Supreme Court allows prohibition of prosecution due to excessive delay and unreliable evidence threatening fair trial rights.

THE SUPREME COURT

149/03

Murray CJ

Geoghegan J

McCracken J

Between:

JM

Applicant/Applicant

AND

The Director of Public Prosecutions

Respondent

Judgment of Mr Justice McCracken delivered the 28th day of July 2004

Background

1. This is one of a number of cases which have come before the Courts in recent years in which it is sought to prohibit the

Respondent from taking any further steps to prosecute the Applicant in relation to sexual offences which are alleged to have taken

place many years ago. While the Courts have endeavoured to lay down general principles regarding such cases, ultimately each case

depends on its own facts.

2. The Applicant was a Christian Brother who for some years in the 1960s was based at an industrial school. He left the order in the

mid 1970s. On 7th July 1999 he was charged with 19 counts of indecent assault on JB and two counts of indecent assault on PB, all

of which assaults were alleged to have taken place at the said industrial school, and in relation to PB, to have taken place between

28th January 1964 and 28th January 1966.

3. The complainant PB was cared for in an orphanage until he was nine years old, and then was moved to the industrial school where

he remained until he was 16 years old. He married at the age of 28 and moved to England where he worked for some 23 years, and

then returned to Ireland.

The Complaints Against the Applicant

4. The Complainant JB made his initial complaint to the gardaí on 16th June 1995. This complaint was made in relation to a Brother M,

being a name which was somewhat similar to that of the Applicant, and which named this Brother M as the band teacher. He made

three further statements on unknown dates, and included in his statements was a complaint of an extremely serious physical and

sexual assault, alleged to have taken place in the presence of another named pupil, T McN.

5. The Complainant PB made his first statement on 21st July 1995. In his statement to the gardaí on that occasion, PB made

complaints of two specific incidents of sexual assault, being the two incidents in respect of which the Applicant has been charged. It

was alleged that one such incident took place in the Applicant’s dormitory and the other took place in the Complainant’s dormitory.

This statement referred to the assailant by the same name as had the statement by JB and made no reference to him being a band

master. The statement also said that at the time of one offence the Complainant PB was between ten and twelve years of age and at

the time of the other offence he was about twelve years old.

6. No further statements were taken from the Complainant PB until 1999. He made two further statements in that year, one before

and one after the Applicant was charged. In one of those statements he simply corrected the name of the alleged abuser to that of

the Applicant herein. In the other statement he referred to the Applicant as the band master and said that the first incident took

place when he was 14 years old and the second incident when he was thirteen and a half years old. It may also be of some relevance

that he said in that statement that the first person he ever told about the abuse was his wife when he got married in 1978.

7. The Complainant PB has also sworn an affidavit in these proceedings. In the course of that affidavit he has sworn that the

contents of the three statements he made are true. He also stated in his affidavit that he had reported these incidents during his

stay in the school to a “Summer Brother”, whose name he did not recall. A “Summer Brother” is a member of the Christian Brothers

Order who assisted in running the school during the summer months to relieve some of the Brothers who were there permanently. He

said his complaint was dismissed, and that the summer Brother stated that what he alleged could not have happened because the

person concerned was a Christian Brother. There was no mention of this in any of his statements.

8. In his affidavit, he stated that he made his initial complaint to the gardaí after meeting the Complainant JB and speaking to him in

July 1995.

Relevant Dates

9. The Applicant complains of both complainant’s delay and prosecutorial delay, and it is probably of assistance to set out the

relevant dates:-

28th January 1951 – Date of Birth of PB

28th January 1964- 28th January 1966 – alleged offences against PB

16th June 1995 – First complaint by JB

21st July 1995 – First complaint by PB

23rd May 1997 – Applicant interviewed by gardaí

25th February 1998 – Applicant again interviewed by gardaí

1st July 1998 – Garda file completed

14th July 1998 - Garda file submitted to Superintendent’s office

9th November 1998 – Garda file submitted to State solicitor

17th November 1998 – Papers sent to Respondent’s office

12th February 1999 – Respondents sought clarification on file from gardaí

13th April 1999 – Garda replied to Respondent

3rd June 1999 – Direction from Respondent to issue summons

18th June 1999 – Application for summons

7th July 1999 – Applicant charged at District Court

27th April 2000 – Book of Evidence served

Complainant’s Delay

10. In the Complainant’s affidavit in these proceedings he avers that he made a complaint to a “summer Brother” while he was in the

school. He states that he felt very let down by the response and he feels that he might be punished as a result of making a report of

that nature, and made no further attempt to disclose the abuse during the remainder of his stay there. He says that he never told

anyone of the incidents thereafter until his marriage in 1978, when he told his wife. The reason stated in his affidavit is that he was

afraid he would not be believed and that people would consider he was insane. He also says that at the time allegations of that

nature made by somebody in his circumstances against a member of a religious order would not have been believed. He says that he

felt shame and disgust at what happened, and continued to have these feelings even after he recounted these events to his wife.

11. An affidavit was filed on behalf of the Respondent by Ruth Yoder, a clinical psychologist, who interviewed PB on 10th March 2001.

Her assessment in her report is in fact very positive and paints a picture of a man with normal personality, social and emotional

functioning. She says he recounted his history in a clear manner with adequate concentration and attention and no obvious signs of

adjustment problems. On a basic IQ test the result was borderline, but she says that this may be partly due to his low educational

attainment, and that his true IQ may be higher. She concluded that overall PB appears to have made a good adjustment to the

responsibilities of adult and family life, and she recounts his reasons for the delay in reporting the incidents in the same manner as

those set out in his affidavit. She concludes that he suffered from what she called “the almost universal psychological sequelae of

sexual abuse: shame, guilt and self-blame”, which prevented him from attempting the report the alleged incidents after his first

attempts with the “summer Brother”. She also said that, because of the climate of disbelieve with regard to the clergy being

implicated in the sexual abuse of children which had existed, and by reason of the unequal relationship between PB and a member of

the clergy, he would be inhibited from making allegations of sexual abuse.

12. Ms Yoder was cross-examined at some length on her affidavit, and maintained that her understanding was that the reason why PB

did not report the abuse was because he did not think he would be believed and he was ashamed, and that that deciding factor when

he did complain was that somebody else, namely JB, had complained about the same person and was believed.

13. For complainant’s delay to be excused it must not only be explained, but the reasons for the delay must be attributable at least in

part to the actions of the abuser. It is well-established that for the purposes of considering this principle, and for that purpose only,

the Court must assume that the complaints made by the complainant are true. In the present case that test is clearly met, in that

the complainant’s fear that he would not be believed derives from the fact that the alleged abuser was a Christian Brother, and the

Complainant’s felt that complaints of a sexual nature against a Christian Brother would simply not be believed. In my view, the

Complainant’s delay is both explicable and is attributable in part to the Applicant and his then position as a Christian Brother. Ms

Yoder’s evidence on this point was quite clear and consistent, notwithstanding a strenuous cross-examination.

Prosecutorial Delay

14. A period of almost four years elapsed between the first complaint made by PB and the Applicant being charged. The explanation of

the Respondent for this long period is that investigations were being conducted, not only into the complaints of PB and JB, but also

into a number of other complaints against other members of the Order at the same school. This is undoubtedly so, and one can

understand the desire of the gardaí to complete their investigations against all persons who were the subject of a complaint before

charges were laid against any of them. However, in considering whether to prohibit the trial of the Applicant, the issue with which the

Court is concerned is whether the right of the Applicant to a speedy trial has been infringed. The Applicant points to several examples

of what the Applicant’s Counsel calls the slovenly attitude of the investigation. It is certainly strange that it became clear to the

gardaí in October 1996 that notwithstanding the wrong names been given by PB in his initial statement, the real person against whom

the complaint was being made was the Applicant, but that no further statement was taken from PB until March 1999, when he

corrected the error. A further example of slovenliness alleged concerns the failure to discover that T McN again, who was central to

the most serious complaint made by JB, was still alive.

15. In O’Flynn v. Clifford [1988] IR 740 Gannon J, in a passage subsequently approved of by the Supreme Court, said at page 745:-

“A person who is a mere suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor

to have some legal process diligently or expeditiously pursued, by arrest or by summons, to bring him before a Court. The

public interest and good sense require that every crime be properly investigated and that the offender be expeditiously

brought to justice. But the public interest also requires diligence and consciencous care in the investigation of crime, and the

assembling and presentation of cogent evidence in support of a prosecution. It is not part of the functions of the Courts to

participate either in the investigation of criminal offences or in a supervisory direction of those engaged in that work. The

Courts must remain detached and independent in relation to all matters antecedent to the laying a charge against a person of

a criminal offence.

……………

The Court cannot of its own motion investigate the circumstances leading to the laying of the charge or procedures of

investigation. But if it should appear to a Court that an accused was unlawfully detained without charge to facilitate the

investigation and formulation of intended charged his immediate release would be ordered. Equally if it should appear to a

Court that an accused person has been deprived of the right and opportunity of a fair trial or put to an unfair disadvantage in

facing his trial by reason of circumstances in the control of the prosecution, such as by unwarranted delay in bringing a

charge, the constitutional obligation on the Courts to vindicate the rights of the citizen would require dismissal of the charges

or other refusal to adopt the unwarranted procedures.”

16. The issue before this Court is not whether the investigation of the complaints was slovenly or carelessly carried out on the one

hand nor whether the delay on the part of the investigating authorities was justified by the circumstances on the other hand. The

Court does not know, nor has it the means to inquire into, the methods of investigation or the justification for the delay. However,

there undoubtedly in the present case was a considerable delay, and, whether that delay was justified or not, from the point of view

of the investigating authorities, the Court is concerned primarily with the question of whether such delay has affected the

constitutional rights of the Applicant, and in particular whether it has jeopardised his right to a fair and expeditious trial.

17. Following this undoubted lengthy delay, there was then a further delay of some 21 months between the Applicant being charged

and the Book of Evidence being served. It was apparently during this period that a statement was finally taken from T McN, although

that statement was not included in the Book of Evidence. I will return to the whole question of T McN later.

18. There are cases in which prosecutorial delay may in fact be so “blameworthy”, which is a word used in several judgments, as to

justify the prohibition of the trial with nothing further, but I do not think this is one of those cases. There has certainly been an

exceptional delay in this case, but it does appear that there was a reason for the delay, in that there were several parallel

investigations going on at the same time. To that extent, the delay is not “blameworthy”. The delay can be excusable if it does not

affect the Applicants constitutional rights. However, while the prosecutorial delay may not in itself lead to the prohibition of a trial it

is a factor which can be taken into account in the overall assessment of the situation by the Court.

The JB Complaints

19. Nineteen of the twenty-one charges laid against the Applicant relate to complaints made by JB. By far the more serious of these

complaints relates to an incident alleged to have taken place in the presence of T McN. The evidence is that the gardaí were unable

to trace T McN until sometime in the latter part of 1999. It was then discovered that he was alive in a psychiatric hospital and a

statement was taken from him. That statement has not been produced to the Court, nor was it furnished to the Applicant. For some

unexplained reason it did not come into the hands of those preparing the Book of Evidence which related to all of the charges,

including those concerning JB. On 18th September 2000 leave was granted by Butler J in relation to these proceedings, and it was

only subsequent to the notice of opposition in these proceedings being filed that the Respondent undertook not to proceed with the

charges relating to the complaints of JB. It is of some relevance to note that, while by far the most serious allegation made by him

related to an incident alleged to have taken place in the presence of T McN the Applicant was also charged with a number of other

counts of sexual assault which did not in any way relate to T McN, and yet the Respondent chose not to proceed with any of the

nineteen charges arising out of the complaints by JB. The only reasonable inference from this would appear to be that the Respondent

considered that JB’s evidence was not reliable.

Prejudice

20. The word “prejudice” is commonly used in cases of this nature to determine whether a prosecution should be prohibited due to

delay. In some ways this is a misnomer. The real question which must be at the heart of all decisions of this nature is whether there

is a serious possibility that the accused person will not be able to get a fair trial. In some cases that can be demonstrated very

simply, for example, where a vital witness who would have been available had there been a speedy trial, has died or is no longer

available for some other reason. There are other cases, such as the present one, which do not depend on a specific prejudice, but

rather on a general overview of all the circumstances of the case which could affect a fair trial. There are a number of such

circumstances to be considered in the present case, namely:-

1 The totality of the delays which took place, whatever the reason for the delays.

2 The inconsistencies of the statements of PB. In particular, the differences in the age at which he alleged these incidents took

place in his first statement, in which the first incident was alleged to have taken place when he was between ten and twelve

years of age, while in his final statement it was alleged that he was fourteen years of age. There was period of over four years

between these statements, and one must question the accuracy of a recollection which differs to that extent over a four year

period.

3 The initial statement by PB was made after he had talked to JB, and after JB had made his statements. Both statements

referred to the Applicant by the wrong name. While I am not for a moment suggesting that there was collusion as such between

the two Complainants, there must be a danger that PB was influenced in his recollection by what he was told by JB.

4 Identification of the Applicant as being the perpetrator of these offences is of vital importance. PB’s initial statement gives no

form of identification other than the wrong name, and it is only in his statement made four years later that he identifies the

Brother concerned as being the band master.

5 His disclosure to the “summer Brother” was not mentioned in any of PB’s statements.

6 His identification of the Applicant by his proper name came after he had been told by the investigating gardaí that this was

the name. It must be doubtful whether PB ever had a recollection of the actual name of the Applicant.

7 Nineteen of the twenty-one charges against the Applicant are not being proceeded with, presumably because the

Complainant in relation to those charges is considered to be unreliable. PB made his original complaint after talking to this

apparently unreliable complainant.

8 There is, quite understandably, a complete lack of records as to who were pupils in the school at the time, and particularly as

to who might have been in the same dormitory as PB.

Conclusion

21. In reaching a conclusion in this case, there is one overriding principle which must be followed. In the words of Keane CJ in P O’C v.

Director of Public Prosecutions [2000] 3 IR 87 at page 96:-

“As has been repeatedly emphasised by this Court, the public interest in ensuring that every person charged with a criminal

offence receives a fair trial must, where conflict arises, takes precedence over the unquestionable public interest in the

prosecution and punishment of crime.”

22. While I do not consider that the delay taken by itself would be sufficiently blameworthy to prohibit the Applicant’s trial,

nevertheless, when that delay is considered in conjunction with the matters set out above, in my view there is a real risk that the

Applicant’s right to a fair trial would be in jeopardy. In considering cases of this nature, the Court should have regard to the totality

of the circumstances surrounding the proposed prosecution, even though no single factor would justify prohibiting the prosecution. I

would allow the appeal and grant the order of prohibition sought.