Supreme Court allows judicial review appeal where defendant's admissions mitigate delay prejudice in sexual offence trial.

THE SUPREME COURT

JUDCIAL REVIEW

424/05

Hardiman J

Macken J.

Finnegan J.

BETWEEN:

S.A.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2007.

1. This is the appellant’s appeal against the judgment and order of the High Court (O’Neill J.) of the 26th July, 2005, whereby the

appellant was refused relief. The appellant is the defendant in a criminal case in which he is accused of multiple offences of a sexual

nature allegedly perpetrated while he was a Christian Brother working in the former Artane Industrial School. These offences as

originally framed related to seven victims, six males and a female, and extending back to 1955. However, shortly before the appellant

was returned for trial the oldest allegations, relating to a Mr. W. were dropped. There are now extant eight allegations of buggery, 63

of indecent assault and one charge of attempted buggery. The oldest extant charge relates to the year 1961, forty-six years ago and

the latest relates to the year 1969, thirty-eight years ago. Evidently, these are very long periods of time. Moreover, the appellant has

the benefit of a finding of the learned trial judge that the delay in this case “could not rationally be considered to be anything other

than inordinate”. The learned trial judge also held:

“I am also satisfied that between January 1996 when a statement was taken from K.K. there was unreasonable delay on

the part of An Garda Síochána in progressing the investigation into the allegation made by K.K. However I am satisfied

that the applicant has not pointed to any particular prejudice be it presumptive or actual relative to the delay for that

particular period and that being so I have come to the conclusion that that particular delay did not contribute in any kind

of significant way to the risk of an unfair trial of the applicant in respect of the charges relative to K.K.”.

2. In a number of previous cases I have outlined the acute prejudice which lapse of time can cause to a person accused of a serious

criminal offence. The jurisprudence on this topic grew up in relation to civil cases: I have discussed it in the first part of my judgment

in J.O’C v. DPP [2000] 3 IR 478. In O’Domhnaill v. Merrick [1984] IR 151Henchy J. held:

“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it

puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed

to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in

1961 would be apt to give an unjust or wrong result in terms of the issue of liability or the issue of damages, or both.

Consequently, in my opinion, the defendant who has not in any material or substantial way contributed to the delay

should be freed from the palpable unfairness of such a trial.”

3. Henchy J. also said:

“I consider that it would be contrary to natural justice and an abuse of the process of the Court if the defendant had to

face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would

have taken place 24 years before the trial and a claim for damages of which she first learnt sixteen years after the

accident.”

4. The aspect of this jurisprudence which I wish to emphasise here is that the Courts were prepared to infer such unfairness simply

from the periods of delay. In another case cited in J.O’C, O’Keeffe v. The Commissioner of Public Works, the Supreme Court regarded

as “a parody of justice” the hearing which would take place twenty-three years after an industrial accident which was the subject of

the action.

5. At pages 499-500 of the report in JO’C, I have endeavoured to summarise the jurisprudence to which I refer. I continue to be of

the view that these matters are of the greatest relevance in considering an application to prohibit a trial on the ground of lapse of

time.

6. There is, of course, another line of authority, much developed in the cases, relating to the specific area of alleged child sexual

abuse. Arising from this line of authority, it is no longer necessary for the prosecution to establish a specific reason for delay by a

complainant in reporting such allegations and that, no doubt, is as it should be. There nevertheless remains the difficulty of providing

a fair trial, as opposed to “a parody of justice” after very long periods of delay. In other words, the potential for delay to cause

unfairness is quite unaffected by the reasonableness or otherwise of the delay, considered from the point of view of the complainant.

7. I mention these points because of a particular submission made on behalf of the Director of Public Prosecutions in this case, to the

effect that “Decisions of the Superior Courts to restrain trials on the basis of delay are governed by a principle of parsimony…”.

8. In this connection, I wish to express my agreement with what Ms. Justice Denham had to say in B. v. DPP [1997] 3 IR 140 at 195:

“It is not the applicant’s interests only which have to be considered. It is necessary to balance the applicant’s right to

reasonable expedition in the prosecution of the offences with the community’s right to have criminal offences prosecuted.

The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due

process. If there is a real risk that the applicant would not receive a fair trial, then on the balance of these constitutional

rights the applicant’s right would prevail.”

9. Similarly, in D. v. DPP [1994] 2 IR 465 at 473 Mrs. Justice Denham held:

“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a

hierarchy of constitutional rights it is a superior right.

10. A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However,

on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s

right to prosecute. If there was a real risk that the accused would not receive a fair trial then there would be no question of the

accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”

11. I wish to reject this “principle of parsimony” as strongly as I can. The right to a fair trial is a superior right and cannot be clogged

by any “principle of parsimony”. Equally, it must be borne in mind that what an applicant must establish is the real risk (as opposed to

the demonstrated certainty or probability) of an unfair trial. It would be unrealistic to require a defendant to prove what a dead or

missing witness would have said when, by reason of the delay in making the allegation, the defendant would have had no reason

whatever to discuss this question with the witness.

12. Although the periods of delay in this case are very long, there are certain features which tend to mitigate their effect. The

appellant gave extensive interviews to members of An Garda Síochána and, as the learned trial judge has found, these appear to

demonstrate that his memory is functioning and accurate and that he shows quite a marked instinct for precision. There is another

aspect to these interviews as well.`

13. In the course of interviews with the gardaí the applicant is alleged to have made certain admissions. These are admissions to

actions which would amount to indecent assault (now described as sexual assault) but do not extend to the crime of buggery, which

he stoutly and consistently denied. The conduct to which he admitted, which was in the nature of inappropriate touching, occurred,

he said, “in moments of human weakness”. He also said, speaking of the allegations made against him, that “if the boys have said

this, he must accept it, but he has no recollection of it. He must accept what they have said on trust. His memory is not as good as

it used to be… something must have taken place”.

14. He said that he remembered one of the boys, Mr. K. because of his unusual name. He also remembered another boy, Mr. M. He

made specific admissions of conduct which would amount to indecent assault in relation to this boy. His admissions are at least open

to the interpretation that he also concedes conduct of this sort with other, unnamed, boys. He could not say how often he

experienced “moments of weakness”. Asked whether he had behaved in the way indicated with anyone subsequent to his contact

with Mr. M. he said “I might have, I don’t know. I could have.”

15. There are a number of things to be said about these admissions. Firstly, as indicated above, they do not extend to buggery which

was always denied apparently (insofar as one can judge from a typed transcript) with considerable vehemence. Secondly, all

statements in the nature of admissions related to boys. Indeed, the questions which elicited the admissions were couched in terms of

boys exclusively. There is no admission in relation to the female complainant. Her case is also different in the sense that it was not

alleged to have taken place in the school or the kitchen of the school but elsewhere. Thirdly, there are undoubtedly admissions of a

more general variety, in relation to boys other than Mr. K. or Mr. M. but the applicant could not name them because he had a poor

memory for names due to lapse of time.

16. It appears to me that these admissions are a significant factor in the present case. Admissions, depending on their context, may

vary greatly in their significance on an application like this. An unrecorded and disputed allegation may be of little or no significance

unless its terms or context make it very compelling. A disputed allegation of admissions to Gardaí will normally be verified by recording:

an omission to record will call for explanation. However, in the present case the admissions do not appear to have been denied or

glossed in any way so that it seems reasonable to take them at face value.

17. On that basis, there are admissions to misbehaviour with two specified boys and with others unnamed. There are also admissions

to a propensity to behave in a particular way “in moments of weakness”.

18. In that context, I would not regard the inability to recall specific children by name as gravely prejudicial to the applicant’s

prospects of a fair trial. It is perfectly clear from the undisputed verbal admissions that the applicant has positive memories of

behaving in the manner indicated, to the point at which he indicated that he was prepared to accept the truth of the allegations

made. Equally, of course, he may be in a position to rely on the admissions made by him to support the credibility of his denial of

buggery. The very vehemence of these denials is indicative of a strong subjective memory for what did and did not occur.

19. To look at these admissions from another point of view, it would in my opinion be extraordinary to prohibit a trial in circumstances

where the defendant admits a significant amount of behaviour of a criminal nature. Without doubt his ability to be more precise as to

the individuals involved, and perhaps about other features, is due to lapse of time, but, having regard to the admissions, that lapse of

time would itself appear to be caused or contributed to by the defendant’s activities. In those circumstances I do not consider that

the demands of justice or the requirement of a fair trial require that the respondent be prohibited from prosecuting any of the charges

against the applicant. There is, of course, still a need for great care to be taken, after so long a lapse of time, to ensure that the

defendant is not unreasonably prejudiced by it. This is a matter primarily for the trial judge on the hearing of the criminal case.

20. In the circumstances of this case there is no need to consider what the position would be in the absence of the admissions

referred to, and I expressly refrain from doing so. I hope it is clear from what is said above that long lapse of time has the potential to

cause great injustice and that this is a matter calling for the serious attention of the Courts when the judicial review jurisdiction is

invoked. I also wish to make it clear that this is a case of undisputed admissions and cannot be regarded as a useful precedent in

circumstances where alleged admissions are hotly disputed and not independently verified.