Supreme Court dismisses appeal against refusal of injunction to restrain prosecution of sexual offences due to time lapse.

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

No. 236/02

BETWEEN/

D.W.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mrs. Justice McGuinness delivered the 31st day of October 2003

This is an appeal by the applicant against the refusal by the High Court (Ó Caoimh J.) on the 21st March, 2002 to grant the relief

sought by the applicant by way of judicial review. This is one of a number of cases which have come before the High Court and this

Court in recent years in which the court has been asked to restrain the prosecution of sexual offences because of the time which has

elapsed since the offences were allegedly committed.

On 24th November, 1999 the applicant was charged with two offences of indecent assault contrary to s. 62 of the Offences Against

the Person Act, 1861 alleged to have been committed between 1st November, 1985 and 31st December, 1985. He was also charged

with twelve offences of gross indecency contrary to s. 11 of the Criminal Law (Amendment) Act, 1885 alleged to have been

committed between 1st September, 1986 and the 31st March, 1988. The offences are alleged to have taken place when the

complainant was a student and the applicant was a teacher at a well known secondary school in Dublin.

The applicant obtained leave to bring judicial review proceedings by order of the High Court (O’Higgins J.) on 12th February, 2001.

The reliefs sought by the applicant were:

(i) an order of prohibition prohibiting the respondent from taking any further steps in the criminal proceedings the subject matter of

this application;

(ii) an injunction restraining the Director of Public Prosecutions from pursuing the proposed prosecution pursuant to section 11 of the

Criminal Law (Amendment) Act, 1885 and section 62 of the Offences Against the Person Act, 1861;

(iii) a declaration that the provisions of section 11 of the Criminal Law (Amendment) Act, 1885 were at all times and continue to be

unconstitutional.

In the event at the trial of these proceedings in the court below only the injunctive relief was sought, as being appropriate in the

circumstances where the only respondent was the Director of Public Prosecutions. The question of the constitutionality of section 11

of the Criminal Law (Amendment) Act, 1885 was not pursued in the High Court or in this Court.

The grounds upon which the applicant sought injunctive relief were helpfully summarised by the learned High Court judge in his

judgment (at p. 2) as follows:

“(a) That the lapse of time between the date of the commission of the alleged offences and the date of trial is so great as to give

rise to an unavoidable and incurable presumption of prejudice against the applicant;

(b) that by reason of the delay complained of the applicant has been seriously hindered in an opportunity to properly defend himself

in, for example, garnering evidence in order to establish his movements at the relevant times or securing evidence which would

materially undermine relevant and crucial aspects of the complainant’s allegations. As such, therefore, the applicant will be unable to

significantly raise his defence above a bare denial on oath of the said charges.

(c) Grave concerns have arisen following upon depositions held in this case in July 2000 as to the complainant’s own recollection of

dates.

The Facts

The applicant was born in 1940 and is a retired secondary school teacher. From 1964 to 1998 he was a teacher in a secondary school

in Dublin. The complainant, who was born in 1971, was a student at the said secondary school from in or about 1983 until 1989. The

complainant alleges that he was the victim of sexual abuse by the applicant. The incidents of sexual abuse are said to have occurred

at the applicant’s home, in two particular locations in the school, and in the applicant’s car at a location in the Dublin mountains. The

complainant did not report the alleged offences to the gardaí until June, 1998, and then only in response to contact made by the

gardaí to him in April/May 1998. The applicant alleges that he first heard of the complaint when the complainant telephoned his home

in or about January, 1998 and used the phrase “we have a problem”.

After he left the school in question in 1989 the complainant spend some years in the United Kingdom, where he appears to have

attended third level education. The applicant alleges that the complainant voluntarily continued contact with him both by letter and

by telephone during this period and that on occasions he visited the applicant at his home during his visits from the United Kingdom.

The applicant also alleges that from time to time the complainant asked him for sums of money and that he gave these to him. It

appears that the applicant has handed over a number of letters and cheques to the gardaí in this connection.

The applicant exhibits with his affidavit the book of evidence which was served on him by the prosecution but he does not exhibit the

alleged letters or cheques and these, therefore, do not form part of the evidential material provided to this Court in the instant case.

From the book of evidence it appears that the applicant has made a statement to the gardaí admitting sexual involvement with the

complainant from a time when the complainant was one month short of seventeen years of age until approximately 1990. He denies

any sexual activity at a time when the complainant was under fifteen years of age. In his affidavit he stresses the importance of the

dates of the alleged offences, since the charges of indecent assault prior to December, 1985 are the most serious offences with

which he is charged and they carry a much heavier penalty than the later charges. He alleges that his admitted sexual relationship

with the complainant was of a consensual nature.

In July, 2000, depositions were taken in the District Court of the evidence of the complainant and his father and it is alleged that

during the course of these depositions it became increasingly clear that the complainant’s memory as to dates, in particular the dates

of the years in which he alleged that the offences took place, was highly unreliable. It is alleged that the complainant gauged time by

reference to subjects which he was studying and it is alleged that in this regard his recollection was manifestly unreliable as it is

alleged that he frequently cross referenced dates with subjects which would have placed him at a much later age and seniority within

the school curriculum.

The complainant has sworn an affidavit in which he deposes to having been contacted in May, 1998 by a detective garda who invited

him to make a statement concerning the applicant. As a result the complainant made an initial statement to the garda on 19th June,

1998. He made further statements to him at his request on 17th July, 1999, November, 10th 1999 and November, 30th 1999. The

complainant refers in his affidavit to the alleged abuse and avers that the statements which he made to the gardaí are true. He says

that the applicant was at the time of the alleged offences in a position of authority over him and was a father figure. His relationship

with his own father was somewhat distant. He alleges that the applicant played on his emotions like an instrument.

The complainant states that the incidents had a huge effect on him both physically and mentally. He states that he was filled with

guilt, shame and embarrassment that he could have let someone do the things that had been done to him. He states that he locked

the images of what happened away because they were so disgusting to him that he could not bear to deal with them. He thought

that his memories of these incidents would fade away of their own accord the less he thought of them. He says that he now realises

that his efforts to suppress these incidents did him immense harm and they were affecting him daily. As he became older and more

experienced in life the complainant realised that what had happened with the applicant was wrong. He decided that he had to tackle

the problems that this abuse had caused him. He says that he initially disclosed the abuse to a student welfare officer at his

university in England in or about October or November, 1997 and he first complained to the gardaí in June, 1998. During the course of

the preparation of the prosecution of the applicant the complainant was forced to disclose his abuse to his parents. He says that

both his parents found it difficult to deal with the fact that he had not disclosed these matters to them earlier.

The complainant attended Ruth Yoder, clinical psychologist, of the Institute of Psychological Medicine on 19th April, 2001. She has

sworn an affidavit in the proceedings and exhibited her report of her interview with the complainant and the conclusions which she

has drawn. The complainant avers that to the extent that her report recounts matters of fact relating to his personal circumstances

that these facts are true.

Detective Garda Trenier has sworn an affidavit setting out the background to the matter coming to the attention of the Garda

Síochána. A file was sent to the Eastern Health Board referring to the alleged abuse in or about February, 1998. He contacted the

complainant in April, 1998 and invited him to make a statement. The complainant came to the garda station in June, 1998 by

appointment and made a complaint that he had been sexually abused by the applicant when he was a student between 1983 and

1988. The Detective Garda goes on to set out the course of his investigations both in regard to the complainant and in regard to the

applicant. The investigation was delayed from time to time for various reasons, which are set out in some detail in the judgment of

the learned High Court judge.

Ms. Yoder, clinical psychologist, met the complainant on 19th April, 2001 as a result of a request from the Director, with a view to

preparing a written report setting out (a) the effect of the alleged incidents upon the complainant, (b) the reasons for the delay in

him reporting the alleged incidents and (c) her view as to whether the delay in reporting was reasonable in the light of his individual

circumstances. For this purpose she was furnished with a copy of the book of evidence together with the statement grounding the

applicant’s application for leave for judicial review and the applicant’s verifying affidavit. It appears that Ms. Yoder interviewed the

applicant for one hour forty minutes. In her report she sets out the complainant’s personal and social history. The complainant, who is

now managing director of a business owned by his brother, indicated that he had difficulty trusting authority figures in previous

employment situations. He stated that he was confused about his sexuality. Ms. Yoder’s conclusions indicate that as the complainant

was denied the attention from his father that he hungered for, he was all the more vulnerable to the attentions of his teacher, the

applicant, which he mistook for fatherly concern.

Ms. Yoder dealt with the effects of the alleged incidents on the complainant. She said that there was evidence of much damage to

the complainant in emotional and sexual areas of functioning. The most obvious one of these was the confusion surrounding his sexual

orientation and his reported inability to become sexually involved with another person either female or male. The complainant’s family

life had been damaged in that he did not receive the support he expected and needed from his parents and consequently he had

detached himself from them. Ms. Yoder also dealt with the reasons for the delay in the complainant reporting the alleged incidents,

which were similar to those set out in the complainant’s affidavit and statements to the gardaí. In conclusion Ms.Yoder expressed the

view that the period between the occurrence of the alleged abuse and the complainant’s statement to the gardaí was relatively short

compared to allegations of sexual abuse by others in her clinical experience. She was of the opinion that the complainant’s delay in

reporting the incidents was reasonable in the circumstances.

In the course of the trial in the High Court Ms. Yoder was cross-examined at length over a period of two days by counsel for the

applicant. The details of this cross-examination are set out in the judgment of Ó Caoimh J. and there is no need to repeat them here.

In summary Ms. Yoder was challenged as to her expertise, in particular as to her use of certain concepts such as denial and

repression. She was also cross-examined at length in regard to her failure to seek collateral evidence from interviews with the

complainant’s family and friends and as to her failure to discover and deal with the matters which appeared in the letters written by

the complainant to the applicant.

The judgment of the High Court

In his judgment the learned trial judge set out the factual background and summarised the affidavit evidence both of the complainant

and of the applicant. He went on to provide a meticulous analysis of the expert evidence of Ms. Yoder and of the various challenges

made to that evidence by counsel for the applicant both in cross-examination and by way of submissions. He noted that while Ms.

Yoder had been cross-examined at length the complainant had not been cross-examined on his affidavit although notice of intention

to cross-examine had been served on him.

Ó Caoimh J. concluded, in regard to this aspect of the case, that he was satisfied that the delay on the part of the complainant was

explained and was referable to the applicant’s own actions. He went on to say (at p. 29):

“In the first place the complainant was a young boy at the time of the initial activity alleged and the applicant was not only an

adult some twenty years or so older than the complainant at the time, but he was also a teacher of the complainant and was

in a position of trust and of whom the complainant states was a ‘father figure’. The complainant has deposed to the difficulties

he faced as a result of the abuse and indicates that he sought to suppress the memories of the abuse thinking they would

recede and go away. He indicates his mistake in this regard and the damage it was causing to him. It was clear that it was

only in college in 1997 that he first disclosed the abuse and it was to the student officer, about six months before he was

contacted by the gardaí and some seven or eight months before he made the initial statement to the gardaí.

I believe that the complainant’s affidavit alone explains the delay in this case and that it is added to by the evidence of Ms.

Yoder, whose evidence I accept, notwithstanding the limitations of the exercise carried out by her and the confusion on her

part in regard to whether she had seen a letter allegedly written by the complainant and with regard to the use of the word

‘repression’ when she intended to refer to suppression, in circumstances where the complainant says that he tried to suppress

the incidents. In having an opportunity of hearing Ms. Yoder under cross-examination and having regard to her demeanour I

believe that the conclusions reached by her are correct and that the delay in the instant case on the part of the complainant

is to be categorised as reasonable.”

The learned trial judge also held that there was no undue prosecutorial delay; such a delay as there was had been satisfactorily

explained by Detective Garda Trenier in his affidavit.

Finally, Ó Caoimh J. concluded that the applicant had failed to establish that his ability to defend himself had been impaired to such a

degree that his trial should not be allowed to proceed. He was satisfied that there did not exist a degree of prejudice such as to give

rise to a real and serious risk of an unfair trial. He refused the relief sought.

The notice of appeal

The grounds of appeal are set out in the applicant’s notice of appeal dated the 2nd of August, 2002 as follows:

1. The learned trial judge erred in law and in fact in finding that the respondent herein had established, to the extent required

by law, that the delay of the complainant in reporting the alleged incidents had been explained and was reasonable and further

that the same was referable to the applicant/appellant’s own actions.

2. The learned trial judge erred in law and in fact in the manner in which he approached his consideration of the evidence of the

expert witness, Ms. Ruth Yoder and in particular erred as follows:

(a) Failed to have regard to the admitted departures from best practice by the expert witness.

(b) Failed to have due regard to the admitted failure of the expert witness to carry out a comprehensive psychological

investigation and, in particular, to consider matters which she agreed on oath were significant and important.

(c) Failed to have regard to the fact that the expert witness did not consider the fact that the complainant had a history

of dishonesty.

(d) Failed to consider properly or at all the fact that the letters in the possession of the State which proved the

complainant’s dishonesty had not been brought to the attention of the expert witness at the time when she was carrying

out her psychological assessment.

(e) Failed to have due regard to the fact that the opinion of the expert witness was fundamentally flawed in that, under

oath, she claimed to have relied upon the said letters but later admitted that in fact she had never had sight of same and

further, erred in accepting her evidence in this regard on the basis that there was confusion on her part.

3. The learned trial judge erred in law and in fact in finding that the respondent had failed to establish the possibility of

prejudice.

4. The learned trial judge erred in law and in fact in finding that there was no delay by the prosecution in the bringing of the

charges in question following upon complaint being made.

5. The learned trial judge erred in law and in fact in failing to have due regard to the inherent deficiencies of memory of

prosecution witnesses, specifically in relation to the alleged dates of offences, revealed by the depositions called in the District

Court.

Submissions of counsel

Senior counsel for the applicant, Mr. Hartnett, accepted that in seeking to prohibit a trial on the basis of delay the onus is on the

applicant to establish the case for an injunction on the balance of probabilities. However, in cases such as the instant case, where

the allegations are of a sexual nature, he submitted that the onus is on the prosecution (the respondent) to prove that the delay is

attributable to the applicant or that it may be shown to be due to the psychological effects of the alleged sexual offences on the

complainant.

The main thrust of Mr. Hartnett’s submissions to this Court – both written and oral – was to attack the expert psychological evidence

given both in her report and in her oral evidence by Ms. Yoder. He pointed out that Ms. Yoder herself agreed that it was “best

practice” to carry out collateral interviews with family members or friends as well as interviewing the complainant himself. She had not

done this because the complainant had refused her permission to interview the members of his family. Mr. Hartnett was extremely

critical of Ms. Yoder having based her interview on an assumption that the complainant’s account of events was true. He argued that

she should have carried out a full investigation with a view to assessing the credibility of the complainant. He submitted that this was

not a classic case of dominion – the facts revealed in the applicant’s affidavit and his statement to the gardaí disclosed a desire for

financial profit on the part of the complainant rather than dominion by the applicant.

Mr. Hartnett also criticised Ms. Yoder’s failure to take into account the continuing relationship between the complainant and the

applicant during the complainant’s residence in the United Kingdom. It transpired that she had not seen the complainant’s letters

which had been given by the applicant to the gardaí. It appeared that the complainant had described himself in one of these letters

as “lying to everyone” and Mr. Hartnett argued that this greatly detracted from his credibility. In the circumstances there was a

necessity for a comprehensive psychological assessment of the complainant. All the relevant circumstances pertinent to the

complainant should be explored together with the background facts relating both to his symptomology and the reasons proffered by

him for his alleged inability to complain at an earlier stage.

In his submissions, counsel relied in particular on the judgment of McCracken J. in the case of MF v. The Director of Public

Prosecutions (unreported High Court 5th December 1997) in which McCracken J. stated (at p. 3):

“It is my strongly held view that where a witness purports to give evidence in a professional capacity as an expert witness, he

owes a duty to ascertain all the surrounding facts and to give that evidence in the context of those facts, whether they

support the proposition which he is being asked to put forward or not.”

Mr. Hartnett in his submissions referred also to further criticisms of expert evidence in cases of this kind made by Hardiman J.,

Geoghegan J. and by myself in earlier cases and in addition drew attention to the remarks of Kearns J. to the same effect in AW v.

Director of Public Prosecutions (unreported High Court 23rd November 2001) (at p. 25):

“It follows from the foregoing that where serious ambiguities and omissions are to be found in psychological evidence and

where, on cross-examination the evidence of the psychologist fails to resolve or make good such deficiencies or is shown to

contain contradictions of views previously expressed, the court should be extremely cautious and slow to accept or act on

opinions or conclusions offered by such an expert, even in the absence of evidence in contradiction called on behalf of an

applicant..…. Where and when requested to carry out a psychological assessment, it is in my view incumbent upon the

psychologist to discharge such a function, in detail and in depth, even if his brief is mainly to inquire into factors explaining

delay.”

In summary, Mr. Hartnett submitted that the investigation and interview of the complainant carried out by Ms. Yoder was insufficient

and inadequate. She had failed to establish the credibility of the complainant’s given reasons for his delay in reporting the alleged

offences to the gardaí and had not provided adequate psychological reasons for this failure to report. She had certainly not

established that the complainant’s delay could be laid at the door of the applicant.

Counsel for the applicant went on to submit that the series of delays which had occurred in the prosecution of the case were

inexcusable and had not been adequately explained by Detective Garda Trenier.

Finally, Mr. Hartnett outlined the prejudice which would, he said, be suffered by the applicant due to the fading of memory of possible

witnesses and the difficulty of establishing such matters as the use of various rooms in the school, the possibility of locking the

relevant doors, and the timetables of the classes attended by the complainant or thought by the applicant. In the circumstances

there was a real and serious risk of an unfair trial.

Senior counsel for the Director, Mr. McDonagh, dealing firstly with the factual evidence in the case, submitted that the learned High

Court judge was correct in finding that the evidence of the complainant alone was sufficient to explain the delay in making a

complaint. He drew attention to the fact that the complainant in his affidavit averred to the truth both of his statement to the gardaí

and his account of events given to Ms. Yoder. All of this was, therefore, his sworn evidence. There was a conscious decision on

behalf of the applicant not to cross-examine the complainant on this evidence. His evidence was, therefore, unchallenged and Ms.

Yoder was quite justified in making the assumption that it was true for the purposes of her report.

The applicant had made a full statement to the gardaí but had not averred as to its truth in his affidavit. Counsel for the applicant

had made great play with the alleged letters, but these letters were not in evidence at all in the instant judicial review proceedings.

Counsel for the applicant in his submissions referred to proof of the complainant’s dishonesty and this phrase was also used in the

notice of appeal. No such proof existed. All that was before the court was the opening of a few lines of an alleged and unproved

letter by Mr. Hartnett in the course of cross-examination of Ms. Yoder. To build an edifice of a course of dishonesty by the

complainant on these meagre foundations was unacceptable.

Mr. McDonagh pointed out that counsel for the applicant had made a number of allegations against the complainant himself in addition

to what was described as a history of dishonesty it was also alleged that he was unable to recall specific dates by reason of which

the applicant could not obtain a fair trial. Those issues did not go to the psychological assessment of the complainant but were

matters capable of being tested by way of cross-examination. The conscious decision on the part of the applicant’s advisers not to

cross-examine the complainant, Mr. McDonagh submitted, spoke for itself.

With regard to the evidence of Ms. Yoder, Mr. McDonagh pointed out that it was not a function of a clinical psychologist in giving

evidence in proceedings of this nature to validate the complaints made by the complainant. It was well established that in

proceedings of this nature the issue was not whether the accused person committed the crimes with which he was charged. The only

issue before the High Court and this Court on appeal was whether the court was 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”. (PC v. Director of Public Prosecutions [1999] 2 IR 25, 67 per Keane J.). The truth or otherwise of the complaints

was to be tested at the trial of the accused.

In the cross-examination of Ms. Yoder much reference had been made to “best practice” and to various psychological concepts such

as “denial” and “repression” but no expert evidence defining these practices and concepts had been led by the applicant.

Senior counsel for the Director went on to advocate, in cases of this type, an approach which radically differed from that which has

been followed by this Court in a number of cases where lengthy delay has occurred between the commission of the alleged offence

and complaint being made to the prosecuting authorities. Mr. McDonagh submitted that in such a case the trial of the accused person

should be prevented only where such delay had occurred between the initiation of the prosecution of the accused person by a “public

charge” and the date of the actual trial. Once that delay had occurred, the sole test should be whether there was a real and serious

risk of an unfair trial.

Mr. McDonagh referred to cases decided by the Supreme Court of the United States, in particular Barker v. Wingo [1972] 407 US 514

and United States v. Marion [1971] 404 US 307. These cases, to which reference had been made in earlier judgments of this Court,

dealt solely with delay on the part of the prosecution. The question of delay between the commission of the alleged offence and the

making of a complaint simply did not arise, largely because in many jurisdictions Statutes of Limitation applied to crimes, with the

possible exception of murder. In both United States and European jurisprudence the right to an expeditious trial arose only after the

public charge of the accused with the alleged offence. Mr. McDonagh made detailed submissions, both in this case and in a somewhat

similar case which was argued before this Court in or about the same time as the instant case, setting out the jurisprudence both of

the United States Supreme Court and of the European Court of Human Rights in regard to delay cases. He pointed out that even

where it was established that an undue delay had taken place in the prosecution of the relevant offences, the culpability of the delay

was often reflected in reduction of sentence rather than by prohibition of the trial.

Mr. McDonagh went on to say that in cases of delay there was an onus on the accused to demonstrate prejudice. The onus on the

prosecution at the trial was to prove the guilt of the accused beyond reasonable doubt and many of the alleged matters of prejudice

in the instant case could well be dealt with by the trial judge in the course of the trial. There must be a real and substantial risk of an

unfair trial in a situation where matters prejudicial to the accused could not be corrected by the trial judge.

Mr. McDonagh submitted that the prosecutorial delay in the instant case had been by no means inordinate and had been clearly

explained by Detective Garda Trenier in his affidavit. This had been accepted by the learned High Court judge. This prosecutorial delay

was not such that it would create a real risk of an unfair trial.

The total delay in the instant case was considerably less than in a number of other similar cases which had been considered by this

Court. In addition, the applicant appeared to have quite an amount of circumstantial evidence available to him for use in his defence

at his trial. It was by no means the case that his only defence would be a bare denial of the alleged offences. In any case it must be

taken into account that the applicant had admitted to a sexual relationship with the complainant.

Mr. McDonagh submitted that this Court should uphold the decision of the High Court.

The law

The proper approach to be taken to cases of this nature has been considered by this Court on a number of occasions. In B v.

Director of Public Prosecutions [1997] 3 IR 140 the delay between the commission of the offences and the complaint being made

ranged from twenty to thirty years. At p. 194 of the report under the heading “Reasonable Expedition” Denham J. discussed the

effect of delay in the light of both Irish case law (State (Healy) v. Donoghue [1976] IR 325 and State (O’Connell) v. Fawsitt [1986] IR

362 and United States case law, in particular Barker v. Wingo [1972] 407 US 514. At p. 195 Denham J. went on to deal with the duty

of the court as follows:

“The court must look at the circumstances in each case, the issues and the constitutional interest of the parties, to

determine the matter. There is no definitive time limit. There is no exhaustive or exclusive list of factors. There are interests

which must be protected in the constitutional scheme of things.”

The learned judge went on to list a number of factors which needed to be analysed in that particular case, one of which was the

community’s right to have offences prosecuted. In this regard she said:

“It is not the applicant’s interest only which have to be considered. It is necessary to balance the applicant’s right to

reasonable expedition in the prosecution of the offences with the community’s right to have criminal offences prosecuted. The

community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If

there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the

applicant’s right would prevail.”

Under the heading “Test” Denham J. continued:

“The test is whether there is a real risk that the applicant, by reason of the delay, would not obtain a fair trial, that the trial

would be unfair as a consequence of the delay. The test must be applied in the light of the circumstances of the case and the

law.”

The learned judge went on to emphasise that cases relating to allegations of sexual abuse of children and young people fell into a

special category and on this account many different factors in relation to the concept of delay had to be analysed. The factors which

she listed in that case included relationships, dominion, whose delay?, nature off offence: alleged sexual abuse in the home, alibi,

witness, and admission of guilt.

The matter was again considered in the case of PC v. Director of Public Prosecutions [1999] 2 IR 25 in which judgments were given by

Denham J., Lynch J. and Keane J. (as he then was). In his judgment Keane J. again discussed the jurisprudence of the United States

Supreme Court and the case of Barker v. Wingo. In a passage which has been quoted and relied upon in a number of cases Keane J.

went on to say: (at p.66)

“This case, belongs to a category of cases in which another factor is present. In Hogan v. President of the Circuit Court

[1994] 2 IR 513, where ( the charges were of larceny, forgery etc.) Finlay C.J. said at p. 521:

‘… cases consisting of charges by young children in regard to assaults on them at an early age which are not brought to the

attention of the authorities by such children until very many years after they occurred involve wholly different considerations

from those applicable to the present case’.

The approach that must be adopted by a court asked to prohibit the trial of a person charged with such offences was dealt

with comprehensively by Denham J. speaking for this Court in B. v. Director of Public Prosecutions [1997] 3 IR 140, and has

been considered by her again today. It is unnecessary to traverse that ground again in any detail. Clearly, the fact that the

offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however

inordinate, and allowing the trial to proceed. Moreover, even in cases of unlawful carnal knowledge or sexual assault where the

complainant is a girl under the age of consent, it is to be borne in mind that the alleged perpetrator may himself be a child.

There are cases, however, of which this is one, where the disparity in age between the complainant and the person accused is

such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young

children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her

participation, albeit unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases there may be

threats, actual or implied, of punishment if the alleged offences are reported.

The delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the

complainant at the time of the alleged offences, but occupies a particular role in relation to him or her e.g. as parent, step-

parent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and a degree of trust on the

part of the child may be more readily inferred. This is not to say that the court in dealing with applications of this nature must

disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the court is

satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every

such case is whether the court is satisfied as a matter of probability that the circumstances were such as to render explicable

the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress

again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case

must be considered before that issue can be resolved.

Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable

delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an

unfair trial: that, after all, is what is meant by the guarantee of a trial ‘in due course of law’. The delay may be such that,

depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated

that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to

what other 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 is a matter of probability that, assuming the complaint to be truthful, the delay in

making it was referable to the accused’s own actions.

If that stage has been reached, the final issue to be determined will be whether the 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 the finding that the delay is explicable by reference to the conduct of the accused is

necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of

innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such

as to give rise to a real and serious risk of an unfair trial.”

In PO’C v. The Director of Public Prosecutions [2000] 3 IR 87 the court prohibited the trial of the applicant on the grounds that a

particular form of evidence concerning the ability to lock a music room door was unobtainable on account of the lapse of time

between the alleged offences and the making of the complaint. In his judgment at pp. 111-112 Hardiman J. dealt with the practical

difficulties faced by an accused person on account of the lapse of time. He spoke of “islands of relevant and ascertainable fact”

which could give rise to a specific matter of defence and stated that:

“there is a duty on all parties concerned with cases such as this, and in particular on the gardaí by reason of their unique

investigative role, to take all possible steps to establish as many as possible of the facts surrounding an allegation of sexual

abuse. If it is not possible to establish a particular relevant fact this should be clearly stated no matter which party it may

favour.”

In the more recent case of K. v. Judge Groarke and the Director of Public Prosecutions (unreported, Supreme Court 25th June 2002)

Denham J. speaking on behalf of the court again dealt with the general principles governing cases of this nature. At p. 12 of the

judgment Denham J. stated as follows:

“14. Onus

In seeking to prohibit a trial the onus is on the applicant. The burden is on him to establish his case for prohibition of the trial

on the balance of probability.

15. Test

The test to be applied by a court, in determining whether or not a trial should proceed, is whether there is a real or serious

risk of an unfair trial. This test may be applied in other circumstances, seeking to protect the same constitutional rights. Thus

it may be applied in a case where there has been delay in prosecuting the case and it may also be applied if there has been

extensive pre-trial publicity. See D. v. Director of Public Prosecutions [1994] 2 IR 465; Z. v. Director of Public Prosecutions

[1994] 2 IR 476. In D. v. Director of Public Prosecutions [1994] 2 IR at p. 474, I stated:

‘If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s

right to a fair trial being balanced detrimentally against the community’s right to have the alleged crimes prosecuted.’

16. Delay

With that constitutional protection for due process in mind, however, the courts do not give institutional protection to persons

who commit crimes which by their nature may not be detected for years. It is not the function of the courts to establish a

policy that a prosecution delayed by, say, five, ten, fifteen, or twenty years may not proceed. Such policy matters are for the

Oireachtas. It is not a matter for the courts to give institutional protection to crimes which, for one reason or another, may

not be prosecuted for many years. It is for the courts to protect due process, to protect fair procedures. Article 38.1 of the

Constitution of Ireland states that: ‘No person shall be tried on any criminal charge save in due course of law.’ The ‘due course

of law’ encompasses the right of an accused to a trial with reasonable expedition: In re Singer 97 ILTR 131. The fact that the

right to trial with reasonable expedition is not specifically mentioned in the Constitution does not diminish its importance:

D.P.P. v. Byrne [1994] 2 IR 236. In criminal cases the right to a trial with reasonable expedition has long been recognised: The

State (Healy) v. Donoghue [1976] IR 325.”

Thus there is a considerable line of authority derived from judgments of this Court setting out the way in which this type of delay

case should be approached. This line of authority undoubtedly takes into account the period of delay between the commission of the

alleged offence and the date of complaint in addition, of course, to prosecutorial delay where such exists.

Mr. McDonagh, in his argument, seeks a crucial change in this approach. His argument is of considerable interest. He is, of course,

correct in pointing out that the impugned delay in Barker v. Wingo and the other United States and European cases which he opened

to the court is delay between public charge and trial rather than between alleged offences and complaint. He is also, I think, right to

stress the importance of the basic test as to whether in the circumstances there is a real and serious risk of an unfair trial. However,

he is in his argument seeking to overturn a clear and recent line of authority of this Court. At the very least such a decision would

have to be made by a full court and cannot be further considered by a limited court here.

The instant case, therefore, must be considered within the parameters of the existing law. This was the course followed by the

learned trial judge.

The various factors which fall to be considered in a case such as the present have been analysed by Denham J. in a number of

judgments, some of which have been quoted above. Factors relevant to the present case include:

(a) length of delay;

(b) relationships;

(c) dominion;

(d) relative ages of parties;

(e) availability of evidence and witnesses;

(f) admission of guilt;

(g) psychological evidence.

A. Length of delay

The delay in this case, said by the prosecution to range between 1985 and 1988 and the date of complaint in 1998, is considerably

shorter than in a great many cases of this type where applicants were charged with offences dating back some thirty years or more.

While there is no doubt that memories fade over a period of ten to twelve years, there is at least more likelihood of recall over a

period of ten years than when events are much further in the past. In fact the affidavits and statements of both the complainant and

the applicant contain an amount of detail going beyond that provided in many other cases.

B. Relationships

There are two aspects here. Firstly, the relationship between the applicant and the complainant was that of teacher and pupil – a

relationship of authority and also of trust. Secondly, the complainant’s relationship with his own father seems to have been somewhat

difficult and distant (this aspect of Ms. Yoder’s evidence has not in substance been challenged) and the complainant says that he

turned to his teacher, the applicant, as an alternative father figure and was encouraged by the applicant so to do.

C. Dominion

There is little evidence in this case of deliberate and overt exercise of dominion of the kind exemplified in B. v. DPP by the applicant

over the complainant. For example, no direct threats seem to have been made to prevent disclosure. If the allegations made by the

applicant in connection with money transactions prove to be true there may have been an element of manipulation of the applicant by

the complainant. With regard to this aspect of the matter this Court is in a difficult position (as was the High Court) in that most of

the relevant material is not in evidence in the present case.

It should be added, however, that a degree of dominion may be implied where the relationship is that of a teacher and pupil. This was

accepted by this Court (see judgment of Keane J. (as he then was) at p. 68-69) in the case of PC v. DPP [1999] 2 IR 25, where the

applicant was a school bus driver and occasional swimming instructor.

D. Relative ages of the parties

The applicant was born in 1940 and the complainant in 1971 – an age difference of thirty-one years. At the time of the first alleged

offence in 1985 the complainant was fourteen years of age and the applicant forty-five years of age. This is clearly a relevant factor,

as has been pointed out by Keane J. (as he then was) in the passage from PC v. Director of Public Prosecutions quoted earlier.

E. Admissions made by the applicant

The position in the instant case is that the applicant has, in his statement made to the gardaí, admitted to a sexual relationship

between the complainant and himself, albeit a consensual relationship, taking place at a somewhat later date than that claimed by

the prosecution. While he has not set out all this material in his affidavit, he refers at para. 7 of that affidavit to the statement

“allegedly made by myself”. He does not deny the matters set out in the statement and does not allege that any wrongful act on the

part of the gardaí played a part in eliciting that statement from him. In his affidavit he emphasises the importance of the dating of the

offences and declares his innocence of the two indecent assault charges.

The applicant is fully entitled to the presumption of innocence in regard to all the charges which have been brought against him.

However, when considering whether his trial on these charges is to be prohibited his own attitude to the charges is a relevant factor.

F. Witnesses and evidence

The applicant submits that he will have great difficulty in establishing evidence with regard to such matters as school time tables,

teaching hours, the particular use of the medical room in the school and the nature of the window in his own office. This, he says,

must be seen in the light of the complainant’s vagueness and possible inaccuracy about years and classes in his deposition in the

District Court.

It is, of course, true that the passage of time will create evidential difficulties of this kind for the applicant. Such difficulties will be

the more acute in view of the case which he appears to be making in regard to the dates and timing of the alleged offences. The

difficulties of this kind which are caused by an accused person at his trial have been well described by Hardiman J. in his judgment in

JO’C v. Director of Public Prosecutions [2000] 3 IR 478. It can be difficult for a trial judge to deal with this type of disadvantage in his

rulings and directions to the jury. This is a factor which must be taken into account.

G. The psychological evidence

I have left this aspect of the evidence to the last as I believe that, in addition to referring to the evidence of Ms. Yoder in the instant

case, it is worth giving some general consideration to the use and value of this type of evidence in cases of delayed reporting of

sexual offences.

It has in recent years become customary for the Director of Public Prosecutions to proffer the evidence of a clinical psychologist in

these cases. This evidence is generally aimed at explaining the psychological causes for the phenomenon of delay in reporting

offences of sexual abuse, particularly where the alleged victim is a child or young person at the time of the offence. In many cases,

as in the instant case, its purpose is also to relate these general principles of delay to the facts of the individual case, together with

the history and character of the alleged victim.

Where evidence of this second type is proffered it is generally based on an interview, or occasionally more than one interview, with

the complainant together with the reading of some of the material contained in the pleadings and/or the proposed book of evidence. A

report is then prepared for the court.

In a number of cases this has given rise to prolonged, detailed and technical cross-examination of the psychologist in question by

counsel for the applicant. It might almost be suggested that counsel are developing an expertise in this area of psychology with a

view to cross-examination of this type. As I pointed out earlier, Ms. Yoder was subjected to just such a lengthy cross-examination in

this case; this cross-examination was carefully considered and analysed by the trial judge in the court below. One might be forgiven

for questioning whether certain aspects of this cross-examination, particularly those relating to the technical meaning of particular

words, were really necessary or were of much assistance to the court.

It is also true that from time to time the reports and evidence of experts in these cases have been quite severely criticised by

judges; some examples of these criticisms were opened to the court by Mr. Hartnett.

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

In certain cases there is ample ordinary evidence which would assist the court in understanding, from its own commonsense and

general experience of life, why, for example, a child did not immediately report sexual abuse by an adult. The case of B. v. DPP [1997]

3 IR 140 is one example. In such cases, it seems to me, any expert evidence could be limited to a general exposition of the reasons

for delay in reporting in these cases. The numbered list of factors set out by the expert witness in the case of K. v. Judge Groarke

and the DPP at p. 3-4 of the judgment of Denham J. in that case is a good example.

It would then be for the court to form its own opinion of the influence of these factors within the parameters of the other evidence in

the particular case.

In some cases, however, the reasons for the delay are less clear and less readily ascertainable. In such cases expert evidence in

greater depth may be required and further evidence may be considered appropriate.

All such evidence is open to challenge in cross-examination. It must, however, be borne in mind that it is not the task of the expert

witness to assess the credibility of the complainant or the guilt or innocence of the applicant. The truth or otherwise of the

complaints is to be tested at the trial of the applicant.

The evidence provided in the present case by Ms. Yoder fell somewhere between the two types of expert evidence which I have

outlined above. As such, it had certain weaknesses. This was noted by the learned trial judge, who spoke of “the limitations of the

exercise carried out by her” (at p. 29). Nevertheless I would agree with the learned trial judge that the main conclusion reached by

her, that the complainant’s delay is to be categorised as reasonable, is correct. I also consider that Ó Caoimh J. was correct in

emphasising in this context the evidence of the complainant himself.

The issue in this case, as 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” (Keane J. at p. 67 in PC v. DPP). Taking into account all the factors discussed above, I would agree with the learned trial

judge that the complainant’s delay is explicable.

I would also agree that the various periods of delay which can be attributed to the prosecution are not unduly long and have been

adequately explained by the Detective Garda in his affidavit.

The paramount and final test, however, is whether in all the circumstances there is a real and serious risk of an unfair trial. This Court

must, therefore, still consider the degree of prejudice which may be suffered by the applicant arising from the delay in his

prosecution. As I have accepted at paragraph F above, it is true that the lapse of time since the alleged offences will create

difficulties for the applicant. As in virtually all cases of this kind the offences are alleged to have been committed in private, largely at

the applicant’s home or in a deserted location in the countryside. There will have been no witnesses to these incidents whose death

or disappearance would prejudice the applicant’s case. Even in the case of the episodes alleged to have taken place in the school it is

not suggested that there were actual witnesses who, for example, saw the complainant entering the medical room or the applicant’s

office during a particular year. The applicant’s case in this regard is that school records and time tables and general evidence about,

for example, the usage of the medical room, will no longer be available. This may well be so, but these matters can be drawn to the

attention of the jury by the trial judge. An excellent example of this type of direction by a trial judge to a jury can be found in the

charge given by His Honour Judge Haugh to the jury in the case of Director of Public Prosecutions v R.B. (Court of Criminal Appeal,

unreported 12th February 2003, at pp.15-16).

It is, however, of importance in the present case that the applicant has, it seems, available to him independent contemporaneous

evidence in the form of letters and cheques. This goes well beyond the evidence generally available to an applicant in cases of this

kind. As a result the trial will not be a matter of bare accusation met by bare denial.

In my view, the degree of prejudice which may be suffered by the applicant in his trial is not such as to create a real and serious risk

of an unfair trial.

I would dismiss the appeal and affirm the order of the High Court.