High Court of Ireland Decisions

1. This is an application for Judicial Review in the form of an Order of Prohibition prohibiting the First named Respondent, his servants or agents from further prosecuting or taking any further steps whatsoever in a prosecution against the Applicant concerning twenty-one criminal charges on foot of a return for trial to the Circuit Court and a similar Order prohibiting the Second named Respondent from taking up or dealing further with the prosecution of the Applicant on these charges. The application is brought pursuant to an Order of this Court made by Mr. Justice Morris granting leave on the 20th May, 1996. Two small procedural points should be disposed of first. Counsel for the Applicant concedes that an Order for Prohibition would not be appropriate against the Director of Public Prosecutions and it is agreed that I should approach the application as though an Injunction rather than an Order of Prohibition was sought against the Director. It has also been pointed out that the Second named Respondent, Judge O'Leary, is no longer the Judge of the South Eastern Circuit and that if an Order of Prohibition is to be made it should be worded in such a way that it is directed towards whatever Judge might be assigned the case in the South Eastern Circuit. These matters are obviously only relevant if this Court were to hold that the Applicant was entitled to the Judicial Review sought. That is the question which I now address.

2. The Applicant was a priest teacher in a diocesan secondary school from September 1963 to July 1991, with the exception of a short period between 1966 and 1968. He is charged with a number of sexual offences against four different males all of whom were former pupils of his in the college. The four pupils are referred to in the proceedings as S.M., A.B., O.C. and C.C.. In the case of S.M., who is the first complainant in point of time, there are charges of indecent assault in 1975 and 1976 respectively and of gross indecency in 1977, 1978 and 1979 respectively. In respect of A.B. there are charges of gross indecency alleged to have been committed in 1976, 1977 and 1978 respectively and attempted buggery in 1979. Following service of a Book of Evidence in relation to these charges, further charges were added relating to O.C. and C.C.. In respect of O.C. there are charges of indecent assault in 1982 and 1983, charges of gross indecency in 1983 and 1984 and a charge of attempt to procure commission of an act of gross indecency in 1984. In respect of C.C. there are three charges of indecent assault in 1972.

3. S.M. and A.B. appear to have been more or less contemporaries at the school but C.C. attended the school in an earlier period and O.C. in a later period.

4. The first communication of any complaint from S.M. came in the summer of 1991 and then only anonymously. He wrote a letter to the Applicant's Bishop under the false name of "M. O'Donnell" making accusations of sexual abuse against the Applicant. These allegations were duly put to the Applicant who denied them. The identity of the complainant became known in 1993. In a letter to the Bishop of the 23rd August, 1993, the allegations were detailed but appear to have been made in the context of a claim for £150,000 compensation. It is neither necessary nor desirable at this stage to set out in this judgment in any detail the nature of the allegations and I do not intend to do so. If this case goes further on an appeal, the letter is an exhibit in the Applicant's Affidavits.

5. On the 27th April, 1995 the Applicant was informed in an interview by the Guards of the allegations being made by A.B.. This was the first occasion in which he had heard of such allegations.

6. On the 26th January, 1996 the Applicant was interviewed by the Guards in relation to the complaints of O.C. and C.C.. The Applicant claims that this was the first occasion on which he heard of any complaints by either of these former pupils.

7. The Applicant has pleaded not guilty to all the charges and claims that such a period of time has elapsed since even the most recent of the offences alleged against him that a fair trial in respect of these alleged offences is impossible. He has sworn on Affidavit that it would be impossible for him to remember what he was doing at any particular time between 1972 and 1984 and that he did not keep and never did keep a personal diary. He says that because of his inability to remember his own movements and activities, he cannot hope to trace any third party whose evidence might tend to assist him in the defence of the charges whether by providing an alibi or otherwise. In the same Affidavit the Applicant makes the further point that the risk or likelihood of unfairness is exacerbated by the nature of the charges against him, the majority of which are very vague and non-specific regarding dates. I think I should comment at this point that I cannot agree with that part of the Affidavit. In the nature of things it is quite true that the dates are unspecific but the details of the particular incidents are very specific. As is clear from the judgment of the Supreme Court delivered by Egan J. in D.P.P. v. E.F. (unreported 24th February, 1994), in this type of case it may be impossible to be specific as regards dates but what is important is the identifying of the particular incidents. In my view each of the complainants in this case has given quite specific details as to the nature of the incidents complained of.

8. There is perhaps a slight hint in the Affidavit and more than a hint in the submissions put forward by Counsel on behalf of the Applicant that there could have been some element of conspiracy or collusion between the complainants. It has been pointed out that two of the complainants were at school together and it has been further pointed out that the allegations of the other two complainants only came in a considerable time later. But not only is that pure speculation, it is speculation which in my view is absolutely groundless. There is nothing at all in the Affidavits of the various complainants and in the reports of the experts who interviewed them to suggest any liaison whatsoever and coherent and plausible reasons are given in each case for the lapse of time in making complaints. I do not think therefore that I should take into account even the possibility of collusion in this case.

9. I am of course impressed by the serious health condition of the Applicant. This is undoubtedly a worrying factor on the evidence before me. The possibility certainly could not be ruled out that if the Applicant has to face a trial, his health condition could prove fatal at an earlier stage than it would otherwise have done. But it has never been the case that ill health of a kind that falls short of the Accused being actually unable to appear in Court for his trial, would be invoked as a ground for prohibiting a trial. I do accept however, that it could be relevant where a situation was very finely balanced and the Court was genuinely concerned on quite separate grounds that an Accused might not have a fair trial by reason of delay. Before, therefore, I can consider the health plea I must first deal with the more substantive grounds put forward by the Applicant. Each of the four complainants has sworn an Affidavit. Each of these Affidavits incorporates the information given by the respective Deponents to the consultants and experts who interviewed them and who themselves have sworn Affidavits. In the case of S.M. he was interviewed by Dr. Sinead O'Brien, Consultant Psychiatrist and by Mr. Gerard Butcher, Cognitive/Behavioural Psychotherapist. Each of the other three complainants were interviewed by Mr. Alex Carroll, Senior Clinical Psychologist who is well known to the Courts as an expert on these matters. I have carefully read each of the Affidavits sworn by the experts and in the case of Mr. Alex Carroll, the detailed reports touching on each of the three complainants whom he interviewed. I have found the Affidavits and reports convincing on the general principles to be applied and impressive in the wealth of detail which they contain relating to the particular complainants. While the Affidavits contain general statements which might be applicable to any sex victim and not necessarily any of the four complainants, it does seem to me that the experts have addressed their minds to the particular situations of the complainants that they were dealing with and have expressed their opinions accordingly.

10. In the case of S.M., Dr. Sinead O'Brien refers to the fact in her Affidavit that S.M. was referred to her by his General Practitioner in April, 1994. She saw S.M. at regular intervals of approximately a month to six weeks between that time and the date of the swearing of her Affidavit i.e. 11th November, 1996. She reports in the Affidavit that S.M. had described

11. S.M. told Dr. O'Brien that he had spoken to a cousin about the alleged abuse towards the end of 1979 and to a psychiatrist in Newcastle Hospital to whom he was referred in 1987. As already referred to, the matter was reported to the Bishop by S.M. in 1991. Mr. Butcher the Psychologist goes into the position of S.M. in even greater detail. It is a reasonable summary of the views of these two experts that if the complainant's allegations that he was continuously sexually abused by a priest teacher while at school are true, it was both natural and typical not only that he would not report the matter while at school but that given his shy temperament, his subsequent and, as he alleges, consequential sexual problems, guilt problems and inability to trust persons in authority, it was understandable that the complaints were not made any earlier than they were. It is only fair to say that what does complicate matters is an allegation of an incident later than those for which the Applicant is charged which may have been the catalyst resulting in communications with the Bishop. But I do not think that because that incident, if it occurred was a catalyst, it alters or devalues the views of the experts as to the reasons for the delay in reporting to the authorities.

12. In relation to the other three complainants, in each case Mr. Carroll personally conducted extensive interviews and therefore he was not relying for his opinion on statements made to the Gardai. This is a distinguishing feature from the position that pertained in C. v. The D.P.P. (unreported judgment of McGuinness J., 24th July, 1997). Mr. Carroll's reports speak for themselves and it is not necessary for me to go into them in detail in this judgment. It is sufficient to state that in each case, in my view, if the complaints were correct the reasons for the delay are adequately explained by Mr. Carroll and are a natural and probable consequence of the alleged activities of the Applicant. In the case of all four complainants therefore, the alleged activities of the Applicant are themselves the main cause or at least contributing factor in the delay in reporting them.

13. There is now a large body of case law as to the circumstances in which delay will defeat a prosecution and as to the applicability of the general principles to the special and peculiar circumstances of sexual offences. The latest authority of the Supreme Court on this matter is B. v. D.P.P. [1997] 2 I.L.R.M. 118 in which the judgment of Denham J. was the judgment of the Court. I do not think that the Supreme Court in that case was intending in any way to alter the jurisprudence which had already been reasonably well-established by the cases summarised by Kelly J. in his judgment in O'R. v. D.P.P. (unreported judgment of the 27th of February, 1997.). Furthermore, I respectfully agree with the view of McGuinness J. in C. v. D.P.P. cited above that B. v. D.P.P. must not be taken as authority for the proposition that in all cases where an Accused is charged with sexual abuse of a child or young person which took place some years ago, any claimed prejudice on account of delay can be negatived by a claim that the Accused exercised "dominion" over the complainant. As McGuinness J. has pointed out

14. I also agree with McGuinness J. that regard must be had at all times to the presumption of innocence. In other words one must postulate the situation where the Applicant is defending these charges in circumstances where he is wholly innocent of them. It is in the light of that hypothesis that the alleged difficulties in defending must be viewed. In addition to the points made by McGuinness J. in relation to the judgment of Denham J. I would point out that the view of the Supreme Court as expressed in the judgment of Denham J. was to a very large extent based on the findings of fact by Budd J. and the view of the Court that it was open to Budd J. to make those findings. On a different set of facts in C. v. D.P.P. , McGuinness J. took the opposite view and granted an Order of Prohibition. In a case however, which in my opinion is closer to this case than the C. case, i.e O'R. v. D.P.P. cited above, Kelly J. refused an Order of Prohibition. There is a very big difference between sexual abuse by a teacher or instructor with a strong personality, especially if he is a priest teacher on the one hand, and the coach driver to the swimming pool who occasionally gave some help with the swimming itself on the other hand. Furthermore some of the expert evidence produced in the C. case was tested by cross-examination and the answers did not impress McGuinness J. Nor was she impressed by the fact that the same Mr. Carroll as has given Affidavit evidence in this case did not appear to have gone through the details of the complainant's history with herself but relied on a statement which was provided by the Gardai or the prosecution in advance of the interview.

15. It must always be remembered that there is no statute of limitations in relation to offences, the subject matter of these proceedings and that the onus is on the Applicant to establish a case for prohibition. None of the detailed evidence given by the experts in this case was tested by cross-examination, nor was any contrary expert evidence adduced. I do accept that on the clear authority of D.P.P. v. Byrne , 1994 2 I.R. 236 and others delay of itself and by itself and without any proved actual or presumed prejudice may in certain circumstances afford grounds for Prohibition. An obvious example might be where there had been clear culpable delay on the part of the State Authorities something which does not arise in this case. Apart from the health aspect, the main ground of prejudice which is alleged is inability, at this remove to provide alibi evidence. This might be a good argument if the allegation related to a single incident or indeed even a series of incidents with one complainant. But given that there are four complainants and a large number of incidents involved over different time spans, I do not think that there is any reality in the alleged alibi point. The Applicant concedes that he never kept a diary and it is difficult to see why he would have been in a stronger position to defend a prosecution shortly after each respective complainant left school than it is for him to defend them now. I have already indicated that I do not think the health should be taken into account unless the Applicant was in such a serious condition that he could not appear in Court to defend the case or unless it was an element to be considered in a finely balanced situation. But I do not think that that is the case here. In my opinion, justice overwhelmingly requires that these prosecutions should continue. Obviously if it emerges at the trial that delays have genuinely prejudiced the Applicant in some way that is not perceived now, it will be open to the trial judge to deal with the matter in whatever way appears to him or her to be just. But I do not consider that the Applicant has discharged the onus at this stage of establishing that an Order of Prohibition should be made and I accordingly refuse the relief sought.