Supreme Court dismisses appeal on sexual offence delay, finding no unfair trial risk despite long lapse.

THE SUPREME COURT

Murray C.J.

Fennelly J.

McCracken J.

106/02

T.W.

Appellant / Applicant

-v-

The Director of Public Prosecutions

Respondent

Judgment of Murray C.J. delivered on the 28th day of July, 2004

1. The appellant in these proceedings is the subject of two separate prosecutions brought against him for the alleged commission in

the 1970’s of sexual offences against two brothers when they were young boys. Each of them was unaware that the other had been

the subject of sexual abuse by the appellant until matters came to light in recent times. In the first prosecution the appellant is

charged with one offence of buggery and a series of offences of indecent assault alleged to have been committed against the

complainant (hereafter the first complainant) between the 1st January, 1970 and the 9th January, 1972. The second prosecution

concerns a series of indecent assaults alleged to have been committed by the appellant against the complainant, (hereafter the

second complainant), between the years 1970 and 1975. In separate judicial review proceedings the appellant sought an order

restraining the respondent from proceeding with each of these prosecutions, inter alia, on the grounds of an inordinate delay between

the alleged occurrence of the offences and the initiation of the prosecutions against him. Both of the sets of judicial review

proceedings were heard together in the High Court and the reliefs sought by the appellant refused. The appeals in each case were

head together.

2. The appellant has appealed against the orders of the High Court essentially on the grounds that (a) the learned trial judge erred in

finding that the delay in making of the complaint by the complainants was attributable to the conduct of the appellant; (b) the

learned trial judge erred in finding that there was evidence of a psychological nature to support the contention of the respondent that

the delay in making the complaints by the complainants was excusable and in particular he failed to take into account the admissions

of the psychologist that she had been in error in omitting from her consideration matters of significance and relevance and in relying

on psychological evidence that was unduly theoretical; (c) the learned trial judge erred in holding that the appellant had not

established, on the balance of probabilities, that there was a real and serious risk of an unfair trial.

Background facts

3. The alleged circumstances surrounding the alleged commission of the offences against each of the complainants are very similar.

Both were born and grew up in the town in which the appellant lives and where, when the complainants were young, he was involved

in organising activities of a local cub scouts organisation and judo club. When each of the complainants were very young they

became involved in the activities of both the cub scouts and the judo club. The first complainant joined the cub scouts when he was

eight or nine years of age and subsequently became involved in the judo club. The second complainant, who was a year younger than

the first complainant, also joined the scouts club at nine or ten years of age and subsequently the judo club. In each case the

complainants say that the appellant befriended them as young boys and they looked up to him as an adult figure with a lead role in

the activities in which they became involved.

4. On the 5th May, 1998 the appellant was arrested in connection with the allegations made by the first complainant and

subsequently questioned concerning same. This was the first intimation that he had that any complaint had been made against him by

that complainant. On the 19th June, 1998 he was questioned by gardaí at his home in connection with the allegations made by the

second complainant. That was the occasion on which he first became aware of any complaint being made against him by that

complainant. On the 23rd September, 1998 the appellant was arrested and charged for the offences arising from the complaints of the

second complainant and on the 27th January, 1999 he was arrested and charged with the offences arising from the complaints of the

first complainant.

5. In these proceedings affidavits sworn by each of the complainants were filed by the respondent. These are of particular relevance

concerning the reasons why no complaint was made to the gardaí concerning the alleged offences until very many years had elapsed

from the dates of their commission.

6. As regards the first complainant, he was born on 9th April, 1959 and joined the cub scouts when he was approximately eight or

nine years old. He became acquainted with the appellant because of the latter’s involvement with the scouts. In his affidavit filed in

these proceedings he says that the appellant came across as a kind caring man and he also looked to him as somebody who would

give him attention particularly because of difficulties in the home due to his father’s heavy drinking. He says that the appellant first

sexually abused him in the appellant’s own house and this continued regularly over a period of three years. When he was about eleven

or twelve years old he became a member of the judo club run by the appellant, at the appellant’s instigation. He further states in his

affidavit that as a result of the abuse perpetrated by the appellant he developed such a massive guilt and great personal shame that

he did not think to stop this behaviour. He came to believe that the sexual depravity was his fault and he suffered from lack of

confidence, depression and low self-esteem. Throughout that period he believed that he was the only person being abused by the

applicant. Having worked at various jobs after leaving school he eventually joined the gardaí. In the early 90’s he sustained a serious

head injury in the course of his duties, as a result of which he attended a counselling course in England. It was during this counselling

course that he first disclosed to a counsellor and other participants in the course that he had been sexually abused as a child. He

says he was able to make this disclosure at that time because he was in a foreign country and felt more free to talk to people there.

During the counselling course he had been required to reflect on his whole life from childhood and he came to realise that in order to

allow himself to live a normal life he had to confront his past. It was in these circumstances that he later came to make a complaint

about the appellant. He says he had not made a complaint at an earlier time because he had great feelings of shame about the

matter and still does. He had blamed himself for the acts of sexual abuse, he felt dirty and unclean. It was this and the consequential

depression and low self esteem which prevented him from making a complaint at an earlier time. This complainant also avers in his

affidavit to have had consultations with Ms. Rosaline McElvaney, Clinical Psychologist and to have read a copy of the report which

she compiled following those consultations. He further avers that to the extent that her reports deal with matters of facts relating to

his personal circumstances, that those facts are true.

7. In his affidavit the second complainant explains how he joined the cub scouts when he was approximately eight or nine years of

age and became acquainted with the applicant who was involved in running the cubs and who was also chief organiser of the judo

club which he joined at a later stage. At that time there were difficulties in the complainant home due to his father’s heavy drinking

and erratic behaviour. On the other hand the appellant came across to him as a friendly and kind man who gave him sweets or a small

amount of pocket money from time to time. The first serious indecent act took place when he was about nine or ten years of age.

The indecent assaults persisted over the ensuing years during which he continued to receive money quite regularly from the appellant

with a warning not to tell anyone where he had got the money from. In his affidavit he said he did not report the abuse when he was

a child because he did not know any better or understand what was happening. The appellant had told him that he had done similar

things with other children and stated that they had no problem with what he was doing with them. The first complainant also states

he was made to feel it was he who had allowed the applicant to perform indecent acts upon him rather than being effectively coerced

into doing so against his will. He felt an enormous sense of shame, disgust, guilt and self-blame. His guilt was increased particularly

because of the fact that due to the money he had received from the appellant he had sometimes more money available to him than

his mother had at the time. He felt that he had effectively prostituted himself and was dirty and unclean. Because of his feelings of

guilt and self-blame he attempted to avoid the whole issue of responsibility at great cost to his personal life but he gradually

attempted to come to terms with what had happened to him at the time. After leaving school he worked in various hotels in this

country except for a period of about four years when he lived in England. He married in 1985, there were two children of the marriage

but he finally separated from his wife in 1997.

8. In his affidavit he also explains that the first occasion on which he disclosed the fact that he had been subjected to sexual abuse

as a boy was in or about 1995 to a close friend in the hope and expectation that he would get a supportive response. He did so and

felt an enormous burden had been lifted from his shoulders. Some time later he made the same disclosure to his father and to his wife

in a discussion as to why their marriage was ending. In the context of discussing the breakdown of his marriage with his brother he

disclosed the fact of his abuse to his brother only to discover, for the first time, that he had also been the subject of abuse by the

appellant. It has only been in the relatively recent past that he has felt able to attempt to confront the issue to the extent that he

could make a complaint to the gardaí.

9. At the request of the respondent he attended Ms. Rosaline McElvaney, a clinical psychologist, for consultation. In his affidavit he

avers to have seen a copy of her report and further avers that to the extent that her report recounts matters of fact relating to his

personal circumstances, those facts are true.

Judgment of the High Court

10. The learned High Court Judge had before him affidavits from the appellant, the two complainants, two garda witnesses and Ms.

Rosaleen McElvaney, a clinical psychologist and psychotherapist who interviewed both complainants and produced a report in respect

of each of them. In those reports she expressed the view that each of the complainants had been inhibited until recent times from

reporting their allegations against the appellant to the gardaí by reason of the traumatic and psychological effect of the sexual abuse

which they said they had suffered. A notice to cross-examine on behalf of the appellant was served for the purpose of the

proceedings before the High Court. Ms. McElvaney was cross-examined on her affidavit and her reports by counsel for the appellant.

11. The learned High Court Judge found, on the evidence before him, that there was no real or serious risk of an unfair trial in these

cases by reason only of the delay involved. He also concluded, as a matter of probability, that the delay in making the complaints

could be attributed to the effects, in particular the emotional and psychological effects, which the alleged sexual abuse had on each

of the complainants. Accordingly, he found, applying the principles enunciated in the existing case law, that there were no grounds

for granting the reliefs sought by the appellant which would prohibit the continuation of the prosecution by the respondent.

Grounds of Appeal

12. The first aspect of the appeal concerned the issue whether the learned trial judge erred in law and in fact in finding that the

delay by the complainants in making their complaints to the gardaí was attributable to the effect on them of the sexual abuse and

therefore attributable to the conduct of the appellant by reason of which it was excusable. This aspect of the appeal was founded on

a number of detailed criticisms of the evidence of the psychologist, Ms. McElvaney. Most of these criticisms are common to her

evidence concerning each of the complainants. These were:

(i) The psychologist accepted that her brief was limited and that she did not carry out an assessment as regards credibility of

the first complainant

(ii) The psychologist relied solely on the statements made by the complainants to the gardaí for the accounts of the alleged

abuse without obtaining an oral account from the complainants.

(iii) The psychologist made inadequate inquiries as to how the complaints were first made and the surrounding circumstances.

(iv) No attempt was made by the psychologist to ascertain whether the nature of the allegations changed or remained

consistent from the time of making the first complaint;

(v) The psychologist failed to make any adequate inquiry into the family background of the complainants including the fact that

two other members of the family suffered from depressive illnesses.

(vi) Despite admitted omissions which were relevant to her assessment the psychologist indicated that she would not change

her conclusion that the delay in making complaints by the complainants was reasonable.

(vii) The psychologist had insufficient information or made insufficient inquiries concerning counselling which had or may have

been obtained by the complainant prior to the date of her clinical assessment.

(viii) She accepted that there were limitations in her report and she did not establish that the delay by the complainants in

making complaints was as a result of dominion or other significant psychological effect but only that it could be consistent with

the effects of sexual abuse

13. In addition there was a particular complaint as regards the first complainant namely that the psychologist failed to have sufficient

regard for or make inquiries as to the head injuries suffered by this complainant and the medication he received as a result. In

particular, she did not assess the effects of these matters on his long term memory.

14. As regards the second complainant the criticisms made of the psychologist’s evidence included that she failed to disclose in her

report that the second complainant had apparently complained of being raped by another and older brother; that she failed to

investigate that matter adequately. It is also complained that there was no scientific basis for an opinion expressed by the

psychologist that if the second complainant had been asked to complete the questionnaires which he completed during the

assessment five years earlier, the results would have reflected quite severe symptomatology.

15. In addition to the foregoing a number of arguments were advanced on behalf of the appellant concerning the contention that the

learned trial judge erred in holding that there was no real or serious risk of an unfair trial if these proceedings were to proceed to trial.

First of all, it was submitted that many of the offences alleged by the two complainants took place in the appellant’s home during a

period when he resided with his parents and an elderly aunt who spent the majority of her time in the home. Those three people are

now deceased and it is claimed they would have been material witnesses to the appellant’s defence. As regards the second

complainant a number of the offences are also alleged to have taken place on the farm of Mr. C., after Mr. C. had been visited in his

farmhouse. Mr. C. is not available as a witness as he is also deceased. It was submitted that if the trial were to proceed it would

consist only of evidence of the alleged offences by the complainants countered by a bare denial of the appellant and in the absence

of any corroborative evidence of the complainants complaints, the appellant would be deprived of any evidence to establish his

movements at the times of the alleged offences by reference to the aforementioned other persons. It is further submitted that the

learned trial judge erred in law in taking into account the evidence in an affidavit of one of the garda members, concerning certain

admissions by the appellant to the gardaí and in particular that the appellant stated to the gardaí that at the time of the alleged

sexual occurrences he did not know that these sexual acts were wrong and at the time he was sexually immature and did not think

that they caused harm.

16. Finally, it was submitted that the learned trial judge, in assessing whether or not there was a real and serious risk of an unfair

trial, erred in failing to have regard to the absence of a medical examination of the first complainant in the light of his allegation that

he still suffers injury to his person as a result of the alleged act of buggery.

17. It was also submitted that the long delay which has elapsed since the alleged commission of the offences gives risk, in the

circumstances, to presumptive prejudice in respect of the fairness of any trial.

Submissions of the respondent

18. The submissions of the Director of Public Prosecution can I think be summarised very briefly. Essentially the Director of Public

Prosecutions submits that the evidence of a psychologist was expert evidence related to and based on facts. The findings of fact,

based on that evidence, was a matter for the learned trial judge and in the absence of contradictory evidence, he was entitled to

accept in substance the evidence of the psychologist. As regards the risk of an unfair trial it was submitted that the learned trial

judge properly applied the principles governing cases of this nature in particular those set out in D. v. Director of Public Prosecutions

[1994] 1 I.L.R.M. 435. On the evidence before the learned trial judge he was entitled to conclude that the absence of any evidence

which might be given by the persons referred to by the appellant and who are now deceased would not prejudice a fair trial. As

regards the reference by the trial judge to statements made by the appellant to the gardaí he expressly ruled that “there is no

inference to be drawn in relation to the accused’s lack of denial of the offences” and as regards the absent medical evidence, no

evidence was offered nor was any case made as to what bearing that medical evidence may have on the fairness of the trial.

Applicable law

19. This case is another in a succession of cases to come before the courts where it is sought to prohibit the prosecution proceeding

with the trial on the grounds of a long lapse of time between the date of the commission of the alleged offences and the making of a

complaint concerning them to the investigatory or prosecuting authorities. In a succession of judgments this Court has set out the

principles of law which should be applied in deciding whether, in the circumstances of a particular case, a trial of the accused should

be permitted to proceed. These judgments acknowledge that there is a balance to be struck between the public interest in seeing

that persons are tried for serious offences where it has been found that there is sufficient evidence to warrant that person being put

on trial and between the constitutional right of a citizen to a trial in accordance with law, that is to say a fair and expeditious trial.

20. In Hogan –v- President of the Circuit Court [1994] 2. I.R. 513 at 521 Finlay C.J. stated:

“Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds

for charging any person with an offence, their failure to do so and elapse of time before they are in a position to do so cannot

give an accused a right to prohibit a trial on the basis of defeat of his constitutional right to an expeditious trial. For example,

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 in the present case.”

21. The kind of considerations which may fall to be considered were referred to, again by Finlay C.J., in G. –v- Director of Public

Prosecutions [1994] 1 I.R. 374 when he stated at p.380:

“The Court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and

justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the

offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be

entitled to the order.”

22. These issues have tended to arise mainly in the context of persons who have been charged and sent for trial for sexual offences

against young children. The consideration which arise in such cases was further dealt with by Keane J. (as he then was) in P.C. –v-

Director of Public Prosecutions [1999] 2 I.R.25 at 67: -

“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 charges 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, 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 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 the 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 the 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 as 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 was 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.”

23. In reality there has been no meaningful divergence between the parties in this appeal as to the principles to be applied, the issue

being rather the application of those principles to the particular circumstances of this case.

24. The principles referred to above had been reaffirmed in quite a number of the judgments of this Court, not least of which was P.

O’C –v- Director of Public Prosecutions [2000] 3 I.R. 87.

25. The two primary questions for consideration in this case therefore are whether the long delay between the commission of the

offences and the reporting of them to the authorities, assuming the complaint to be truthful, is referable to the accused’s own

actions. The second is whether, if the delay is explicable by reference to the conduct of the accused, whether notwithstanding the

explicable delay, the circumstances disclose that the trial of the accused would be prejudiced in such a way as to give rise to a real

and serious risk of an unfair trial.

Decision

26. I will first of all deal with the contention of the appellant that the learned High Court Judge erred in law and in fact in concluding

that the delay in each case was due to the traumatic psychological effects of the sexual abuse which the complainants had

undergone and was thus attributable to the appellant. As the submissions of the appellant outlined above indicate, this ground of

appeal is founded on a range of criticisms made of the evidence of the psychologist who submitted, on affidavit, the two reports

which he had made of her assessment of the complainants. She was also extensively cross-examined before the High Court on the

contents of her reports.

27. The first complaint made is that the psychologist did not carry out an assessment as regards the credibility of the complainants.

It seems to me that this submission is based on a misconception of the role of the psychologist. The ultimate truth or otherwise of

the complainants evidence concerning sexual abuse which implicates the appellant was not an issue to be tried by the High Court and

as the learned High Court Judge pointed out in the course of the proceedings, that issue was one which could only be decided by a

jury at a trial. The task of the psychologist was to carry out a professional psychological assessment of each of the complainants and

in particular, whether there are any particular reasons why there was a long delay between the occurrence of sexual abuse, assuming

it occurred, and the complaint to the gardaí. When, as in this case, a psychologist is requested to carry out such an assessment in

the context of a long delay between the abuse and making of a complaint to the authorities, he or she is required to use his or her

expertise in accordance with professional norms to form an opinion as to whether the subjects of her examination were emotionally

and psychologically inhibited from reporting the sexual abuse and if so, why, to what extent and in what manner. That is not to say

that a psychologist or similar professional can rest passive as to matters which emerge which could affect the reliability of a

complainant either as to the nature and extent of the sexual abuse or, in particular, the consequences said to have been suffered

from that abuse which might be said to have inhibited its reporting. But that is very far from saying that a psychologist or other

professional must conduct an investigation or an inquiry as to the truthfulness or credibility of the complainants concerning the

alleged sexual abuse. While a doctor may take a patient’s complaints at face value in a clinical assessment, he or she will usually have

occasion to note, where they occur, such matters as lack of coherence in complaints or inconsistencies between the complaints and

objective symptoms. The approach taken by the psychologist in this case was indicated when in response to it being suggested to

her that she did not consider it part of her brief “to assess the truth or falsity or possibilities of their falsity of the allegation”, she

responded

“It wasn’t my brief to formally assess that and certainly that wasn’t the purpose of my assessment but I would like to add

that obviously in carrying out any kind of clinical interview one always has an obligation to note information that was

inconsistent, to seek clarification if there are inconsistencies and if there are concerns about the credibility of what is being

said, to express those concerns.”

28. In my view, this was an entirely proper approach for the expert witness to adopt. Moreover, since the court assumes the truth of

the complaints made by the victims for the purposes of the issues of delay in a case of this nature, it is not open to criticise an

expert preparing a report to approach a matter on the same basis subject to the rational constraints which I have indicated above. It

is thus not the purpose of such a report to investigate and validate the truth or falsity of the complaints but to approach them in a

professional manner for the purpose of assessing and forming an opinion on the circumstances under which the complainant delayed

for a long time in reporting the complaints to the authorities. Account must also be taken of the fact that the report was placed

before the High Court as evidence in circumstances where the complainants each swore an affidavit confirming the facts as set out in

their statements to the gardaí as true and each averred to have seen a copy of the respective report concerning them and that the

to extent that her report gave accounts of matters of fact relating to his personal circumstances, those facts were true. The

complainants were not cross-examined on their affidavits. In my view, the evidence of the psychologist cannot be validly criticised for

failing to approach her assessment of the complainants as an investigation and validation of their original complaints. Before going on

to consider the other criticisms made of the psychologist’s evidence I think it is relevant to consider the substance of her report. As

regards the first complainant she interviewed him on two separate dates and took his family history from an early date including the

fact that his father was an alcoholic who was physically abusive in the home where the family atmosphere was very difficult and the

children fearful. In addition to interviewing him concerning his early family life, including the period when he was abused, the

assessment included an examination of the course of his life up to the time of the report. She assessed, following standard

procedures, the post-traumatic stress and other psychological sequelae of traumatic events in his life including, but not limited to,

childhood sexual abuse. These included not only his difficult home circumstances but the fact that in adulthood he suffered a severe

head injury while on duty when he was a member of the gardaí. She concluded that he was suffering from a range of psychological

difficulties at present.

“Although these symptoms may not exclusively result from the alleged abuse, I believe that the alleged abuse is a major

contributory factor. Those effects of the alleged abuse which may have, in my opinion, inhibited [the first complainant] from

making a formal complaint include shame and disgust, guilt and self-blame for the alleged abuse, and difficulties in trusting.”

29. Earlier she had observed that the first complainant’s difficulties in trusting people may well have ‘the roots in his own relationship

with his parents, given the level of family violence and that this left [the first complainant] vulnerable to developing trust in another

adult which was subsequently destroyed due to the experience of sexual abuse, thus exacerbating these difficulties to a significant

degree.’

30. She also concluded that

“those aspects of the alleged abuse experience which would inhibit a child from disclosing the alleged abuse include [the

appellant’s] position of authority and trust in relation to the boy, [the appellant’s] alleged kindness to the young [first

complainant], the alleged coercion used in getting the boy to participate in sexual behaviour, the acts themselves (i.e. the

boys active participation …; taking a photograph of the boy naked) and the homosexual aspect of the alleged abuse. Other

factors which also, in my opinion contributed to the delay in making a formal complaint were [the first complainant’s]

occupation, his fear of what others might think of him and his low self-esteem.”

31. In concluding she stated:

“In addition to the reasons outlined above, research has indicated that those factors which may inhibit males to disclose abuse

experience include (a) belief that men are not victims and, if they are, that they are less traumatised by victimising

experiences than are females; and (b) feelings of shame based on the perceived failure to protect oneself or to achieve

appropriate revenge against the offender. I believe these factors operated in (the first complainant’s) case. Finally, I believe

that considerable therapeutic work was needed to enable [the first complainant] initially to disclose and furthermore to be

able to bring the disclosure further to a formal complaint to the gardaí. I would have no hesitation in considering that the

delay in reporting these alleged experiences was, in my opinion, reasonable.”

32. As regards the second complainant Ms. McElvaney also had interviews with him on two separate dates where she also reviewed

the course of his life, his family problems, the sexual abuse and the difficulties which he encountered as an adult. She first of all

observed that

“Those factors which, in my opinion, influence the extent to which [the second complainant] would be adversely affected by

his alleged experience of sexual abuse include: the nature of his relationship with [the appellant]; [the second complainant’s]

vulnerability as a victim of domestic violence; the age difference between them; the manner in which [the second

complainant] was coerced into co-operating with the abuse; the responsibility which was given to him; his perceived sense of

power in the abuse relationship as he developed into his teens and the payment he received for his co-operation in the alleged

abuse.”

33. She records how the second complainant described the appellant as

“Someone whom he loved, a father substitute who showed you how to do things, go camping etc. He looked up to [the

appellant]. He recalls as he got older, around 13 or 14 feeling a sense of power in relation to the sexual experiences, that he

had something this man wanted. He saw himself as responsible for what was happening”

34. As regards this complainant she also observed that he

“Distinguishes between his relationship with his father and that with [the appellant] in that he never had a loving relationship

with his father and therefore no breach of trust occurred. However, he loved and trusted [the appellant]. I would not concur

with this distinction in that it is my opinion that a lack of love for their parent is in itself a breach of trust. [The second

complainant’s] exposure to physical and emotional abuse in the home would, in my opinion, have influenced the development

of such a belief system. However, I would concur that the sexual abuse represented a devastating blow to this child’s belief

that people can be trusted and by extension that the world is a safe place to be. [The second complaint] said that he always

believed that he would not see past 40. “The world was such a cruel place and I was alone”

35. Ms. McElvaney concluded that:

“Those factors which, in my opinion, primarily deterred [the second complainant] from making a formal complaint about his

alleged experiences of childhood sexual abuse or the shame and guilt he felt about the experiences – believing that he was

responsible for them this belief, I would suggest was reinforced by his objective experience of being powerful as a growing

teenager and his belief in adulthood that he had therefore prostituted himself as a child/teenager, his guilt about being wealthy

compared to his mother who managed the family budget with difficulty.”

36. Her final conclusions included that the second complainant:

“… presented as a man who has struggled in recent years with trying to understand his childhood experiences of sexual abuse.

It would appear that his primary reasons for not reporting this alleged abuse were related to his shame and guilt and belief

that he was responsible for this abuse. It is my opinion that this understanding was given to him as part of the abuse i.e. he

was led to believe that it was happening because he liked it and because it was normal. This was further reinforced by his own

reaction to the abuse, particularly the feeling of being powerful as a young teenager. [The second complainant’s] own coping

style would appear to have been one of putting the past behind him and running from one job and home to another. His

marital difficulties represented the catalyst for him to address his psychological difficulties, as a result of which he was able

for the first time to disclose his alleged experiences of sexual abuse to a friend. Gradually he was able to share this information

and come to an understanding of his own victimisation and the risk which [the appellant] might present to other children.”

37. I now turn to various specific criticisms made of the psychologist’s report in evidence in the submissions of counsel for the

appellant. Submissions (ii) to (v) concern the adequacy of the enquiries or investigations made by the witness. Insofar as the first

two submissions criticised the report for relying solely on the statements made by the complainants to the gardaí; a failure to verify

how the complaints were first made and the failure to ascertain whether the complaints or allegations remained consistent from the

him of making the first complaint, I would say that much of what I have had to say concerning the alleged duty of a psychologist to

investigate and validate the complaints applies to those criticisms also. Furthermore, while the witness undoubtedly had before her

and relied upon the statements made by the complainants to the gardaí and therefore did not carry out a specific investigation of the

facts concerning the complaints, it is quite clear that she did not rely solely on those statements since unchallenged portions of her

report indicated that she discussed with them their family background, the sexual abuse and its effects. Moreover, her report and

assessment could not in any sense be described as unduly theoretical.

38. There is another perhaps fundamental aspect to these criticisms, and indeed it may well apply to all the criticisms made of Ms.

McElvaney’s report and her evidence. Counsel for the appellant were of course perfectly entitled to cross-examine Ms. McElvaney in a

critical manner concerning her report as indeed they did. They were entitled to suggest that there were factors which she failed to

take into account which she ought to have or avenues of enquiries which she failed to pursue which she ought to have. Such

criticisms, even where found to have some validity in themselves, go to the weight to be attached to the overall report and the

witnesses’ final professional conclusions. This was a matter for the trial judge who, independently of the evidence of the expert

witness, also had before him the unchallenged evidence of the complainants on affidavit setting out the circumstances of their

relationship with the appellant in the context of which the abuse took place and averring that it was the emotional consequences of

the sexual abuse for them personally which inhibited each of them from complaining to the authorities earlier than they did.

39. Ms. McElvaney maintained, in her expert view, that she was in a position to form the professional opinion which she did by

carrying out her assessment on the basis of the information she had concerning the sexual abuse suffered by the complainants and

her interviews with them. She did acknowledge that she had not adverted to the fact that the complainant’s mother was described as

a ‘manic depressive’ and an elder brother as ‘depressive’ in counselling notes provided to her from the institution where the first

complainant had received counselling as follow up to the head injury which he had sustained. In acknowledging that these were

relevant matters that she should have taken into account and noted in her report, she expressed the view that this could not alter

her conclusions concerning the reasons why the complainants delayed in reporting the sexual assaults but rather that it confirmed her

view. This was because, if any inference was to be drawn from those facts, it was that the complainants were rendered more

vulnerable by their home situation and therefore likely to sustain greater traumatic consequences as a result of being abused by an

adult in whom they had placed trust. Furthermore, on any reading of her report it is quite clear she took into account the

unsatisfactory family situation of the complainants in their home and considered this to be factor which rendered them more

vulnerable to long term consequences of such sexual abuse.

40. In my view, there is not sufficient substance in the criticisms made of the report and evidence of Ms. McElvaney which could be

considered to be a valid basis for impugning the decision of the learned High Court Judge.

41. Again, insofar as Ms. McElvaney accepted that there were certain errors of omission in her report she expressed the professional

opinion, which she was entitled to do, that taking such factors into account did not alter her professional opinion as to the reasons

for delay in making complaints. That was the evidence before the learned trial judge and it was a matter for him, having observed her

give oral evidence over a day and a half, to decide whether or not he could rely on her conclusions in his findings of fact.

42. It should of course be noted that while it was open to the appellant to call other expert evidence to demonstrate that the report

in question was deficient in it’s methodology or was otherwise undermined by errors or omissions, no such evidence was called.

43. A specific criticism which related to the case of the first complainant only was that Ms. McElvaney, for the purposes of her report

and assessment, had insufficient information regarding the possible neurological deficit and effect on long term memory of a head

injury suffered by him in 1992 and also failed to make enquiries as to the possible effects on long term memory of any medication

prescribed for that complainant from the date of his injury to the date of assessment.

44. As regards this matter I would first of all note that there is nothing in the evidence to suggest that the first complainant had any

problem with his long term memory. It was raised at length in a hypothetical fashion in cross examination of the witness but as she

pointed out in her evidence she did have a discussion with Mr. E. Hogan, senior clinical psychologist, Cork, who treated the first

complainant for the post traumatic effects of his head injury and who informed her that the first complainant had been the subject of

a neurophysiological assessment and there had been no problem in relation to the first complainant’s memory. Accordingly she had not

treated the memory as an issue to be addressed.

45. I should add that the affidavit evidence from the first complainant, and indeed the report of Ms. McElvaney concerning her

discussions with him, at no stage disclosed that the first complainant had any difficulty with his memory as such concerning the

abuse he says he suffered from the appellant. It can also be said that this is clearly not a case which gives rise to questions

concerning ‘recovered memory’ arising from a suppression of memory of unpalatable events. Insofar as counsel for the appellant

relied on the judgment of Hardiman J. in J.L. –v- Director of Public Prosecutions [2000] 3.I.R. 122 at 151 where he considers the

caution which the courts should exercise in examining psychiatric evidence in cases of this nature, those observations, as I

understand it, were very much in the context, as Hardiman J. observed, where it was:

“… difficult to ascertain whether this is indeed a case where the alleged offence is said to have been always remembered, but

with psychological difficulty in disclosing it or whether it was a case where the memory was suppressed and subsequently

recovered … This distinction is a significant one. If the alleged memory is wholly or partly a repressed one recovered, wholly

or partly, as a result of therapy, that fact is immensely relevant both on the question of lapse of time and on the question of

the inherent reliability of the evidence.”

46. As I have observed, this is a case in which the alleged offences have always been remembered but with psychological difficulty in

disclosing them. In this case, no expert evidence was called by the appellant and in my view, there was no evidence before the

learned trial judge which would have entitled him to conclude that the evidence of Ms. McElvaney was in anyway undermined by a

failure to pursue further the hypothetical possibilities that in some cases long term memory may be affected by severe injuries or

medication administered in connection with same.

47. The criticism of the psychologist’s report specific to the second complainant relates to her failure to disclose in her report, when

recording that the second complainant had previously stated (not in a complaint to the gardaí) that he had been sexually assaulted,

or raped as the psychologist herself described it, by another person, that that person was in fact his elder brother. It was submitted

that this was a matter of great significance and furthermore she failed to make any enquiry into the circumstances of this allegation

even though she acknowledged it was highly relevant.

48. In her report Ms. McElvaney had noted that the second complainant acknowledged that he was raped by a young man when he

was 13/14 years of age and had subsequently received an apology for this. She did not mention that it was an elder brother (not

concerned with this case). Having confirmed during her oral evidence that it was indeed an elder brother she explained that the

second complainant had described the sexual assault although he was shocked to have it characterised as rape by Ms. McElvaney.

She said the second complainant had not taken that incident or offence as seriously as the serial abuse to which he had been

subjected to by the appellant. She was then cross-examined in relation to this matter on the basis that the making of this allegation

against a brother could cast doubts on the credibility of the second complainant. It was expressly suggested in cross-examination by

Counsel that there are different types of people ‘there are hysterical people who shout rape at the drop of a hat and there are those

who are genuinely mistaken and those, who are in the majority I suppose, were telling the truth …’. The substance of the witness’s

response to these matters was that such factors cannot be taken in isolation and this factual event was taken into account in her

conclusions.

49. Although the fact that an elder brother was involved in this matter should undoubtedly have been mentioned in the report, all

these matters were fully aired before the learned High Court judge and the particular circumstances had been taken into account by

the witness in her clinical assessment of the second complainant. Whether the fact that he was sexually assaulted, or raped, by an

elder brother, or says he was, could affect the credibility of the second complainant in regard to the allegations made against the

appellant seems to be a matter essentially for a trial. In any event, it was again a matter for the learned trial judge to decide on the

basis of all the evidence before him whether, as a matter of fact, on the balance of probabilities, the complainants, or either of them,

were inhibited as a result of the sequelae to the sexual abuse from reporting their complaints to the authorities before the date on

which they did.

50. Criticism also specific to the report on the second complainant was the alleged absence of any scientific basis for her conclusion

that if the second complainant had been asked to complete five years previously the questionnaires designed to determine, inter alia,

the post traumatic effects of trauma, the results would have reflected quite a severe symptomatolgy. It is difficult to discern what

turns on this (and indeed it is not relied upon by the trial judge in his judgment) but this was obviously a professional opinion of the

witness based on her assessment of the second complainant at the time and it was a matter for the trial judge to determine what

weight or relevance, if any, should be attached to it.

51. Finally, it was submitted in respect of both complainants that her report was not sufficient to sustain the learned trial judge’s

finding with regard to the psychological effects of the trauma of sexual abuse because the opinion expressed by her only went so far

as to conclude that the delay could be consistent with the effects of sexual abuse.

52. It is true that in her report at one stage concerning the first complainant the psychologist stated that

“those effects of the alleged abuse which may have, in my opinion, inhibited [him] from making a formal complaint include

shame, disgust, guilt and self-blame for the alleged abuse, and the difficulties in trusting.”

53. However, it is quite clear from passages in both reports, some extracts from which I have cited above, that there are many

passages in which Ms. McElvaney concludes that the inhibitions which prevented each of the complainants from complaining at an

earlier time to the authorities stemmed substantially and essentially from the consequences of the sexual abuse which they suffered

and the circumstances of it. In any event, even if one were to put the interpretation argued for by the appellant on those reports,

which for the reasons just stated I do not consider to be a valid one, the report would nonetheless be corroborative of the evidence

given by each complainant in their affidavits that their delay in reporting the matter to the authorities was a result of the emotional

and traumatic effects of the sexual abuse.

54. In conclusion concerning this aspect of the case I am quite satisfied that there was ample evidence, if not indeed compelling

evidence, before the learned High Court judge which entitled him to conclude that the delay in reporting matters to the gardaí

between the date of the offences and the date when the complaints were actually made was as a result of psychological and

emotional consequences of that abuse attributable to the perpetrator of the offences.

Prejudice and unfair trial

55. On this aspect of the case the appellant first submits that all of the offences alleged to have been committed against the first

complainant and many of the offences alleged to have been committed against the second complainant are stated to have taken

place in the home or adjacent to the home in which he lived and at which time he resided there with his mother, father, and an

elderly aunt. The latter spent the majority of her time in the family home. These persons are now deceased and no longer available as

witnesses. As regards the second complainant it is also submitted that some of the offences are alleged to have taken place on the

farm of a Mr. C., a friend of the appellants and he also is no longer available as a witness as he has since died. In regard to the latter

matter the allegation made by the second complainant is that they would visit the home of Mr. C. on his farm and have tea. The

evidence also is that Mr. C. never had any part in the abusive activity as he was in the house when the alleged sexual abuse took

place out in the fields. Other than submitting that the witnesses in question could be reference points in some way for the

movements of the appellant at the time, no other substantive ground is advanced for the purpose of establishing that those

witnesses are particularly material to the defence, or a particular line of defence available to the appellant.

56. It is quite clear from the evidence of the complainants relied upon by the prosecution that the offences are alleged to have taken

place when the appellant and the complainants concerned were alone without any other person present, as one would normally

expect in offences of this nature. In my view, the contention of the appellant that the witnesses concerned could be of material

relevance to the charges is too speculative and not at all a sufficient ground for concluding that there is a real and serious risk of an

unfair trial as a result of their absence. At a trial, the issues would be tried on the basis of the evidence of the complainants as to the

commission of the offences and the evidence of the appellant in direct contradiction or simple denial. That would in any event have

been in substance the nature of the trial had it taken place within a short few years after the commission of the alleged offences.

57. Insofar as the appellant claims that he would suffer prejudice at the trial by reason of the lack of specificity of the charges in

relation to their times and dates I do not consider that this ground is well founded. That an indictment may be framed so as to allege

an offence to have been committed within a certain time span without specifying the date and the time has always been accepted as

proper and lawful where the circumstances of the case required to be done in that way. A corpse found long after the date of death

may require a charge of murder to be laid as having been committed between a date when the deceased was last seen alive and

some much later date. Of course it frequently is the form of indictment where there has been serial sexual abuse of young children as

in this case. In my view, the charges preferred against the appellant are alleged to have taken place within a proper and reasonable

time frame having regard to the circumstances of the case which include the fact that the locations of the offences are identified and

the evidence relied upon by the prosecution, and furnished to the defendant, state that they took place over a period of years when

the complainants participated in the activities of the scout group and judo club in which the appellant played an organising role.

58. It is also submitted that the learned trial judge was wrong in law when, in a passage in his judgment, he relied on certain

admissions made by the appellant when interviewed by the gardaí in connection with the offences in question when he stated:

“The statement of the applicant and the book of evidence exhibited in his affidavit and in Detective Sergeant Meenan’s affidavit

acknowledged that the first complainant was in his house. The applicant’s affidavit does not deny that. Moreover, there is no

denial of the psycho-sexual difficulties that the applicant himself was undergoing in the past. He says in his uncontradicted

unsigned statement that at the time of the alleged sexual occurrences he did not know that these sexual acts were wrong and

that at the time he was sexually immature and did not think that they caused him harm.

This Court is entitled to rely on the evidence before it. While there is no inference to be drawn in relation to the accused’s lack

of denial of the offences, the absence of a denial in relation to his statement, exhibited in his affidavit, is to my mind,

significant. It does seem to me that accordingly, there is no real or serious risk of an unfair trial with regard to the absence of

these witnesses.”

59. It was further submitted that this was in contradiction to the learned trial judge’s own statement, earlier in the judgment, where

he said:

“Even in the present proceedings, in the limited context of attributing reasons for delay in making a complaint, it is quite

wrong to criticise an accused’s person for failing to make a direct statement of his innocence or failing to give full details of his

defence on affidavit.”

60. It was submitted that in relying on the admissions made by the appellant in his statement to the gardaí and not denied or

repudiated by him in the High Court proceeding the trial judge erred in law, this not being an appropriate basis on which to determine

whether there was a risk of an unfair trial.

61. I think it should first be noted that it is clear from the judgment of the learned High Court judge that he did not take into account

the admissions of the appellant for the purpose of considering whether the appellant might be guilty or might be found guilty of the

offences if tried. It is clear that this was not a consideration which he took into account for the purpose of determining whether there

was a serious and real risk of an unfair trial and obviously it would have been an improper consideration since the appellant enjoys the

presumption of innocence. He took into account the appellant’s statement to the gardaí for the purpose of considering whether it was

probable, as he put it,

“that a specific defence which might otherwise be open to the applicant is no longer available.”

62. That is to say the trial judge was considering whether, in all the circumstances of the case, and in particular due to the

unavailability of the three persons mentioned as potential witnesses, there was some defence which would have been available to the

appellant which was materially compromised as a result of the long delay since the time when the offences were alleged to have

taken place. The learned High Court judge was in my view correct in saying that he had to have regard to all the evidence before him.

In articulating the precise nature of the admissions, that is that the complainants had been in his home and at the time he did not

really fully understand that the sexual acts in question were wrong, he may have placed undue emphasis on the nature of the

admissions. The relevance of the statement of the appellant to the gardaí, including the admissions, is not that it proved anything

against the appellant for the purposes of this application but that nothing in it advanced his claim that a line of defence that might

otherwise be available to him was closed off or compromised due to the passage of time. If the statement made by the appellant to

the gardaí tended to show that the appellant had indeed a defence available to him which had been so compromised, that would have

been something which the trial judge could have taken into account as supporting the appellant’s claim that he risked facing an unfair

trial. Apart from that net issue any such statement, with or without admissions, is not relevant to these proceedings.

63. Having regard to all the evidence which was before the learned High Court judge even if one disregards the appellant’s statement

to the gardaí I am satisfied that there is no evidential basis for concluding that some defence which would otherwise have been

available to him is no longer available to him by reason of the delay involved in this case.

64. A further ground relied upon in relation to the first complainant is the absence of a medical examination of that complainant to

support his contention that he continued to experience pain and injury to his person as a result of an alleged act of buggery. It is said

that the learned trial judge erred in not addressing this aspect of the appellant’s case in the High Court. In my view, the absence of

such an examination or medical evidence resulting from such an examination is not material to the issues which arise in this application

and it has not been demonstrated in any sense how its absence at this point could prejudice a fair trial. The learned trial judge gave

cogent reasons for the conclusions which he came to and it is not always necessary to express a view on all points canvassed or

advanced at a hearing where they are not objectively material to the issue in the case. This issue is one which it is open to the

appellant to pursue at a trial and indeed would not be precluded from seeking to raise the matter in a pre-trial application for a

medical examination if he was so advised. I put it no further than that since it would be a matter for the judge hearing such an

application to deal with the matter on its merits. It does not in any event provide a basis for concluding that there is a real or serious

risk of an unfair trial.

65. Finally, I would not accept the submissions of the appellant that this case gives rise to some degree of presumptive prejudice by

reason of the delay involved in the making of the complaints. I do not find that there is any grounds for considering that the delay in

this case should be regarded differently from the good number of cases which involved a similar or comparable delay and in which this

court found there was no presumptive prejudice. There is no special factor in this case which could lead one to reach any different

conclusion.

66. For the foregoing reasons I would disallow this appeal.