Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> J. R. -v- Minister for Justice & ors [2007] IESC 7 (01 February 2007)
URL: http://www.bailii.org/ie/cases/IESC/2007/S7.html
Cite as: [2007] IESC 7, [2007] 2 IR 748

[New search] [Help]

Judgment Title: J. R. -v- Minister for Justice & ors

Neutral Citation: [2007] IESC 7

Supreme Court Record Number: 385/04

High Court Record Number: 1998 1675 p

Date of Delivery: 01 February 2007

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Geoghegan J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Denham J.	Appeal allowed - set aside High Court Order	Murray C.J., Geoghegan J.

Outcome: Allow And Set Aside

- 11 -

THE SUPREME COURT

[S.C. No. 385 of 2004]

Murray C.J.
Denham J.
Geoghegan J.

J.R.

Plaintiff/Appellant

and

The Minister for Justice, Equality and Law Reform, Ireland,
The Attorney General, and The Commissioner of
An Garda Síochána

Defendants

Judgment delivered the 1st day of February, 2007 by Denham J.

1. The Minister for Justice, Equality and Law Reform, Ireland, the Attorney General and the Commissioner of An Garda Síochána, the defendants, (hereinafter referred to as 'the State') brought a motion in the High Court seeking an order dismissing the proceedings of J.R. (hereinafter referred to as 'the plaintiff') on the basis of delay. On 22nd July, 2004 the High Court granted the State's application and ordered that the plaintiff's proceedings be dismissed on the grounds of inexcusable and inordinate delay. Against that order and judgment the plaintiff has appealed to this Court.
2. In her statement of claim the plaintiff has claimed that on occasions commencing in or around 1960, when she was approximately 5 years of age, she was repeatedly assaulted, battered indecently and/or sexually assaulted, raped, beaten and intimidated in the family home by family members, in particular her brother J.B., her father and her mother. Because of this situation the plaintiff claims that in or around 1967, at approximately the age of 12 years, she visited Raheny Garda Station in the City of Dublin and complained to members of An Garda Síochána, on at least two occasions, of the abuse. The plaintiff claims that members of An Garda Síochána, rather than heed or act upon her complaints, stated to the plaintiff that she must have enjoyed the abuse, that she must have got something out of it, that otherwise she would have reported it sooner. Despite the said alleged complaints the members of An Garda Síochána took no action save to send her back home, as a result of which she was continually and systematically beaten, intimidated sexually, and/or indecently and incestually assaulted and raped until in or about 1996. By reason of these matters the plaintiff maintains that she suffered and sustained severe personal injury, physical and mental distress, loss and damage. By reason of the failure, refusal and neglect of the members of An Garda Síochána to heed her complaints she claims that the abuse continued until about 1996. By reason of the manner in which she had been received by members of An Garda Síochána the plaintiff felt she could not confide in anyone for help. At the age of 19 the plaintiff bore a child by her brother J.B., as a result of an incident of rape. As a consequence of these events the plaintiff has developed suicidal tendencies.
3. On behalf of the State, Brian Fenton, Inspector in An Garda Síochána, deposed that between 1967 and 1968 there were 34 members of An Garda Síochána serving in Raheny Garda Station, that eight of those persons are now deceased and that three persons could not be interviewed because of old age and infirmity. He further stated that there are no records available at Raheny Garda Station which show any reports made there during the period 1967 - 1968 inclusive. He deposed that at this time it is impossible for the State to negate by evidence the propositions raised by the plaintiff, that if the proceedings had been instituted at an earlier stage, witnesses or records may have been available which may have assisted in the defence of the action. "Prosecutorial delay" on behalf of the plaintiff was also alleged, in that the plenary summons was issued on the 6th February, 1998 and the statement of claim on 10th July, 2001.
4. The High Court, (Kearns J.), in an ex tempore judgment delivered on 22nd July, 2004, on the notice of motion to dismiss the proceedings, ordered that the plaintiff's proceedings be dismissed. The learned High Court judge held:

"Essentially they allege two grounds for making the application, and the first, and the one on which I propose to resolve this issue, is that they are unable to defend the proceedings by reason of the fact that as a consequence of the lapse of time between the date of the alleged wrong and the anticipated date of trial evidence relevant to liability is no longer available uniquely to defendants to such an extent as to render the trial impossibly unfair if it were to proceed. They contend that the plaintiff has been guilty of inordinate and inexcusable delay.

. . .

It appears from this material that thirty-four members of An Garda Síochána were stationed at Raheny Garda Station at about the time that the complaint was allegedly made and by the time this matter came to be investigated, when the proceedings commenced, thirteen of those individuals have died, and another twenty two have sworn affidavits in which they state that no complaint of the type alleged by the plaintiff was made to them personally and no records have been turned up nor do they exist in respect of which could lend credence to the allegations or enable the matter to be resolved one way or the other."

The learned trial judge referred to the concession made by counsel on behalf of the plaintiff, that every Garda may be expected to say that it did not happen on his watch and to deny that any complaint was ever made or received. He held that:

". . . the defendants are in quite an impossible position in trying to defend a case, particularly when the individual Guard or Guards or Sergeant cannot be named or identified, where there is absolutely no written record of a complaint or anything of the sort, where numerous individual Gardaí have died, and to my way of thinking the lapse of time, which at this stage is approaching forty years from the time when the complaint was allegedly made is of such a magnitude as to render it palpably unfair any trial which might take place were the court to decline to grant the relief sought."

The learned trial judge found that there had been inordinate and inexcusable delay. He accepted that there was an explanation which explains to a large degree why the plaintiff could not complain but held that it did not resolve the issue. The trial judge held that the State was left in a hopeless position in trying to defend the case. He pointed out that this was not like a sex abuse case where the defendants were the alleged oppressors, where there may be dominion. He granted the State's application and ordered that costs follow the event.
5. Nicole Dillon, Solicitor for the plaintiff, deposed, in an affidavit sworn on 14th March, 2003, as to certain relevant matters. She stated that by reason of the manner in which the plaintiff had been received by members of An Garda Síochána in Raheny with regard to her initial complaints, and owing to the trauma she suffered as a result of the continuing abuse, the plaintiff felt she could not confide in anyone for help. In or around 1993/1994 the fact of this continuing abuse came to the knowledge of An Garda Síochána indirectly through a social worker who had dealings with the plaintiff. Afterwards J.B. was charged with various counts on indictment including unlawful carnal knowledge on a number of occasions, rape and sexual assault, to which he pleaded guilty in the Central Criminal Court on 7th April, 1997. On the 13th June, 1997 he was sentenced in the Central Criminal Court by Carney J. to fifteen years' imprisonment. Nicole Dillon deposed that J.B. had recently been granted a retrial by the Court of Criminal Appeal in respect of the allegations of rape, but that the counts of unlawful carnal knowledge and sexual assault of the plaintiff stand uncontested. At the sentencing of J.B., Carney J. appeared to accept that the plaintiff had complained to Raheny Garda Station in 1967/1968, that these initial complaints were credible and ought to have been heeded and acted upon. Carney J. stated that as a result of the failure and/or neglect on the part of members of An Garda Síochána to heed and act upon the complaints, the plaintiff was sexually and incestuously abused for almost a quarter of a century more.
6. Appeal
The plaintiff has filed a notice of appeal, setting out ten grounds of appeal. These grounds are essentially that the learned trial judge erred in law and/or fact in holding that the delay by the plaintiff was inordinate and inexcusable; that he failed to give due significance to the fact that the State, its servants or agents, contributed to the plaintiff's inability to bring the action promptly. It is also asserted that the learned trial judge erred in holding that justice would be put to the hazard because the State at this stage could only resort to a bare denial, and that he had erred in failing to appreciate that this was a case of assertion and denial only and that no prejudice had been shown by the State. It was further a ground of appeal that the learned trial judge misdirected himself in appearing to attach significance to the absence of records available to the State when, if the plaintiff's contentions are correct, no records or entries would have been recorded.
7. Common Law
This is a motion brought regarding civil law proceedings. It does not relate to criminal proceedings. It is important to note and keep this distinction.
The common law on the issue of delay in commencing proceedings is well established. Henchy J. in his judgment in this Court in Ó'Domhnaill v. Merrick [1984] I.R. 151 referred to precedents and set out principles. He stated at p. 157:

"Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."

In Toal v. Duighnan and Ors [1991] I.L.R.M. 135 Finlay C.J. referred to his acceptance of the principles laid down by Henchy J. in O'Domhnaill v. Merrick, and adhered to them, as he had himself in a previous appeal. He stated, inter alia, at p. 139:

"In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O'Domhnaill v. Merrick [1984] I.R. 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend the case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the Court may as a matter of justice have to dismiss the action."

8. Statute
The State has not pleaded the Statute of Limitations. The Statute of Limitations (Amendment) Act, 2000, refers to persons affected by sexual abuse. Section 2 amends the State of Limitations Act, 1957 by inserting s. 48A, which provides:

"(1) A person shall, for the purpose of bringing an action—

(

) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or

(

) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,

be under a disability while he or she is suffering from any psychological injury that—

(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and

(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.

(2) This section applies to actions referred to in subsection (1) whether the cause of action concerned accrued before or after the passing of the

Statute of Limitations (Amendment) Act, 2000

, including actions pending at such passing.

The Statute of Limitations (Amendment) Act, 2000, s. 3 provides:

(3) Nothing in Section 48(A) of the Statute of Limitations Act 1957 (inserted by Section 2 of this Act) shall be construed as affecting any power of a court to dismiss an action on the ground of there being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant its dismissal."

However, as the Statute was not pleaded, I have not considered it, nor its relationship to the common law, and it forms no part of this decision.
9. Decision
The test to be applied is whether there has been inordinate and inexcusable delay, and, if so, whether on the facts, the balance of justice is in favour or against the case proceeding. It is therefore essentially a test of fairness, which is to be assessed on all the circumstances of the case, as a matter of discretion, by the Court, in the interests of justice.
9.1 The court has an inherent jurisdiction to control its own procedures and to dismiss a claim when the interests of justice so require. Concomitantly, the court has an inherent jurisdiction not to dismiss a claim when the interests of justice so require. The inherent power exists to promote the interests of justice.
9.2 Whether delay should be treated as barring the claim depends on the particular circumstances of a case. The Court must assess whether the delay is inordinate and inexcusable, and, even if it has been, whether there are countervailing circumstances.
In this case the proceedings relate to events approximately forty years ago. By any scale of analysis such a delay in proceedings is inordinate.
There is then the question as to whether the delay is excusable. This requires an analysis of the particular circumstances. It is not an analysis as was made in relation to proposed criminal prosecutions prior to the decision of this Court in H. v. The Director of Public Prosecutions [2006] IESC 55 as this appeal does not refer to a criminal prosecution. Thus, neither the old nor the evolved jurisprudence, which has developed in judicial review cases relating to criminal trials for sexual abuse, falls four square into this area of law.
In the analysis it is necessary to consider the particular circumstances. The State's conduct is required to be scrutinised carefully. If it has itself contributed to the delay significantly that factor would prejudice the State's claim to have the proceedings dismissed. In considering this aspect of the matter there are relevant factors to be taken into account.
In sentencing J.B., the applicant's brother, after he pleaded guilty to three counts of unlawful carnal knowledge and one of sexual assault (the court was informed that there was an appeal pending on the issue of rape), the learned trial judge (Carney J.) stated in open court, having recited rejection by her parents and her claim that she was rejected by a number of members of Raheny Garda Station, that:

"The effect of the rejection of the victim's credible complaints has been that she has been incestuously abused for a quarter of a century longer than was necessary, that she bore a child by her stepbrother, that she was incestuously abused while married, that she developed suicidal tendencies and that she was seriously intimidated and beaten. She says herself that she "has not had a life". It is not entirely clear at what stage sexual abuse started but it was prior to the age of 12. She complained on two occasions to her parents and that resulted in her getting a hiding and getting put out of the house, this was around the age of twelve and a half. She went to Raheny Garda Station where one of the policemen to whom she complained, apparently in the presence of a Sergeant said "well did you not enjoy that, did you not feel good about all the fondling that your brother was doing, you must have go[t] something out of it" she left the police station crying. In the light of what has happened and in particular in relation to Raheny Garda Station some old law still holds good requires to be reinstated. "Where a credible complaint of felony is made to a policeman he has no discretion under the common law not to investigate it and apprehend the named offender" a failure to carry out this duty vigorously constitutes an illegality on the policemen's part and renders him liable to prosecution on indictment. In Craig and Gamble [1887] 24 Law Reports Ireland at page 458, Chief Barron Pallas said "a person against whom a reasonable suspicion of felony exists should be brought to justice. A police officer is not only entitled but bound to arrest him". This principle of common law holds a hundred and ten years later. It is an indictable offence of common law where a public officer wilfully and without reasonable excuse or justification to neglect to perform a duty imposed on him, either by common law or statute, that this is so was most recently confirmed in

R-v-Dytham

[1978] Queens Bench at page 722."

The contribution of a party is a relevant factor. In Toal v. Duignan & ors [1991] I.L.R.M. 135 at p. 139 Finlay C.J., having referred to the decision of Ó'Domhnaill v. Merrick [1984] I.R. 151, summarised the application of the principles of law to that case as:-

". . . where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial,

then if that defendant has not himself contributed to the delay

, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action." [The emphasis is added]

Thus, whether a defendant has contributed to a delay may be an important factor.
Applying that analysis to this case, while there has been a very long lapse of time, the plaintiff's case is based on a claim that the State contributed to her suffering. The action is essentially about delay and the consequences to the plaintiff. Thus delay is at the core of the plaintiff's case. The proceedings brought by the plaintiff raise the issue of the responsibility for that delay. The plaintiff claims that the State is responsible. That issue is the essence of the proceedings. This is a relevant factor in determining the motion, for the issue pleaded in the action is delay and the State now seeks to prevent the proceedings on the grounds of delay.
Also at the core of the plaintiff's claim is that a report (and hence record) was not made about her complaint to An Garda Síochána. The State have brought this motion on the basis of absence of records. I am satisfied that it would not be proportionate to dismiss the plaintiff's claim because of something which is an essence of the claim - i.e. the absence of a report.
Fundamentally, what has to be applied is a test of fairness. This balancing is required to take place in all the particular circumstances of a case. The onus lies on the State in the motion to dismiss the plaintiff's proceedings. I am satisfied that they have not discharged this obligation. As a matter of justice, in all the circumstances of the case, the State may not avail of the issue of delay as a reason to dismiss these proceedings about delay. Nor may the State avail of the issue of the absence of records as a reason to dismiss these proceedings which raised the issue and complains of the absence of a report. To permit of such dismissal would not be fair. As a matter of discretion, as to the balance of justice, in light of the particular circumstances of this case, I would not dismiss the proceedings of the plaintiff.
While this case relates essentially to the issue of delay prior to the commencement of the proceedings, reference was made to prosecutorial delay. It appears that the learned trial judge did not decide the case on this basis. He stated:

". . . but insofar as what happened after Ms. Dillon was instructed, I do not propose to decide the case in any way on that allegation. It seems to me that any responsible solicitor, and I am quite satisfied Ms. Dillon behaved most responsibly throughout, would have undertaken careful inquiries and exhaustive inquiries to find out if there was material and to take all necessary steps in such a serious matter and fully comply with the terms of her brief. I am satisfied that she did that in an exemplary way and I do not accept any criticism of her in the matter whatsoever. I am grateful that Mr. O'Higgins has clarified to the Court that no personal criticism of any sort was intended against the solicitor who came on record in this matter."

The general principle is that no appeal may proceed in this Court on a ground not decided by the High Court. Consequently this issue does not arise for decision. However, even if the issue were extant, which it is not, I am satisfied that the State are not entitled to relief on that basis.
Whether the test applied is that pursuant to the principles described in O'Domhnaill v. Merrick [1984] I.R. 151 and Toal v. Duignan [1991] I.L.R.M. 135, as set out above, or that adumbrated by Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley [2001] 2 I.R. 526, in all the circumstances of the case, as a matter of fairness and in the interests of justice, I would refuse the State's application to dismiss the plaintiff's proceedings. Therefore, I would allow the appeal.