Supreme Court allows appeal where prosecution delay and victim's anxiety outweighed accused's actions causing delay.

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

[S.C. No. 265 of 2004]

BETWEEN

PM

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 5th day of April, 2006

1. The issue to be decided in this appeal is whether, in cases where a considerable period of time has elapsed between the dates of

alleged offences and the making of an initial complaint by the victim and where, in addition, there has been blameworthy delay

thereafter by the prosecution, the trial should be prohibited by reason of that blameworthy delay alone, or whether the accused

person should also be required to demonstrate that some interest protected by the right to an expeditious trial has been so interfered

with as to entitle him to the relief sought.

2. The applicant was born on the 9th September, 1941. On the 21st September, 2001, the applicant was sent forward for trial on

three counts of gross indecency alleged to have been committed with G.L. on various dates between the 1st August, 1982, and the

31st December, 1985. G.L. is the applicant’s nephew, the complainant, who was born on the 3rd May, 1969. He was aged between 13

and 16 years at the time when the alleged offences were committed. The applicant was aged between 41 and 44 years at that time.

The complainant lived with his family in a house next door to the applicant’s family home. The offences are alleged to have been

committed in G.L.’s family home.

3. G.L. made statements of complaint to Garda Brendan Kelly at Tallaght Garda Station in February, 1998. He was further interviewed

by Garda Kelly on the 4th April, 1998, in relation to the dates and times of the alleged offences. On the 20th July, 1999, the applicant

was arrested and questioned in relation to the alleged offences. A decision to prosecute was made by the respondent on the 7th

November, 2000. As a result the applicant was arrested, charged and cautioned on the 11th December, 2000.

4. In seeking to have his trial prohibited, the applicant relied both on the lapse of time between the dates of the alleged offences and

the making of a formal complaint and also on the lapse of time between the making of that complaint and the date of being charged.

Having considered the evidence of both G.L. and a clinical psychologist, Dr. Melissa Darmody, who was cross-examined by counsel for

the respondent, O’Caoimh J. in the High Court concluded that the lapse of time between the alleged offences and G.L.’s complaint

was referable to the accused’s own actions. The learned High Court judge further declared in a judgment delivered on the 7th May,

2004, that he was not satisfied that the degree to which the applicant’s ability to defend himself had been impaired was such that

the trial should not be allowed to proceed on that particular account.

5. O’Caoimh J. however, concluded that a period of approximately 34 months which had elapsed between the making of the initial

complaint and the charging of the applicant was inadequately explained. The court concluded that there had been “blameworthy

delay” for which the respondent was responsible during that 34 month period.

6. The issue that then arose was whether it was necessary in the circumstances of any such case for an applicant to identify any

particular circumstances other than blameworthy delay on the part of the prosecution before securing the relief sought. In

determining this issue, O’Caoimh J. considered the leading authorities opened to him on the point, namely, P.P. v. D.P.P. [2000] 1 I.R.

403, a decision of the High Court, per Geoghegan J., B.F. v. D.P.P. [2001] 1 I.R. 656, a decision of the Supreme Court, per Geoghegan

J., McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court & D.P.P. (Unreported, High Court, Kelly J., 14th January, 2000),

McNamara v. MacGruairc (Unreported, Supreme Court, 5th July, 2001) and P.M. v. Malone [2002] 2 I.R. 560.

7. The learned High Court judge observed that these authorities disclosed two different approaches towards delay attributable to the

prosecuting authorities. The first, as expressed in P.P. v. D.P.P. and B.F. v. D.P.P., is to the effect that where there has been a long

lapse of time in the making of a complaint, it is particularly important that there should be no blameworthy delay on the part of the

Gardaí or the Director of Public Prosecutions. Where there is such delay the prosecution should be stayed even in the absence of

proof of any prejudice to the applicant. However, on the other hand, the decisions in McKenna v. The Presiding Judge of the Dublin

Circuit Criminal Court & D.P.P., McNamara v. MacGruairc and P.M. v. Malone support the proposition that, even where such

blameworthy delay is found to exist, the applicant must go on and satisfy the court that he has suffered or is in a real danger of

suffering some form of prejudice as a consequence of this delay in order to obtain the relief sought. In the instant case, counsel for

the appellant argued that the learned High Court judge effectively decided to apply P.P. v. D.P.P. to hold that no prejudice need be

established where prosecutorial delay was established and in consequence made an order restraining further prosecution of the

respondent.

8. The appeal is accordingly brought to determine whether the finding of the High Court judge in this respect is correct in law. The

appellant does not contend, however, that unexplained delays for which the prosecution bears responsibility are to be disregarded

when determining whether an applicant is entitled to a stay by reason of the lapse of time between the commission of the alleged

offences and the trial. Moreover, the appellant accepts the premise that where there has been a long delay between the commission

of the alleged offences and their coming to the attention of the prosecution authorities, the latter are under a special obligation to

expedite any subsequent investigation and prosecution. What the appellant contests, however, is the notion that an applicant is

entitled to a stay upon criminal charges solely by reason of delay for which the prosecution authorities are deemed to be responsible.

In written submissions lodged in advance of this appeal, the appellant invited this Court to determine that the principles enunciated in

P.M. v. Malone differed from and were to be preferred to those indicated in P.P. v. D.P.P.

9. In a nutshell, therefore, the appellant’s sole point on the appeal is to invite this Court to determine whether, in a case of

blameworthy prosecutorial delay, there is nonetheless an obligation on an applicant to establish in addition some degree of prejudice

referable to the breach of his right to an expeditious trial which would entitle him to a prohibition order.

10. The respondent in turn brought a cross-appeal from the finding of the learned High Court judge that the delay on the part of the

complainant in making a complaint in this particular instance was referable to the actions of the applicant. In particular, the learned

High Court judge is alleged to have erred in relying on the evidence of Dr. Darmody and in finding that it was evidence which was, in

conjunction with the complainant’s own evidence, sufficiently explanatory of the reason for delay in making a complaint and that such

delay was attributable to the circumstances arising from the abuse.

11. In particular, complaints were made that Dr. Darmody did not consult with any of the psychiatrists who had treated G.L. during

much of the period of the delay, and, in particular, a Dr. McGrath to whom G.L. had, in 1987, disclosed the sexual offences alleged. It

was further alleged that, by reason of the fact that Dr. Darmody is a psychologist and not a psychiatrist, she was inadequately

qualified to comment upon the complainant’s past psychiatric history. It was also alleged that Dr. Darmody did not adequately enquire

into or explore that history with G.L.

The Right to Trial with a Reasonable Expedition

12. It is common case that every person charged with a criminal offence is entitled under the Constitution to a trial with reasonable

expedition. This is reflected in the leading decisions of In re Singer [1963] 97 I.L.T.R 130, State (Healy) v. Donoghue [1976] I.R. 325

and State (O’Connell) v. Fawsitt [1986] I.R. 362. In P.C. v. D.P.P. [1999] 2 I.R. 25, Keane J. observed that the right to a trial with

reasonable expedition had to be recognised “as an essential feature of the Anglo-American system of criminal justice for many

centuries”.

13. In Barker v. Wingo 407 U.S. 514, (1972) a unanimous United States Supreme Court observed that the right to a speedy trial is

“generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” The decision in

that case clarified that, in addition to ensuring fair procedures for accused persons, there was a societal interest in providing a

speedy trial separate from and sometimes opposed to, the interests of accused persons. It was pointed out that deprivation of the

right to a speedy trial may even work to the advantage of an accused person and that delay was not an uncommon defence tactic,

since it had the effect of weakening the prosecution case, upon which the burden of proof ultimately lay at the criminal trial. It

follows therefore that the deprivation of the right to a speedy trial does not per se prejudice an accused person’s ability to defend

himself.

14. The United States Supreme Court went on to state that the right to a speedy trial was “vaguer” than other procedural rights in

that it was impossible to determine with precision the circumstances in which it had been denied. As a consequence, it adopted a

balancing test, the operation of which compelled courts to approach speedy trial cases on an ad hoc basis. It identified at least four

factors to be taken into account: the length of the delay, the reason for the delay, the accused’s assertion of his right and prejudice.

Under the last of these headings, Powell J. identified three interests protected by the right to a trial with reasonable expedition:-

(i) The right to prevent oppressive pre-trial incarceration

(ii) The right to minimise anxiety and concern to the accused

and

(iii) The right to limit the possibility that the defence will be impaired.

15. Absence of evidence of prejudice, in the sense described in the previous paragraph, has in some instances led the High Court and

this Court to decline to stay trials even in the face of gross and culpable prosecution delay. Thus in McKenna v. The Presiding Judge

of the Circuit Criminal Court, the High Court (Kelly J.,) found that there was “inordinate and inexcusable delay” of five and a half

years for which the Director of Public Prosecutions was responsible. However, in that case the Court refused to prohibit the

applicant’s trial because he had failed to demonstrate how that delay interfered with any interest protected by the expeditious trial

right.

16. A similar approach was adopted in McNamara v. MacGruairc (Unreported, Supreme Court, 5th July, 2001) where the applicant was

accused of having committed an assault occasioning actual bodily harm in August, 1992. Although the greater part of the garda

investigation was completed by the end of that month, the applicant was not arrested and charged until the 14th November, 1994,

and the book of evidence was not served until a month later. This Court found that the delay was excessive, but went on to

categorise the issue in the case as to whether delay, such as it was, was prejudicial to the applicant, having regard to the

circumstances of the case. A plea of general prejudice was rejected. There was no evidence that a particular line of defence had

been undermined. There was no suggestion that the applicant had been led to believe that he would not be prosecuted or that he

had established the existence of any particular anxiety or concern as a result of the delay. In those circumstances, it was held that it

would be unjust and unnecessary to grant the relief sought.

17. However, in P.P. v. D.P.P. [2000] 1 I.R. 403, the consequences of post complaint delay were found to be of particular significance.

At p.409 of the report, Geoghegan J. stated as follows:-

“In P.C. v. D.P.P. [1999] 2 I.R. 45, Keane J. refers to The State (Healy) v. Donoghue [1976] I.R. 325 and points out that, in

that case Article 38.1 of the Constitution, which provided that no person should be tried on any criminal charge save in due

course of law, was construed by Gannon J. as recognising the right of an accused person to a trial with reasonable expedition

and that this view was upheld by the Supreme Court in State (O’Connell) v. Fawsitt [1986] I.R. 362. At p.68 Keane J. observed

as follows:-

‘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 are 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.

It is clear from this passage that Keane J. is impliedly acknowledging that different principles may apply to blameworthy

delay on the part of the prosecuting authorities. Counsel for the applicant argues that there was such delay in this case.

I think that counsel for the applicant is clearly correct. It is not acceptable and, in my view, is a breach of a defendant’s

rights under Article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case

such as this, involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate,

but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the

prosecuting authorities.”

18. At p.411, Geoghegan J. also stated:-

“I think that where there has been a long lapse of time, as in these prosecutions for sexual offences, between the alleged

offences and the date of complaint to the guards, it is of paramount importance, if the accused’s constitutional rights are to

be protected that there is no blameworthy delay on the part of either the guards or the Director of Public Prosecutions. If

there is such delay, the court should not allow the case to proceed and additional actual prejudice need not be proved. This

point is not really covered by the Supreme Court decision in B. v. D.P.P. [1997] 3 I.R. 140 and P.C. v. D.P.P. [1999] 2 I.R. 25

and, therefore, to some extent it is uncertain what the correct legal position is.” (emphasis added)

19. That case is noteworthy for the fact that the complainant at the time of the alleged offences was aged only 15 or 16 years and

the offences were not reported for a further 18 years. The blameworthy prosecutorial delay between the date of complaint in

November, 1995 and the arrest of the applicant in April, 1998 was characterised by a garda investigation conducted, as Geoghegan J

found, “in a lackadaisical and slovenly fashion.” Central to the reasoning in this case therefore is the notion that where there has

already been a long lapse of time between the alleged offences and the date of complaint, considerable and unnecessary additional

delays on the part of the prosecuting authorities are not to be tolerated.

20. However, the interference with the right to a speedy trial was treated somewhat differently in P.M. v. Malone [2002] 2 I.R. 560, in

which Keane C.J. analysed the consequences for an accused of “significant and culpable delay” to which he has not contributed. At

p.572 he stated;-

“The first major consequence may be the loss of his liberty while the trial is pending… the second major consequence is the

anxiety and concern of the accused resulting from a significant delay in his being brought to trial… the third being the

possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme

Court decision of Barker v. Wingo 407 U.S. 514 [1972] in a passage which was approved of in this court in D.P.P. v. Byrne

[1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] A.C.

937 and by Murphy J. in the State (O’Connell) v. Fawsittt [1986] I.R. 362.

In this case, the greater part of the delay of which the applicant complains occurred before he was charged with any offence.

Undoubtedly, there is a distinction between the anxiety and concern of an accused person after he has been charged and

before he has been charged. If the accused’s right to a reasonably expeditious trial is violated by culpable delay which is so

significant as, objectively considered, to cause him anxiety and concern, it would follow that there would be a ground for

prohibiting his further trial where the delay occurred after he had been charged.”

21. Keane C.J. then went on to consider whether in the context of the particular case before the Court an adequate case had been

made out which would justify the prohibition of a trial. At p.581 he stated:-

“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of

the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this

stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there

was a real and substantial risk of an unfair trial then, as pointed out by Denham J. in D. v. D.P.P. [1994] 2 I.R. 465, the

applicant’s right to a fair trial would necessarily outweigh the community’s right to prosecute. Where, as here, the violation of

the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the

court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from

stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the

prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with

the nature of the offence and the extent of the delay.”

22. The forgoing passages from PM v Malone are those essentially relied upon by counsel for the appellant to argue that it is

insufficient in the context of seeking an order of prohibition for an applicant to demonstrate blameworthy prosecutorial delay only. It

was submitted that he must go further and establish one or more of the three elements identified in the analysis of Keane C.J. as

possible or likely consequences flowing from the infringement of this right.

23. Further reliance was placed by counsel for the appellant upon the decision of this Court in Blood v. D.P.P. (Unreported, Supreme

Court, 2nd March, 2005) a case in which there had been considerable prosecutorial delay. However, instead of finding in favour of the

applicant by reason of the inordinate delay that had arisen in the prosecution of the charges, McGuinness J. examined the impact of

that delay upon his circumstances. Mr. Collins, senior counsel for the appellant, submitted that that exercise would have been entirely

unnecessary if the existence of blameworthy prosecutorial delay was of itself sufficient to justify staying criminal proceedings.

McGuinness J concluded her judgment by stating:-

“As has already been pointed out, cases involving delay in prosecution, or the denial of the right to an expeditious trial, must

be decided on an ad hoc basis, in the particular circumstances of the case. In the particular circumstances of this case, taken

as a whole, it seems to me that the delays in the latter period of the prosecution of the applicant amount to a denial of his

right to an expeditious trial. There is also a real danger that this may lead to an unfair trial.”

24. I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a

court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for

such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having

serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have

obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay,

any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than

one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.

25. As part of the balancing exercise it should also be borne in mind that an order of prohibition may not be the only remedy available

in such circumstances. A court may have the ability to direct that a particular trial be brought on speedily and be given priority,

although precisely how this would be policed or operated in practice may be problematic.

26. I am unimpressed by Mr. Collins’ submission that blameworthy prosecutorial delay should resonate as a mitigating factor at the

sentencing stage in the event that the trial proceeds and the applicant is convicted. The difficulty in this concept as advanced by

Mr. Collins is that it makes no distinction between an applicant subsequently found to be innocent and one found to be guilty. The

person found to be innocent obtains no benefit whatsoever from such an approach, and indeed is the very person who, on that

account, is much more likely to have suffered far greater stress and anxiety prior to trial and acquittal. That is not to say that, this

context apart, a sentencing judge may not have regard to a lengthy interval of time between the time the offender was first

confronted with the offence and the eventual conviction and sentence.

27. In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been

established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests protected by

the right to expeditious trial must also be shown to have been so interfered with such as would entitle the applicant to relief.

28. Applying that test to the facts of the instant case, I am quite satisfied that O’Caoimh J. correctly determined the case in relation

to prosecutorial delay having found significant blameworthy prosecutorial delay and having regard to the evidence of significantly

increased anxiety on the part of the applicant arising from such delay.

29. At para.47 of his grounding affidavit, the applicant deposed as follows:-

“The preferring of the charges initially laid against me and the preferring of the Statement of Charges has had a profoundly

adverse effect on me. My anxiety and worry in respect of the matters alleged have been significantly exacerbated by my

apprehension and fear that the lapse of time outlined above has rendered me unable to adduce evidence of an exculpatory

nature that, if these offences had been prosecuted with expedition, could have been put before the court of trial.”

30. The applicant was not cross-examined in relation to his affidavit and, insofar as the learned trial judge expressed some

reservations as to whether or not there had been any “serious increase in anxiety”, he noted that such anxiety existed and the

affidavit evidence was not contradicted or challenged in any way at the hearing.

31. Those being the circumstances, the outcome of the balancing exercise which must be undertaken in relation to this issue must, it

seems to me, be resolved in favour of the applicant.

32. Equally, in relation to the cross-appeal, I see no basis whatsoever for interfering with the findings of the learned High Court judge.

33. This was not a case where a skimpy consultation provided the basis for the views expressed by Dr. Darmody.

34. As her report dated the 22nd May, 2002, makes clear, she met with G.L. on three occasions for approximately one and a half

hours on each occasion. In addition she reviewed the Book of Evidence prepared for the case which included medical and

psychological reports from Dr. Patrick McGrath, Martin O’Sullivan, Blathnia Rafftery and Catherine Sheehan. She also consulted

Catherine Sheehan, a counsellor, who saw G.L. at the Eastern Health Board’s counselling service for 21 sessions between 1997 and

1998.

35. She also had the benefit when giving evidence of the voluminous psychological report prepared in relation to the complainant by

psychologists Davina Walshe and Patrick Randall.

36. In addition, Dr. Darmody had impressive qualifications in psychology from both the United States and Britain, had published various

articles on counselling and psychotherapy and had twelve years clinical experience.

37. There was thus, in my opinion, ample material upon which Dr. Darmody could base her professional view that the complainant’s

delay in bringing forward his complaint was attributable to the actions of the accused.

38. It was her professional belief that the complainant’s delay in reporting was justified from 1983 until 1989 by the age and power

differential between himself and his uncle. From the time of 1989 until 1997, G.L. did not seem to be in a fit mental or physical state

due to his diagnosed medical condition to undertake the distressing and demanding task of making a formal complaint to An Garda

Síochána. Dr. Darmody’s reports also refer to the family dynamic which made it extremely difficult for the complainant to come forward

at an earlier stage. The fact that the delay is explained in multi-factoral terms does not detract from her view that the complainant,

as a vulnerable individual, was unable to come forward at an earlier stage as a result of the actions of the applicant.

39. I would therefore uphold the findings of the learned High Court judge in this respect also and would dismiss both the appeal and

cross-appeal.