial of Z arose from the "X case" which had led to no less than three constitutional amendments being put to the people in a referendum in 1992. The Z case was aptly described by Hamilton P. in the High Court as one of "massive national coverage – of media saturation – a case where a story has been told and retold in all forms of media, repeatedly over a long time, to the public, subsequent to the injunction proceedings, during the referendum debate and the charging in the District Court and the return for trial of the applicant." In that case twelve volumes of material constituting publicity in the case were placed before the High Court when the applicant sought to prohibit his trial. Most of this publicity had been sympathetic to the complainant. In the event neither the High Court nor the Supreme Court was willing to prohibit the trial.

In this court Finlay C.J., delivering the judgment of the court, adopted the "real risk" test but added that the onus of establishing a real risk entailed the necessary and inevitable consequence that an unfair trial was one that could not be avoided by appropriate rulings and directions from the trial judge. He said that "The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."

(Page 500).

Mr. McDonagh also relied on a number of English authorities including R. v. Kray [1969] 53 Cr. App. R. 412 and R v. West [1996]

2 Cr. App. R. 374. In the latter case it was judicially recognised that if the Superior Courts were too willing to prohibit criminal trials on the ground of adverse pre-trial publicity, one of the many unsatisfactory results would be that the more notorious or reprehensible the crime, the more likely the accused would be to escape trial and conviction.

Mr. McDonagh also referred to the "fade factor" which was applied by Kelly J. in Quinlivan v. Conroy [2000] 2 ILRM 516. This had also been acknowledged by Carroll J. to be a factor in relation to the prosecution of Mr. Charles J. Haughey on charges of obstructing a tribunal of inquiry in DPP v. Haugh (2) [2001] 1 IR 162 at 169. Counsel submitted that in the present case much of the publicity complained of by the applicant had been disseminated sufficiently far in the past as would justify the court, having regard to the fade factor, in concluding that the applicant had not made out his contention that he ran a serious risk of not obtaining a fair trial.

The law

The present case is one of a considerable number of cases which have come before the High Court and this court in which the court has been asked to restrain the prosecution of sexual offences because of the time which has elapsed since the offences were allegedly committed. In the jurisprudence of this court a distinct approach has been developed in cases of this type. It is well accepted that the classic statement of this approach is to be found in the judgment of Keane J. (as he then was) in

P.C. v. The Director of Public Prosecutions [1999] 2 IR 25. In a much quoted passage beginning at page 67 of the report Keane J. said:

"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. The Director of Public Prosecutions [1997] 3 IR 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, step-parent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and a degree of fear on the part of the child may be more readily inferred.

This is not to say that the Court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the Court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every such case is whether the Court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved.

Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial 'in due course of law'. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that he capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether a Court is satisfied there is a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.

If that stage has been reached, the final issue to be determined will be whether the degrees of which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary enquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

This approach has been followed in subsequent cases and in many aspects it is applicable to the present case. Reference has been made to a number of these subsequent cases in the written submissions on behalf of the applicant but in general they do no more than elaborate on the judgment in the P.C. case in the light of their particular facts. In general where prosecutions have been prohibited a particular set of evidential facts on which the applicant can no longer rely has been held to demonstrate that there is a real and unavoidable risk of an unfair trial.

In a number of these delay cases there has been some controversy over the expert psychological evidence put forward by the Director of Public Prosecutions to elucidate the reasons for a particular complainant's delay in reporting alleged abuse to the authorities. A number of judges in the High Court and in this court have been critical of the nature of the evidence proffered (see, for example Kearns J. in A.W. v. The Director of Public Prosecutions) (unreported 23^rd November, 2001), and Hardiman J. in J.L. v. The Director of Public Prosecutions [2000] 3 IR 122. In my judgment in D.W. v. The Director of Public Prosecutions (unreported, Supreme Court, 31^st October, 2003), which may be of relevance in the present case, I considered some features of this type of evidence. At page 35 – 37 of the report I said:

"It has in recent years become customary for the Director of Public Prosecutions to proffer the evidence of a clinical psychologist in these cases. This evidence is generally aimed at explaining the psychological causes for the phenomenon of delay in reporting offences of sexual abuse, particularly where the alleged victim is a child or a young person at the time of the offence.

In many cases, as in the instant case, its purpose is also to relate these general principles of delay to the facts of the individual case, together with the history and character of the alleged victim.

Where evidence of this second type is proffered it is generally based on an interview, or occasionally more than one interview, with the complainant together with the reading of some of the material contained in the pleadings and/or the proposed Book of Evidence. A report is then prepared for the Court.

In a number of cases this has given rise to prolonged, detailed and technical cross-examination of the psychologist in question by counsel for the applicant. It might also be suggested that counsel are developing an expertise in this area of psychology with a view to cross-examination of this type. As I pointed out earlier, Ms. Yoder was subjected to just such a lengthy cross-examination in this case; this cross-examination was carefully considered and analysed by the trial judge in the Court below. One might be forgiven for questioning whether certain aspects of this cross-examination, particularly those relating to the technical meaning of particular words, were really necessary or were of much assistance to the Court.

It is also true that from time to time the reports and evidence of experts in these cases have been quite severely criticised by judges; some examples of these criticisms were opened to the Court by Mr. Hartnett.

It seems to me that there are two ways in which expert psychological evidence can be of assistance to the Court in these cases.

In certain cases there is ample ordinary evidence which would assist the Court in understanding, from its own common sense and general experience of life, why, for example, a child did not immediately report sexual abuse by an adult. The case of B. v. The Director of Public Prosecutions [1997] 3 IR 140 is one example. In such cases, it seems to me, any expert evidence could be limited to a general exposition of the reasons for delay in reporting these cases. The numbered list of factors set out by the expert witness in the case of K. v. Judge Groarke and the DPP at page 3 – 4 of the judgment of Denham J. in that case is a good example.

It would then befall the Court to form its own opinion if the influence of these factors within the perimeters of the other evidence in the particular case.

In some cases, however, the reasons for the delay are less clear and less readily ascertainable. In such cases expert evidence in greater depths may be required and further evidence may be considered appropriate.

All such evidence is open to challenge and cross-examination. It must, however, be borne in mind that it is not the task of the expert witness to assess the credibility of the complainant or the guilt or innocence of the applicant. The truth or otherwise of the complaint is to be tested at the trial of the applicant."

In the case of M.K. v. Judge Groarke and the DPP (unreported, Supreme Court Denham J. 25^th June, 2002) among the list of factors mentioned by the expert witness in that case were the following:

"(1) Child sexual abuse often involves a known adult who is in a legitimate position of power over a child and who exploits accepted societal patterns of dominance and authority to engage in sexual activity which the child does not comprehend or understand. The power and authority of adulthood and/or the position of authority occupied by the abuser conveys to the child that the activity is acceptable and sanctioned.

(2) It is not possible in my opinion to overemphasise the significance of the exploitation and misuse of accepted power relationships in assessing the impact of sexual abuse on a child, including the failure or otherwise of the child to disclose the fact of the abuse or to make a complaint at the time the abuse was taking place, in subsequent years, or indeed at all.

(3) Sexual abuse invariably gives rise to feelings of guilt and shame on the part of the victim.

(4) The victim may feel that she/he will not be believed if they complain or alternatively may be daunted by what they see as the difficulties of having their story accepted. The abuse may also give rise to confusion in the mind of the victim and cause reluctance to complain."

In the present case the issue of delay, however, is complicated by the additional issue of pre-trial publicity. As was submitted on behalf of the applicant, if the complainant had made her complaint at an early date or even in the middle 1990s when she heard of the charges against another swimming coach, the present difficulty of pre-trial publicity would have been avoided.

The issues of the effect of pre-trial publicity on the deliberations of a jury and whether such publicity may deprive an applicant of his right to a fair trial were fully discussed in D. v. The Director of Public Prosecutions [1995] 1 ILRM 43 and Z. v. The Director of Public Prosecutions [1994] 2 ILRM 481. In D. v. The Director of Public Prosecutions this Court held that the right of an accused to a fair trial is of fundamental constitutional importance and the question which the Court must answer is whether there is a real risk that the applicant would not obtain such a fair trial because of the coverage of the case in the media. The appropriate burden of proof on an applicant in establishing the likelihood of an unfair trial is to show that there is a real or serious risk that there will be an unfair trial. Finlay C.J. in that case concluded that "the standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there was a real or serious risk of that occurring." Blayney J. agreed with the standard proposed by the Chief Justice. He went on to discuss the possible effect on a jury of the newspaper article which was in question in that case, as follows:

"The question then is, would a juror whose sympathy for the complainant had been aroused by the article, be incapable of giving an impartial verdict? I would accept that there would be a slight risk of this, but no more than there would be in any other case where there is room for sympathy for the complainant. In a criminal trial the members of the jury are made very aware of the heavy responsibility they have as judges of the guilt or innocence of the accused. It begins with their individually taking an oath to 'well and truly try the issue whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him and a true verdict give according to the evidence'. They are then reminded by the trial judge in his charge at the end of the case that they must decide the case only on the evidence before them, that they must put out of their minds anything they may have heard or read about the case from any other source, and that they must not allow themselves to be swayed by sympathy but decide the case on facts. What must be borne in mind also is the impact made on the jury by hearing the witnesses in the case, by having the evidence at first hand presented to them. Are they going to permit their assessment of that evidence to be influenced by a vague recollection of something they read in a newspaper some months before, particularly when to do so would be to disregard their oath and to disregard the clear directions given to them by the trial judge? In my opinion there is not a real or serious risk that they would permit themselves to be influenced in this way …"

Denham J. agreed with the view of Blayney J.

In D. v. The Director of Public Prosecutions, however, the pre-trial publicity consisted of a single article in a Sunday newspaper. The situation in Z. v. Director of Public Prosecutions was much more like the situation in the present case. The applicant in Z committed a number of sexual offences against a young girl who had been the subject of civil proceedings entitled Attorney General v. X [1992] 1 IR 1. This case of Attorney General v. X had given rise to enormous amounts of publicity including public agitation and political controversy. It had given rise to three referenda two of which resulted in changes to the Constitution. As was pointed out by Mr. McDonagh in his submissions on behalf of the Director, volumes of extracts of prejudicial pre-trial publicity contained in the media and extracts from parliamentary debates which included adverse comments concerning the facts and circumstances given rise to the criminal prosecution were produced to the court. In the High Court, Hamilton P. (as he then was) pointed out that the publicity in the case was sympathetic towards the plight in which the complainant, a young girl, found herself and antagonistic to the person alleged to have been responsible for her plight who was variously described as "a rapist", "an alleged rapist" and "the man in the X case". He stated that it was clear that any person reading or hearing such material would be likely to feel a sense of outrage and be prejudiced against the person alleged to have been responsible. He went on, however, to say (at p. 495):

"Obstacles in the way of a fair trial are often encountered in administering criminal justice. One of these obstacles is adverse publicity in the reporting of notorious crimes and this is a feature of modern times."

The Chief Justice stated in his judgment in the D. case (at p. 437):

'Even though it is clear that in the interests of justice much greater vigilance should be shown by newspapers in the type of publicity which they give to crimes in which trials are still pending, it is not to be taken that every criminal trial in respect of an offence which has received significant publicity will by that fact become an unfair trial.'

If a contrary view were taken, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity.

When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness particularly to the accused is heavy and burdensome but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues save where there is a real risk of the likelihood of an unfair trial. The responsibility is discharged by controlling the procedures of the trial, by adjournments or other interlocutory orders, by rulings on the presumption of innocence, the onus of proof, the admissibility of evidence and especially by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. More than usual care however is called for in the empanelling of a jury and in the conduct of a trial in cases of this nature."

Hamilton P. refused to prohibit the trial in that case.

Hamilton P.'s decision was upheld by this court. In his judgment, Finlay C.J. pointed out (at p. 499) that "where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial." Later in his judgment, Finlay C.J. described the dilemma which faces the judge in a trial of this sort where a particular case or a particular applicant had become notorious. He said (at p. 499 to 500):

"In many instances, pre-trial publicity may be particularly damaging in regard to the question of a fair and unprejudiced trial where a trial judge is faced with a dilemma that to remind the members of the jury at the commencement and during the course of the case of that publicity and to point out that they must in its entirety ignore it in carrying out their deliberations which must be completely confined to the evidence sworn before them, he may be reminding jurors of publicity or of a link between the publicity and the case they were trying of which they were unaware of. No such danger exists in this case and I take the view that a trial judge will be able in a specific way and with considerable specific detail to point out to a jury at the very commencement of the trial, accepting the admitted fact that the trial must be associated with the case of Attorney General v. X, that the controversy, media publicity, newspaper and magazine commentary arising from that case and from other issues of national policy which were in a sense raised by it are wholly irrelevant to the trial and must be completely put out of their minds. I am satisfied that a jury so fully and amply instructed will be able to bring to the trial of the case an impartial mind and will be particularly scrupulous about preventing themselves or indeed in a sense preventing each other from deciding the case based on any view arising from this type of general publicity or controversy."

Conclusions

It is now necessary to apply the above principles of law to the facts of the present case.

The first issue which falls to be considered is the complainant's delay in reporting the alleged abuse to the authorities and, as expressed by Mr. Gageby, whether this delay can be laid at the applicant's door. In accordance with the judgment in PC v. DPP, for this purpose the court may assume the truth of the complainant's allegations. In my view, counsel for the applicant is correct in his submissions that it is not sufficient to show that the complainant's delay was "reasonable"; what must be shown is that she was inhibited from complaining, or incapable of complaining, by reason of behaviour which can be attributed to the applicant. On the case law this behaviour may be manifested in overt actions such as physical violence or threats but it may also be manifested in the more subtle form of dominion or psychological control. In the present case it is this more subtle form of behaviour that is in question. In considering whether the complainant was rendered incapable of reporting the abuse the expert evidence of Mr. Casey is, of course, important. In my view, however, the evidence of the complainant herself concerning both her circumstances and her state of mind is of even greater importance. While it is understandable from the point of view of the applicant and his legal advisers that the complainant was not cross-examined on her affidavit and her statement, nevertheless this means that her evidence remains unchallenged before this court. Again, while I accept the point made by Mr. Gageby that the applicant did not in his statement admit to criminal offences and that the defence of consent remains open to him, the applicant appears to accept in general terms the facts of the complainant's relationship with him.

The picture that emerges from that evidence is of an eleven year old girl leaving the home of her parents and arriving at boarding school. She seems not to have been very secure even in her relationship with her parents. From the beginning at school her undoubted prowess as a swimmer led her into a form of special relationship with the applicant. Outside the actual classroom virtually all her time seems to have been spent with the applicant. He encouraged her, treated her as a special person, developed her swimming skills, oversaw her life as a competitive swimmer. He was an adult, she was a child; in many ways he became a surrogate father to her. As far as the actual sexual abuse is concerned his approach was gradual and progressed under the cover of massage and physiotherapy to improve her swimming skills. He distanced her from her friends and her family. He encouraged her to keep a diary but insisted on reading it himself so that she was deprived of privacy in regard to it. When she was absent from him he wrote letters to her. These letters are exhibited as part of the book of evidence in the affidavit of Ms. McGeever; they are remarkable, in my view, as demonstrating the closeness of the relationship and the degree of control by the applicant of the complainant. An extract from a letter written on the 10^th April, 1976 to the complainant will give an example:

"The past four years have been a pleasure in every way to me. I put them down (to date) as the best years of my life. I am convinced I could not be in coaching or at (name of school) now if you had not come along. My interest in you and your swimming is endless…

M, I am looking forward to next weekend and the race for months. For a long time they will turn out to be the most important few months of our lives. It will be a huge victory for you but it will also be the start of a top international career for me. You will be the first of many. You will always be the most important to me. There is no doubt you will have further great successes but remember this will be the big one. The only thing that will mean more to you will be the day you know you have reached top world class standards.

I sincerely hope that the years you have spent with me will always be engraved in your memory. Since the first time you walked into the (name of school) pool you have been on my mind. I always knew you were Olympic potential. My dreams are being realised. I hope some day yours will be too."

Towards the end of her period as a competitive swimmer the sexual relationship ended and it appears that the applicant became critical of the complainant's swimming and compared it with unfavourably with that of others. She seems to have felt this as a rejection, abandoned swimming, changed employment, married and moved residence. She herself says that she attempted to deal with the abuse by putting it to the back of her mind and pretending that it never happened.

It must surely be of considerable significance, however, that despite her efforts to "pretend that it never happened" and despite her twenty years of marriage and her family of three children, she still kept both the diaries of her swimming life and the applicant's letters to her. Even after she apparently believed in 1994 that there was little point in making a complaint to the authorities because it was too late she still kept the diaries and letters and was able to produce them to Detective Garda Keane.

This picture of the relationship derives from the evidence of the complainant herself. This court must add to it the expert evidence of Mr. Casey that "it takes time, if it ever happens, for all the integrating forces to gather in order to deal with outstanding issues like the trauma of sexual abuse in childhood". While I would disagree with his, and the learned trial judge's, use of the term "reasonable" to describe the complainant's attitude of mind, I feel that this is an error in nomenclature rather than an error of principle. There is, in my view, no doubt that the complainant was until 1998/9 inhibited from and incapable of making a complaint to the proper authorities and that this inability was due to the controlling and continuing nature of the applicant's relationship with her.

In the light of that finding, the court must now consider whether there is a real and serious risk to the applicant of an unfair trial. In the majority of the delay cases, where it has been found that there was a risk of an unfair trial, that finding has arisen from matters of potential evidence which may no longer be available to an accused person – evidence which has been described by Hardiman J. as "islands of fact" on which the accused person could rely in his defence.

This difficulty does not appear to arise in the present case. Delay will always cause some difficulty in a trial but in this case it does not appear that a serious risk due to delay itself has been established. The memory of both parties seems to be good. All the incidents described took place in private, so that no independent witnesses would have been available at any time. It appears that the defence on which the applicant may rely is one of consent. If that is so the core issue at any possible trial is likely to be the credibility of the parties themselves.

Delay in itself, therefore, does not create a real and serious risk of an unfair trial.

A much greater difficulty is caused by the large amount of publicity which attended the sentencing of the applicant on the two previous occasions. It is, of course, true that this issue is related to the complainant's delay, since an earlier complaint would have enabled this charge to be included with earlier charges. I would also accept that pre-trial publicity would have been diminished if restraining orders had been made in regard to the second set of charges. However, this court must now look at the situation as it is rather than how it might have been.

The learned trial judge is clearly correct in accepting that the publicity involved was damaging to the applicant and was prejudicial. It is particularly damaging that the applicant was inaccurately described as a rapist. It is difficult to understand why tabloid newspapers in particular do not take even minimal care to reflect correctly the actual offences of which accused persons are convicted or for which they are sentenced. Such inaccuracies are deserving of severe criticism and are to be condemned.

Nevertheless it must be borne in mind that the description of the applicant as a rapist was published some four years ago. Even if the "fade factor" does not fully apply in this case it seems unlikely that potential jury members would remember the specific terms of the allegations made against the applicant in some sections of the media.

An important factor in the present case also is that the publicity of which the applicant complains was engendered by the offences with which he was previously charged and to which he pleaded guilty. Thus he himself must bear at least a degree of responsibility for this publicity.

Counsel for the Director relies on the authority of D. v. DPP and of Z. v. DPP in his argument on this aspect of the present case. In his judgment in D. v. DPP Finlay C.J. set out the test to be applied:

"The standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there was a real or serious risk of that occurring."

In Z. v. DPP Finlay C.J. reiterated this test but added that the onus of establishing a real risk entailed the necessary and inevitable consequence that an unfair trial was one that could not be avoided by appropriate rulings and directions from the trial judge. It must be accepted that the volume of publicity surrounding the Z case far exceeded the adverse publicity suffered by the present applicant. Despite that, Finlay C.J. took the view that:

"… a trial judge will be able in a specific way and with considerable specific detail to point out to a jury at the very commencement of the trial, accepting the admitted fact that the trial must be associated with the case of Attorney General v. X, that the controversy, media publicity, newspaper and magazine commentary arising from that case and from other issues of national policy which were in a sense raised by it are wholly irrelevant to the trial and must be completely put out of their minds."

It must also be remembered that, as pointed out by Carney J. in DPP v. Haugh [2000] 1 I.R. 184, the trial judge will have available the powers provided under s. 15(3) of the Juries Act, 1976. Under this subsection the trial judge is directed to invite any person who knows that he is not qualified or who may have an interest in or connection with the case of the parties to communicate that fact to the judge either orally or otherwise if he is selected on the ballot.

Carney J. explained the purpose of this provision as follows:

"This is a new provision and nothing comparable appeared in previous juries legislation. It has two purposes. Firstly, it acts as the final filter to weed out from the jury panel any person who might be disqualified or ineligible to serve…. Secondly, it seeks to ensure that the jurors empanelled will be disinterested and unbiased in the broadest sense of the term."

The applicant in this case has the burden of demonstrating that there is a real, serious and unavoidable risk of an unfair trial. The standard of proof to be applied is the balance of probabilities. Bearing in mind the powers of the trial judge under the Juries Act, 1976 and the capacity of the trial judge to give proper directions to the jury, it seems to me that in this case, as in Z. v. DPP, the applicant has failed to discharge that burden.

I would dismiss the appeal.