Supreme Court dismisses appeal against refusal to prohibit trial due to delay in sexual offence case.

THE SUPREME COURT

Denham J.

Hardiman J.

Kearns J.

[415/2004]

Record Number JR 814/2001

JUDICIAL REVIEW

BETWEEN

C. K.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 31st day of January, 2007

This is an appeal brought from the judgment and order of the High Court (Ó Caoimh, J.) made on the 5th July, 2004, which refused to

prohibit the trial of the applicant in respect of alleged sexual offences on the grounds of delay and alleged prejudice associated with

such delay.

The alleged offences of indecent assault occurred between 1974 and 1978 when the complainant was a girl aged between eight and

twelve years and the applicant was aged between 32 and 36 years. The applicant is now sixty-four years of age, married and the

father of three grown up children. He lives in the South East of Ireland.

The complainant first approached a member of the garda síochána on or about the 20th May, 2000 for the purpose of making a

complaint in relation to the alleged conduct of the applicant. There was thus almost 26 years and 22 years between the

commencement and termination dates of the alleged offences and the making of the complaint.

On the 8th day of August, 2001, the applicant was charged with various counts of indecent assault pursuant to Section 6 of the

Criminal Law (Amendment) Act, 1935. He was returned for trial from the District Court to the local Circuit Court on the 2nd November,

2001. The applicant denies all of the charges.

In her statement of proposed evidence, the complainant states that C. K. was both a neighbour and a trusted family friend. The

applicant’s wife was on occasion asked to baby-sit the complainant and her sisters and would return the favour in turn for the family

of C. K. When these occasions arose, the complainant asserts that the applicant would swap places with his wife and take over the

baby-sitting functions in the course of which he both indecently exposed himself and indecently assaulted the complainant. On other

occasions, the complainant asserts that the applicant would take her and his own children out for a spin in his van. She asserts that

the applicant would find some pretext to send the other children away and he would then indecently assault her in the van. On one

specific occasion the complainant alleges that the applicant brought her in the van to a particular field owned by a Mrs. C., stating

that he wanted to collect wood which was in the field. He had his own two children with him, but sent them away to play and while

they were away he allegedly perpetrated an indecent assault upon the complainant.

On other occasions, the complainant alleges that the applicant would call her into his house and perpetrate similar forms of sexual

abuse upon her.

The complainant further asserts that the applicant always appeared to have money and would give her cans of Coke or buy her

sweets or ice-cream which she later realised was in reward for her silence. She asserts that the applicant would always say after an

episode of abuse that she should not tell her mother. She further asserts that the applicant would bring pornographic magazines into

her house and show the pictures to her. She asserts that the applicant stated to her that he did not have sex with his wife and

further asserts that there were dreadful rows between the applicant and his wife which were audible from next door. The complainant

further asserts that in the aftermath of these beatings (which, apart from one ‘accidental’ injury caused to his wife, are denied by the

applicant) the applicant’s wife would have terrible bruising to her face and arms and would come into the complainant’s mother to

show such bruising to her.

The applicant now complains that he is prejudiced by reason of the lapse of time between the occurrence of the alleged activities and

the making of the complaint to such a degree that he cannot properly prepare or present a defence to the charges in question. He

asserts that in view of the lapse of time, he is deprived of both oral and documentary evidence necessary for that purpose.

Apart from the general prejudice associated with delay, the applicant contends he has suffered specific prejudice because certain

evidence which might have been available at an earlier stage in the preparation of his defence is now either missing or no longer

available. The examples tendered of missing evidence are as follows:-

(a) Dr. G

This witness, now deceased, was the family doctor to the applicant’s family throughout the relevant years of the

complaint. The complainant alleges that the applicant’s wife was regularly beaten by him. This allegation is denied by both

the applicant and his wife, but the applicant submits that as his wife underwent two pregnancies during the period 1974 –

1978, it would have been impossible for her to conceal serious bruising to her face and arms if she was seen by Dr.

Gaffney during that period. His evidence, were he available, might have been utilised to challenge the credibility of the

complainant.

(b) The Blue Van

The applicant asserts that the prosecution have brought their case on the basis that the applicant drove a blue van

between 1974 and 1978 and that the complainant was assaulted in it. However, in his affidavit, the applicant had

deposed to the effect that he did not own a blue van during that period. Rather he had owned such a van between 1968

and 1973, prior to the time of the alleged offences. He maintains that this van was destroyed in a fire and that the fire in

question was attended to by the local fire brigade. Despite efforts made on his behalf through Wicklow County Council

and AXA Insurance to trace the identity and ownership of the vehicle in question, such efforts had proved fruitless, no

records in relation to the vehicle being available prior to 1985.

(c) Baby-sitting

The applicant denies that he regularly baby-sat the complainant or her sisters when they were children. He asserts that a

Mrs. K., the complainant’s grandmother, was in charge of baby-sitting whenever the complainant’s parents were out or

absent. Mrs. K. is now deceased. The applicant contends that her evidence would decisively influence a jury to accept

his version of events in relation to baby-sitting arrangements in the complainant’s family home.

(d) Local field

The complainant alleges that one indecent assault took place in a field at a specified location where the applicant brought

the complainant in his van for the stated purpose of collecting wood. The applicant maintains that he could only access

this field, which was otherwise locked, with the permission of the owner and that owner is now deceased.

In the course of a strongly argued submission on behalf of the applicant, Mr. Peter Finlay S.C., contended that the absence of

evidence under the foregoing headings deprives the applicant of certain “islands of fact” upon which reliance could otherwise be

placed by the defence to test the reliability of the complainant’s account. While it was accepted that the absence of a particular

witness or a particular piece of evidence in a criminal trial might not necessarily be fatal, it was particularly invidious in old cases of

this type when, apart from such material, the evidence essentially would consist of the complainant’s word against that of the

applicant. Mr. Finlay further contended that the cumulative effect of the missing or non-available evidence in this case was such as

to discharge the onus of proof placed upon him to satisfy the Court on the balance of probabilities that there was a real risk of an

unfair trial which could not be avoided or overcome by warnings or rulings from the trial judge. He submitted in particular that a

warning about the dangers associated with delay, if given by the trial judge, would not and could not overcome the problems which

arise where material evidence is either missing or no longer available.

In response on behalf of the respondent, Mr. Paul Anthony McDermott B.L., addressed each of the areas of alleged specific prejudice

in the following manner:-

(a) Firstly, there was no suggestion or evidence that the applicant’s wife had ever visited Dr. G. during the relevant

period. Indeed, in his grounding affidavit the applicant had merely referred to his wife’s attendance “if any” on Dr. G., a

hypothesis which was by definition too tenuous to justify halting a trial. Furthermore, the applicant’s wife is available, as

are other members of her family, to give evidence in relation to alleged beatings in the context of the trial. Mr. McDermott

pointed out that the applicant’s wife had sworn no affidavit to say she had ever been to see this doctor. Furthermore,

even if she had seen her doctor during the period in question, it remained an open question whether or not she would

ever have disclosed such incidents to him.

(b) Mr. McDermott further pointed out that the complainant had not made any reference to the colour of the van in which

she alleged she had been sexually assaulted. The reference to a blue van had been supplied by her mother.

In this context, it was relevant to note that the applicant had been interviewed on two occasions in relation to the allegations

brought forward by the complainant. The first interview occurred on the 30th of July, 2000. When asked on that occasion what sort

of van he had in 1974, the applicant had stated that he thought he had both a car and a truck or van as well. However, when giving

a further statement in April, 2001, he admitted having a blue van as and from 1977. No alteration to this admission was sought or

made until the applicant swore his grounding affidavit in the judicial review proceedings in December, 2001. He then deposed:-

“I say, however, that this deponent did not own or otherwise have the use of a blue van in the period between the 4th

October 1974 and the 3rd October 1978 being the dates between which the alleged activities occurred. I say, however,

that this deponent did in fact own a blue van between the years of 1967 and 1972/1973, whereupon the said van was

burned out.”

In relation to his statement, the applicant went on to depose:-

“I beg to refer … to a statement made by this deponent on the 14th day of April 2001. I say that it is therein recorded

that this deponent indicated that I acquired a blue van in or about 1977. I say, however, that this deponent clearly

stated to the Garda in question that I so acquired in or about 1967 and, due to the unavailability of my reading glasses

and attendant poor sight, and furthermore due to the fact that the services of a solicitor had not been made available to

me, this deponent could not read the statement properly and thus failed to notice that the Garda in question had in fact

recorded the year 1977 in place of 1967, as directed.”

Mr. McDermott contended that, in the light of the foregoing conflicts of recollection in relation to the van, the issue was one which

would have to be teased out or explored at the trial. The complainant’s mother had made available a photograph dated 1979 which

showed a van which, it was contended, belonged to the applicant at that time. Mr. McDermott further pointed out that there was no

cross -examination of the garda witnesses on the hearing of the Judicial Review in the High Court to suggest that the evidence they

had given in relation to the interview of April, 2001, was incorrect or that the same had not been read over to the applicant in such a

way as to provide ample opportunity to add or change anything in it.

(c) Mr. McDermott contended that various family members were available to give evidence as to the arrangements for

baby-sitting, as appeared from the Book of Evidence. He submitted that this was a point of no substance, given that on

any occasion when the complainant’s grandmother might have been baby-sitting, there would be no requirement for the

applicant or his wife to be present. They were therefore only present, if ever both were present, on occasions when Mrs.

K. was not there. The absence of this particular witness was in no way significant.

(d) On the issue of the field, Mr. McDermott asserted that no evidence whatsoever had been offered to suggest that the

particular field was locked or that the field could not be accessed other than through the gate, even if such gate was

locked. He submitted therefore, that no evidential basis had been laid or established which would justify the making of a

prohibition order and that the findings of the learned trial Judge should therefore remain undisturbed.

In this regard, the learned trial Judge had concluded:-

“Dealing with the aspect of prejudice alleged by the applicant, it is clear that records relating to vehicles may no longer

exist. However, the relevance of the material is questionable, in light of what is alleged to have been stated by the

applicant when he was interviewed by the Gardaí. If a vehicle was not available in Ireland at a time when it is alleged that

an offence was committed in a vehicle of that nature, then I believe that such evidence should be available from the

motor industry in relation to same. The relevance of fire brigade records is also questionable in light of the evidence that

the fire in question was not extinguished by the fire brigade at all.

With regard to the persons identified by the applicant who are dead, I am not satisfied that the applicant has

demonstrated that these persons, if alive, would be able to give relevant evidence. The offences are alleged to have

been committed in private and not in the presence of any third party and this is an almost invariable feature of cases of

this nature. In light of this fact, it is extremely doubtful that these persons would be able to give relevant evidence at the

trial of the applicant. With regard to the death of Dr G, there is no evidence of the applicant's wife having attended him

for any injury alleged to have been inflicted upon her and in these circumstances I am satisfied that the applicant has

failed to demonstrate that, if alive, he would be in a position to give relevant evidence. I also believe that the absence of

[ the owner of the field] is not such as to deprive the applicant of relevant evidence as there is no reason to believe that

he could not have visited the field in question at any time.

In all these circumstances, I am not satisfied that the prejudice alleged by the applicant is such as to deprive him of the

opportunity of having a fair trial.”

Decision

It is probably fair to say that until the decision of this Court delivered in H. v. Director of Public Prosecutions (unreported, Supreme

Court, 31 July, 2006), both practitioners and judges alike were confronted and burdened with multiple and not always entirely

consistent judicial pronouncements on the circumstances in which very old sexual offences might be permitted to proceed to trial or,

alternatively, prohibited for one reason or another.

The decision in H. v. Director of Public Prosecutions specifically reassessed the jurisprudence which had developed in recent years on

the issue of delay in cases relating to the cases of sexual abuse of children. The need for a special jurisprudence had been signalled in

G. v Director of Public Prosecutions [1994] 1 I.R. 374 and was developed in the years that followed in the wave of prosecutions which

arrived at the courts. That special jurisprudence recognised that children were particularly vulnerable members of society and that,

unbeknownst to the general public, widespread sexual abuse of children had gone on for many years in this jurisdiction. It was also

apparent that victims could be dominated, bullied or coerced into silence either by abusers or be inhibited by the social mores of the

times from coming forward to complain. It came to be understood also that children could suffer serious psychological sequelae as a

result of sexual abuse which would inhibit the making of a complaint about a perpetrator (who, sadly, was in many instances a person

in a position of trust in relation to the child). This led to a jurisprudence in such cases which recognised that the constitutional right

to an expeditious trial had to yield to the requirement that crimes of this nature, which were usually ‘hidden crimes’, be capable of

being prosecuted many years later, depending on the reasons for delay. This in turn led to a multiplicity of cases which addressed the

reasons for delay in reporting abuse. This exercise almost invariably involved detailed psychological assessment of complainants and

lengthy cross-examination of experts at judicial review hearings in an effort to disentangle complainant delay from that caused by a

perpetrator. Following a detailed analysis of the principal authorities conducted in H. v Director of Public Prosecutions, Murray C.J. in

delivering the judgment of the Court noted that there was by now (ie, in 2006) considerable judicial understanding of the factors

inhibiting disclosure of abuse and expressed the preference of the Court for the following simplified approach to determine applications

for prohibition in cases of delay:-

“Therefore, 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.”

The decision in H. v. Director of Public Prosecutions thus ushered in a new approach to cases of this nature, being one whereby the

degree of prejudice arising from the delay in bringing a prosecution is the principal test in determining whether prohibition should or

should not be granted. However, I do not interpret the decision in H. v. Director of Public Prosecutions as establishing or laying down

the proposition that if any degree of prejudice is established, that a trial must automatically be prohibited, given that there is ample

judicial authority for the proposition that prejudice arising in certain circumstances may be overcome or countered by means of

appropriate directions or warnings from the trial judge. For example, the warning as to the deleterious effects of delay on human

recollection which was given by Judge Haugh (as he then was) in Director of Public Prosecutions v R.B. was cited and approved in the

judgment of the Court of Criminal Appeal, 12th February, 2003 in that case and further approved in Director of Public Prosecutions v

E.C. (unreported, Court of Criminal Appeal, 29th May, 2006). This aspect of the new jurisprudence will undoubtedly develop further,

as indeed was noted by Hardiman J in the course of his judgment in J.B. v Director of Public Prosecutions (unreported, Supreme Court,

29th November, 2006), but it is unnecessary to explore that topic further for the purpose of resolving the instant case.

It seems clear that, following H. v. Director of Public Prosecutions, there is no longer any necessity to consider applications for

prohibition in old sexual cases by reference to any special jurisprudence, save for that which recognises that society has an interest

in seeing such crimes prosecuted even many years after the events in question. A different kind of criminal trial might well be halted

where such an egregious breach of the right to an expeditious trial is established. However, subject to that qualification, the decision

in H. v. Director of Public Prosecutions can only be seen and understood as mandating and requiring a prejudice- based approach

when deciding whether or not to grant prohibition in old sexual cases. Either the accused’s ability to defend proceedings has been

fatally compromised or compromised to such a degree as to be incapable of being rectified by appropriate directions or warnings from

the trial judge or it has not. The resolution of that issue will turn on the facts and circumstances of each individual case. It is

therefore now essential in these applications for prohibition in old sexual cases to fully and actively engage with the facts of the

particular case. That is the main consequence of the simplification brought about by the decision in H. v Director of Public

Prosecutions.

In this regard the first question to be addressed is whether or not the applicant has discharged the onus of establishing on the

balance of probabilities that he has been prejudiced by the consequences of delay to the extent that there is a real risk of an unfair

trial. If that question is answered affirmatively, the applicant must further satisfy the court that it is a degree or type of prejudice

which can not be overcome or countered by appropriate directions or warnings to the jury to be given by the trial judge. Only if he

succeeds in both respects is he entitled to an order.

In the instant case, I am quite satisfied that the applicant has not discharged the evidential burden which the law imposes to satisfy

the Court that, on the balance of probabilities, there is a real risk of an unfair trial.

Firstly, in relation to the deceased doctor, there is absolutely no evidence that the applicant’s wife ever consulted this doctor during

the period in question. In her statement of proposed evidence she asserts to the contrary of what is alleged by the complainant. Both

she and other members of the family are available to give evidence on this issue. The absence therefore of the general practitioner

must be seen against this background. It does not amount, in my view, to a matter of any importance or constitute a factor which

puts the applicant at any disadvantage.

Secondly, in relation to the blue van, there are conflicting accounts of both the colour of this van and as to whether the applicant

owned such a van during the relevant period. The complainant herself makes no particular allegation about the colour of the van. The

applicant in the course of an interview with the gardaí in April, 2001 admitted he had a blue van during the relevant period. While it is

appreciated that he sought in his affidavit to correct what he later said was a mistake on his part in the interview of April, 2001 it

seems clear that this statement was read over clearly to him before he signed it. It is furthermore a very brief statement in which the

van features as the central issue. The garda evidence and affidavit in relation to what transpired at this interview has not been

challenged in cross- examination in these proceedings. I think therefore Mr. McDermott is correct when stating that this is a matter to

be teased out at trial when there will be family and perhaps other witnesses available to the applicant to address this particular issue

at that point in time.

Thirdly, it seems to me that the complainant’s deceased grandmother could have little or nothing to say on the issue of what baby-

sitting arrangements obtained when she was not present. Her presence as a baby-sitter in the house would, of necessity, obviate the

necessity for the applicant and/or his wife to be present. Equally in relation to the field, there is no evidence that the gate to this

field was ever locked or that access or entry to the field could only be obtained through the direct intervention of the now-deceased

owner of the field in question.

In conclusion therefore I am satisfied that no evidential basis has been made out sufficient to justify the prohibition of the trial herein

and I am of the view that the decision of the learned High Court judge should be upheld. I would dismiss the appeal.