JUDGMENT of Mr. Justice Kearns
delivered the 5th day of April, 2006
The issue to be decided in
this appeal is whether, in cases where a considerable period of time
has elapsed between the dates of alleged offences and the making of
an initial complaint by the victim and where, in addition, there has
been blameworthy delay thereafter by the prosecution, the trial
should be prohibited by reason of that blameworthy delay alone, or
whether the accused person should also be required to demonstrate
that some interest protected by the right to an expeditious trial
has been so interfered with as to entitle him to the relief
sought.
The applicant was born on the
9th September, 1941. On the 21st September, 2001, the applicant was
sent forward for trial on three counts of gross indecency alleged to
have been committed with G.L. on various dates between the 1st
August, 1982, and the 31st December, 1985. G.L. is the applicant’s
nephew, the complainant, who was born on the 3rd May, 1969. He was
aged between 13 and 16 years at the time when the alleged offences
were committed. The applicant was aged between 41 and 44 years at
that time. The complainant lived with his family in a house next
door to the applicant’s family home. The offences are alleged to
have been committed in G.L.’s family home.
G.L. made statements of
complaint to Garda Brendan Kelly at Tallaght Garda Station in
February, 1998. He was further interviewed by Garda Kelly on the 4th
April, 1998, in relation to the dates and times of the alleged
offences. On the 20th July, 1999, the applicant was arrested and
questioned in relation to the alleged offences. A decision to
prosecute was made by the respondent on the 7th November, 2000. As a
result the applicant was arrested, charged and cautioned on the 11th
December, 2000.
In seeking to have his trial
prohibited, the applicant relied both on the lapse of time between
the dates of the alleged offences and the making of a formal
complaint and also on the lapse of time between the making of that
complaint and the date of being charged. Having considered the
evidence of both G.L. and a clinical psychologist, Dr. Melissa
Darmody, who was cross-examined by counsel for the respondent,
O’Caoimh J. in the High Court concluded that the lapse of time
between the alleged offences and G.L.’s complaint was referable to
the accused’s own actions. The learned High Court judge further
declared in a judgment delivered on the 7th May, 2004, that he was
not satisfied that the degree to which the applicant’s ability to
defend himself had been impaired was such that the trial should not
be allowed to proceed on that particular account.
O’Caoimh J. however,
concluded that a period of approximately 34 months which had elapsed
between the making of the initial complaint and the charging of the
applicant was inadequately explained. The court concluded that there
had been “blameworthy
delay” for which the respondent was
responsible during that 34 month period.
The issue that then arose was
whether it was necessary in the circumstances of any such case for
an applicant to identify any particular circumstances other than
blameworthy delay on the part of the prosecution before securing the
relief sought. In determining this issue, O’Caoimh J. considered the
leading authorities opened to him on the point, namely,
P.P. v. D.P.P.
[2000] 1 IR 403, a
decision of the High Court, per Geoghegan J., B.F. v. D.P.P. [2001] 1 IR 656, a decision of the
Supreme Court, per Geoghegan J., McKenna v. The Presiding Judge of the
Dublin Circuit Criminal Court & D.P.P. (Unreported, High Court, Kelly J.,
14th January, 2000), McNamara v. MacGruairc (Unreported, Supreme Court, 5th July,
2001) and P.M. v.
Malone [2002] 2 IR 560.
The learned High Court judge
observed that these authorities disclosed two different approaches
towards delay attributable to the prosecuting authorities. The
first, as expressed in P.P. v. D.P.P. and B.F. v.
D.P.P., is to the
effect that where there has been a long lapse of time in the making
of a complaint, it is particularly important that there should be no
blameworthy delay on the part of the Gardaí or the Director of
Public Prosecutions. Where there is such delay the prosecution
should be stayed even in the absence of proof of any prejudice to
the applicant. However, on the other hand, the decisions in
McKenna v. The
Presiding Judge of the Dublin Circuit Criminal Court &
D.P.P.,
McNamara v. MacGruairc
and P.M. v. Malone support the proposition that, even
where such blameworthy delay is found to exist, the applicant must
go on and satisfy the court that he has suffered or is in a real
danger of suffering some form of prejudice as a consequence of this
delay in order to obtain the relief sought. In the instant case,
counsel for the appellant argued that the learned High Court judge
effectively decided to apply P.P. v. D.P.P. to hold that no prejudice need be established where
prosecutorial delay was established and in consequence made an order
restraining further prosecution of the respondent.
The appeal is accordingly
brought to determine whether the finding of the High Court judge in
this respect is correct in law. The appellant does not contend,
however, that unexplained delays for which the prosecution bears
responsibility are to be disregarded
when determining whether an applicant is entitled to a stay by
reason of the lapse of time between the commission of the alleged
offences and the trial. Moreover, the appellant accepts the premise
that where there has been a long delay between the commission of the
alleged offences and their coming to the attention of the
prosecution authorities, the latter are under a special obligation
to expedite any subsequent investigation and prosecution. What the
appellant contests, however, is the notion that an applicant is
entitled to a stay upon criminal charges solely by reason of delay
for which the prosecution authorities are deemed to be responsible.
In written submissions lodged in advance of this appeal, the
appellant invited this Court to determine that the principles
enunciated in P.M. v.
Malone differed from
and were to be preferred to those
indicated in P.P. v.
D.P.P.
In a nutshell, therefore, the
appellant’s sole point on the appeal is to invite this Court to
determine whether, in a case of blameworthy prosecutorial delay,
there is nonetheless an obligation on an applicant to establish in
addition some degree of prejudice referable to the breach of his
right to an expeditious trial which would entitle him to a
prohibition order.
The respondent in turn
brought a cross-appeal from the finding of the learned High Court
judge that the delay on the part of the complainant in making a
complaint in this particular instance was referable to the actions
of the applicant. In particular, the learned High Court judge is
alleged to have erred in relying on the evidence of Dr. Darmody and
in finding that it was evidence which was, in conjunction with the
complainant’s own evidence, sufficiently explanatory of the reason
for delay in making a complaint and that such delay was attributable
to the circumstances arising from the abuse.
In particular, complaints
were made that Dr. Darmody did not consult with any of the
psychiatrists who had treated G.L. during much of the period of the
delay, and, in particular, a Dr. McGrath to whom G.L. had, in 1987,
disclosed the sexual offences alleged. It was further alleged that,
by reason of the fact that Dr. Darmody is a psychologist and not a
psychiatrist, she was inadequately qualified to comment upon the
complainant’s past psychiatric history. It was also alleged that Dr.
Darmody did not adequately enquire into or explore that history with
G.L.
The Right to Trial with
a Reasonable Expedition
It is common case that every
person charged with a criminal offence is entitled under the
Constitution to a trial with reasonable expedition. This is
reflected in the leading decisions of In re Singer [1963] 97 I.L.T.R 130,
State (Healy) v. Donoghue [1976] I.R. 325 and State (O’Connell) v.
Fawsitt [1986] I.R.
362. In P.C. v. D.P.P.
[1999] 2 IR 25, Keane J. observed that the right to a trial with reasonable
expedition had to be recognised “as an essential feature of the
Anglo-American system of criminal justice for many
centuries”.
In Barker v. Wingo 407 U.S. 514, (1972) a unanimous
United States Supreme Court observed that the right to a speedy
trial is “generically
different from any of the other rights enshrined in the Constitution
for the protection of the accused.” The decision in that case clarified
that, in addition to ensuring fair procedures for accused persons,
there was a societal interest in providing a speedy trial separate
from and sometimes opposed to, the interests of accused persons. It
was pointed out that deprivation of the right to a speedy trial may
even work to the advantage of
an accused person and that delay was not an uncommon defence tactic,
since it had the effect of weakening the prosecution case, upon
which the burden of proof ultimately lay at the criminal trial. It
follows therefore that the deprivation of the right to a speedy
trial does not per se
prejudice an accused
person’s ability to defend himself.
The United States Supreme
Court went on to state that the right to a speedy trial was
“vaguer” than
other procedural rights in that it was impossible to determine with
precision the circumstances in which it had been denied. As a
consequence, it adopted a balancing test, the operation of which
compelled courts to approach speedy trial cases on an
ad hoc
basis. It identified
at least four factors to be taken into account: the length of the
delay, the reason for the delay, the accused’s assertion of his
right and prejudice. Under the last of these headings, Powell J.
identified three interests protected by the right to a trial with
reasonable expedition:-
(i) The right to prevent oppressive pre-trial
incarceration
(ii) The
right to minimise anxiety and concern to the accused
(iii) The right to limit the
possibility that the defence will be impaired.
Absence of evidence of
prejudice, in the sense described in the previous paragraph, has in
some instances led the High Court and this Court to decline to stay
trials even in the face of gross and culpable prosecution delay.
Thus in McKenna v. The
Presiding Judge of the Circuit Criminal Court, the High Court (Kelly J.,) found
that there was “inordinate and inexcusable delay” of five and a half years for which
the Director of Public Prosecutions was responsible. However, in
that case the Court refused to prohibit the applicant’s trial
because he had failed to demonstrate how that delay interfered with
any interest protected by the expeditious trial right.
A similar approach was
adopted in McNamara v.
MacGruairc
(Unreported, Supreme Court, 5th July, 2001) where the applicant was
accused of having committed an assault occasioning actual bodily
harm in August, 1992. Although the greater part of the garda
investigation was completed by the end of that month, the applicant
was not arrested and charged until the 14th November, 1994, and the
book of evidence was not served until a month later. This Court
found that the delay was excessive, but went on to categorise the
issue in the case as to whether delay, such as it was, was
prejudicial to the applicant, having regard to the circumstances of
the case. A plea of general prejudice was rejected. There was no
evidence that a particular line of defence had been undermined.
There was no suggestion that the applicant had been led to believe
that he would not be prosecuted or that he had established the
existence of any particular anxiety or concern as a result of the
delay. In those circumstances, it was held that it would be unjust
and unnecessary to grant the relief sought.
However, in P.P. v. D.P.P. [2000] 1 IR 403, the consequences
of post complaint delay were found to be of particular significance.
At p.409 of the report, Geoghegan J. stated as follows:-
“In P.C. v. D.P.P. [1999] 2 I.R.
45, Keane J. refers to The State (Healy) v. Donoghue [1976] I.R.
325 and points out that, in that case Article 38.1 of the
Constitution, which provided that no person should be tried on
any criminal charge save in due course of law, was construed by
Gannon J. as recognising the right of an accused person to a
trial with reasonable expedition and that this view was upheld
by the Supreme Court in State (O’Connell) v. Fawsitt [1986] I.R.
362. At p.68 Keane J. observed as follows:-
‘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 the capacity of the accused to
defend himself or herself will be impaired. In other cases,
the first inquiry must be as to what are the reasons for the
delay and, in a case such as the present where no blame can
be attached to the prosecuting authorities, whether the
court is satisfied as a matter of probability that, assuming
the complaint to be truthful, the delay in making it was
referable to the accused’s own actions.
It
is clear from this passage that Keane J. is impliedly
acknowledging that different principles may apply to blameworthy
delay on the part of the prosecuting authorities. Counsel for
the applicant argues that there was such delay in this case. I
think that counsel for the applicant is clearly correct. It is
not acceptable and, in my view, is a breach of a defendant’s
rights under Article 38.1 of the Constitution for the
prosecuting authorities to allow unnecessary delay to occur in a
case such as this, involving sexual offences committed many
years ago. The necessarily delayed trial is most unfortunate,
but it is wholly intolerable that it should be postponed still
further due to unnecessary delays on the part of the prosecuting
authorities.”
At
p.411, Geoghegan J. also stated:-
“I think that where there has been
a long lapse of time, as in these prosecutions for sexual
offences, between the alleged offences and the date of complaint
to the guards, it is of paramount importance, if the accused’s
constitutional rights are to be protected that there is no
blameworthy delay on the part of either the guards or the
Director of Public Prosecutions. If there is such delay, the
court should not allow the case to proceed and additional actual prejudice
need not be proved. This point is not really covered by the Supreme Court
decision in B. v. D.P.P. [1997] 3 I.R. 140 and P.C. v. D.P.P.
[1999] 2 IR 25 and, therefore, to some extent it is uncertain
what the correct legal position is.” (emphasis
added)
That case
is noteworthy for the fact that the complainant at the time of the
alleged offences was aged only 15 or 16 years and the offences were
not reported for a further 18 years. The blameworthy prosecutorial
delay between the date of complaint in November, 1995 and the arrest
of the applicant in April, 1998 was characterised by a garda
investigation conducted, as Geoghegan J found, “in a lackadaisical and slovenly
fashion.” Central to
the reasoning in this case therefore is the notion that where there
has already been a long lapse of time between the alleged offences
and the date of complaint, considerable and unnecessary additional
delays on the part of the prosecuting authorities are not to be
tolerated.
However, the interference
with the right to a speedy trial was treated somewhat differently in
P.M. v.
Malone [2002] 2 IR 560, in which Keane C.J. analysed the consequences for an accused of
“significant and
culpable delay” to
which he has not contributed. At p.572 he stated;-
“The first major consequence may be
the loss of his liberty while the trial is pending… the second
major consequence is the anxiety and concern of the accused
resulting from a significant delay in his being brought to
trial… the third being the possibility that the defence will be
impaired. These were identified by Powell J. in his opinion in
the United States Supreme Court decision of Barker v. Wingo 407
U.S. 514 [1972] in a passage which was approved of in this court
in D.P.P. v. Byrne [1994] 2 I.R. 236, having previously been
endorsed by the Judicial Committee of the Privy Council in Bell
v. D.P.P. [1985] AC 937 and by Murphy J. in the State
(O’Connell) v. Fawsittt [1986] I.R. 362.
In this case, the
greater part of the delay of which the applicant complains
occurred before he was charged with any offence. Undoubtedly,
there is a distinction between the anxiety and concern of an
accused person after he has been charged and before he has been
charged. If the accused’s right to a reasonably expeditious
trial is violated by culpable delay which is so significant as,
objectively considered, to cause him anxiety and concern, it
would follow that there would be a ground for prohibiting his
further trial where the delay occurred after he had been
charged.”
Keane C.J. then went on to consider whether in the context of
the particular case before the Court an adequate case had been made
out which would justify the prohibition of a trial. At p.581 he
stated:-
“The essential issue for resolution
is, accordingly, as to whether the stress and anxiety caused to
the applicant as a result of the violation of his constitutional
right to a reasonably expeditious trial justifies the
prohibition of the trial proceeding at this stage. If this were
a case in which it could be said that his ability to defend
himself had been impaired and, as a result, there was a real and
substantial risk of an unfair trial then, as pointed out by
Denham J. in D. v. D.P.P. [1994] 2 I.R. 465, the applicant’s
right to a fair trial would necessarily outweigh the community’s
right to prosecute. Where, as here, the violation of the right
has not jeopardised the right to a fair trial, but has caused
unnecessary stress and anxiety to the applicant, the court must
engage in a balancing process. On one side of the scales, there
is the right of the accused to be protected from stress and
anxiety caused by an unnecessary and inordinate delay. On the
other side, there is the public interest in the prosecution and
conviction of those guilty of criminal offences. In all such
cases, the court will necessarily be concerned with the nature
of the offence and the extent of the delay.”
The forgoing passages from
PM v
Malone are those
essentially relied upon by counsel for the appellant to argue that
it is insufficient in the context of seeking an order of prohibition
for an applicant to demonstrate blameworthy prosecutorial delay
only. It was submitted that he must go further and establish one or
more of the three elements identified in the analysis of Keane C.J.
as possible or likely consequences flowing from the infringement of
this right.
Further reliance was placed
by counsel for the appellant upon the decision of this Court in
Blood v. D.P.P.
(Unreported, Supreme
Court, 2nd March, 2005) a case in which there had been considerable
prosecutorial delay. However, instead of finding in favour of the
applicant by reason of the inordinate delay that had arisen in the
prosecution of the charges, McGuinness J. examined the impact of
that delay upon his circumstances. Mr. Collins, senior counsel for
the appellant, submitted that that exercise would have been entirely
unnecessary if the existence of blameworthy prosecutorial delay was
of itself sufficient to justify staying criminal proceedings.
McGuinness J concluded her judgment by stating:-
“As has already been pointed out,
cases involving delay in prosecution, or the denial of the right
to an expeditious trial, must be decided on an ad hoc basis, in
the particular circumstances of the case. In the particular
circumstances of this case, taken as a whole, it seems to me
that the delays in the latter period of the prosecution of the
applicant amount to a denial of his right to an expeditious
trial. There is also a real danger that this may lead to an
unfair trial.”
I
believe that the balancing exercise referred to by Keane C.J. in
P.M. v.
Malone is the
appropriate mechanism to be adopted by a court in determining
whether blameworthy prosecutorial delay should result in an order of
prohibition. It means that an applicant for such relief must put
something more into the balance where prosecutorial delay arises to
outweigh the public interest in having serious charges proceed to
trial. In most cases, pre-trial incarceration will not be an element
as an applicant will probably have obtained bail pending his trial.
Secondly, while he may assert increased levels of stress and anxiety
arising from prosecutorial delay, any balancing exercise will have
to take into account the length of such blameworthy delay, because
if it is a short delay rather than one of years, the mere fact that
some blameworthy delay took place should not of itself justify the
prohibition of a trial.
As part of the balancing
exercise it should also be borne in mind that an order of
prohibition may not be the only remedy available in such
circumstances. A court may have the ability to direct that a
particular trial be brought on speedily and be given priority,
although precisely how this would be policed or operated in practice
may be problematic.
I am unimpressed by Mr.
Collins’ submission that blameworthy prosecutorial delay should
resonate as a mitigating factor at the sentencing stage in the event
that the trial proceeds and the applicant is convicted. The
difficulty in this concept as advanced by Mr. Collins is that it
makes no distinction between an applicant subsequently found to be
innocent and one found to be guilty. The person found to be innocent
obtains no benefit whatsoever from such an approach, and indeed is
the very person who, on that account, is much more likely to have
suffered far greater stress and anxiety prior to trial and
acquittal. That is not to say that, this context apart, a sentencing
judge may not have regard to a lengthy interval of time between the
time the offender was first confronted with the offence and the
eventual conviction and sentence.
In conclusion, however, on
this issue, I am satisfied that where blameworthy prosecutorial
delay of significance has been established by the applicant, then
that is not sufficient per se to
prohibit the trial, but that one or more of the interests protected
by the right to expeditious trial must also be shown to have been so
interfered with such as would entitle the applicant to relief.
Applying that test to the
facts of the instant case, I am quite satisfied that O’Caoimh J.
correctly determined the case in relation to prosecutorial delay
having found significant blameworthy prosecutorial delay and having
regard to the evidence of significantly increased anxiety on the
part of the applicant arising from such delay.
At para.47 of his
grounding affidavit, the applicant deposed as follows:-
“The preferring of the charges
initially laid against me and the preferring of the Statement of
Charges
has had a
profoundly adverse effect on me. My anxiety and worry in respect
of the matters alleged have been significantly exacerbated by my
apprehension and fear that the lapse of time outlined above has
rendered me unable to adduce evidence of an exculpatory nature
that, if these offences had been prosecuted with expedition,
could have been put before the court of trial.”
The applicant was not cross-examined
in relation to his affidavit and, insofar as the learned trial judge
expressed some reservations as to whether or not there had been any
“serious increase in
anxiety”, he noted
that such anxiety existed and the affidavit evidence was not
contradicted or challenged in any way at the hearing.
Those being the
circumstances, the outcome of the balancing exercise which must be
undertaken in relation to this issue must, it seems to me, be
resolved in favour of the applicant.
Equally, in relation to the
cross-appeal, I see no basis whatsoever for interfering with the
findings of the learned High Court judge.
This was not a case where a
skimpy consultation provided the basis for the views expressed by
Dr. Darmody.
As her report dated the 22nd
May, 2002, makes clear, she met with G.L. on three occasions for
approximately one and a half hours on each occasion. In addition she
reviewed the Book of Evidence prepared for the case which included
medical and psychological reports from Dr. Patrick McGrath, Martin
O’Sullivan, Blathnia Rafftery and Catherine Sheehan. She also
consulted Catherine Sheehan, a counsellor, who saw G.L. at the
Eastern Health Board’s counselling service for 21 sessions between
1997 and 1998.
She also had the benefit when
giving evidence of the voluminous psychological report prepared in
relation to the complainant by psychologists Davina Walshe and
Patrick Randall.
In addition, Dr. Darmody had
impressive qualifications in psychology from both the United States
and Britain, had published various articles on counselling and
psychotherapy and had twelve years clinical experience.
There was thus, in my
opinion, ample material upon which Dr. Darmody could base her
professional view that the complainant’s delay in bringing forward
his complaint was attributable to the actions of the accused.
It was her professional
belief that the complainant’s delay in reporting was justified from
1983 until 1989 by the age and power differential between himself
and his uncle. From the time of 1989 until 1997, G.L. did not seem
to be in a fit mental or physical state due to his diagnosed medical
condition to undertake the distressing and demanding task of making
a formal complaint to An Garda Síochána. Dr. Darmody’s reports also
refer to the family dynamic which made it extremely difficult for
the complainant to come forward at an earlier stage. The fact that
the delay is explained in multi-factoral terms does not detract from
her view that the complainant, as a vulnerable individual, was
unable to come forward at an earlier stage as a result of the
actions of the applicant.
I would therefore uphold the
findings of the learned High Court judge in this respect also and
would dismiss both the appeal and cross-appeal.
