Supreme Court allows appeal to prohibit trial due to excessive delay and lack of valid explanation for complainants' silence.

THE SUPREME COURT

215/04

Hardiman J

Fennelly J

McCracken J

Between:

T. S.

Applicant/Appellant

AND

The Director of Public Prosecutions

First named Respondent

AND

His Honour Harvey Kenny

Second named Respondent

AND

District Judge Albert O’Dea

Third named Respondent

Judgment of Mr Justice McCracken delivered the 22nd day of June 2005

Background Facts

1. This is one of a number of cases which have come before the Courts in recent years in which a person accused of sexual offences

against children have sought to prohibit their trial on the grounds of the delay between the alleged commission of the offences and

the trial. It should be said that it was acknowledged by Counsel for both parties that the period involved in the present case is

probably the greatest period of delay that has ever come before the Courts in such proceedings. The Appellant faced sixty-one

charges of indecent assault against three young girls who were neighbours of his.

2. There were thirty-six charges alleging indecent assault of BH on unknown dates between 1st January 1955 and 31st December

1963. The Appellant was granted an order of prohibition in the High Court in relation to these charges.

3. There were also thirty-four charges alleging indecent assault of MD who was a sister of BH. These offences were alleged to have

taken place on unknown dates between 1st January 1958 and 31st December 1963. There is also a single charge of indecent assault

of IG, who is a first cousin of the other complainants, between 1st January 1962 and 31st December 1962.

4. BH made a written complaint to the gardaí on 8th February 1999, MD made a written complaint on 18th February 1999 and IG made

a written complaint on 6th March 1999, thus the first complaint made was over 35 years after the last alleged offence. Although the

charges in relation to BH have been prohibited, the position of BH is central to the case in relation to the other complainants. It is

common case that BH, having been abroad for a period, returned to the area and purchased a property adjoining that of the

Appellant’s. A dispute arose between BH and the Appellant which escalated into an assault by the Appellant on BH. BH made a

complaint to the gardaí in relation to this assault on 9th January 1999 and District Court proceedings against the Appellant were

issued on 5th February 1999. He was ultimately convicted of assault and fined £500, and at the same time BH was required to enter

into a bond to keep the peace for three years on certain conditions. It is quite clear that this dispute was the trigger for the

complaints made in relation to the allegations of indecent assault many years earlier.

5. At the time of the hearing before the High Court the Appellant was 75 years of age and resided with his wife who was confined to

a wheelchair due to severe multiple sclerosis. The first time he became aware of the charges against him was in May 1999 when he

was contacted by the gardaí, and on 2nd June 1999 he made a formal statement in which he denied all involvement in the alleged

offences.

The Effect of Delay Simplicitor

6. The Oireachtas has not seen fit to impose any time limit on prosecutions for indictable offences. The Appellant in the present case

has sought to argue that the delays are so extreme that, irrespective of the actual circumstances, it would be unconscionable to

allow a prosecution to proceed.

7. Some support for this argument may be gleaned from the leading case of PC v DPP [1999] 2 IR 25 where Keane J (as he then was)

said at page 68:-

“Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the grounds 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

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 person to defend himself or herself will be impaired.”

8. This is what has become known as “the first test” as laid down in that case, the second test being whether the delay can be

traced to the actions of the accused and the third being whether it can be shown that there was actual prejudice to the accused.

This issue was discussed at length in the three separate judgments given in the case of PL v Her Honour Judge Buttimer (unreported

20th December 2004). Unfortunately, the position was not greatly advanced, notwithstanding the detailed analysis of the background

to the lengthy delay cases entered into by Hardiman J. In the event, the prosecution was prohibited, but on the grounds of actual

prejudice, and although Hardiman J expressed the view that he would in any event have been prepared to grant relief on the basis of

the first test, both Geoghegan J and Fennelly J rejected that course.

9. There is no doubt that the basis reason for prohibiting a trial is that the circumstance are such as to possibly give rise to a real

and serious risk of an unfair trial. Such a risk almost invariably increases with the passage of time as witnesses’ recollections fade and

become unreliable and the possibility of obtaining corroborative evidence fades. However, it must be remembered that time limits on

prosecutions is primarily a matter for the legislature, which in its wisdom has determined that there should be no time limits in the

case of indictable offences. It is not for this Court to amend the law in any way in that regard, but only to uphold the constitutional

right of the Appellant to a fair trial. Many aspects of potential unfairness in a trial can be dealt with adequately and properly by

directions by the trial Judge to the jury. The question which I am considering in this portion of the judgment is whether a situation

can arise such that, irrespective of any other factor, the delay is such that there will be a real and serious risk of an unfair trial.

10. Another way of stating the question is whether the delay may be such that there is an irrebuttable presumption of prejudice

which would lead to an unfair trial. There is no doubt that, the longer the delay, the greater the danger of prejudice, and the more

readily a Court will infer prejudice. However, that does not mean that in all cases an unfair trial would result. In his judgment in the PL

case Geoghegan J instances a situation in a murder case where the offence could not be proved against an accused until the body

was found many years later, and which would then provide the evidence. In my view a further example would be where, having been

confronted with the accusation by the complainant after many years, an accused, after all proper warning, cautions and advice,

makes a full inculpatory statement. It could be hardly be said to constitute an unfair trial even if the primary evidence against an

accused was that statement. I would therefore reject the proposition that the passage of time alone would be grounds for the

prohibition of a trial.

Reason for Delay by MD

11. In her affidavit filed in these proceedings MD gave evidence that she was not aware that her sister and cousin were being abused

by the Appellant until 29th January 1999, when she was discussing the assault on BH. Her evidence then continued:-

“6 I could not report it when I was young as I felt I was the only one and I felt so embarrassed. After speaking to BH that day

I came home and told my husband. I then contacted the local gardaí and spoke with Garda Shannon Doyle.

7 For years I have suffered in silence over what TS did to me. Now that I have spoken about it and know that I was not alone

it is a help to me but I still get very depressed, angry and frustrated every time I think about it and I am not sure that this

feeling will ever leave me.”

12. MD was interviewed by Rosaleen McElvaney, a clinical psychologist/psychotherapist, whose report was before the Court. In her

report she concluded that the delay in reporting was as a result of MD’s feelings about what happened to her as a child and that the

shame prevented her from being able to tell anyone of her experiences, even her husband. She then concluded:-

“She appears to have been able to cope with the impact of this alleged abuse by means of avoidance, keeping herself busy

and relying on her own personal resources which have served her well. However, this coping strategy has become less

effective in recent years and Mr S’s physical assault of her sister provided the catalyst for her to disclose her alleged

experiences resulting in her making a formal complaint. In my opinion, taking account of her individual circumstances, the

delay is reasonable.”

13. Ms McElvaney was cross-examined at length on behalf of the Applicant and conceded that what she had been asked to advise on

was whether the delay was reasonable in the light of the circumstances, and not whether there was a significant psychological or

psychiatric difficulty. She also acknowledged that in her report on MD she had made a mistake as to the frequency of the alleged

assaults. She accepted that MD had had a happy childhood, had become a psychiatric nurse and had a busy and active and well-

balanced life, and that she had had no psychiatric difficulties during her lifetime. She reiterated that MD had had significant shame in

relation to what had happened to her as a child.

Reasons for Delay by IG

14. In her affidavit IG swore:-

“6 BH and I were always afraid of TS because of what he had done to us and we tried to avoid him at all times.

7 At the time the assault took place, it was not something that was discussed and reporting it was not an option at that time.

8 I would have hinted to my mother as to what was happening and she said that she discussed it with my father. My mother

wanted to tell the local priest but my father would not agree.

9 I put it at the back of my mind for a few years until I had children of my own. When I had children of my own I would not let them

near S’s house when we visited their grandfather beside S’s home.

10 It all came to a head again when BH was assaulted by TS in January 1999. It was only then that I became aware that MD was

also a victim of TS. BH told me about MD and it was then that we decided to report the matter to the gardaí.”

15. In her report Ms McElvaney noted that when she was a child IG was very frightened of TS and would have been inhibited from

reporting this matter to an adult because of this fear. However, IG did tell her husband in 1977 that TS was “a dirty old thing”

although she only gave him full details when she made the formal complaint. She did say that she discussed it with her husband’s

sister and another friend. When she was asked why she reported it when she did so, IG said that it had never occurred to her to

report the matter and it had only been in recent years that reporting childhood sexual abuse had become a possibility. She said she

made her statement to the gardaí because she believed it would help prevent TS being a danger to others, in particular to BH. Ms

McElvaney’s conclusion was:-

“The delay in her reporting the matter appears to be as a result of her avoiding thinking about her alleged experiences which

in itself was a means of coping with the psychological impact of same, and her belief that there was nothing she could do

about it. In addition, she appears to have thought that TS did not present as a risk to others, a belief she says was challenged

by the recent assault by TS on her cousin, BH. In my opinion, taking account of IG’s individual circumstances, the delay in

reporting is reasonable.”

16. Under cross-examination, she acknowledged that IG was a happily married woman with a good education and a normal family life,

and that she had not had any psychiatric problems. She had a number of other traumatic experiences in her life, she had a sister

diagnosed with cancer, and she herself suffered from melanoma. She said IG had coped with these matters very well.

Value of Psychologist’s Evidence

17. There is no doubt that the evidence of a psychologist maybe very relevant and valuable in assessing the reasons for a failure to

report sexual abuse. However, in the present case the ultimate conclusions reached by Ms McElvaney were that in the case of both

MD and IG the delay was “reasonable”. In fairness to Ms McElvaney, this is what she was asked to give an opinion upon, but it is not

the proper test. It may have been perfectly reasonable and understandable that there was no reporting of this alleged abuse either

because the complainant was ashamed or indeed because it never occurred to the complainant to report the abuse. However, that is

not the test, and in the light of Ms McElvaney’s concession under cross-examination that neither of the complainants had any serious

psychological or psychiatric problems, it is hard to place too much reliance on her evidence.

18. In D v DPP (unreported 19th May 2004) Geoghegan J said:-

“Assuming that pre-complaint lapse of time is relevant and that as a corollary to that it becomes relevant as to whether the

applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be

held responsible if there has been the element of dominance. The authorities certainly showed that that is a main ground but

it is not the only ground. By the same token, however, I am equally satisfied that the authorities do not in any way go so far

as to excuse lapse of time or delay merely because the complainant had a good reason for not complaining earlier. For the

reason to be relevant it must arise from an inhibition of some sort on the part of the complainant preventing him or her from

complaining, where such inhibition arises directly from the offence.”

19. In PM v Malone [2002] 2 IR 560 at page 576 Keane CJ said:-

“In his judgment in JL v Director of Public Prosecutions [2000] 3 IR 122, Hardiman J has pointed out that even the concept of

“repression” has been the subject of acute controversy in the psychiatric and allied professions on both sides of the Atlantic.

In the present case, it is sufficient to say that, on the undisputed evidence, it does not arise in any way. Mr Foley refers

nowhere to the concept in his affidavit or in his report: he contents himself with the conclusion that the complainant’s refusal

to make a formal complaint to the gardaí in 1991/1992 was “reasonable”. That, in turn, is based on the complainant’s belief

that to make a complaint would cause difficulties within the family.

It is clear that if that was the ground on which the complainant declined to make a formal complaint to the gardaí in 1992, it

would not bring the case within the exceptional category where the Court would be entitled to regard the delay as, not merely

explicable, but referable to the accused’s own conduct.”

20. In my view neither the evidence given by the complainants, which is very general and vague, nor the matters set out in Ms

McElvaney’s report come anywhere near justifying the gross delay in the present case. What has to be shown is that there is some

very good reason, normally psychological, which made her incapable of complaining. If there is a conscious decision by a complainant

not to make a complaint, albeit for a very good reason in her circumstances, or indeed if it simply never occurs to her to make a

complaint, that will not be sufficient to excuse the gross delay of the type found in the present case.

21. In the present case, it must also be borne in mind that the catalyst for the ultimate complaint was not any sexually motivated act

on the part of the Appellant, but a physical assault arising out of a dispute between neighbours. It is also relevant that both the

complainants had, as young women, left the neighbourhood to pursue their careers, and had returned voluntarily with their families to

live in close proximity to the Appellant. They both apparently lived a normal happy married life in such circumstances and without

suffering any psychiatric consequences.

22. I would emphasise again that in my view the greater the delay, the greater the need for an adequate explanation for that delay. I

am quite satisfied that no sufficient explanation has been given in the present case.

23. In view of this finding, I do not have to consider the question of prosecutorial delay, and I would allow this appeal purely on the

basis of the complainants’ delay and grant an order prohibiting the trial of the Appellant in relation to all the charges concerning MD

and IG.