Supreme Court allows appeal against High Court order restraining prosecution of rape charges due to applicant's waiver via correspondence.

THE SUPREME COURT

Denham J.

Hardiman J.

Kearns J.

Appeal Number [241/2006]

BETWEEN

W. M.

APPLICANT/RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 21st day of May, 2007

In this appeal the Director of Public Prosecutions (The Appellant) seeks to appeal from the order and judgment of the High Court (de

Valera J.) dated the 11th January, 2006, whereby the appellant was restrained from further prosecuting the applicant in relation to

various sexual offences, including rape and indecent assault, in relation to two complainants who are his sisters.

The applicant is a married man who was born on the 31st January, 1958. He has worked as a prison officer since 1984 and married his

wife in that year. He is the father of two children born in 1986 and 1988.

M. H., a sister of the applicant, was born on the 13th December, 1960. J.M., also a sister of the applicant, was born on the 9th May,

1964. M.H. made a statement of complaint on the 27th July, 1999, in relation to various alleged sexual offences committed against

her by the applicant. Her sister, J.M., made a statement of complaint on the 24th September 1999.

The applicant was arrested and questioned by an Garda Síochána in connection with the aforesaid allegations on the 19th November,

1999. Thereafter statements were taken from a number of individuals on foot of directions received from the appellant’s office. On the

9th January 2002, the applicant was charged with 21 counts of indecent assault and 21 counts of rape against his sister M.H, and

with 39 counts of indecent assault and 39 counts of rape against his sister, J.M. All offences charged are alleged to have been

committed on specific dates unknown, but between given dates spanning a ten year period from December, 1971 to May, 1981. A

Book of Evidence was served upon the applicant in January, 2002 and he was thereafter returned for trial to the Central Criminal

Court on the 27th February, 2002.

On the 8th July, 2002, the applicant obtained leave from the High Court (Finnegan P.) to seek orders restraining his prosecution on

the aforesaid charges. The key contentions of the applicant are that any trial after a delay of so many years would be:-

a) a breach of the applicant’s right to an expeditious trial by reason of the complainants’ delay in making formal

complaints;

b) a breach of the applicant’s right to an expeditious trial by reason of delay in the investigation or in the prosecution of

the charges arising out of the complaints;

c) a breach of the applicant’s right to a fair trial by reason of the unavailability as witnesses of his parents, both of whom

are now deceased. His mother, N.M., died on the 11th January, 1997 and J.M., his father, died on the 7th February, 2002.

By way of relevant background detail, it appears that J.M. informed her sister C of the allegations of sexual abuse at some date in

1975. It also appears that J.M discussed the allegations with her mother in 1989. In 1997, J.M. discussed the allegations with her

brother A and also with her father. In the same year M.H. discussed the allegation with her brother A and with a neighbour, L.O’K.

Further family discussions about the allegations took place in 1998, at which point the applicant became aware of same, his father

having told him that his brother A had discussed the allegations with him.

The applicant then consulted solicitors who by letter dated 10th August, 1998, invited M.H. to withdraw the allegations she had made

against him and to provide a written apology. The letter made it clear that unless a positive response was forthcoming within fourteen

days, the applicant would have no option but to issue proceedings for defamation.

By letter in reply dated 12th August, 1998, a firm of solicitors retained on behalf of M.H. responded in the following terms:-

“Our client confirmed to her sister and younger brother that she had been abused by your client in the past. Our client will

not withdraw this statement, as it is correct. There is no question of our client apologising to your client.”

By further letter dated 9th October, 1998, the applicant’s solicitors called upon M.H. to confirm the nature of the abuse complained of

and to provide details of where and when this abuse took place. Her solicitors replied on 30th October, 1998, stating:-

“We have now received instructions from both M.H. and J.M., your client’s sisters.

Our clients have no intention of setting out in correspondence details of the abuse involved. They have no difficulty in

making detailed statements to the authorities, should this be necessary, in that regard they are reserving their position.”

On the 5th November, 1998, there was then written on the applicant’s behalf a letter in the following terms:-

“We refer to your letter of the 30th October.

We note that both your clients have published these allegations and are not prepared to withdraw them.

We invite your clients to make their complaints to the authorities. This will enable your clients to substantiate their

allegations and our client will in turn be in a position to defend them. Our client has nothing to hide and will vigorously

defend any criminal prosecution (if brought).”

By letter dated 23rd June, 1999, the same firm of solicitors indicated to the solicitors for both sisters that they now had instructions

to arrange for the issue of proceedings. This letter prompted a reply from the solicitors for M.H. and J.M. on the 13th July, 1999 in the

following terms:-

“Our client advises that she can not withdraw any of the statements that she has made about your client, as they are

factually correct. Accordingly, the statements are not defamatory. We confirm that we are in a position to accept service

of your client’s proceedings. We are instructed that such proceedings will be strenuously defended. We would advise that

our client is now making a complaint to the appropriate authorities in this matter. No doubt, your client will be hearing

from the authorities in due course.”

A civil bill dated 12th August, 1999, was then issued on behalf of the applicant claiming damages for defamation in a sum not

exceeding £30,000, together with interest and costs. An appearance was entered on behalf of both sisters and a defence to the civil

bill was delivered on the 3rd November, 1999. Paragraph 1 of the defence provided as follows:-

“The words complained of in the civil bill were true in substance and in fact.”

These proceedings have not proceeded further.

The Judgment

In his judgment delivered on the 11th January, 2006, the learned trial judge found that, in the absence of an explanation, the delay

between the date of commission of the alleged offences and the accused person’s trial was such to of itself constitute a breach of

the right to an expeditious trial such as would entitle the applicant to relief. The learned trial judge found that, for a period of at least

eighteen years, the complainants were in a position to make complaints against the applicant but chose not to do so. He partly based

this finding on the fact that the complainants had disclosed the alleged abuse to family members.

In so far as prosecutorial delay was concerned, the learned judge was satisfied with the explanation tendered on behalf of the

appellant in respect of all the time periods post - complaint, save for the period of eleven months between July, 2000 and June, 2001,

a period of delay which he found “in the circumstances excessive and unexplained”. He took the view that the respondent was also

entitled to the relief sought on this ground.

On the issue of prejudice arising by virtue of delay, the learned trial judge found that the delay had had the effect, inter alia, of

preventing both the mother and father of the parties from giving evidence or making statements. He also found that the locus of the

alleged offence had changed and had moved out of family control. He continued:-

“…had complaints been made within a reasonable period from 1971, then the parents, and the family home, and environs

would have been available to assist in the necessary investigations and, if appropriate prosecution…

The family doctor, also, might have been in a position to clarify the puzzle of the lost, if such they were, common notes in

relation to J.M. and it is inevitable that his recollection in respect of M.H.’s records would be better if activated at an

earlier time.”

The Appeal

By notice of appeal dated 20th June, 2006, the appellant appealed from the High Court judgment and order.

On behalf of the appellant, Mr. Anthony M. Collins, senior counsel, argued that the core issue in the appeal was to determine if there

was any real risk of an unfair trial. Even if there had been a measure of prosecutorial delay in the instant case, there was no evidence

that any increased consequential anxiety or distress had been suffered by the applicant.

However, the principal contention advanced on behalf of the appellant was that the applicant should not be allowed to obtain

discretionary relief from the court in circumstances where the applicant had unequivocally asserted in correspondence that he was

quite prepared to litigate the truth or falsity of the complainants’ allegations before the Circuit Court. In such civil proceedings a lower

standard of proof, namely proof on the balance of probabilities, would apply in respect of the complainants’ claim of justification. In

the pending criminal proceedings the complainants’ allegations would have to be proved beyond reasonable doubt. Nonetheless the

applicant had volunteered his willingness and ability to meet and defend the allegations by reference to the less onerous standard

which the complainants faced in the Circuit Court.

In response, Mr. John Lucey, senior counsel for the appellant, accepted that he could not point to any additional stress or anxiety

arising by virtue of prosecutorial delay and did not further attempt to stand over this particular finding. However, he argued that the

recent decision of this Court in H. v. Director of Public Prosecutions [2006] I.E.S.C. 55, did not abolish complainant delay and in the

instant case it was undoubtedly the case that the complainants had decided not to approach the authorities in circumstances where

they were capable of informing family members of their allegations some eighteen years beforehand. Both parents were now dead and

testimony of potential value to the defence had been lost as a result of the delay which had taken place. Furthermore certain medical

notes of the general practitioner who had examined both complainants had become mislaid, albeit that the lost notes related to J.M.

only. However, it was accepted by counsel that the general practitioner was alive and was available to give evidence in relation to his

examination of the two complainants.

Decision

At the outset it may be said that, insofar as the learned High Court judge held that, for the purpose of calculating the respondent’s

right to an expeditious trial, time began to run from the date of the commission of the alleged offences, any such conclusion can not

be upheld. The respondent’s right to an expeditious trial commenced to run as and from the date when the complaints first came to

the attention of an Garda Síochána, namely between the 27th July, 1999 and the 24th September, 1999.

On the more general question of prejudice in cases of this nature, the judgment of this Court in H. v. Director of Public Prosecutions

[2006] I.E.S.C. 55, 31 July, 2006 restates the law as follows:-

“…the Court is satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the Court is

whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The

Court would thus restate the test as:

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

trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the

circumstances of the case.’

Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence

any question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the

complainants' complaints against an applicant no longer arises. The inquiry which should be made is whether the degree of

prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon

the circumstances of the case.

There is no doubt that difficulties arise in defending a case many years after an event. However, the courts may not

legislate, the courts may not take a policy decision that after a stated number of years an offence may not be

prosecuted. Also, as the legislature has not itself established a statute of limitations, that itself may be viewed as a

policy of the representatives of the People. Thus each case falls to be considered on its own circumstances.”

Thus the onus rests on the applicant to demonstrate, on the balance of probabilities, that he runs an unavoidable risk of an unfair

trial as a consequence of the lapse of time. This is clear from the well established tests propounded by Finlay C.J. in Z. v. Director of

Public Prosecutions [1994] 2 I.R. 476 at 507 and by Denham J. in D.C. v. Director of Public Prosecutions [2006] 1 I.L.R.M. 348, at pp.

350-352.

The fact that the trial may come down to a contest in credibility between the complainants and the applicant does not mean that

they can not be tried. As Geoghegan J. observed in D.D. v. Director of Public Prosecutions [2004] 3 I.R. 172:-

“It has never been the law that a charge of rape or gross indecency or indecent assault cannot be tried if, to use a

colloquialism, the trial is tantamount to ‘one person's word against another.’”

In many instances general prejudice arising from the lapse of time between the commission of the alleged offences and the time of

trial can be mitigated by ruling and directions on the part of the trial judge (see J.K. v. Director of Public Prosecutions, [2006] IESC 56

, 27th October, 2006, McGuinness J.).

In relation to the death of the complainants’ parents, it is not alleged that they were aware of the abuse at the time when it was

allegedly perpetrated. Indeed, the evidence is that sexual matters were not openly discussed in the household. Nor is it suggested

that there were ever any witnesses to the offences other than the complainants. Equally, the respondent does not demonstrate that

changes made to the lay-out of the house would have caused him some additional prejudice. Furthermore, the applicant does not

appear to rely on the absence of the doctor’s notes in the case of one complainant as a matter which results in any real prejudice.

The applicant’s mother died prior to the complaints being made. As to the applicant’s father, he declined to make a statement

concerning the allegations made in November, 1999 when asked by the gardaí to do so, declining on the grounds that he was too ill.

He was aware that the allegations had been made but refused to comment on them. In those circumstances there must be some

considerable doubt as to whether the applicant’s father could have been of assistance to either the prosecution or the defence at

the applicant’s trial.

Crucially and centrally, however, is the fact that the applicant, effectively through his own mouth, makes it abundantly clear that he

has not been prejudiced in any way as a result of the significant delay which has undoubtedly taken place. Far from it. In November,

1998 he saw fit to send a letter through a firm of solicitors to the complainants whereby he “invited” his sisters to make their

complaints known to the authorities. In quite unambiguous terms, his letter went on to state that this course, if adopted by the

complainants, would permit the applicant to be put in a position to defend the allegations. The letter stressed that “our client has

nothing to hide and will vigorously defend any criminal prosecution (if brought).”

There is nothing in this letter to suggest that the lengthy passage of time which has undoubtedly occurred in this case has operated

to the detriment or prejudice of the applicant in any material way, nor has the applicant deposed to any new facts arising since the

time of that letter which might be seen as having such an effect.

In oral submissions before this Court, Mr. Collins has been content to effectively rest his entire case on the inferences to be drawn

from the correspondence. He contends that the position adopted in correspondence by the applicant amounts either to a waiver of

any entitlement he may have to relief or should be seen as a form of estoppel arising on the facts of this particular case. Regardless

of the terminology used, he suggests that the implications of the correspondence go to the heart of the discretionary powers of the

Court when it considers whether relief should or should not be granted.

I believe this is a correct and proper approach to take in relation to the particular and unusual facts of the case, that is to say that

the applicant is, as an inexorable result of this correspondence, fixed with his own stated position at the time thereof, namely, that

he is at no disadvantage which prevents him from fully and adequately defending the proceedings. As already noted, the applicant

has not deposed to any new facts arising from the time of that correspondence which might be seen by the Court as altering that

position.

This is not of course to be taken as implying that the applicant was not entitled to pursue his claim for damages for alleged

defamation in the manner which he chose or was advised to do. That is quite a separate consideration from that of the state of mind

or capacity of the applicant to defend allegations as evinced by the correspondence in this case.

I would therefore allow the appeal.