Supreme Court allows appeal against prosecution delay, finding no evidence the accused inhibited complaints from being made.

[2001] IESC 54

THE SUPREME COURT

160/00

Murphy J

Hardiman J.

Geoghegan J.

Between:

N.C.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 5th day ofJuly, 2001.

1. In this appeal the Appellant seeks to set aside the order of Ms. Justice Laffoy, perfected the 12th day of June, 2000, whereby the

learned judge dismissed his application for orders of prohibition restraining the Respondent from continuing a prosecution against him.

Background.

2. In the criminal proceedings, the Applicant is charged with 63 counts of indecent assault contrary to common law and as provided

for in Section 6 of the Criminal Law Amendment Act, 1935.

3. Counts 1 to 20 relate to the Appellant’s sister K. and the balance of the counts related to another sister, M. Each of the counts

relating to K. allege that the assaults took place at a stated address at a Dublin suburb, which was the family home of all parties.

Each of the counts in relation to M. allege that the assaults took place “at a place unknown within the County of the City of Dublin”.

In relation to dates, the counts in relation to K. allege assaults between the 1st January, 1961 and the 31st December, 1965. The

counts in relation to M. relate to the period between the 1st April, 1964 and the 31st December, 1974. There is a separate charge in

respect of each three month period within those dates: there are twenty such periods between the 1st January 1961 and the 31st

December, 1965 and 43 such periods between April 1964 and December 1974.

Projected time of trial.

4. Assuming that, if the Director of Public Prosecutions succeeds in defeating this appeal, it will be possible to arrange for a trial in the

Michaelmas term of this year, such trial would take place about 40 years and 10 months after the first alleged assault and about 27

years after the most recent.

Aspects of delay in the present case.

5. The Court has had the benefit of a number of Affidavits and reports bearing on the question of how the delay in reporting and

prosecuting the alleged assaults came about. The case presents a considerable number of unusual features. Firstly, the lapse of time

itself, though not unprecedented, is in the higher range. Secondly, allegations of sexual abuse against the Applicant were in fact

made within the family and to certain social service personnel in the middle 1980s’ but were not pursued to the point of a criminal

complaint at that time. Thirdly, as far as K. is concerned, she claims to have forgotten the assaults which had been perpetrated on

her until she remembered them in the course of hypnosis. The time and place of the hypnosis, and the identity of the hypnotist, have

been lost due to lapse of time. Moreover, she did not articulate what she remembered at the time but kept it to herself and another

person for a considerable further period. The making of allegations by the second alleged injured party, M., appears to have been

triggered by the allegations made by her sister.

6. Another significant feature of the case is the role played by the mother of the Applicant and the alleged injured parties. She is

alleged by the injured parties to have known what was going on but to have done nothing about it and to have punished them in

various ways for what they allegedly said to her. She is also alleged to have brought K. to the hypnotist on the occasion when her

memory returned to her. The mother unfortunately died in the year 1989, some years after the allegation had been made in the family

circle and to Social Workers, but some years before the Gardaí became involved.

7. The unavailability of the hypnotist and the mother is relied on heavily by the Applicant in the present case.

History of proceedings.

8. The Applicant obtained liberty to seek judicial review by order of the High Court (McCracken J.) dated the 30th July, 1998. He was

granted leave to seek:-

“An order of prohibition and/or an injunction restraining the Respondent from prosecuting criminal proceedings entitled DPP

v. N.C. Bill No. 36/98 at present pending before the Dublin Circuit Criminal Court”

and ancillary relief. The substantial ground of which this relief was sought was the long lapse of time between the events allegedly

giving rise to the charges, and the proposed trial. The Applicant stated that he was prejudiced by this delay and specifically by the

fact that the ability to ascertain identity of witnesses, the availability of witnesses and the ability properly to test the credibility of

witnesses was thereby impaired. The Applicants supported this claim in an Affidavit in which he denied all allegations and made

observations on the evidence in more detail than is usual in these cases.

9. In a statement of opposition dated the 4th December, 1998 the Respondent denied that the Applicant was prejudiced by the delay

in making a complaint; denied that the said alleged delay had impaired the Applicant in identifying essential witnesses or ensuring their

availability or testing the credibility of other witnesses. After certain general traverses he denied that the right of the Applicant to a

trial in due course of law had been irreparably affected by the passage of time or the alleged death of any allegedly pertinent witness.

The Respondent then alleged that the Applicant by his behaviour had caused or contributed in a significant degree to the lapse of

time complained of.

The law.

10. There has now been a considerable number of cases in which the High Court and this Court have dealt with attempts to restrain

the continuance of prosecutions in cases of alleged sexual abuse, on the grounds of a lapse of time. The approach to these cases

mandated in the case of P.C. v. DPP [1999] 2 IR 25 is authoritative and must, I am satisfied, be followed. Most of the relevant

authorities are surveyed in that case. Subsequently, relevant cases include JOC v. DPP [2000] 3 IR 480, POC v. DPP [2000] 3 IR 87

and J.L. v. DPP [2000] 3 IR 122. In my judgments in these last three cases I have made a number of observations as to how these

cases should be approached, which I do not intend to repeat here.

The third test in P.C.

11. I intend to approach this case along the lines of the judgment of Keane J. (as he then was) in P.C. v. DPP. The approach is set

out at pages 68 and 69 of the report. Having regard to the view I take in the present case I propose, first, to apply the third test

described by Keane J. as follows:-

“If that stage has been reached, the final issue to be determined will be whether the degree to 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

inquiry, in my view, in every such case because, given that 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 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”.

Applying the third test.

12. I would reiterate what I said in POC v. DPP page 111 of the report as to the basis of the third test and its mode of application. In

summary, I concluded that

“The Court should approach the application of the third test in light of all the evidence and bearing in mind that one is

enquiring as to whether there is ‘a real risk’ that the Applicant will not receive a fair trial (as Denham J. put it in B. v. DPP

[1997] 3 IR 140) as opposed to a demonstrated certainty”.

13. The application of this third test was expressed as follows by the learned Chief Justice in his judgment in POC v. DPP, at page 94,

as follows:-

“In the final stage of the inquiry, the Applicant is presumed to be innocent of the offence with which he has been charged

and, if he or she can demonstrate to the Court that it is probable that a specific defence which might be otherwise have

been open to him or her is now longer available because of the passage of time, the Court may then halt the trial on the

ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary

directions or rulings by the trial judge”.

Aspects of prejudice.

14. (i) The hypnotist.

15. In the Book of Evidence, K. said:-

“One time my mother brought me to a hypnotist, we were living at - at the time and had to get two buses. I was still

addicted to valium and rohypnol, a sleeping tablet I had been prescribed. Because my mother told me I was mad, I

believed I was. At this hypnotist I remembered I had been abused but I didn’t say anything because my mother was in the

room all the time. When I got off the bus I told - who is now my husband saying I wasn’t mad, it was them and that I had

been abused”.

16. Prior to this visit to the hypnotist, her state of mind as described in her Affidavit was that “I had forgotten everything”.

17. A further aspect of this loss of memory and its subsequent recovery is that this person alleges that although she recovered her

memory of abuse while at the hypnotist, that recovered memory is now said to be inaccurate in relation to the time the alleged abuse

had taken place. She believed that this occurred when she was about 14 and subsequently. In the words of her Affidavit she “did not

have the memory to know that it was when I was a small child I had been abused by the Applicant”.

18. It appears to me that all of the foregoing matters are significant. In the first place it appears that, on the Prosecution’s evidence,

this is a case of recovered memory. A recovered memory may be regarded as a memory which has been lost due to repression and

subsequently recovered, often in the course of some form of therapy. In my judgment in JL v. DPP I discuss the legal problems posed

by cases of alleged recovered memory at some length and I do not propose to repeat that discussion here. It is however relevant to

recall one of the conclusions set out in an authoritative psychiatric work quoted in that judgment:-

“Illusory memories can arise in the course of any psychological treatment whether or not it is designated as recovered

memory therapy. Their creation seems to depend on the conviction of the therapist or the patient that child sexual abuse

underlies adult psychopathology”.

19. We are therefore left with a case where recovered memory is explicitly claimed. It is said to have happened in the course of a

consultation with a hypnotist. This person’s name is not available, and there is no other identifying information. The Prosecution have

told this Court that the Gardaí have looked for him but have “have drawn a blank”. The date of the consultation is also unavailable.

This is of particular significance since, when the abuse was first allegedly remembered, it was remembered as having occurred at a

much later date than that which the charges in relation to K. mentions. The charges refer to a time when K. was 3¾ to 8½ years old,

that is between 1961 and 1965. The abuse allegedly remembered in consultation with the hypnotist, on the other hand, would have

taken place from 1971 onwards. This fact takes on a further significance when the location and the general context of the alleged

abuse is considered. It is alleged to have taken place in a small two-bedroomed house in a working class suburb where a large number

of siblings lived together. This propinquity is central to the allegations in relation to K. The Applicant had undoubtedly left the house in

1968 and did not reside there afterwards. There is no indication of how, precisely, K’s allegation changed so dramatically in time and,

therefore, necessarily in place and circumstance.

20. As is usual in these cases the alleged injured parties were examined on behalf of the Director of Public Prosecutions by a

psychologist. This was Mr. Michael Dempsey. He agreed that K. was saying that the memory of abuse was “brought out of her mind

and then seemed to have come back to her as a result of going to the hypnotist”. He agreed that “One thing that seems clear is that

that event of the hypnotist caused her to remember that she had been abused as a little girl”. He agreed that in the first place “She

thought she had been abused an older girl but then realised that she could not have been or was not and that she was only abused

as a little girl of 4 to 8”. He says “There is some distortion in her memory as to time...... there was a time when she thought it had

happened at a different time”. It appears from Mr. Dempsey’s evidence (page 50) that this period of error persisted for some six

years. He explained this as follows:-

“My own assessment of that situation was that she was taking some medications at the time. Sorry, she was drinking at

the time etc.” (sic)

21. In relation to this topic, it should be noted that while the time at which the visit to the hypnotist took place cannot be

ascertained, it seems to be agreed that it was some period prior to the complainant’s marriage. Accordingly, the abuse she claims to

have remembered would have been relatively recent.

22. Mr. Dempsey also agreed that it was necessary to be cautious about hypnosis. This was because “Hypnosis is something which

may give rise to suggestions”. He agreed that “In a more perfect world..... one would have like to have known what had gone on at

the hypnotist and what had been said and done by the various parties” and that “If this was an inquiry..... into the truth of these

allegations one would dearly like to know what had happened at the hypnotist”.

23. All these comments on the hypnosis arose only in cross-examination of Mr. Dempsey on behalf of the Applicant. It is an

extraordinary fact that the psychologist conducted a lengthy interview with the complainant K. and wrote a lengthy report, without

discovering, apparently, that this was a case where memory was alleged to have been recovered due to hypnosis or that hypnosis

had taken place at all. It seems, in fact, that he was under a misapprehension as to the purpose of his report: he thought it was a

victim impact report rather than one directed to the question of lapse of time.

24. The submissions of the Director in relation to the hypnotist are of great significance. As mentioned above, it was submitted that

inquiries to find this person had “drawn a blank” but these apparently proceeded on the basis that hypnosis occurred in or about the

year 1970. This seems quite impossible given that as a result of the hypnosis abuse allegedly dating to her mid-teens, from the age of

14, was said to be remembered. This complainant was only 13 years in 1970. Still more strikingly, the Prosecution submitted that

“Maybe she wasn’t taken to a hypnotist, but her mother just used that name” and that “what she recalls now as having taken place

in 1970 may relate to K’s memory that her mother used the word ‘hypnotist’: one cannot place too much reliance on this”.

25. These submissions seem remarkable to me. It is not clear whether or not they were made in the High Court. The case is expressly

put forward as one in which the delay is partly explained by the fact that memory was lost or repressed and recovered during a

consultation with the hypnotist. This form of actually or allegedly recovered memory is a common feature of these cases. But what

has happened here is that the Prosecution, for the purpose of rebutting the existence of prejudice caused by the unavailability of the

hypnotist, has submitted that perhaps the complainant was never taken to a hypnotist at all.

26. Firstly, there is no evidence that this was so and the suggestion that the mother may have used the description “hypnotist” while

actually taking the girl to some other type of consultant is speculation. Secondly, whatever the profession or speciality of the person

consulted the memory is alleged to have returned in some form of therapy. Thirdly, the person conducting this therapy is missing,

even if one accepts the speculation that he may not have been a hypnotist. Fourthly, the suggestion that the mother misrepresented

the profession or calling of the person visited points to the importance of the mother’s evidence which is itself unavailable. Fifthly it is

in my view quite inadmissible to support the submissions that there is no prejudice on the basis of pure speculation, especially when

this involves the proposition that an important part of the prosecution case as set out in the Book of Evidence and on Affidavit, may

be false.

27. It seems to me that the hypnotist or other person conducting therapy in the course of which memory is recovered is an extremely

important witness. This is particularly so in the present case where the memory is admitted to have been, in very important

particulars, false or distorted. It is clear from the sources cited in my judgment in JL that a person charged with very old offences on

the basis of alleged recovered memory is both well advised, and entitled, to seek to inform himself about every aspect of the therapy.

If this cannot be done then there is not effective test or control of the mechanism of alleged recovered memory. This is a situation

fraught with risk of unfairness.

28. (ii) The Mother.

29. The role of the deceased mother of the Applicant and the two complainants is a conspicuous one in this case. Allegations about

her actions are found in the statements of the complainants: they are generally contradicted or disparaged by the Applicant.

30. In many cases of a very long lapse of time it is found that witnesses or potential witnesses had died. On occasions it is open to

the Prosecution to submit that no prejudice has been shown because it is not clear that the deceased person would have had any

evidence to give. In this case it is apparent from the statements of the complainants themselves that she would have, on their

account, highly relevant evidence to give. Moreover her attitude to the allegations was quite clearly one favourable to the Applicant,

so much so that Counsel for the Director conceded in this Court that:-

“Everyone knows the mother would say these things didn’t happen”.

31. The Director conceded that the criminal case should not proceed if there was evidence of serious prejudice to the Defendant. But

he denied that the evidence here showed prejudice, for the following reasons.

32. Firstly, he contended witnesses may die anyway even in the absence of any great lapse of time. Secondly, he said, the mother’s

absence was certainly unfortunate but it was not a central feature of the case. Accordingly no injustice would follow. Thirdly he said

that other witness would “Put what she said before the jury”.

33. It is certainly true, and indeed trite, to say that a witness or potential witness may die even if a prosecution is commenced with

great rapidity. But that obvious fact is, in my opinion, without relevance to the situation presented by this case. To rely on it is to

equate the position in cases where there has been a gross lapse of time with case where the prosecution has been commenced

promptly. There is no real comparison between these cases. I would repeat what I said about a similar submission in JOC:-

“The proposition that a witness might, of course, have died even if a complaint had been made within a month does not

logically allow a court to disregard such a death if in fact it has occurred only after many years. The risk of death or

unavailability of witnesses has long been recognised as one of the risks of unfairness attaching to long lapse of time. In

my view, in such cases it is for those wishing to proceed to establish that a trial can fairly be had and not for a

Defendant to negative the proposition that the witness might have been useless or unavailable at a much earlier time”.

34. In the same judgment, I give examples of decisions where the death of witnesses was considered as a relevant factor in civil

cases featuring long lapses of time. I can see no difference in principle between a civil and a criminal case in this regard.

35. It appears to me that the centrality of the mother as a witness emerges clearly from the statements of each of the complainants,

as well as from other sources. In the case of the complainant K. there are two allegations of early disclosure to her both allegedly

greeted by disbelief of the mother. There is an allegation of the mother refusing to allow the General Practitioner to send her to a

hospital because “she did not want anyone to find out about the abuse”. There is the allegation already recorded about the hypnotist

and an allegation about the mother’s going to England for a period, thereby altering the place of residence of this complainant. There

is a dramatic allegation, relating to much more recent years, of alleged disclosure to the mother followed by an extraordinary episode

where the mother allegedly locked the by now adult complainant into a closet in a sitting room and left her there for a few hours.

There are two episodes of specific discussions alleged to have taken place between this complainant and the mother, featuring

specific statements or attitudes, all unfriendly to the complainant, allegedly manifested by her.

36. In relation to the second complainant, there are general allegations of a special relationship between the Applicant and the

mother who has been alleged to have been her favourite and “got all the affection from her”. It is alleged that the mother never got

on with the father, which is contradicted by the Applicant. There was then a very specific allegation that this complainant made a

specific allegation to the mother in a circumstance where they were mimicking Confession; this, it was said, led to her being struck by

her mother. It is alleged that immediately subsequent to this incident a named neighbour was blamed for sexually interfering with this

complainant.

37. This latter reference is a dramatic suggestion that sexual abuse of one of these complainants at the hands of a person other than

the Applicant was alleged. The mother is said to have been the source of this allegation, or at least conversant with it:- “I remember

my mother talking to friends about it......”.

38. Furthermore, the mother seems to have gone to a Priest in connection with this allegation: he is unidentified.

39. There are at least three further allegations in relation to the mother made by the second complainant. Two of them relate to the

all important circumstance of how she may have been available to be abused in the Applicant’s house when, on her own evidence,

she was very reluctant to go there.

40. It appears to me that all of these matters point up to the centrality of the mother to the allegations made. Her attitude of

disbelief and rejection is said to be central to the delay in complaining and her controlling disposition and actions to the second-

named complainant is said to be central to that persons being available to have abuse perpetrated on her by the Applicant in the

manner described. Moreover, it is conceded that the mother’s attitude at all times was wholly favourable to the Applicant even when,

it was alleged, allegations were made to her about him.

41. Furthermore, the mother is portrayed as being the source of, or at least conversant with, suggestions that the second

complainant M., was indeed sexually assaulted, but by a person other than the Applicant. The significance of this is considerable from

a number of points of view but especially in relation to the undoubted psychological symptoms manifested by this complainant.

42. In summary it appears to me that the following can be said about the mother’s evidence, as presented by the prosecution. The

particular arrangements in the household of which she was the effective head, and in particular sleeping arrangements for her large

family in a small house, are central to the allegations in relation to K. in the form in which they now stand. Similarly, her alleged,

continuing and sometimes violent demeanour towards M., in particular by way of insisting that she present herself for baby sitting in

the Applicant’s house at a much later date are central to the account given of those alleged assaults. Thirdly, her disbelief and total

lack of receptivity to these two ladies complaints, both an early age and more recently are relied on by them and in the psychological

evidence as explaining and excusing the delay in complaining. Fourthly, by reason of the mother’s death the only realistic prospect of

finding the hypnotist whose role is so central is gone. Fifthly, by reason of her absence it is now impossible to contradict the

prosecution’s speculation that the person to whom she brought the child may not have a hypnotist at all but that she simply decided

to use that word. Sixthly, allegations about much more recent years such as the extraordinary allegations that she locked one of

these complainants in a cupboard and subsequently threatened to commit suicide are both significant in the complainant’s accounts

and quite beyond the reach of contradiction or investigation in the absence of the mother.

A summary in relation to prejudice.

43. It appears to me, therefore, that the mother and her alleged actions are indeed central both to the narrative of the alleged

assaults and to the narrative advanced to explain why nothing was done about them. She is questionably the person responsible for

the form of therapy which sparks the recovered memory and was actually present when it was allegedly recovered.

44. Moreover, it seems overwhelmingly probable that her evidence if available would favour the Applicant. The Director himself

concedes that “The mother would say these things didn’t happen”.

45. No serious attempt was made to stand over the submission that other witnesses could “put what she said before the jury”. It is

not clear to me who could do so in relation to any of the specific matters mentioned above. Who, for example, is going to supply the

evidence of the mother about the hypnotist? Or the “Confession” episode? Of the allegations of abuse against a third party? Or the

cupboard allegation? Or the allegation that she told K. she was mad? On all these matters and others, the death of the mother leaves

the account of the complainants incapable of contradiction, or even exploration.

46. It appears to me that when the Director says that other witnesses can “put what [the mother] said before the jury”, he can only

mean that prosecution witnesses can attribute words to her. They have done so in the papers before the Court. Thus, although the

mother is agreed to have been wholly favourable to the Defence, the Prosecution intend if they can to make uncontrolled,

uncontradictable assertions as to what she is alleged to have said favourable to its case. Nothing could more perfectly illustrate

prejudice. And what of the hearsay rule? The necessity for this safeguard is graphically illustrated by the prospect of attributing

words to a deceased witness whose admitted disposition was to reject the allegations.

47. I am of the view that the Applicant has demonstrated a severe risk of prejudice in a trial on this indictment.

Explanation for delay.

48. This case presents an exception to the general run of such cases in that the Complainants here made, and disseminated quite

widely, allegations of sexual abuse against the Appellant about sixteen years ago. However, although these allegations were to made

to a considerable number of people, including the staff of official agencies, no allegation was made to the Gardaí at the time. The

relevance of these facts to the approach mandated in PC is considerable. Given that the lapse of time between the episodes of

alleged abuse and the mid 1980s may be regarded (having regard to the assumption that must be made) as been due to the activities

of the Applicant himself, a question arises as to whether the same can be said of the lapse of time between 1985 and the present.

Scope of disclosure in 1985.

49. Although the statements and Affidavits put before this Court on behalf of the Director do not contain a fully coherent narrative of

events, it appears that, in a year estimated by the complainants as 1985, K. became disturbed and ill and while in this condition made

certain allegations to family members. As a result of these, family members made enquiries of M. as a result of which she made

allegations to them as well. Considerable discussions followed during which the same allegations were made or communicated to a

considerable number of people. The following things appear to have occurred.

(a) M. told two relations.

(b) M. and three relations attended the Rape Crisis Centre in Leeson Street.

(c) They arranged a meeting in the relation’s house. The Applicant attended this meeting with a Priest.

(d) M. confronted this Priest.

(e) M. and a boyfriend went to the Applicant’s house and confronted him and his wife.

(f) M. informed the Social Services in the suburbs where she was living of her allegations.

(g) M. requested the Rape Crisis Centre and the Social Services she had gone to to lobby the local authority to move her

to a new house.

(h) M. attempted to get the Social Services to involve themselves with the Applicant but they said they could do nothing

as he would not let him into his house.

50. In relation to K., the following things would appear to have occurred about the same time:-

(a) K. told four relations, who are named in the papers, of her allegations.

(b) K. went to the Rape Crisis Centre.

(c) K. met the Applicant in a suburban pub and confronted him.

(d) K. allegedly informed her mother of her allegations.

(e) It is stated in an Affidavit by the Applicant that in 1986 and in 1988 K. threatened legal action against him in respect

of her allegations and actually consulted a Solicitor in this regard. However, it is said that she subsequently withdrew

these threats and blamed her behaviour on her medication. This is uncontradicted.

51. It appears that the Rape Crisis Centres notes are unavailable due to passage of time.

A legal issue arising from the foregoing.

52. In PC Keane J. said at page 67:-

“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”.

This may be regarded as the first test to be applied.

53. In approaching the matter along those lines, Mr. Gageby S.C. for the Applicant described the period after the making of the

allegations in the mid 1980s as a “watershed”. On the basis of the widespread making of allegations at that time, he submitted that

the complainants and each of them were obviously not “disempowered” but were capable of independent thought and action, thus

suggesting or demonstrating that their failure to go to the Gardaí at that time was their own decision and not referable to the actions

of the Appellant. In the present case it appears that, quite shortly after the allegations had first been made on the widespread basis

described above, a family meeting took place. As a result of this, as the learned trial judge held, the family split into two camps. One

camp felt that everybody in and connected with the family should be told what had happened and that it should be left at that.

Others believed that the Applicant should be taken to court.

54. None of the evidence before the Court on this appeal addresses specifically the question of why no allegation was made to the

Gardaí in the mid 1980s when the allegation was made so extensively to other persons, including official agencies. The evidence in

relation to the psychological effect of discussing the allegations appears in its terms to relate to any discussion. The suggestion (and

it goes not further than that) that there was apprehension that the Applicant might be able to interfere with any prosecution on

account of his “Government position” does not seem viable when it is recalled that the position in question is that of Higher Executive

Officer in a Department with no connection with the Courts, the Gardaí or the Prosecution Service. And the complainants were not

inhibited either from discussing the matter with another official agency or, it would appear in one case, from consulting a Solicitor.

55. It seems to me most likely that the omission to approach the Gardaí in the mid 1980s was the result of the widespread discussion

within the family that took place. This discussion revealed that there were divisions amongst the family members as to what course of

action should be followed and must have revealed the information that the parties late mother did not believe the allegations. It

seems likely, indeed, that a person seriously contemplating a prosecution in the mid 1980s would consider that the mother would be a

likely, and powerful, defence witness.

56. The facts of this aspect of the case bears some resemblance to those of P.C. There, too, the complainant had discussed her

allegations with a number of persons including her parents, two teachers, various friends and the father of a friend who was a Garda

Sergeant by occupation. However, no action was taken for a number of years thereafter. In those circumstances, McGuinness J.,

sitting in the High Court, found that:-

“I cannot but conclude that the delay from 1988 onwards, however understandable, was the complainant’s own delay and

to a lesser extent that of the persons to whom she made her complaint in 1988. There is no actual evidence that this

delay from 1988 to 1995 was caused by the Applicant. This in stark contrast to the facts in B v. DPP [1997] 3 IR 140”.

57. While the High Court decision in P.C. was reversed, the complainant in that case was very much younger than any of the

complainants here (K. was 28 or 29 years old at the relevant time). Moreover, the complainant in that case was not, as Denham J.

emphasised in the Supreme Court, taken to a counsellor, whereas both complainants here attended the Rape Crisis Centre.

58. In all the circumstances, I am of the view that it has not been established that any act of the Applicant inhibited complaint from

1985 onwards and I would allow the appeal on this ground also.

To other matters.

59. There are two other matters on which I should record a view. The first of these relates to threats allegedly made to the

complainants by a third party, who has stated that he acted on his own initiative in doing so. In my view, the facts of this aspect of

the case were not sufficiently established one way or the other to render this line of evidence useful to either party. Secondly, I

would record my agreement with the decision of the trial judge to attribute no significance to alleged admissions made by the

Applicant, which are strongly disputed by him. The alleged admissions were in any event, as the learned trial judge found, of a limited

nature.

Conclusion.

60. I would allow the appeal, set aside the order of the High Court and grant to the Plaintiff the relief sought.