Supreme Court grants relief on indecent assault charges due to excessive delay and consent issues but dismisses gross indecency charges.

[2003] IESC 54

THE SUPREME COURT

2001 72 JR

Denham J.,

McGuinness J.

Hardiman J.

Between:

D.W.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 31st day of October, 2003.

1. I gratefully adopt the comprehensive statement of the facts of this case contained in the judgment of McGuinness J. A number of

these facts are of particular importance in shaping my view of the case and I intend to refer specifically to those facts only.

2. It is important to have regard to the distinction between the first two charges against the applicant and the remaining twelve. The

first two of charges are of Indecent Assault, contrary to s.62 of the Offences against the Person Act, 1861. One of these is alleged

to have been committed “on a date unknown between the 1st November, 1985 and the 31st December, 1985, both dates inclusive”,

at an address in the Dublin suburbs. The second charge of indecent assault relates to a date unknown between the same dates in

1985, but is said to have occurred on the premises of a school. The remaining twelve charges all alleged gross indecency contrary to

s.11 of the Criminal Law Amendment Act, 1885. All these charges relate to unknown dates. The twelve charges under the 1885 Act

are framed by taking the period between the 1st September, 1986 and the 31st March, 1988, dividing it into three month periods, and

bringing a charge in respect of each such period.

Indecent Assault

3. Indecent assault was a crime at common law. In respect of an indecent assault committed on a male person (which is what is

alleged here) the penalty, at the time these offences were allegedly committed was ten years penal servitude by virtue of s.62 of the

Offences against the Person Act, 1861. By s.14 of the Criminal Law (Amendment) Act, 1935 “It shall not be a defence to a charge of

indecent assault upon a person under the age of 15 years to prove that such person consented to the Act alleged to constituted

such indecent assault”. Apart from that provision, consent to the acts alleged to constitute the assault would be a defence.

Gross indecency.

4. The Act of 1861 did not extend to consensual homosexual acts between male persons other than buggery or attempted buggery.

This topic, however, was addressed by s.11 of the Criminal Law Amendment Act, 1885 which provides:-

“Any male person who, in public or private, commits… any act of gross indecency with another male person shall be guilty

of a misdemeanour and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term

not exceeding two years, with or without hard labour”.

This provision is widely known as the Labouchere Amendment.

5. It appears in a statute of the former United Parliament of Great Britain and Ireland. It was repealed in Great Britain in 1967. In this

jurisdiction its repeal was effected by s.14 of the Criminal Law (Sexual Offences) Act, 1993. Section 4 of that Act, however, provided

as follows:-

“A male person who commits or attempts to commit an act of gross indecency with another male person under the age

of 17 years shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not

exceeding two years.” (Emphasis added).

6. The repeal s.11 of the 1885 Act followed the decisions of the European Court of Human Rights in Dudgeon v. United Kingdom

(1981) 4 EHRR 140, and the subsequent decision to the same effect in Norris v. Ireland (1991 13 EHRR 186) and a Law Reform

Commission Report. The repeal however post-dated the 31st March, 1988, which is the last date in respect of which an act of gross

indecency is alleged against the present applicant. Presumably, the prosecution will seek to validate the charges against him under

the 1885 Act by reference to s.21(2) of the Interpretation Act, 1937.

Significance of precise dates.

7. For this necessarily complex summary of the changing law in relation to indecent assault and gross indecency, the importance of

precise dates for some at least of the charges appears. In summary, the offence of indecent assault has been charged only in

respect of dates at which the alleged injured party was under the age 15 years and thus incapable of giving consent to an act

alleged to constitute indecent assault. He was born on the 16th April, 1971 and was thus aged over 14 ½ years during the period

November to December 1985. The gross indecency charges, alleged to have occurred at various times after the 1st September 1986,

are charges to which the question of consent is not relevant: once gross indecency is established, any party to it is criminally liable

regardless of his own or the other’s consent. Furthermore, and perhaps more significantly, the offence of indecent assault, to which

no defence of consent is available in respect of a person under the age of 15, carries a maximum sentence of ten years imprisonment,

the gross indecency charge carries the maximum sentence of only two years imprisonment. It will thus be seen that the distinction

between the two offences is far from being a technical one only.

How the case came to light: financial allegations.

8. The documents served on the accused under s.6 of the Criminal Procedure Act, 1967 (the “Book of Evidence”), consisting of

statements and exhibits, were exhibited in this case. According to the affidavit of Detective Garda George Trenier, it appears that on

the 7th January, 1998 the applicant called to the office of the Principal of the school where he was then employed. He stated that

the complainant had threatened to report to him to the Department of Education because the applicant had refused to answer letters

from him and to help him pay off debts. The Principal discussed this matter with the Manager of the school and the Trustees. The

school then contacted the office of the Director of Community Care of the Health Board. That office then communicated with the

Gardaí.

9. It accordingly appears that, most unusually, it was the applicant’s own acts that led to his relationship with the applicant being

investigated.

10. The account given by Detective Sergeant Trenier is strongly supported in a statement which the applicant made to the Gardaí.

This contained statements about correspondence and phone calls between the complainant and the applicant, financial transactions

between them and a particular meeting the day preceding the applicant’s going to the school principal. The relevance of these

matters to the present case is that there would appear to be scope for the contention that some at least of the delay in reporting

the matter was due to a specific act of the complainant in benefiting financially from the applicant and perhaps seeking to do so to a

much greater extent “without involving the Gardaí or the Courts”. I consider that any lapse of time which could be related to an

alleged injured party deciding to seek private financial benefit, by way of redress or otherwise, instead of complaining to the

authorities would be very relevant indeed in the assessment of delay. But, after considering the matter very seriously, I agree with

McGuinness J. that the Court is in a very difficult position since most of the material relevant to this aspect was not put before us in

evidence. The exhibiting of a Book of Evidence does not have the effect, either for the applicant or the respondent, of proving its

contents. It is notable in this case that certain aspects of statements have been proved in the affidavits filed on behalf of the

respondent. The applicant has not done this, nor has he raised the alleged financial dealings on affidavit, or cross-examined the

complainant about them. In these circumstances I believe that this aspect of the case must, for present purposes, be left out of the

account.

11. What is said in the preceding paragraph is in no way a criticism of the applicant or his advisers. There are many decisions to be

made in relation to what evidence to rely on in an application such as the present: I have discussed the almost unique difficulty of

some of them in POC v. DPP [2000] 3 IR 87.

The test.

12. I agree with the judgment of McGuinness J. that this is not an appropriate occasion to consider any significant change in the

established law affecting these cases for the reasons which she gives. Accordingly, I propose (and am bound) to approach the case

along the lines indicated by the Chief Justice in PC v. DPP [1999] 2 IR 25.

13. Considering the facts of the present case in terms of the three part approach there described, no argument has been advanced

to support the proposition that the delay in this case is such that “the 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 saying this I am speaking

specifically of the facts and arguments in this case: I am emphatically not holding that this level of delay might not be sufficient to

ground the granting of relief in another case.

14. Secondly, I believe that in the circumstances of this case, leaving aside the financial allegations which I believe are not properly

part of the case, and assuming the complainant’s account to be truthful, the delay in making a complaint may be regarded as

referable to the accused’s action.

15. Accordingly, I turn to the third or prejudiced based test contained in the judgment of the Chief Justice:-

“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… whether the degree of prejudice is such as to give rise to a real and serious risk of unfair trial”.

16. In relation to the twelve charges of gross indecency as originally constituted by the Act of 1885, neither consent nor the alleged

injured party being over the age of 17 would constitute a defence. Insofar as either might constitute mitigation, it appears from the

statement the applicant made to the Gardaí, and which has been proved in these proceedings, that there is available to him certain

independent cotemporaneous evidence in the form of letters and cheques which is quite unusual in a case of this sort. In saying this I

am not assuming that truth or admissibility of these statements, but merely relying on the fact that they have been proved without

contradiction in these proceedings. Equally, I am making no judgment as to the legal propriety of the charges under the 1885 Act

beyond noting that the applicant did not proceed with his challenge to this in these proceedings.

17. It appears to me, however, that the position is different in relation to the two charges of indecent assault. Firstly, on the

evidence adduced in these proceedings, there is a live issue as to whether anything that could be described as indecent assault

occurred at all, or whether there was any sexual contact between the parties when the complainant was under the age of 15. Again,

I make no assumption as to the admissibility or reliability of the statements, but merely note that they have been proved for the

prosecutions purposes in these proceedings without contradiction. Furthermore, the question of consent is central to an allegation of

indecent assault on a person over the age of 15. The allegations here are said to relate to a time when the complainant was within a

few months of this age. And the maximum sentence of a conviction for indecent assault is five times that for gross indecency.

18. Accordingly, questions of age and perhaps of consent are potentially of vital importance to the defence of the indecent assault

charges. Moreover, on the topic of age, the contest will centre on a period of a few months, some eighteen years ago. The

documents exhibited show considerable vagueness on the topic of times and dates. The applicant was arrested on suspicion of a

sexual offence “between the years 1983 to 1988”. The earliest charges as eventually preferred relate to the months of November and

December 1985. The complainant’s evidence on the topic shows signs of attempted reconstruction of memory, which is natural

enough after so long a period.

19. It seems to me that this question of the timing of the earliest alleged offences is one on which the defendant is in a very

significantly worse position than he would have been if the allegations had been made within a reasonable time. An attempt has been

made to correlate these episodes with private lessons which, it is alleged, the complainant had from the applicant. The complainant’s

father’s evidence is that the grinds took place in “the quarter prior to exams”, which would cover the time of year that which the

complainant’s birthday occurs. The complainant remembers grinds as lasting about three or four months in all and that he stopped his

tutorials at the end of “my fourth year/fifth year”. This would place him well over the age of fifteen. There is no available record of

payment for the grinds.

20. In these circumstances, I believe there is a real risk of an unfair trial on the indecent assault charges. Assuming that the actus

reus is established, there will be a contest as to whether it occurred, at the extremes, when the complainant was 14 ¾ years of age

or 15. This in itself is very difficult to do after 18 or more years. The confusions and contradictions evident on deposition illustrate

this vividly. Furthermore, without knowing how this issue will be resolved by the jury, the defendant would be required to canvass the

issue of consent, something which in itself may worsen his position in regard to sentence. I believe that to run a case focussing on so

short a difference in time as 3 ½ months nearly 20 years ago is gravely unfair, and that it “puts justice to the hazard”, in a phrase of

Lord Diplock adopted by O’Dálaigh C.J. in Dowd v. Kerry County Council [1990] IR 27. This risk does not extend to the gross

indecency charges precisely because the latter raised no question of age or of consent.

Length of delay.

21. Although, as previously indicated, I agree with the judgment of McGuinness J. to the effect that no prejudice has been

established in relation to the gross indecency charges, I wish to record that, in my view, a delay of between 10 and 13 years is a

very substantial one. I agree with McGuinness J. that it is “considerably shorter than in a great many cases of this type where

applicants are charged with offences dating back some thirty years or more”. However, the fact that very long periods of delay are

frequently encountered does not, in my view, lessen the potential for injustice after much shorter periods. In my judgment in JOC I

cite a case where serious collapse and confusion of memory occurred in a period of less than two years, and the Court has recently

heard a case featuring very grave failure and confusion of memory, coupled with sincere belief in an incorrect version of events, after

a period of ten years. I would be most uneasy if the existence of very old cases obscured the fact that much shorter periods can

have a destructive effect on memory, either that of persons involved in alleged offences or of third parties. Nor do I agree, as a

general proposition, that one can be confident that less degeneration of memory will occur in a period of ten years than in twenty or

thirty years: I consider that this varies very greatly with the individual. I do, however, agree with McGuinness J. that the evidence

available to this Court in the present case shows a considerable amount of detail still in the memories of both complainant and the

applicant. But I would not wish it to be thought, merely because there are some cases sought to be prosecuted after 30 or more

years, that 10 years or less is significantly less serious in terms of its effect on memory.

Conclusion.

22. I would grant relief restraining further prosecution on the indecent assault charges, charges 1 and 2 in the statement of charges

on the Book of Evidence. Apart from that I would dismiss the appeal and affirm the order of the learned High Court Judge.