High Court of Ireland Decisions

1. The Applicant is charged with 90 offences. These charges are at present pending in the District Court. He was served with a Book of Evidence in respect of them on the 10th July, 1995.

2. The offences alleged against the Applicant involve unlawful carnal knowledge, indecent assault and sexual assault. They are alleged to have been committed between the 1st January, 1976 and the 31st December, 1992.

3. The offences are alleged to have taken place during a period when the Applicant was a swimming coach at a swimming club attached to a school.

4. The Applicant has exhibited the Book of Evidence which has been served upon him. The information set forth therein demonstrates allegations of systematic sexual abuse of young girls all of whom were swimmers in the club to which the Applicant was attached as a swimming coach.

5. Charges 1 to 68 inclusive and 81 to 90 inclusive are alleged to have been committed between the years 1976 and 1984. The remainder of the charges relate to offences alleged to have been committed between 1991 and 1992.

6. In these proceedings, the Applicant seeks an Order of Prohibition restraining the Respondent from proceeding with charges 1 to 68 inclusive and 81 to 90 inclusive. The Applicant was given leave to make this application by Order of this Court (Carney J.) dated the 28th July, 1995 on the following grounds:-

7. The charges which have been made against the Applicant concern 9 different individuals. I will identify them by their initials.

8. Twenty-eight charges relate to C.B. Twelve are of unlawful carnal knowledge of her between the 1st January, 1976 and the 31st December, 1978. Sixteen are of indecent assault between the 1st January, 1976 and the 31st December, 1979.

9. Eight charges of indecent assault have been preferred concerning L.K. These assaults are alleged to have taken place between the 1st September, 1978 and the 30th June, 1979.

10. In the case of D.M., twenty-five charges are set forth. Twenty-four are in respect of indecent assault between the 1st January, 1978 and the 31st December, 1983. One charge of unlawful carnal knowledge between the 1st January, 1983 and the 31st December of that year is the 25th charge.

11. There are three charges of indecent assault alleged in respect of A.C. between the 1st April, 1981 and the 31st July, 1981.

12. A single charge of indecent assault on P. O'C. between the 1st January, 1983 and the 31st December, 1983 is the 65th charge in the Book of Evidence.

13. Three indecent assaults are alleged on G. O'C. between the 1st August, 1982 and the 30th June, 1983.

14. There is a single charge of sexual assault on S. McG. on the 3rd November, 1992.

15. Three charges of sexual assault on R.L. on the 15th September, 1992, the 20th October, 1992 and the 22nd December, 1992 respectively are included in the Book of Evidence.

16. There are eight charges of sexual assault on S.D. between the 18th January, 1991 and the 31st December, 1992.

17. Finally, there are ten charges of indecent assault on A. McE. between the 1st July, 1982 and the 31st December, 1984.

18. In his Affidavit grounding this application, the Applicant avers that he did not commit any of the offences with which he has been charged and, furthermore, swears that if returned for trial he intends to plead not guilty to all of the charges.

19. He makes a number of complaints concerning the charges in respect of which this application is brought.

20. First, he alleges that none of the charges are laid with adequate specificity as to the date when any of them are alleged to have been committed.

21. Secondly, he alleges that the facts alleged against him occurred so long ago that it would be unjust and unreasonable that he should be required to answer the charges or any of them.

22. Thirdly, he says that he is at a material and substantial disadvantage in meeting the charges because he cannot now hope to find witnesses who could reasonably be expected to give evidence as to his whereabouts or activities in the years 1976 to 1984 or for virtually every hour of each and every day during the entirety of the alleged periods. He furthermore says under this heading that he has been unable, despite lengthy considerations, to identify such witnesses. He says that he is not able to account for his whereabouts or activities during the entirety of the periods covered by the charges in suit. In this regard, he draws attention to the fact that one of the witnesses in the Book of Evidence alleges that one of the complainants, namely L.K., made complaints to him in 1980 or 1981 that she was being abused by the Applicant. That witness is a teacher at the school in question. The witness in turn alleges that he reported this matter to another person in authority in the school. The Applicant alleges that he was never confronted with this complaint either by the person in authority or the principal of the school or indeed anyone else in the school. Had he been confronted at that time, he said he would at least have been in a position to defend himself against allegations then rather than now, some fifteen years later.

23. Finally, he says that he has no diary or other document which would assist him in recalling his whereabouts or activities during the period in question. The only evidence he says that would be available to him if the charges go to trial would be a simple and unsupported and, in the circumstances, uncorroborated denial.

24. Detective Garda Sarah Keane, in an Affidavit sworn by her on the 24th April, 1996, avers that the complaints concerning the Applicant allegedly sexual abusing each of the complainants were received by her between the 16th January, 1993 and the 15th June, 1995. She interviewed each of the complainants and took written statements from them. In addition, during that time, the Applicant himself was interviewed on three separate occasions concerning the allegations made against him. The file was forwarded to the Office of the Chief State Solicitor on the 18th December, 1994. On an unspecified date, directions were received from the Office of the Director of Public Prosecutions and the Applicant was arrested on the 10th July, 1995 and charged. From her Affidavit, it would appear that the file was forwarded to the Chief State Solicitor while there were still a number of complaints which had not yet been made.

25. From Garda Keane's Affidavit, it is clear that the bulk of the delay in respect of which complaint has been made arose from the failure on the part of the alleged victims to report the matters in question to the Gardai.

26. Six of the seven complainants who have alleged offences between 1976 and 1984 had psychological assessments carried out upon them by Mr. Alex Carroll who is a Senior Clinical Psychologist in the employment of the Midland Health Board. He has held that position since 1993. Prior to that, he was a Clinical Psychologist with the North Eastern Health Board and the Midland Health Board respectively. His work includes the investigation and validation of complaints of child sexual abuse and he was in the past the leader of a team in the Midland Health Board area which provided for the treatment and rehabilitation of victims of sexual assaults and their families.

27. In the course of the Affidavit sworn by Mr. Carroll (which is not controverted), he avers that child sexual abuse is a sexual act imposed on a child who lacks emotional, maturational and cognitive development. He says that the ability to lure a child into a sexual relationship is based upon the all powerful and dominant position of the adult, which is in sharp contrast with the child's age, dependency and subordinate position. Authority and power, he says, enable the perpetrator implicitly or directly to coerce the child into sexual compliance. In his experience, the dynamics of sexual abuse most often include a known adult who is in a legitimate position over a child and who exploits accepted societal patterns of dominance and authority to engage the child in sexual activity. He says it is not possible to over-emphasise the significance of the exploitation and misuse of accepted power relationships when assessing the impact of sexual abuse on a child, including the failure or otherwise of the child to disclose the fact of the abuse at the time it was taking place. He then sets forth a number of reasons why the victims of child sexual abuse may fail to make a complaint in relation thereto for a long period of time. These reasons are:-

28. He prepared a report in respect of each of the six complainants whom he assessed and it has been exhibited in these proceedings. His conclusion is that it was quite reasonable from a psychological point of view that, in the cases in question, a long period of time has elapsed between the last incident of abuse and the date of the complaint.

29. Each of the six complainants who were assessed by Mr. Carroll have sworn Affidavits in which they have verified upon oath their statements of evidence as contained in the Book of Evidence. In addition, each of them have, subject to some minor amendments, verified upon oath the accounts of their interviews with Mr. Carroll as set forth in his report.

30. It is not necessary for the purpose of this judgment to set forth in detail all that passed between Mr. Carroll and each of the complainants in the course of their interviews with him. It is sufficient for me to mention just a few features.

31. First, each of the complainants interviewed were at the time of the alleged offences aged between 11 and 15 years and they came into contact with the Applicant as members of the swimming club at the school at which the Applicant was a coach. He was an adult and was in a position of authority as far as they were concerned.

32. Secondly, a number of the complainants demonstrated in their interviews the existence of a large number of the factors which Mr. Carroll regards as explaining and justifying, from a psychological point of view, the delay in making complaints to the authorities.

33. Thirdly, a number of the complainants refer to what is sometimes described as autogenic training sessions conducted by the Applicant with them or, alternatively, hypnosis. As I understand it, autogenic training utilises progressive relaxation techniques similar to hypnotic induction. This form of activity featured in a number of the interviews which were conducted with Mr. Carroll where the complainants indicated that the Applicant engaged in this form of hypnosis with them and during it engaged in the activities in respect of which complaint was made to the Gardai.

34. Finally, as is clear from the Affidavit evidence put before me, this is a case in which there is now and is likely to be at trial a total conflict of testimony. Each of the six complainants who have been interviewed have positively sworn that the statements contained in the Book of Evidence are true. The Applicant, on the other hand, has denied committing any of the offences with which he has been charged.

35. The seventh complainant, namely, C.B., in respect of whom twenty-eight charges have been preferred, was not assessed by Mr. Carroll. She has been living in the United States of America since 1982. I have read her statement in the Book of Evidence. It demonstrates an alleged modus operandi on the part of the Applicant which is much the same as that involving the other complainants.

36. Article 38.1 of the Constitution provides that:-

37. It is this constitutional provision which has formed the basis for all of the extensive case law which has grown up on this topic over the last few years.

38. These general principles permit the Court to take into account all of the circumstances of the case in considering an application of this sort. In the case of charges of the sexual abuse of children, special considerations arise.

39. Some of the considerations referred to by Finlay C.J. have already been set forth in this judgment by reference to the Affidavit of Mr. Carroll. They include the reluctance of young children to accuse persons in positions of authority, feelings of guilt and shame felt by the child and the fear of not being believed in respect of the matters complained of.

40. From the above, it is clear that one of the factors which I must consider in the present case is the extent to which the Applicant may have contributed to the delay in the reporting to the prosecution authorities of the offences alleged. That, however, is merely one factor to which attention must be given.

41. In considering all of the relevant factors, I think I ought to have regard to what was said by Denham J. in D.P.P. -v- Byrne (1994) 2 I.R. 236 at 259 as follows:-

42. I must also bear in mind what was said by Finlay C.J. in Z. -v- Director of Public Prosecutions (1994) 2 I.R. 476:-

43. In the same case, at page 507, it was stated:-

44. All of the above principles and considerations are extracted from the relevant case law in this jurisdiction. As to the law in other jurisdictions, this has been considered by both Budd J. in C.B. -v- D.P.P. (judgment 9th October, 1995) and by Keane J. in E. O'R. -v- D.P.P. (21st December, 1995). It does not appear to me to be necessary to review all of the foreign authorities for the purposes of this judgment. For the sake of completeness, however, I should say that I concur with the views of Keane J. in respect of the dicta both of Judge J. in L.P.B.'s case (1990 / 91 Cr. App. Reps. 359) and of Brennan J. in Jago -v- The District Court, New South Wales & Others (1989) 168 C.L.R.

45. The Applicant contends that he is prejudiced by reason of the lack of specificity in regard to the dates of the offences charged against him. In this regard, reliance is placed upon the decision of the Supreme Court in the case of Director of Public Prosecutions -v- E.F. (unreported 24th February, 1994). Egan J. delivered the judgment of the Court on a Case Stated from His Honour Judge Deery sitting in the Circuit Criminal Court at Portlaoise. It was a case involving allegations of indecent assault. There were nine counts on the indictment. Each count alleged an indecent assault on a female person on a date unknown between the 1st January in each year and the 1st January in the following year for a period stretching from the 1st January, 1979 to the 1st January, 1988.

46. In considering the matter, Egan J. said:-

47. In the present case, it is to be noted that many of the charges refer to a specific, albeit unknown, date occurring, in many of the cases, in a specified quarter of a year. Consequently, rather than alleging an offence on a date unknown in a particular calendar year, each year is broken down into four quarters and the allegation is made in respect of a quarter. This is not so in all cases which are set forth in the Book of Evidence since in respect of some of them a specific date is identified. However, it is the case in relation to the bulk of the offences charged.

48. I must now set about applying the legal principles outlined above to the facts of this case.

49. The first matter of note is the delay between the first alleged offence and the date upon which the Applicant was charged. The first offence is alleged to have taken place between the 1st January, 1976 and the 31st March, 1976. The Applicant was arrested on the 10th July, 1995. There is, therefore, a period of more than 19 years between the date of the first offence and the charging of the Applicant. The latest offence in respect of which Judicial Review is sought is alleged to have occurred not later than the 31st December, 1984. That results in a delay of 10½ years between the alleged offence and the charging of the Applicant.

50. These are significant periods of time.

51. However, I am of the view that this delay has been explained by reference to the uncontroverted evidence of the Psychologist as set forth in his Affidavit and the exhibits annexed thereto.

52. I must also bear in mind the relationship between the Applicant and the complainants. All of the complainants were, at the time of the alleged offences, girls of tender years whereas the Applicant was an adult of about thirty years of age. I am satisfied on the evidence that the relationship between the Applicant and the complainants was not merely one of adult and children. It was a great deal more than that by virtue of the position held by the Applicant, his status as a swimming coach of some note and the position of the complainants at that time. In this case, unlike, for example, the position in E.O'R -v- The Director of Public Prosecutions (unreported 21st December, 1995), six of the seven complainants have sworn Affidavits and have undergone psychological assessments by way of explaining the reasons for the delay in reporting the matters. A further point to note is that no attempt has been made to cross-examine any of the complainants on the Affidavits sworn by them. In the course of his judgment in E. O'R's case, Keane J. says:-

53. An opportunity was provided for such cross-examination if the Applicant had seen fit to avail himself of it. He did not. Neither was any evidence adduced to controvert the views of the Psychologist expressed on oath.

54. The evidence does not satisfy me that any actual or particular prejudice has been established by the Applicant which would render the trial unfair. The two aspects of particular prejudice to which he points are the difficulty in establishing an alibi and the lack of any documentary material available to him in recalling his whereabouts. I do not consider in the overall context of the allegations in the present case that this assertion by the Applicant is one to which much weight can be attached. If there was a single complainant making an allegation of an unlawful activity on a particular date or dates, there might well be some merit in this contention as demonstrating actual prejudice. But given the spread of allegations both by reference to the number of persons and the dates involved, I do not think that the Applicant has made out a case of particular prejudice.

55. There is no doubt but that a trial at such remove in time from the offences alleged is undesirable. But in all the circumstances, I do not consider that a risk of an unfair trial has been established as a reality by the Applicant. I am mindful of the fact that the trial Judge will be in a position to control the trial and to give directions to the jurors as to how they should approach and evaluate the evidence and in particular how they should deal with the conflict of testimony which will undoubtedly result between the complainants and the Applicant. No doubt the trial Judge will also be in a position to deal with the question of delay on the part of the complainants in bringing the matter to the attention of the Gardai and what weight, if any, is to be attached to that.

56. In these circumstances it does not appear to me that this is an appropriate case in which to prohibit a trial on the basis of delay.

57. In rejecting the Applicant's case under this heading, I do not lose sight of the weight that was placed upon the decision of Keane J. in E.O'R. -v- The Director of Public Prosecutions . But in my view that case is vastly different to the present one. That is so both by reference to the facts underlying the charges in that case and the evidence which was adduced before the Court on the application for Judicial Review.

58. Finally, I must express my views on the complaint which is made concerning the lack of specificity in the charges.

59. I have already quoted from the judgment of Egan J. in DPP -v- E.F . In my view, the way in which the charges here have been formulated accords precisely with what the Supreme Court indicated ought to be done in that case. I find no basis upon which an Order of Prohibition could be issued under this heading of complaint.

60. The result is, therefore, that this application is dismissed and prohibition is refused.