High Court of Ireland Decisions

8 June 1999

GEOGHEGAN J

By Order of 18th May, 1998, Mr Justice McCracken granted leave to the Applicant to bring this Judicial Review proceeding and he extended the time for doing so. The Applicant seeks certain declaratory and injunctive reliefs but the reliefs are all directed to the same purpose. that is to say, to restrain a prosecution going ahead against the Applicant for alleged rape and buggery which allegedly occurred between June 1979 and September 1980 at a certain place in Dublin. The alleged victim of the crimes would have been 7 or 8 years of age at the time. The Applicant would have been a young adult. The Applicant denies the offences and claims that a trial would be unfair in that he at this late stage would not be able to gather up the evidence necessary to enable him properly to defend himself.

If the trial goes ahead the evidence of the complainant will be that at the time there as a caravan on a building site in which two men lived, the younger of whom was the Applicant. The evidence will be that on the alleged occasion the Applicant only was in the caravan and the complainant recalls going into the caravan and sitting on a kind of settee. She alleges that the Applicant put his fingers inside her vagina and anus at the same time. The Applicant then left the room for a short time and came back with an exposed penis. The complainant claims that she next recalls lying on her back and that he was on top of her and engaged in vaginal and anal penetration. She claims that he told her she was a lovely little girl and that this was "our secret" and that she was "not to tell anyone". Shortly after the event the complainant told a friend of hers what happened to her but did not tell any adults until in 1994 she did tell an adult.

The Applicant admits that he did have a caravan on the site in question but he claims that he sold it to a couple living in Co Kildare some three months prior to the earliest date on which the offence is alleged to have been committed. He merely gives the Christian names of this couple, namely, Paddy and Evelyn and he adds the following:-

"I have been unable to trace the said Paddy and Evelyn to fully substantiate my defence in this regard."

The Applicant gives no details whatsoever of any alleged attempts to trace this couple and I will have more to say about this later on in this judgment.

The jurisprudence to be applied in Judicial Review applications seeking to stop trials for sexual offences is now reasonably well-established by the Supreme Court by B. -v- The Director of Public Prosecutions, [1997] 2 ILRM 118 and by P.C. -v- The Director of Public Prosecutions, (unreported judgments delivered 28 May. 1998). The position has been summarised by Keane J in his judgment in the P.C. Case delivered 28th May. 1998. After pointing out that the mere fact that the offence charged is of a sexual nature is not of itself a factor which would justify the Court in disregarding delay however inordinate and allowing the trial to proceed goes on to observe as follows:-

'There are cases however, of which this is one where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly in what he or she sees as wrongdoing."

Keane J goes onto point out of course that the delay may be more readily explicable in cases where not only is there a significant age difference but there is a quasi position of trust such as parent, step-parent, teacher or religious. It is implicit in the judgment however that there need not be this special position of trust. Age disparity alone may have the effect of inhibiting the child from reporting. Again, quoting Keane J in the same judgment: "But the issue is not whether the Court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every such case is whether the Court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved."

I am satisfied on the evidence of the clinical psychologist/psychotherapist, Ms Roseleen McElvaney, that if the complainant's allegations are true there are sound psychological reasons why she did not make an earlier complaint. It would have been an off-shoot of the Applicant's own alleged misconduct which would have inhibited an earlier complaint.

However, that is not the end of the matter. I must now consider in the words of Keane J "whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed". As has been frequently pointed out there are rarely witnesses to sexual offences and for that reason it may not be any more difficult to defend them a long number of years after they were allegedly committed than it would have been if the trial had taken place within a short period. However, a serious alibi defence which could no longer be availed of for some reason or other might well be a ground on which a Court would prevent a trial going ahead. That is the importance of the allegation in this case that there had been a sale of the caravan three months before the earliest time at which the offence is alleged.

I am quite satisfied however that in this case the alleged alibi is not a ground on which I should take the view that there is a serious risk of an unfair trial. First of all, although there is a presumption of innocence in relation to the Applicant, he nevertheless has to discharge a certain onus of proof in the Judicial Review application in order to satisfy a Court that as a matter of probability there would be a serious danger of an unfair trial. It is very easy to invent a dead or lost alibi. I am not impressed by the bald statement in the Affidavit that he has been unable to trace "Paddy and Evelyn" "to fully substantiate his defence. No details whatsoever are given of any attempt to locate these people and I have no reason to believe that any attempt was in fact made. I think that I must balance against this bald allegation the evidence that the Applicant moved into a particular house with a particular given address on or about 7th March. 1979. That should be very easily corroborated at least if not absolutely provable by title documents and possibly other documentary evidence. I must also take into account that the Applicant admits that he lived in a caravan in the site alleged and that the only dispute about this is whether he had moved out at the time of the offence. I should also take into account that the address he allegedly moved into was very close to the site where the caravan allegedly was. I think that a Jury will be well capable of sorting all of this out and I cannot see that. there is any risk of an unfair trial.

It is true that even by the standard of some of these recent cases the alleged offences in this case have been committed a very long time ago. Nevertheless. I think that on the principles enunciated by the Supreme Court and for the reasons which I have indicated, I should not prevent the trial going ahead and I accordingly refuse Judicial Review.