S -v- DPP & ors [2005] IESC 43 (22 June 2005)

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URL: http://www.bailii.org/ie/cases/IESC/2005/S43.html
Cite as: [2005] IESC 43, [2005] 2 IR 595

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Judgment Title: S -v- DPP & ors

Neutral Citation: [2005] IESC 43

Supreme Court Record Number: 215/04

High Court Record Number: 2001 63 JR

Date of Delivery: 22/06/2005

Court: Supreme Court

Composition of Court: Hardiman J., Fennelly J., McCracken J.

Judgment by: Hardiman J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Hardiman J.	Appeal allowed - vary High Court Order
Fennelly J.	Appeal allowed - vary High Court Order
McCracken J.	Appeal allowed - vary High Court Order

Outcome: Allow And Vary

- 4 -

THE SUPREME COURT

Hardiman J. 215/04
Fennelly J.
McCracken J.

T.S.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

HIS HONOUR JUDGE HARVEY KENNY and DISTRICT JUDGE ALBERT O’DEA

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 22nd day of June, 2005.

I have had the opportunity of reading the judgment of McCracken J. in this appeal. I agree with it and with the order which he proposes.

I should like to add a very few words by way of elucidation of my judgment in P.L. v. Her Honour Judge Buttimer (Supreme Court, unreported, 20th December, 2004), referred to in the judgment of McCracken J. in this case. There, this Court granted relief on the ground of a specific aspect of demonstrated prejudice. In addition (and therefore obiter), I invoked a portion of the judgment of Keane J. (as he then was) in P.C. v. DPP [1999] 2 IR 25, at 68:

“The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused person to defend himself or herself will be impaired”.

As McCracken J. says in his judgment, the sentence quoted and others immediately preceding it have become known as “ ‘the first test’ as laid down in that case, the second test being whether the delay can be traced to the actions of the accused and the third being whether it can be shown that there was actual prejudice to the accused”.

In P.L., I continued:

In the circumstance of this case, I would in any event have been prepared to grant relief on the basis of the first test. The case is a very old one. Apart from the question of the structure of the desk, there is no island of fact which can be used either to contradict the complainant or to demonstrate prejudice. The applicant has sought to develop certain islands of fact, but this has been countered by a retreat into vagueness. After so long a period, in the absence of any corroborating or supporting evidence, after the failure by the authorities to discover any reliable third party accounts (and I stress that one must presume that attempts to do so were made), I consider that a trial of this case would be unduly hazardous and that the issue as to whether or not the applicant abused the complainant is simply beyond the reach of fair litigation”.

Cases like this one, allegations of sexual abuse made after a long period of time, have perhaps predictably given rise to a great deal of anxious legal debate, both here and in other jurisdictions. The principles of our courts approach, laid down in P.C. and subsequently commented upon in many other cases, have involved the sort of compromise that is perhaps inescapable when two strong and competing rights are in issue. The jurisprudence is not yet fully formed and, in some aspects, not easy to follow. McCracken J. points out that there were three separate judgments in P.L.: that fact itself, as well as the detail of the judgments illustrates some of the themes that have arisen in the case law to date.

In light of this, I would first like expressly to state my agreement with a number of observations made by McCracken J. in his judgment. I entirely agree that:

“There is no doubt that, the longer the delay, the great the danger of prejudice and the more readily a court will infer prejudice. However, that does not mean that in all cases an unfair trial would result”.

I also agree with McCracken J. that the examples he quotes from the judgment of Geoghegan J. in P.L. constitute circumstances in which a trial might fairly be had even after the passage of many years, and I fully agree that there may be other such instances. Perhaps more fundamentally, I entirely agree with McCracken J. when he says, having pointed out the manner in which lapse of time compromises the prospects of a fair trial:

“However it must be remembered that time limits on prosecutions are primarily a matter for the legislature, which in its wisdom has determined that there should be no time limits in the case of indictable offences. It is not for this court to amend the law in any way in that regard, but only to uphold the constitutional right of the appellant to a fair trial.”

I wish secondly to emphasise that I would have applied the first test in the circumstances of P.L., not because some arbitrary number of years had elapsed but because in the circumstances of that case, and apart from any demonstrated prejudice, a real and serious risk of prejudice arose simply from the length of the time lapse combined with the absence of other sources of information.

It is not desirable in these cases to enter into a purely theoretical debate and I hope I have not done so. But I have been deeply impressed, in light of the facts of some of the cases discussed in my judgment in P.L., by the proposition that, in certain cases at least, it is the result of sheer chance and the vagaries of fortune that prejudice can be demonstrated at all. When lapse of time is measured in decades, and perhaps even after shorter times as in B.J., one must not fail to consider that the final prejudice to accrue may be that of not being able to demonstrate prejudice. Up to the present, most cases have been dealt with on the basis of the third test in P.C., whether actual prejudice can be shown. But there will always be a number of cases, probably, one hopes a small number, in which (to adapt a well known phrase) absence of evidence of prejudice is not evidence of its absence. It is that consideration, in my view, which underlies the necessity to preserve what has become known as the first test in the judgment of Keane J. in P.C.

T.S. & DPP

THE SUPREME COURT

215/04

Hardiman J
Fennelly J
McCracken J

Between:

T. S.

Applicant/Appellant

and

The Director of Public Prosecutions

First named Respondent

and

His Honour Harvey Kenny

Second named Respondent

and

District Judge Albert O’Dea

Third named Respondent

Judgment of Mr Justice Fennelly delivered the 22nd day of June, 2005

I agree with the order proposed by both Hardiman J and McCracken J. Hardiman J has, nonetheless, and rightly drawn attention to the difficult jurisprudential task which the Court is required to perform in disposing of the seemingly unending line of cases of delayed prosecution for sexual abuse. The possible variety of interpretation of the existing jurisprudence is well illustrated by the three judgments delivered as recently as six months ago in PL v Her Honour Judge Buttimer (unreported 20th December 2004).
McCracken J, in his judgment in the present case rejects “the proposition that the passage of time alone would be grounds for the prohibition of a trial.” I am not persuaded that such a clear proposition can be derived from the case law. Hardiman J explains that his own judgment in PL was not based on the fact that “some arbitrary number of years had elapsed but because in the circumstances of that case, and apart from any demonstrated prejudice, a real and serious risk of prejudice arose simply from the length of the time lapse combined with the absence of other sources of information.”
In my own judgment in PL, I interpreted the existing case law as containing a “special jurisprudence” applicable to child sexual abuse cases, whereby an accused person might be precluded from relying on what McCracken J calls the “first test” because, by reason of dominance or some other reason (usually psychological inhibition), the delay in complaining could be attributed to the accused himself. In effect, I believed—and still believe—that this is a sort of exception to the first test.
Geoghegan J, however, specifically disagreed with my interpretation of the “special jurisprudence.” He found himself “unable to agree…… that the case law establishes that in a prosecution for sexual offences prohibition can never be granted on the ground of delay alone.” He was “of opinion that that [this] is a reserve power to be exercised by a court in a rare but appropriate case in relation to any criminal prosecution whether sexual or non-sexual where otherwise there would be a real and serious risk of an unfair trial or where in a more general sense the trial would not be “in due course of law” as for instance where there has been an abuse of process or significant prosecutorial misbehaviour.”
Clearly, this is a matter for further elaboration. On closer reading, there does not appear to me to be any divergence in principle between the views of Hardiman J and Geoghegan J on the one hand and my own, on the other, regarding the possibility of halting a prosecution on the ground of extreme delay alone. For present cases, it suffices to say that I agree with the conclusion of McCracken J that the explanations for the very extreme delay in the present case advanced by the Respondent are insufficient. The consequence is, however, that the delay is unexplained. Thus the Appellant is entitled to succeed, on the ground of delay alone, in obtaining an order of prohibition.

THE SUPREME COURT

215/04

Hardiman J
Fennelly J
McCracken J

Between:

T. S.

Applicant/Appellant

AND

The Director of Public Prosecutions

First named Respondent

AND

His Honour Harvey Kenny

Second named Respondent

AND

District Judge Albert O’Dea

Third named Respondent

Judgment of Mr Justice McCracken delivered the 22nd day of June 2005
___________________________________________________________

Background Facts
This is one of a number of cases which have come before the Courts in recent years in which a person accused of sexual offences against children have sought to prohibit their trial on the grounds of the delay between the alleged commission of the offences and the trial. It should be said that it was acknowledged by Counsel for both parties that the period involved in the present case is probably the greatest period of delay that has ever come before the Courts in such proceedings. The Appellant faced sixty-one charges of indecent assault against three young girls who were neighbours of his.

There were thirty-six charges alleging indecent assault of BH on unknown dates between 1st January 1955 and 31st December 1963. The Appellant was granted an order of prohibition in the High Court in relation to these charges.

There were also thirty-four charges alleging indecent assault of MD who was a sister of BH. These offences were alleged to have taken place on unknown dates between 1st January 1958 and 31st December 1963. There is also a single charge of indecent assault of IG, who is a first cousin of the other complainants, between 1st January 1962 and 31st December 1962.

BH made a written complaint to the gardaí on 8th February 1999, MD made a written complaint on 18th February 1999 and IG made a written complaint on 6th March 1999, thus the first complaint made was over 35 years after the last alleged offence. Although the charges in relation to BH have been prohibited, the position of BH is central to the case in relation to the other complainants. It is common case that BH, having been abroad for a period, returned to the area and purchased a property adjoining that of the Appellant’s. A dispute arose between BH and the Appellant which escalated into an assault by the Appellant on BH. BH made a complaint to the gardaí in relation to this assault on 9th January 1999 and District Court proceedings against the Appellant were issued on 5th February 1999. He was ultimately convicted of assault and fined £500, and at the same time BH was required to enter into a bond to keep the peace for three years on certain conditions. It is quite clear that this dispute was the trigger for the complaints made in relation to the allegations of indecent assault many years earlier.

At the time of the hearing before the High Court the Appellant was 75 years of age and resided with his wife who was confined to a wheelchair due to severe multiple sclerosis. The first time he became aware of the charges against him was in May 1999 when he was contacted by the gardaí, and on 2nd June 1999 he made a formal statement in which he denied all involvement in the alleged offences.

The Effect of Delay Simplicitor

The Oireachtas has not seen fit to impose any time limit on prosecutions for indictable offences. The Appellant in the present case has sought to argue that the delays are so extreme that, irrespective of the actual circumstances, it would be unconscionable to allow a prosecution to proceed.

Some support for this argument may be gleaned from the leading case of PC v DPP [1999] 2 IR 25 where Keane J (as he then was) said at page 68:-

“Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the grounds of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of unfair trial: that, after all, is what is meant by the guarantee of a trial “in due course of law”. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused person to defend himself or herself will be impaired.”

This is what has become known as “the first test” as laid down in that case, the second test being whether the delay can be traced to the actions of the accused and the third being whether it can be shown that there was actual prejudice to the accused. This issue was discussed at length in the three separate judgments given in the case of PL v Her Honour Judge Buttimer (unreported 20th December 2004). Unfortunately, the position was not greatly advanced, notwithstanding the detailed analysis of the background to the lengthy delay cases entered into by Hardiman J. In the event, the prosecution was prohibited, but on the grounds of actual prejudice, and although Hardiman J expressed the view that he would in any event have been prepared to grant relief on the basis of the first test, both Geoghegan J and Fennelly J rejected that course.

There is no doubt that the basis reason for prohibiting a trial is that the circumstance are such as to possibly give rise to a real and serious risk of an unfair trial. Such a risk almost invariably increases with the passage of time as witnesses’ recollections fade and become unreliable and the possibility of obtaining corroborative evidence fades. However, it must be remembered that time limits on prosecutions is primarily a matter for the legislature, which in its wisdom has determined that there should be no time limits in the case of indictable offences. It is not for this Court to amend the law in any way in that regard, but only to uphold the constitutional right of the Appellant to a fair trial. Many aspects of potential unfairness in a trial can be dealt with adequately and properly by directions by the trial Judge to the jury. The question which I am considering in this portion of the judgment is whether a situation can arise such that, irrespective of any other factor, the delay is such that there will be a real and serious risk of an unfair trial.

Another way of stating the question is whether the delay may be such that there is an irrebuttable presumption of prejudice which would lead to an unfair trial. There is no doubt that, the longer the delay, the greater the danger of prejudice, and the more readily a Court will infer prejudice. However, that does not mean that in all cases an unfair trial would result. In his judgment in the PL case Geoghegan J instances a situation in a murder case where the offence could not be proved against an accused until the body was found many years later, and which would then provide the evidence. In my view a further example would be where, having been confronted with the accusation by the complainant after many years, an accused, after all proper warning, cautions and advice, makes a full inculpatory statement. It could be hardly be said to constitute an unfair trial even if the primary evidence against an accused was that statement. I would therefore reject the proposition that the passage of time alone would be grounds for the prohibition of a trial.
Reason for Delay by MD

In her affidavit filed in these proceedings MD gave evidence that she was not aware that her sister and cousin were being abused by the Appellant until 29th January 1999, when she was discussing the assault on BH. Her evidence then continued:-

“6 I could not report it when I was young as I felt I was the only one and I felt so embarrassed. After speaking to BH that day I came home and told my husband. I then contacted the local gardaí and spoke with Garda Shannon Doyle.

7 For years I have suffered in silence over what TS did to me. Now that I have spoken about it and know that I was not alone it is a help to me but I still get very depressed, angry and frustrated every time I think about it and I am not sure that this feeling will ever leave me.”

MD was interviewed by Rosaleen McElvaney, a clinical psychologist/psychotherapist, whose report was before the Court. In her report she concluded that the delay in reporting was as a result of MD’s feelings about what happened to her as a child and that the shame prevented her from being able to tell anyone of her experiences, even her husband. She then concluded:-

“She appears to have been able to cope with the impact of this alleged abuse by means of avoidance, keeping herself busy and relying on her own personal resources which have served her well. However, this coping strategy has become less effective in recent years and Mr S’s physical assault of her sister provided the catalyst for her to disclose her alleged experiences resulting in her making a formal complaint. In my opinion, taking account of her individual circumstances, the delay is reasonable.”

Ms McElvaney was cross-examined at length on behalf of the Applicant and conceded that what she had been asked to advise on was whether the delay was reasonable in the light of the circumstances, and not whether there was a significant psychological or psychiatric difficulty. She also acknowledged that in her report on MD she had made a mistake as to the frequency of the alleged assaults. She accepted that MD had had a happy childhood, had become a psychiatric nurse and had a busy and active and well-balanced life, and that she had had no psychiatric difficulties during her lifetime. She reiterated that MD had had significant shame in relation to what had happened to her as a child.

Reasons for Delay by IG

In her affidavit IG swore:-

“6 BH and I were always afraid of TS because of what he had done to us and we tried to avoid him at all times.

7 At the time the assault took place, it was not something that was discussed and reporting it was not an option at that time.

8 I would have hinted to my mother as to what was happening and she said that she discussed it with my father. My mother wanted to tell the local priest but my father would not agree.

9 I put it at the back of my mind for a few years until I had children of my own. When I had children of my own I would not let them near S’s house when we visited their grandfather beside S’s home.

10 It all came to a head again when BH was assaulted by TS in January 1999. It was only then that I became aware that MD was also a victim of TS. BH told me about MD and it was then that we decided to report the matter to the gardaí.”

In her report Ms McElvaney noted that when she was a child IG was very frightened of TS and would have been inhibited from reporting this matter to an adult because of this fear. However, IG did tell her husband in 1977 that TS was “a dirty old thing” although she only gave him full details when she made the formal complaint. She did say that she discussed it with her husband’s sister and another friend. When she was asked why she reported it when she did so, IG said that it had never occurred to her to report the matter and it had only been in recent years that reporting childhood sexual abuse had become a possibility. She said she made her statement to the gardaí because she believed it would help prevent TS being a danger to others, in particular to BH. Ms McElvaney’s conclusion was:-

“The delay in her reporting the matter appears to be as a result of her avoiding thinking about her alleged experiences which in itself was a means of coping with the psychological impact of same, and her belief that there was nothing she could do about it. In addition, she appears to have thought that TS did not present as a risk to others, a belief she says was challenged by the recent assault by TS on her cousin, BH. In my opinion, taking account of IG’s individual circumstances, the delay in reporting is reasonable.”

Under cross-examination, she acknowledged that IG was a happily married woman with a good education and a normal family life, and that she had not had any psychiatric problems. She had a number of other traumatic experiences in her life, she had a sister diagnosed with cancer, and she herself suffered from melanoma. She said IG had coped with these matters very well.

Value of Psychologist’s Evidence

There is no doubt that the evidence of a psychologist maybe very relevant and valuable in assessing the reasons for a failure to report sexual abuse. However, in the present case the ultimate conclusions reached by Ms McElvaney were that in the case of both MD and IG the delay was “reasonable”. In fairness to Ms McElvaney, this is what she was asked to give an opinion upon, but it is not the proper test. It may have been perfectly reasonable and understandable that there was no reporting of this alleged abuse either because the complainant was ashamed or indeed because it never occurred to the complainant to report the abuse. However, that is not the test, and in the light of Ms McElvaney’s concession under cross-examination that neither of the complainants had any serious psychological or psychiatric problems, it is hard to place too much reliance on her evidence.

In D v DPP (unreported 19th May 2004) Geoghegan J said:-

“Assuming that pre-complaint lapse of time is relevant and that as a corollary to that it becomes relevant as to whether the applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be held responsible if there has been the element of dominance. The authorities certainly showed that that is a main ground but it is not the only ground. By the same token, however, I am equally satisfied that the authorities do not in any way go so far as to excuse lapse of time or delay merely because the complainant had a good reason for not complaining earlier. For the reason to be relevant it must arise from an inhibition of some sort on the part of the complainant preventing him or her from complaining, where such inhibition arises directly from the offence.”

In PM v Malone [2002] 2 IR 560 at page 576 Keane CJ said:-

“In his judgment in JL v Director of Public Prosecutions [2000] 3 IR 122, Hardiman J has pointed out that even the concept of “repression” has been the subject of acute controversy in the psychiatric and allied professions on both sides of the Atlantic. In the present case, it is sufficient to say that, on the undisputed evidence, it does not arise in any way. Mr Foley refers nowhere to the concept in his affidavit or in his report: he contents himself with the conclusion that the complainant’s refusal to make a formal complaint to the gardaí in 1991/1992 was “reasonable”. That, in turn, is based on the complainant’s belief that to make a complaint would cause difficulties within the family.

It is clear that if that was the ground on which the complainant declined to make a formal complaint to the gardaí in 1992, it would not bring the case within the exceptional category where the Court would be entitled to regard the delay as, not merely explicable, but referable to the accused’s own conduct.”

In my view neither the evidence given by the complainants, which is very general and vague, nor the matters set out in Ms McElvaney’s report come anywhere near justifying the gross delay in the present case. What has to be shown is that there is some very good reason, normally psychological, which made her incapable of complaining. If there is a conscious decision by a complainant not to make a complaint, albeit for a very good reason in her circumstances, or indeed if it simply never occurs to her to make a complaint, that will not be sufficient to excuse the gross delay of the type found in the present case.

In the present case, it must also be borne in mind that the catalyst for the ultimate complaint was not any sexually motivated act on the part of the Appellant, but a physical assault arising out of a dispute between neighbours. It is also relevant that both the complainants had, as young women, left the neighbourhood to pursue their careers, and had returned voluntarily with their families to live in close proximity to the Appellant. They both apparently lived a normal happy married life in such circumstances and without suffering any psychiatric consequences.

I would emphasise again that in my view the greater the delay, the greater the need for an adequate explanation for that delay. I am quite satisfied that no sufficient explanation has been given in the present case.

In view of this finding, I do not have to consider the question of prosecutorial delay, and I would allow this appeal purely on the basis of the complainants’ delay and grant an order prohibiting the trial of the Appellant in relation to all the charges concerning MD and IG.

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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> S -v- DPP & ors [2005] IESC 43 (22 June 2005) URL: http://www.bailii.org/ie/cases/IESC/2005/S43.html Cite as: [2005] IESC 43, [2005] 2 IR 595