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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (E.) v. D.P.P. [2004] IEHC 341 (22 October 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/341.html Cite as: [2004] IEHC 341

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THE HIGH COURT

JUDICIAL REVIEW

[2004] IEHC 341

[2001 No. 541 J.R.]

BETWEEN/

EM

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Kearns delivered 22^nd October, 2004.

By order of the High Court (Butler J.) made on 30^th July, 2001, the applicant was given leave to apply by way of judicial review for an order of prohibition, or alternatively, an injunction restraining the respondent from further prosecuting criminal proceedings against the applicant in respect of offences alleged against the applicant and in respect of which the applicant had on 7^th July, 2001, been returned for trial in the Central Criminal Court.

On 4^th May, 2000, the applicant had been charged with nine counts of indecent assaults on the complainant which are alleged to have occurred between 6^th April, 1966, and 7^th April, 1968, together with three counts of rape of the same complainant during the same period. All but one of the offences are alleged to have occurred at the applicant's mother's home (address 'A'), both before and after the applicant's family took up residence there in 1966. The other offence is stated to have taken place at the applicant's grandmother's home (address 'B') at a nearby location in the same city.

The complainant first advanced an official complaint about the alleged offences to the Gardaí on 16^th July, 1998, some 30 years or more after the events in question. She was then 32 years of age, married, with two children, and the applicant was then 37 years of age and also married. Thereafter, the applicant was arrested on 30^th December, 1998.

The applicant was born on 1^st July, 1951, and was aged between 15 and 17 years at the time of the alleged offences. The complainant was born on 7^th April, 1956, and was thus aged between 10 and 12 years at the relevant time. Both the applicant and the complainant are first cousins on the maternal side and lived in close proximity to each other in the same city.

The complainant has made a very full statement which is incorporated in the book of evidence in this case, from which it appears that she first disclosed the alleged sexual abuse to her future husband in 1983, some two years before they married in 1985. A further statement from the complainant's husband also states that the complainant made such a disclosure to him in the course of which she is stated to have identified the applicant as the alleged perpetrator. However, no further action by way of complaint was taken at that time.

The complainant states that her marriage underwent significant difficulties because of her past sexual abuse. Between 1996 and 1998, the complainant consulted a psychologist, Dr. Alan Giffney, for 'adult adjustment problems'. This consultation process went on for approximately two years, during the course of which the complainant made an isolated reference to childhood sexual abuse in her past. Subsequently the complainant had intensive counselling on this whole aspect of her life from another psychologist whose intervention in the complainant's welfare only commenced subsequent to the bringing forward by the complainant of her allegations against the applicant.

The applicant's trial was fixed for hearing on 23^rd April, 2001, but an adjournment was sought on 6^th April, 2001, on grounds that documents necessary for the preparation of the applicant's defence, including the complainant's medical records, had not been disclosed or furnished to the applicant. This request was refused, but on 9^th April, 2001, a report from Dr. Giffney was made available to the applicant.

Following receipt of this report, counsel advised that all clinical notes and documents relating to the complainant's attendance on Dr. Giffney be sought. As the same had not been furnished by 23^rd April, 2001, the trial was adjourned. The applicant's solicitors then wrote on 21^st June, 2001, seeking the further records arising from the complainant's attendance on the second psychologist.

While the trial was re-listed for 10^th December, 2001, the applicant sought and obtained the present leave in July, 2001, at which time the documentation sought was still outstanding. The issue of documents has since been resolved, and all relevant material in Dr. Giffney's possession has been made available to the applicant and his advisors. It was not necessary to further pursue the request for discovery against the second psychologist, having regard to her limited and ex post facto involvement in the case.

Further enquiries undertaken on behalf of the applicant elicited from the housing officer of the local corporation that the applicant's mother had secured a tenancy at address 'A' in 1966, which said tenancy began on 22^nd November, in that year and continued until December, 1969. In her statement, the complainant had alleged that the first instances of assault occurred at 'address A' before the applicant's family had taken up residence there. She contends, however, that the keys to the premises had been made available to the applicant's family by the housing officer employed by the corporation. In particular, the complainant alleges that at the time of the initial assaults, builders had left bags of cement and other building materials lying about the premises. A letter of 28^th July, 2000, received by the applicant's solicitors from the corporation, states that there is no record of any repairs being carried out at address 'A' either prior to or during the tenancy of the applicant's mother in the premises. The applicant's mother has by letter made a statement to that effect also. The corporation by further letter has also stated that it is now impossible to identify or trace staff who might at any relevant time have been involved in either building or renovation works at address 'A'.

In the course of the complainant's statement, reference was also made to an alleged incident at address 'B', the residence occupied by the applicant's grandparents, which was only a few doors away from address 'A'. However, both of the applicant's grandparents have since died, the applicant's grandmother dying on 2^nd October, 1999.

In all the circumstances, the applicant contends that he cannot now get a fair trial by reason of excessive delay in bringing forward these complaints, that he is seriously prejudiced in a variety of ways by such delay, and that the complainant has failed to establish that the delay is attributable to the applicant or to any disability or incapacity suffered by the complainant.

In the course of her extremely lengthy statement, the complainant relates how the sexual abuse she complains of contaminated her entire childhood and early adulthood to such a degree that she distrusted all men and became, in her own words, a 'man-hater'. On leaving school, she joined the Civil Service and made a very successful professional career for herself thereafter. She left her native city in 1974, but returned there in 1992 because of a promotion.

She relates how, when she accidentally encountered the applicant again, particularly in the company of her children, she found it a harrowing experience which brought back many distressing memories and associations. Her marriage ran into difficulty at this time and she sought professional help. This brought her in contact with Dr. Giffney.

As a result of that process, the complainant states that she came to 'the inevitable conclusion' that she had to bring forward her complaints for two reasons. Firstly, that the applicant destroyed 30 years of her life and must now take responsibility for doing so. Secondly, she feared that silence on her part might mean that some other person's child might be at risk of abuse from the applicant. Following the making of the complaint, the gardaí spent a period of some months in finalising the lengthy statement of the complainant prior to the applicant's arrest on 30^th December, 1998. On that date, he was brought to a garda station where answers given by him to questions put by the gardaí were noted in memos and the applicant signed a statement. The applicant's solicitor attended the station during the period of his detention and the applicant had the benefit of an interview with his solicitor before the second memo and statements were made. In the course of these memos and statement, the applicant admitted to inappropriate touching or 'rubbing up' against the complainant and to slapping her on her bare backside many years previously, but stated it was all 'probably a game'. He could not be sure if he had ever had full sex with the complainant.

On 1^st November, 2001, the complainant made a further statement in addition to the one which she had made in 1998. In it she offered further reasons for her delay in bringing forward her complaints. She states that the reasons include her very young age at the time and her total inability to understand what was being done to her. She further states that she was also threatened by the applicant that she would be 'locked up in a mental hospital' if she told anyone. Later she was too ashamed about what had occurred and felt she had been kept in a state of psychological paralysis ever since.

While her professional career had moved forward, all her feelings of distress and helplessness came back in 1992 when she had some contact with the applicant. The counselling she received from 1996 onwards, however, helped her overcome her fear to the point that, as soon as she was able, she made a complaint to the gardaí. Until then, she states, she had felt totally incapable of doing so. When, however, she saw the applicant talking to her eight year old daughter during visits to her mother's house, she felt her daughter was in 'real danger' and was, she states, determined that neither of her children be exposed to such a risk.

Dr. Giffney gave evidence to the court, confirming he had professional contact with the complainant from 1996 to 1998. Dr. Giffney is a psychologist and his role was to advise and assist the complainant at that time in relation to marital difficulties which the complainant was having. Although the complainant did tell him in 1996 that she had been the victim of sexual abuse in childhood and even identified the applicant as perpetrator, she told Dr. Giffney that she was not at that stage ready to pursue counselling for those events, nor had she made up her mind at that time to complain to the gardaí.

When he assessed the complainant on 11^th January, 2002, for the purpose of the present case, he noted the complainant presented as a highly competent woman of above average intellectual ability. In his opinion, the reason for the non-disclosure of the alleged abuse was a 'misguided coping mechanism' on the complainant's part to protect herself from negative emotions and feelings of insecurity and shame. He stated that in 1985 after she married, the complainant had major problems in consummating the relationship and had significant problems with sexual inadequacy in the following years. He felt, therefore, that the delay in reporting was due to a combination of factors, including overall levels of psychological distress, inappropriate avoidance strategies, cognitive distortions about what would be in her and her family's best interests to do. Her encounters with the applicant from 1992 onwards, together with the benefits of counselling and the increased public exposure to media reports of similar cases, combined to trigger her eventual report to the gardaí.

Dr. Giffney further gave evidence that he prepared a second report on 24^th November, 2003, following receipt of the book of evidence. A further review of the complainant took place on 18^th and 19^th September, 2003. In his follow-up report, he noted that the complainant commenced a 12-18 month counselling course with another psychologist in 1998, which the complainant undertook with a female counsellor with the specific object of addressing her difficulties with her childhood sexual abuse. However, continuing marital tensions have led to separation proceedings between her husband and herself, although he believed they still lived in the same family home.

Dr. Giffney was strongly pressed by Mr. Rogers S.C., counsel for the applicant, to explain why it had not been possible in adult life for the complainant to bring forward her complaints at an earlier stage, given that she had pursued and had achieved considerable success in her business and professional career. Dr. Giffney responded that the complainant had tried to blot things out until 1996 or 1998 when her growing appreciation of the affect of the sexual abuse was making itself felt on her marriage. In his view, the complainant had channelled all her energies into her work as a method of avoiding the issue. While she did tell her husband about the abuse in 1983, this 'window of opportunity' to bring forward an official complaint was lost because the complainant found it too difficult to process at that time.

Dr. Giffney accepted that if what Mr. G (the complainant's husband) had written down in his statement was accurate, namely, that she had been raped by the applicant, it gave rise to a significant discrepancy in the account which the complainant had furnished to him in November 1996 about alleged abuse in her childhood. However, he had no way of knowing if the contents of Mr. G's report were accurate so he preferred to describe two apparently differing accounts as 'potential discrepancies' which would require further review and further evaluation. When pressed by Counsel for the applicant, Dr. Giffney accepted that if such a review were undertaken and the discrepancies remained, he probably would have written a very different report.

While Garda Delahunt, the investigating officer, was also cross-examined surrounding the circumstances in which a statement was taken from the complainant over a period of months, no significant issue arose in the present proceedings about prosecutorial delay.

SUBMISSIONS OF THE PARTIES

On behalf of the applicant it was submitted that the applicant had suffered specific prejudice in the instant case because he is now unable to access the records relating to any supposed repairs or renovations to the corporation dwelling where the sexual assaults are alleged to have taken place at a time when bags of cement and other builders materials were in the dwelling. It was further submitted that the applicant was prejudiced because he is now unable to obtain evidence from any identified or identifiable employees of the local corporation who may or may not have carried out such work. Furthermore, he is unable to adduce independent evidence as to whether or not a key was ever given to the applicant's mother before any alleged repairs or renovations were completed. Additionally, it was submitted that the applicant is unable to adduce evidence from his grandmother who is now deceased as to whether or not a key to the dwelling was ever kept on the sideboard in her kitchen as alleged by the complainant. The death of the applicant's grandmother has resulted in further prejudice given that the complainant alleged that one incident involving the applicant took place in the grandparents house in the course of which the complainant called out to her grandmother.

Reliance was also placed on the principles established in a large number of cases in both the High Court and Supreme Court which emphasised the right to a trial with due expedition and noted the prejudicial effects of delay. Cases cited included inter alia B. v. D.P.P. [1997] 3 I.R. 140; P.C. v. D.P.P. [1999] 2 IR 25; J.L. v. D.P.P. [2000] I.R. 122; J.O'C v. D.P.P. [2000] 3 I.R. 478; P.O'C v. D.P.P. [2000] 3 I.R. 87; State (Healy) v. Donoghue [1976] I.R. 325.

Counsel for the applicant submitted that this was not a case in which it could be alleged that the applicant exercised dominion over the complainant after the time of the alleged offences. Accordingly, the onus lay on the applicant to establish that she suffered psychological disability as a result of the abuse of such a degree as to prevent her coming forward with a complaint. Counsel further submitted that the psychological evidence tendered in the present case did not support any conclusion that the complaint was under psychological disability, given that she had been able to report the matter to her future husband in 1983/84. Furthermore Counsel for the applicant submitted, the complainant was a person of high intelligence who had achieved considerable professional success in her career in industry. Counsel pointed out that Dr. Giffney himself accepted that very considerable abilities would have been demanded of the complainant in her professional career which could only lead to the conclusion that she was well capable of reporting matters prior to 1998. Furthermore, Dr. Giffney now accepted that if the contents of her husband's statement are accurate, an entire review and reappraisal of this case would be necessary, so that seen in this context, the entire psychological evidence was unsatisfactory and unsafe.

On behalf of the respondent, Mr. Collins accepted that there was such a lapse of time as to require an explanation. However, even where an accused person could establish a violation of his constitutional right to a reasonably expeditious trial, the court must, as the United States Supreme Court did in Barker v. Wingo (1972) 407 US 514, engage in a balancing process prior to deciding whether or not to stay the criminal trial. In circumstances where an applicant cannot show that his ability to defend himself has being impaired, the court must weigh up the competing interest of an accused person to be protected from stress and anxiety caused by an unnecessary and inordinate delay on the one hand with the public interest in the prosecution and conviction of those guilty of criminal offences on the other.

Counsel for the respondent further submitted that the disparity in age between the complainant and the person accused was such in the present case that the failure to report the offence at the time was explicable having regard to the very youthful age of the complainant at the relevant time. It could also fairly be inferred that the applicant was in a position of dominance over the complainant at that time.

Counsel submitted that the evidence of the psychologist in the present case was more than sufficient to render explicable the inaction of the complainant from the time of the offence until the initiation of the prosecution.

DECISION

As so often occurs in these cases, the decision as to whether or not to grant the relief sought largely turns on the court's evaluation of the psychological evidence tendered by the State. That is not of course to diminish the importance, underlined by Counsel for the respondent, of the complainant's own account as to why a complaint was not made at an earlier stage.

There has been a great deal of psychological evaluation of this complainant. Dr. Giffney in the course of cross-examination explained that he had come to know the complainant quite thoroughly as a result of some 25 hours of counselling and consultation between 1996 – 1998 in respect of her marital adjustment difficulties. He has enormous expertise in this area, having spent some 30 years treating adults for personality adjustment difficulties of one kind or the other. In addition, he had a number of consultations with the complainant as to the reasons for delay in complaining about the alleged sexual abuse which ran to some 4 hours or thereabouts and which led to the production in this case of two reports.

In that respect, this case differs greatly from other cases in which this court has had to consider what it regarded as seriously defective psychological evidence. These have been cases where, at the request of the Chief State Solicitors office, and for a very limited fee, a psychologist or psychiatrist has been asked to prepare a report in a very short period of time which might provide some explanation for the delay in advancing a complaint of childhood sexual abuse. Criticisms of theoretical psychological evidence offered in a formulaic manner in some of these cases has been adverted to by Hardiman J. in J.O'C v. D.P.P. [2000] 3 I.R. 478 (at p. 527, 529) by McCracken J. in MF v. D.P.P. (unreported, High Court, 5^th December, 1997) and by this court in AW v. D.P.P. (unreported, High Court, 23^rd November, 2001).

It is a fundamental requirement, it seems to me, in cases of this nature, that where an expert witness is tendered, the deployment of that expertise must clearly emerge from the evidence of that expert in relation to the particular individual being assessed. In the absence of an evaluation and assessment by reference to approved psychological standards, largely theoretical evidence of how childhood sexual abuse may affect victims in a general way is of little or no assistance to the court in reaching a conclusion as to whether or not such abuse may have caused or created a disability of such a degree as to prevent the particular complainant from bringing forward a complaint. Of still less assistance is a report which merely echoes or repeats what the complainant says and merely comments on its 'reasonableness'.

That said, the court is satisfied in the instant case that no such criticism can be made of Dr. Giffney. His research, investigation and understanding of this case have impressed the court to a considerable degree. While his evaluation and assessment of the complainant in the years 1996 - 1998 was not in relation to the allegation of sexual abuse, the many hours spent with the complainant could only have provided Dr. Giffney with ample insights into the complainant's personality and character such as to permit a reliable assessment of the complainant in general. It strengthens the further assessment in respect of the credibility of the complainant's reasons for not advancing her complaint of sexual abuse until 1998. Indeed, this is a case where the court feels compelled to observe that the longer the cross-examination of Dr. Giffney continued, the more impressive his evidence became. That said, however, Dr. Giffney himself admitted to a difficulty in this case which seems determinative, in my view, of the case insofar as the psychological evidence is concerned. This relates to the contents of the statement made by the complainant's husband wherein he states that the complainant told him in 1983 that she had been 'raped' by the applicant - an account of which Dr. Giffney was completely unaware until this statement was produced to him in cross-examination. While correctly maintaining that the accuracy of this statement could not be verified in the absence of a consultation with the complainant's husband, or indeed the cross-examination of the complainant's husband, Dr. Giffney accepted that the very existence of such a statement flagged the requirement for further review, inquiry and evaluation of this entire case. Most significantly, he accepted from Counsel for the applicant in cross-examination that he 'probably' would have written a very different report had evidence of such a report been substantiated, the obvious and only inference being that it would cast considerable doubt on the complainant's credibility on the issue of delay. Having regard to this qualification, it seems to me that the conclusions by in Dr. Giffney's reports are seriously open to question to such degree at this point that the court cannot regard the onus of proof to explain delay as having been discharged on the facts of the present case.

Furthermore, Dr. Giffney accepted that the complainant was a highly intelligent and competent person who for many years had held an important position in industrial relations, involving giving evidence in court, mediating disputes and making significant decisions in the industrial relations area. These are factors, which in the opinion of this court, suggest that Dr. Giffney, when pressed on this aspect of the case, felt himself to be in a certain amount of difficulty. Certainly the court found itself in a difficulty in trying to understand why a person of such ability, independence and effectiveness, could not, at a much earlier stage, have brought forward her complaints to the garda authorities. Instead, the trigger appears to have been a chance meeting with the applicant in the street in February 1998 when the applicant made some innocuous remark to the complainant's daughter which effectively 'triggered' the complaint which was then made by her at that time. I am very much taking these additional factors into account in holding that the onus of proof to provide an explanation which would satisfy the court on the balance of probabilities that by reason of psychological disability, the complainant could not come forward at an earlier stage, has not been discharged.

Finally, I am satisfied that there is an unavoidable risk of an unfair trial arising from the absence of certain witnesses and evidence in the case.

Firstly, it is now impossible to ascertain if repairs or renovations were undertaken to the dwelling house where the alleged offences are alleged to have occurred. Secondly, no employee of the corporation responsible for the dwelling is now available for interview on this topic. Thirdly, the applicant's grandmother is now deceased. She had material evidence to offer in relation to the specific incident which is alleged to have occurred at her separate dwelling house and in relation to the whereabouts of a key which would have provided access to the dwelling where the majority of the offences are alleged to have occurred.

Some reliance was placed by Counsel for the respondent on the fact that the applicant made certain admissions in relation to these matters following his arrest. These were admissions made after caution and after interview with his solicitor. However, while I accept that admissions, or alleged admissions as they are at this stage, are a relevant factor to be taken into account, the content of these admissions is to my mind ambivalent and fall far short of anything which might be regarded as a confession to the more serious allegations advanced by the complainant.

Further, on discretionary grounds, the court feels disposed to grant the relief sought having regard to the manifest youth and inexperience of the applicant at the relevant time. He appears on the complainants own account to have been totally confused and bewildered about his own emerging sexuality at a time when he himself was aged between only 15 -17 years of age. The behaviour described is far from that of a calculating sex offender who was in full control of his actions and emotions. A trial at this point, some 35 years after the event would in my view, risk replacing one possible injustice with another.

For all these reasons the court is disposed to grant the relief sought.