THE HIGH COURT
DUBLIN

[2004] IEHC 197 
2002 23 JR

D T
Applicant

-V-

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

JUDGMENT OF MR. JUSTICE T.C SMYTH DELIVERED THE 14TH DAY OF MAY 2004

The Applicant seeks judicial review by way of injunction restraining the Respondent from proceeding or taking any further steps in a criminal prosecution pending before the Circuit Criminal Court against the Applicant in respect of Newtownmountkennedy Charge Sheets 7/2001 to 100/2001 inclusive bearing Bill No. 467/01J.

The grounds upon which relief is sought are that –-
(1) By reason of inordinate and inexcusable delay the Applicant has been deprived of his right to a fair trial with due expedition in breach of his constitutional rights to fair procedures pursuant to Article 38.1 of the Constitution.
(2) The Applicant has been prejudiced in his defence of these proceedings by reason of the delay in his case being brought to trial.
(3) There is a real and substantial risk that the trial of the Applicant will be unfair by reason of the delay and consequent prejudice resulting therefrom.
(4) The trial of the Applicant has not occurred with due or reasonable expedition; further, the delay cannot be justified or excused

On the hearing of the application, Mr. Devally, S.C. for the applicant confined his submissions and arguments to that period of stated delay between the dates of alleged offences and the dates of complaints being made to the Garda Síochána in the month of October 2000. In that month, the Applicant was arrested and it was then that the Applicant was made aware of the making of the complaints.

The Applicant faces charges for the alleged buggery and indecent assault of one Complainant and the indecent assault of two other Complainants contrary to Sections 61 and 62 of the Offences Against the Person Act, 1861 respectively. The offences against the first Complainant (hereinafter referred to as PK) are alleged to have taken place between 1st June 1976 and 31st January 1980. Those against the second Complainant (hereinafter referred to as CK) are alleged to have taken place between 1st March 1978 and 31st May 1978 and 1st January 1979 and 31st June 1979. Those against the third Complainant (hereinafter referred to as MW) are alleged to have occurred between 1st January 1978 and 31st August 1979.

The Applicant was the employer of the three Complainants. He was a friend of the parents of PK and CK (who are brothers) and visited their home from time to time and was entertained there. The parents

thought so well of the Applicant that they invited him to PK's wedding to the suppressed annoyance and embarrassment of PK at that time.

All the Complainants were young schoolboys in their early teens at the time they were employed by the Applicant in his market garden business carried on in horticultural glasshouses at Co. Wicklow. Adjacent to the glasshouses was a mobile home where the Applicant lived at the time the Complainants were working for him.

PK was 13 years old when he went to work for the Applicant after completion of his first year in secondary school. He was introduced to the Applicant by his older brother, CK, and PK worked for the Applicant for four summers in succession until 1981 when on completion of his Leaving Cert examination he went to Agricultural College for two years. PK felt unable to tell his parents of the matters complained of as he was repeatedly told by his mother that they needed the money. It is unnecessary in this judgment to record the many acts complained of, suffice it to say that they were recurrent with the same person in more or less the same set of circumstances over an identifiable period -- this is not a case of a once off incident or a very limited series of events and, in my judgment, it is quite distinguishable from the case of CK, and MW in particular. At the end of the calendar year 1986 when PK was aged 22, he married a very young girl, aged 18 (hereinafter referred to as TK). The documents reveal that PK told TK of his abuse by the Applicant in either 1985 or early 1987 and referred to it again with her in 1988. During the years 1989 to 1997 PK lived in Tipperary, but since then has returned to live in or about the area in Co. Wicklow where he was brought up. PK and TK have four children, aged now between about 18 years and 6 years. In relating events to TK, PK became frustrated and aggressive because of fear and embarrassment. TK informed her bridesmaid of the revelations and PK felt embarrassed, humiliated and mortified by this disclosure and charged her to tell no one else and particularly not to inform his parents. He avers that the issue arose some time in 1988 when after watching a television programme he was encouraged by his wife to phone a free phone telephone number for Childline. He did phone the number and spoke to someone (unidentified) for three or four minutes. On a second occasion, a phone call to Childline went dead and he did not pursue the matter further. In the same year, he spoke to his sister who worked in a law office (hereinafter referred to as MK) about his abuse and her reaction was not to make any disclosure and on no account tell his parents, as it would kill them. Again, he felt angry about this. In or about that time, 1988/1989, most probably 1989 or thereafter, PK had been a witness to a hit and run accident in Co. Tipperary and he told his best friend about the abuse in his teenage years. Although this man was TK's best friend, he avers that he did not discuss the matter with him prior to that out of embarrassment. In the matter of disclosure, matters went dormant for about ten to eleven years from about 1989/90 to the year 2000.

For many years PK had been a blood donor. Over the years 1986 to 2000 questions on the Consent Form were worded in different ways concerning homosexual behaviour. Whilst feeling bad about not disclosing what had happened to him in his teenage years because he had children, he thought he was not HIV positive although he could not prove this. On 4th October 2000 PK went to give blood to the Blood Transfusion Service. On this occasion, he was requested to complete a form that included the question: "Have you ever had sex with another male or has another male ever had sex with you?". When PK signified yes to the query, the doctor who was present informed him that he could never give blood again. The matter was now out in the open in the public to a complete stranger, albeit a doctor. That night PK telephoned the Garda Síochána and arranged to call on them, which he did two days later Over the period October 2000 to May 2001 a number of statements were taken by An Garda Síochána.	On 18th May 2001 the charges were preferred again the Applicant in Bray District Court. On 20th July 2001 Garda Haynes served the Book of Evidence on the Applicant. Following two adjournments during which depositions were taken, the Applicant was sent forward for trial on November 9th, 2001. 

On 21st January 2002 the Applicant was granted leave to apply by way of judicial review for the relief earlier noted.

On 10th May 2002, Mr. Desmond O'Mahony, Clinical Psychologist, interviewed PK in connection with his complaints against the Applicant. PK avers that Mr. O'Mahony's report as relates to facts describing or relating to PK's personal circumstances are true. Mr. O'Mahony had an interview of over three hours with PK, whom he described on meeting him at his rooms, as blushing and red in the face to the roots of his hair at the shame and embarrassment of what he had come to talk about. The purposes of the interview were to:

(a) report on the effects of the alleged offences; 
(b) report on the reasons for the delay reporting the   alleged offences;
(c) to offer an opinion on whether the delay in reporting the alleged offences to an Garda Síochána was reasonable in the light of PK's individual circumstances.

Mr. O'Mahony's report forms part of the evidence before the Court. He was cross-examined on his affidavit and report and was criticised for:-

(a) Not contacting PK's general practitioner whom PK had attended for depression. As PK had not informed the general practitioner about his history of sexual abuse, whatever view the general practitioner may have formed (if he was still available for consultation) was necessarily incomplete by reason of being given incomplete information. Furthermore, there is nothing in the evidence to suggest that the depression figured in PK's life for almost 20 years.

(b) Failing to carry out any psychological assessment of the once stated contemplation of suicide by PK during the period 1977 - 1981.

(c) Not contacting Childline to ascertain what information was given to them and to collate it with what he had been told by PK personally. Altogether from an indication of an individual who was spoken to -- the short duration of the original phone call with no follow up or sequel, Mr. O'Mahony's position seems to me understandable.

I have had the opportunity to observe the demeanour and evidence of Mr. O'Mahony in court and I am satisfied and find as a fact that Mr. O'Mahony was a very careful witness and concerned and sensitive Clinical Psychologist, who when confronted by a very damaged and vulnerable human being he had no reason to disbelieve in the light of the information given to him in the documentation and in person did not subject him to unnecessary tests or interrogation. In approaching an evaluation of his evidence, I have had regard to the several authorities touching upon the role of a psychologist in circumstances such as Mr. O'Mahony found himself in -- as more recently reviewed by Kearns J. in Harte -V- Her Honour Judge Dunne and the Director of Public Prosecutions (unreported High Court, 30th April 2004).	The instant case is clearly distinguishable from the Harte case in several material particulars (e.g. the length of time before complaints were made -- twice that of the instant case -- the number of complainants, the different locations of the alleged events, the length of time of interview). To summarise: 

"There must be evidence that the particular alleged victim of sexual abuse as a minor was inhibited from disclosing or complaining of this abuse by some psychiatric disease or some psychological defect or abnormality duly established by expert or non expert testimony.	In my judgment, this

necessarily requires a careful and proper degree of investigation of the circumstances of each individual case to see if there is present clinical evidence that the alleged victim is suffering from or has suffered from a mental illness or disorder or a recognized psychological condition, the accepted symptoms of any of which are regarded in the present state of medical and scientific knowledge as inhibiting such disclosure and complaint. Further, a causal connection must be established between this illness, disorder or condition and the alleged sexual abuse."

(Per Herbert J in L -V- DPP High Court, unreported 16th April 2002) and, again, per McCracken J. in MF -V- DPP (High Court, unreported 5th December 1996):

"Where a witness purports to give evidence in a professional capacity as an expert witness, he owes a duty to ascertain all surrounding facts and to give that evidence in the context of those facts whether they support the proposition which he is being asked to put forward."

In the instant case, Mr. O'Mahony had before him for consideration prior to meeting PK the Statement to Ground the Application for Judicial Review, the Affidavit of the Applicant grounding same, and the Book of Evidence (which included the statements of PK and his wife, TK, as well as the statements of the other complainants). It is clear from the observations of McCracken J. that a knowledge of the background of the acts of alleged abuse is relevant and this was supplied (as is clear from the oral evidence) by both what PK told Mr. O'Mahony and what could be learned from the papers supplied to him. While it is true that Mr. O'Mahony did not carry out any specifically identifiable psychological tests on PK, the investigations he did carry out, as is clear from the observations of Herbert J. in L -V- DPP, do not require to be exhaustive or conducted to a forensic standard of proof. In my judgment, Mr. O'Mahony did carry out the task entrusted to him carefully and in the context of the Complainant and his personal life history as disclosed to the Court in a reasonably comprehensive manner. It is clear to me that all significant aspects of the personal and family life of the alleged victim were considered by Mr. O'Mahony. In my judgment, given the fact that PK did not inform his GP when he complained of being depressed in his teens -- [his emotional immaturity was being compounded by fear, anger and shame of his alleged abuse by the Applicant] -- there was no obligation on Mr. O'Mahony to make enquiries of the GP who had, by decision of PK, incomplete information. Furthermore, PK was, on enquiry by Mr. O'Mahony, able to describe his symptoms, conduct and feelings and disposition. Mr. O'Mahony was also criticised for failing to explore the stated contemplated suicide by PK at a time in his teens, but his report is quite clear that feelings of shame, heightened tensions, headaches, of being trapped, of being through family economic necessity to remain working for the Applicant, not knowing when he would be approached again by the Applicant and the belief that approaches would be made clearly combined to a sense of hopelessness and despair. What gave him pause was the thought of what such an action (suicide) on his part would have on his parents if he acted out his ideas of self termination. In my judgment, Mr. O'Mahony was in the circumstances of this case under no obligation to follow up on a three to four minute telephone call of an unidentified date to an unidentified person on a confidential helpline when he had and availed of making his own enquiries of PK face to face. Mr. O'Mahony was also criticised in his evidence as failing in his duty to the Court in not presenting an objective evaluation or assessment of the information provided by both interview and documentation. In my judgment, this criticism is not well founded. It is true that Mr. O'Mahony did not seek to displace by cross-examination or any form of adversarial probing questioning or otherwise the information he was given by PK for, on his evidence, he had been given no reason by PK to disbelieve what he was being told. There was no sense of evasion or equivocation to lead to such a view. He did accept what he was told by a person who clearly found the experience difficult and embarrassing. While the Court must reserve to itself the determination as to whether delay, in cases such as this, is reasonable and explicable, it has to have in aid evidence such as envisaged in the cases already referred to in this judgment. In that regard, the experience of the psychologist, as such, is one consideration; another is the extent to which the Court can rely on the judgment exercised by such psychologist in such evidence he may tender to the Court. In the instant case, Mr. O'Mahony was given the subjective reasons tendered to him and, in his judgment, such were objectively reasonable and sustainable. That subjective reasons would form part of the basis of an ultimate determination is not surprising because complainants in cases of this character will differ in age, gender, relationships at home and to the accused or offender, school, work, relationships, their degree of moral, intellectual and emotional development and other such like matters. Indeed, the contrast between the "experiences" of the three complainants in the instant case and how they coped with them clearly illustrate the necessity of considering the various individuals and why they may have delayed in making a complaint. I find very little difficulty in understanding the inhibition of PK to complain earlier than he did, given his relationship to his parents, his brother (with whom he had not a good relationship) and to the accused. Despite his halting efforts to articulate to his wife and on an isolated disclosure to his best friend in Tipperary, PK clearly could not bring himself to follow these through and, indeed, with his sister, to whose response, his was also was one of anger. It was only when an element of his self esteem or self worth to the community as a blood donor was rejected in public that his affront or shame galvanised him to act decisively. I am satisfied and find as a matter of fact and of law that PK was damaged by the events complained of and that his inhibition and impairment to complain earlier than he did arose out of the wrongdoing itself and by the gravity of the offences. I am satisfied and find as a fact that there was not inordinate or inexcusable delay in making the complaints or the bringing of charges.

The Legal Submissions

1. The right to trial with reasonable expedition.

As an essential feature of a criminal justice system (The State (Healy) -V- Donaghue [1976] IR 325 and The State (O'Connell) -V- Fawsitt [1986] IR 362) this was not a disputed issue. There are societal interests in providing a speedy trial separate from and sometimes even opposed to the interests of accused persons. Thus it was argued for the Respondent that the deprivation of a speedy trial does not per se prejudice the ability of an accused person to defend himself (Barker -V- Wingo [1972] 407 US 514, 519-521). However, it is clear that "it is not the delay, but the effects of the delay which are crucial" (per Keane CJ in PM -V- Malone [2002] 2 IR 560 at 572). It is now settled law that the length of the delay and the reasons for the delay, the relationship between the applicant and the complainant, the existence of dominion over the complainant, the relative ages of the parties, the availability of evidence, the admission (if any exists) by the applicant and psychological evidence are all matters that can and should be considered relevant for consideration (see W -V- DPP, Supreme Court 31st October 2003 per McGuinness J. applying and adopting the approach of Denham J. in B -V- DPP [1977] 3 IR 140 at 195. The accused's assertion of his rights and the prejudice are other matters also to be taken into account in cases of the character of the instant case. The length of delay can be measured either as from 1977 or 1981 to the year 2000 and the reasons for the delay I have already determined. Dominion really plays little part in this particular case because after the work period ceased in 1981, PK left the sphere of direct influence of the Applicant; but it is clear that the relationship of the Applicant and PK's parents continued for years after that, at least until 1986, and PK's relationship to and with his parents was so inhibited that even on the occasion of his wedding, as already referred to, on 31st March 1986, he did not have sufficient confidence or independence to voice his disapproval of the Applicant being invited to and attending his wedding. In my judgment, where as in this use the delay resulted from the affect on the Complainant of the wrong alleged, I adopt the expression of Denham J. in PC -V- DPP [1999] 26 at page 64 that: 

"It is the very nature of the offence of childhood sexual abuse which prevents early complaint. It is the mental aspect of childhood sexual abuse which causes the delay. The delay is not the fault of the complainant but it is the fault of the applicant in that it is a consequence of the wrongful actions. This renders the delay reasonable on the part of the complainant."

I am satisfied in this case, adopting the words of Keane CJ in PC -V- DPP [1999] 2 IR 25 at 67 (applied in W -V- DPP, Supreme Court 31st October 2000 by McGuinness J) that: 

"The circumstances are such as to render explicable the inaction of the alleged victim from the time of the offences until the initiation of the prosecution."

While the accused Applicant has refused to sign the interview notes and pleaded not guilty to the charges after a time of his first requesting to see his solicitor, I, nonetheless, have regard to the judgment of Keane CJ in PM -V- Malone at 572 already adverted to that:

"Where there has been significant and culpable delay to which he has not contributed to in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial."

PM -V- Malone re-examined the origins of the right to a reasonably expeditious trial and its consequences for the manner in which that right is to be vindicated in this jurisdiction. Mr. Anthony Collins SC for the Respondent submitted that PM -V- Malone is only authority for the proposition that the Court have regard to "pre charge delay" in assessing whether there has been reasonably expeditious the only period deemed period after the complainant had made applicant had made an inculpatory statement to social services. His submission was that the May a breach of the right to a trial and that in that case, relevant pre charge was the a complaint and the the involvement of the public authorities in the form of the social services and the fact of an accusation having been made at the time against the applicant amounted to a public "charge" or "arrest" within the meaning of the United States case law. The argument proceeded to contend that PM -V- Malone did not support the proposition inferentially, if not expressly advanced by the Applicant, that one is entitled to assert a right to a trial with reasonable expedition in respect to any period prior to the assistance of such a "charge" or "arrest" and that such is the conclusion that appears from the fact that Keane CJ agreed with the views expressed by Gannon J, and the Supreme Court in O'Flynn -VClifford [1988] IR 740. Whilst disposed to accepting the Respondent's submission in this regard as correct, especially having regard to the very clear exposition of the law by Gannon J. in The State (Healy) -V- Donaghue [1976] IR 325 at 366 where he draws:

"...an important distinction between the stage before charge when a matter of a suspected crime is being investigated and the stage after an accused person has been charged and was so subjected to the directions of a court."

I am mindful that the law, especially in the area of child sex abuse has undergone a "sea change" since the mid 1970's. Even if the submissions referable to real or presumptive prejudice were referable to an expeditious trial and to any failure to have an expeditious trial into the matters complained of, I hold as a matter of fact and of law in the instant case that suppression of the complaints that gave rise to the excusable delay has its origins in the affect on the complainant of the wrong alleged and I reject the submission based on the alleged prejudice that the lack of an expeditious trial may give rise to.

2. A fair trial.

The point of departure on this issue can be safely taken from the judgment of Keane CJ in PC -V- DPP [1999] 2 IR 25 at page 68: 

"Manifestly, in cases where the court is asked to prohibit the continuation of a prosecution on the ground of unreasonable delay, the paramount concern of the court is whether it has been established that there is a real and serious risk of an unfair trial; that, after all, is what is meant by the guarantee of a trial in 'due course of law'."

In the light of my findings that such delay as has occurred pre complaint is explicable and is not unreasonable and has its origins in the adverse effect of the wrongdoing of the Applicant as alleged, I do not repeat such findings. There then arises for determination whether and to what degree is the accused's ability to defend himself impaired and, if so, is it such that the trial should not be allowed to proceed.

The Applicant had difficulties at school in keeping up with his class and had rather poor educational achievements and the medical evidence was that up to 16th September 1983 he "may have been functioning intellectually in the dull normal age". The date in 1983 is of significance because it was then that he suffered severe personal injuries and was described by a Neurosurgeon as of 24th May 1984 as "suffering from brain damage from a fat embolism". A Consultant Psychiatrist in July 1986 described his findings on examination of the Applicant as revealing "memory difficulties with very poor recall and short term memory. Long term memory (preceding the accident) was intact". Mr. Dempsey who gave evidence before the Court agreed with this assessment. This is largely borne out when one reads the replies to questions put to the Applicant in late October 2000 or early 2001. When he was being detained for questioning, he was able to identify the year of purchase of the glasshouses as 1976 and where they were bought from (page 109), the names of some of his employees, including PK and CK (page 109), the age group of those who worked for him (page 110), the measurement of the mobile home, the number of rooms and the types of bed in it (page 111), his denial, deferral or evasions of questions (page 112), his remembrance of his sleeping in the double bed and that PK slept in the double bed (page 113), that both he and PK both wore pyjamas (page 114), his self correction of 1976 or 1977 for 1966 (page 21), he remembered MK as thinnish (page 114), that he had an old Wolsey car (page 122), that he often had dinner at the home of PK, and that PK's parents trusted him (page 123). These are a mere indication, not an  exhaustive illustration of the ability of the Applicant to recall events in detail. 

In December 2001, in a mental state examination, Dr. Mohan avers that he found that the Applicant had great difficulty recalling events. Dr. Damien Mohan averred on 24th April 2002 "that notwithstanding this interview, there is definite evidence of cognitive impairment. There is evidence to suggest that the Applicant's short term recall is impaired." "The Applicant's long term memory is also impaired.I also say that his recall for events prior to 1983 appears better than for events since 1983." There is no shortage of medical reports arising from his personal injuries action. I was informed by the Applicant's counsel that some of these were prepared to support a wardship application which was refused by Hamilton P. but that an informal arrangement was made to assist the Applicant in dealing with money matters. On 8th April 1987 a Mr. Rahill, a Consultant Psychiatrist, was of the view that the Applicant was then of sound disposing mind and able to manage affairs and give instructions. 

Mr. Michael Dempsey, an experienced Clinical Psychologist, swore an affidavit on 14th April 2003 and expressed his opinion that the Applicant is cognitively impaired but that he would have the ability to recall events that occurred prior to the accident, although he would be liable to experience confusion in relation to some of his memories from that period. Mr. Dempsey, who attended court for cross-examination, said he did not carry out any test of the long term memory of the Applicant and that the long term memory is "more held". He informed the Court that the Applicant found it difficult to collate in sequence certain family events, such as weddings and funerals, even in his own family (he was one of a family of seven). His evidence was that the Applicant was of a practical turn of mind, not of a scholastic or speculative disposition and so long as he was asked direct short questions, he could cope with them (this was borne out by his replies to the Garda queries while in detention). Undoubtedly starting from a low intellectual level, his accident did not help his cognitive capacity and the four years that have elapsed since he was charged in the District Court (over two and a half years of which have been taken up in these proceedings) is not of assistance to him in whatever trial he may have. 

The specific prejudice relied upon to assert that there is a real risk that the Applicant cannot have a fair trial because of cognitive impairment is not specifically raised as a ground of claiming judicial review. However, I would not care to found any decision in this case on such a technicality. It is a serious matter to send a person forward to trial and, in the context of prohibition, I bear in mind the comments of Hardiman J. in J'OC -V- DPP [2000] 3 IR 478 at 504, with which Barron J. concurred and those also of McGuinness J. in BJ -V- DPP (Supreme Court, unreported 19th December 2003). However, I am satisfied and find as a matter of fact and of law that the alleged cognitive impairment of the Applicant in this case is not such as to expose him to a real or substantial or serious risk of an unfair trial. I am likewise satisfied and so find that the Applicant has not been, as submitted, fatally hampered in preparing a defence to the proceedings involving PK. I am satisfied that the replies given by the Applicant to the Garda, allowing for denials, evasions and deferrals, show a memory for time, place and details. The absence of the glasshouse and the mobile home described in detail and the other details as to beds and pyjamas show no want of recall by the Applicant. This is not a case in any way comparable to POC -V- DPP [2000] 3 IR 87 in this regard. I have, however, borne in mind in coming to the decision
 I have expressed the words of Keane CJ in POC -V- DPP at page 96 of the report that:

"The public interest in ensuring that every person charged with a criminal offence receives a fair trial must, where a conflict arises, take precedence over the unquestionable public interest in the prosecution and punishment of crime."

The only evidence credibility and consistency of complaints the Applicant will be called upon to deal with is that of PK. I have no hesitation in prohibiting the trial of the charges grounded on the complaint of MW and while I have some doubt for the reasons expressed at the hearing concerning the charges grounded in the complaints of CK, I am prepared to give the benefit of that doubt to the Applicant and prohibit the trial on those charges.

Accordingly, I refuse an injunction restraining the Respondent from proceeding with the trial of the Applicant on the charges preferred against him referable to the complaints made by PK and grant an injunction against the Respondent proceeding with the trial of the Applicant on the charges preferred against him referable to the complaints made by CK and MW.

END OF JUDGMENT