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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (P.) v. D.P.P. [2004] IEHC 233 (7 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/233.html Cite as: [2004] IEHC 233 |
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Neutral Citation No: [2004] IEHC 233
HC 233/04
2002 39 JR
Applicant
Respondent
JUDGMENT WAS GIVEN AS FOLLOWS BY MR. JUSTICE O'CAOIMH ON FRIDAY, 7TH MAY 2004:
By order of this court made on 28th February 2002 the Applicant was given leave to seek an injunction restraining the Respondent from prosecuting the Applicant on Bill Number DU939/01 presently pending before Dublin Circuit Criminal Court. The grounds upon which leave was granted are at paragraphs E(1) to (4) of the statement grounding the application for judicial review, are as follows:
"1. That the delay in bringing the said prosecution against the Applicant amounts to a bread of the Applicant's constitutional rights to trim in due course of law and/or trial with reasonable expedition.
2. That the delay by the prosecuting authorities in proceeding with the said prosecution against the Applicant amounts to a reach of the Applicant's constitutional rights to trim in due course of law and or to trial with reasonable expedition.
3. That the said prosecution of the Applicant amounts to a breach of the Applicant's constitutional right to a fair trial in due course of law, in that the Applicant is unable to properly defend himself.
4. That the prosecution of the Applicant on the charges stated in the said prosecution amounts to a breach of the Applicant's right to fairness of procedures and natural justice."
These grounds raise in essence the issue of general delay and prosecutorial delay in the prosecution of the Applicant.
Now, with regard to the issue of general delay the Applicant currently stands charged before the Dublin Circuit Criminal Court with having committed three acts of gross indecency contrary to Section 11 of the Criminal Law Amendment Act 1885 on the complainant who is a nephew of the Applicant and a male person.
These acts are alleged to have been perpetrated between 1st August 1982 and 30th June 1985 in the first instance, secondly between 1st July and
31st July 1985, and, thirdly, between 1st August and 31st December 1985 respectively.
At the time when the offences are alleged to have been committed the Applicant, who was born on 9th September 1941, was aged between 40 and 44 years of age; while the complainant who was born on 3rd May 1969 was between 13 and 16 years of age. It appears from the evidence that the complainant lived with his parents in the house next door to that of the Applicant. It appears that of the three offences alleged, the earliest was committed some 16 years or thereabouts before he was approached by the Gardaí and the latest was committed in or about 12 years before he was approached by the Gardaí.
The Applicant indicates that the allegations were first outlined to him by the Gardaí when the Gardaí called to his house in June 1998. He indicates that at the time he told the Gardaí that he would cooperate with the Gardaí but wished to take advice from his solicitor. The Applicant has sworn an affidavit in these proceedings, which is largely in the form of a submission on the material in the Book of Evidence and refers to matters which are suggested to be contradictory in nature in the context of the Book of Evidence. He does, however, deal with the sequence of events to which I will refer later.
The complainant's affidavit details the abuse alleged and refers to the fact that in 1987 he was sent for assessment to Dr. Patrick McGrath at St. Loman's Hospital. The complainant indicates that he told his parents of the abuse immediately before he saw the doctor. He told the doctor of the abuse and indicated to the doctor that he would deal with his uncle in his own manner. However, he says that he was unable to confront the Applicant about the matter in any way. He indicates that he attended a clinic at Tallaght for some time thereafter, but matters deteriorated. When his father found a suicide note that he had written he was re-admitted to
St. Loman's Hospital at his parents' request.
The complainant was ultimately discharged from hospital one month later on the basis of attending as a day patient. He indicates that when he was about 21 years of age in 1990, he encountered the Applicant and he alleges that on about ten occasions sexual activity took place between them. He uses the word "abuse" in this regard and indicates that he felt trapped, very isolated and confused. He indicates that:
"The Applicant ceased his behaviour towards [the complainant] in 1993 for some reason unknown to me."
He indicates that he continued to have psychiatric difficulties and he was re-admitted to St. Lomans in 1997 on a number of occasions. He says that he felt depressed about the sexual abuse that he had suffered at the Applicant's hands. He adds:
"I felt I wanted to make a complaint against the Applicant but I felt I could not bring myself to do so.
In addition to my own inhibitions and inability to come forward, I felt that I was under pressure from my family not to make any complaint."
He indicates that he was referred for counselling in 1997 and received counselling between September 1997 and 1998.
He then states:
"For the first time I felt as if I was able to speak openly about what I had suffered at the Applicant's hands."
He adds that between March 1999 and April 2001 he also attended at the Granada Institute in Shankill in County Dublin for the purpose of receiving psycho-therapeutic treatment. He confirms that in the first week of February 1998 he contacted the Garda Síochána with a view to making a complaint against the applicant. He confirms having made statements on 6th, 9th and 10th February 1998 to Garda Brendan Kelly of Tallaght Garda Station, who asked him if he could be more specific as to the dates and circumstances of the matters complained of. On 4th February 1998 he was interviewed by Garda Kelly.
The complainant has exhibited statements made to the Gardaí which elaborate on his affidavit. He confirms as true the contents of these statements. In the latest of these statements, which is dated 20th February 2002, he states inter alia as follows:
"After doing the Inter Certificate in 1985 I was suspended from school. I was disruptive and hostile to anyone in authority. At the same time the sexual abuse was becoming more persistent. After being suspended I dropped my friends, stayed at home more and more and relations with all family
members began to deteriorate. I felt very isolated and alone. My parents continually urged me to go to the Eastern Health Board Clinic at Millbrook Lawns in Tallaght, and eventually I went to keep them happy. These visits to the clinic were of no benefit to myself. The treatment was tablets with little discussion. In 1989 I remember leaving a suicide note. At that time I remember feeling nothing for anyone. When I first mentioned sexual abuse to anyone in St. Loman's Hospital, going to the Gardaí was never mentioned. At the time I just didn't feel well enough or strong enough to report the abuse. After going home from St. Loman's relations improved with the family but I did not feel able to discuss the abuse with any of them. I didn't feel I would be believed. I had no confidence in myself. I was trying to block out of my mind the abuse that was happening to me. I eventually took up work but I would keep my distance from men. I felt I couldn't allow myself to be in a one-to-one situation with a man because I didn't trust them. I didn't accept what was happening to me. Between 1990 and 1997 I wasn't aware of anywhere to go in relation to talking about or getting help for the sexual abuse. Prior to going into St. Loman's Hospital in 1997 events started to come in on top of me. By "events" I mean the sexual abuse. I Just couldn't get it out of my mind. I think I had a breakdown. In St. Loman's Hospital I was asked about sexual abuse, as it had already been mentioned in 1989, and I just started to tell them about it. I was referred to the Laragh Counselling Service and in February 1998 I went to the Gardaí in Tallaght."
An affidavit has been sworn by Melissa Dermody, who is a psychologist and who describes herself as a registered psychologist in private practice. She states her qualifications and indicates that she is a registered psychologist with the Psychological Society of Ireland and an accredited member of the Irish Association of Counselling and Therapy, and she indicates her clinical experience.
In her affidavit she indicates that she met and assessed the complainant. She met him on three occasions. She indicates the terms under which the complainant was referred to her, namely, that she was asked to interview him with a view to preparing a written report setting out (a) the effect of the alleged abuse upon him; (b) the reasons for his delay in reporting the alleged offences; and (c) her opinion as to whether the delay in reporting was reasonable in the light of the complainant's circumstances.
She indicates the documentation with which she was provided, which included a copy of the Book of Evidence served upon the Applicant. She also received a number of medical and psychological reports prepared in respect of the complainant, and she has exhibited these. She also indicates that she was sent a copy of a further psychological report concerning the complainant that had been prepared by Davina Walsh, Senior Clinical Psychologist, and Patrick Randall, Principal Clinical Psychologist of the Granada Institute in County Dublin.
She says that as appears therefrom, in February 1999 Dr. Paul Lincoln, his General Practitioner, referred the complainant to that institute. She indicates that as appears from that report:
"The complainant has attended at this institute for psycho-therapeutic intervention on a fortnightly basis since April 2001."
She says that she has read and considered the contents of the report and she says that it does not alter, but confirms the conclusions reached in her report of 21st May 2002. This witness has prepared an exhibit as I have indicated - an extensive report in the context of the referral to her. I don't propose to rehearse the full contents of this report. But she indicates a number of aspects, including the family history of the complainant and the effects of the alleged offences, and then she deals with the delay in reporting the alleged offences. She has referred to the complainant's complaints in relation to the effects of the alleged offences, resulting in a lack of concentration in school, not eating and an increase in drinking and smoking, that due to the alleged abuse he was unable to complete his education and he was distracted from his schoolwork because of concerns in relation to the alleged abuse. He also reported to her that the alleged abuse affected his relationship with his parents resulting in a loss of trust in them and anger that they did not stop the alleged abuse from happening. He referred to periods of depression and suicidal thoughts and actions due to his distress at the alleged abuse. He has indicated that to this day - that is at the time of the assessment - he battles with depressive periods. He disclosed that he finds developing long-term relationships difficult and has not established a serious romantic or intimate relationship in his life to date. He talked about his difficulties in trusting others and that this has continued to put a strain on his relationship with his parents to this day.
She indicates that he also reported being isolated socially and that he did not seem to have social supports in his life. His belief was that the past and current difficulties and problems in his life are linked to the alleged abuse he suffered in the past. She indicates that he seemed committed to working to overcome the effects of the alleged abuse upon his life. She indicates her professional opinion that the complainant's reported symptoms are consistent with the current research and literature available on the responses to trauma in childhood.
Dealing with the delay in reporting alleged offences, she refers to the first report made to the Garda Síochána being in 1998 and she indicates that she questioned him intensely regarding his reasons for not reporting the alleged abuse until that time when he had disclosed the abuse to Dr. Patrick McGrath as early as 1987. He explained that at the time the abuse started in 1983 he was significantly younger than his uncle, the Applicant herein. In 1983 he would have been 13 years and the Applicant 40 years approximately. He reported that at the time he was afraid of his uncle and that he was confused regarding those behaviours. It was not clear that this was normal behaviour between a nephew and uncle. He also reported fear that members of his family would not believe him if he reported the alleged abuse.
She indicates that during discussion regarding this time in his life, the complainant spoke of the "rules" within his family home. These unspoken rules were 'Do not question adults especially a relation', and sex was not spoken about within the family home.
The complainant apparently has indicated that the atmosphere within the family home contributed to his keeping the alleged abuse by his uncle quiet.
He reported that he felt that the adults within the family would not take a child's story over an adult. He also perceived his uncle as threatening him by telling him 'Do not tell anyone.' 'Do not tell your father' and 'I am going to fix you.' He also pointed out that at this time his uncle lived next door to the family home and that there was an ongoing contact between the two families.
Ms. Dermody indicates her opinion that it is an understandable argument that a 13-year-old child would find it confusing and intimidating to disclose an event when they are told by an adult, in this case a close relation of his family, to keep an event secret. She indicates that at this time there seemed to be a close relationship between the two families which would have contributed to the power of influence that the Applicant would have had over him.
She refers in her report to the complainant's first disclosures regarding the abuse to his mother being in 1987. On this basis he apparently told his mother that his depression was to do with his uncle and sex. He reported that at this time his mother did not take action to protect him from the events, which lead him to be more confused in his mind. She indicates that it is clear from the notes of Dr. Patrick McGrath that the complainant reported in 1987 that his uncle who lived next door to him had been making sexual approaches and advances towards him. He reported this time to have been very confusing. He stated that although he disclosed the alleged abuse to his mother and Dr. McGrath, that neither of them encouraged him to go to the Garda Síochána. He was not given any direction or encouragement at this time by the supportive people in his life - parents and professionals - to make an official statement to An Garda Síochána.
Ms. Dermody indicates her opinion that the complainant was not in a fit mental state to make a report to the Gardaí until 1998. She refers to a diagnosis of Dr. McGrath of prolonged adjustment reaction and reactive depression in 1987. She indicates that his reported symptoms would be consistent with a depressive illness.
Towards the end of her report she indicates her professional belief that the complainant's delay in reporting was justified from 1983 until 1989 by the age and power differential between himself and his uncle, and that from 1989 until 1997 he did not seem to be in a fit mental or physical state due to his diagnosed medical condition to be expected to undertake the distressing and demanding task of making a formal complaint to An Garda Síochána.
She indicates, accordingly, that it is her professional opinion that he reported the alleged abuse to An Garda Síochána at the first available time that he felt he was mentally stable, informed of the possibility of reporting and supported by his immediate family. She indicates her understanding that his delay in reporting has been quite typical of the reporting patterns of adult survivors of sexual abuse. She says that his behaviour in this matter matches the stereo-typical patterns of behaviour in relation to reporting of adults who have been experienced sexual trauma as children as described in the current literature.
Based upon the complainant's own evidence I believe that he has explained the reason for his delay, and this clearly is attributed to the circumstances arising from the abuse. Dr. Dermody's report strengthens this position based upon her undoubted experience in this field. While under cross-examination she confirmed that she had not consulted with Dr. McGrath, she stood over her conclusions nevertheless.
I believe in the light of the particular evidence in this regard that the delay on the part of the complainant in coming forwarded to the Gardaí has been explained. I have no doubt that the passage of time complained of is such that may present some difficulties to the Applicant in defending himself on the charges alleged against him. This must be seen in the context where there is undoubtedly a lack of specificity in the complaints made by the complainant in this particular case. But based upon the approach indicated in the case of P.C -v- Director of Public Prosecutions [19991 2.I.R. 25 and in particular the judgment of Keane J. in that case, I believe that with regard to this delay matters have been explained by the Director of Public Prosecutions.
I am also conscious of the fact that in the instant case there is no particular instance of prejudice established on the evidence which would indicate a particular problem in this particular prosecution. In this particular regard I bare in mind what is stated by Keane J. at page 68 of the report in P.C -v- The Director of Public Prosecutions where he said:
"Manifestly in cases where the Court is asked to prohibit the continuance of a prosecution on the ground 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 an 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 to defend herself or herself will be impaired.
In other cases the first enquiry must be as to what are the reasons for the delay and in a case such as the present where no blame can be attached to the prosecuting authorities, whether the Court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions."
I take the view in light of that particular passage and having assessed the evidence in this case that the delay in making the complaint in this particular instance must be seen as essentially referable to the accused's own actions. I think one has to take into account that the complainant was someone who had
suffered not only psychologically but also psychiatrically. But that is the circumstance of the complainant and it must relate to the circumstance of the case and must be seen in the context of the overall assertion made by the complainant linking the particular abuse alleged with his difficulties in life.
Further at page 68 of the report Keane J. said:
"If that stage has been reached, the final issue to be determined will be whether the degree to which an accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed.
That is a necessary enquiry in my view in every such case because given the finding that the delay is explicable by reference to the conduct of the accused and is necessarily grounded on the assumption as to the truth of the complainant, it follows that in the light of the presumption of innocence to which he is entitled the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."
Insofar as I have indicated that this application is grounded upon allegations of general delay and an alleged violation of the Applicant's right to a fair trial, in my assessment of the evidence referable to the delay on the part of the complainant in coming forward I am not satisfied that the degree to which the Applicant's ability to defend himself has been impaired is such that the trial should not be allowed to proceed.
The second aspect of this case relates to the delay complained of on the part of the prosecution authorities, and in this regard the conduct of the Gardaí in dealing with the investigation and prosecution of the matter is raised.
There has been undoubtedly a significant passage of time or delay since the stage when the complainant first approached the Gardaí in February 1998.
17 months elapsed from that time before the Applicant was arrested and a further 17 months before he was charged. It is submitted by Mr. Hartnett, Counsel on behalf of the Applicant, that this period of delay amounting to just under three years is grossly excessive and is such that this court should restrain the further prosecution of the Applicant. Counsel refers to the fact that the Gardaí were told that the Applicant did not wish to come forward for interview in December 1998; that this was further confirmed in writing in April 1999. He wasn't arrested until July of that year and 17 months passed before he was formally charged.
An affidavit has been sworn in these proceedings by Sergeant Brendan Kelly who was the member of the Garda Síochána at the rank of Garda at the time when the Applicant was first approached by him shortly after the complaints made by the complainant in these proceedings. Sergeant Kelly in his affidavit indicates the fact that he met the complainant on 6th, 9th and 10th February 1998 and took statements from him and that he asked him to reflect and take time to see whether he could be more specific in relation to the allegations. I don't believe that this was an unreasonable course to take. But the position is that a period of apparently eight weeks or thereabouts elapsed before he spoke to the complainant again on 4th April. It appears that the complainant was not able to give any greater details or specifics in relation to the allegations previously addressed in the statements.
Sergeant Kelly indicates that in June 1998 he called to the Applicant's home, where he met him, and that he informed him that his nephew had made serious allegations against him. This is not a matter in controversy in this particular case and the Applicant has himself indicated that he would cooperate but wanted to consult with his solicitor in the first instance. Sergeant Kelly indicates that the Applicant asked for time to speak with members of his family and requested an opportunity to consult with his solicitor. He says he indicated that he wished to cooperate with the investigation. He says that in deference to the Applicant's wishes, he did not arrest him on that occasion. He indicates that within a week or so of his meeting with the Applicant in June 1998 he received a telephone call from Garrett Sheehan & Co. Solicitors and he spoke to Mr. Sheehan. He outlined the nature of the allegations and was told that the Applicant would come forward for interview. He says that he indicated his work schedule for the following week and he indicated his availability to meet the Applicant. He states that it would be most suitable to meet him during the afternoons between 2 pm and 6 pm in the week after the telephone conversation. He said that he had two afternoons free for the purpose of conducting such an interview. He says that as a result of the telephone conversation he believed that it had been agreed that the Applicant would call into Tallaght Garda Station on one of the days indicated but that this did not occur.
It is clear that no specific appointment was made and while Sergeant Kelly, or Garda Kelly as he was at the time, may have believed that steps would be taken in the following week to arrange the interview, it is clear that no such steps were taken within that time and it appears that matters drifted for some considerable period of time thereafter. He has indicated in evidence that he got married in August 1998 and went on his Honeymoon and thereafter the file was taken over by a Garda Darren Young. This apparently was done by decision of Garda Kelly at the time, but he says that this would have been notified to his superior at the time.
He says that on 24th September he informed the Applicant's solicitors by telephone that he had been transferred from Tallaght Garda Station and that Garda Young would be available to interview the Applicant should he wish to come forward. He says that he maintained contact with Garda Young during his absence from Tallaght Garda Station and that Garda Young informed him that he had spoken with the Applicant's solicitors by telephone but that the Applicant had not yet come forward. He doesn't say when this is alleged to have taken place, but he indicates that towards Christmas 1998 he contacted the Applicant's solicitors by telephone concerning the Applicant and was informed that Mr. Eagar was dealing with the matter. He says that on two separate occasions he was informed that Mr. Eagar was unavailable, once because he was in court and once because he was attending a conference. He says that he left a message with a female secretary to the effect that he wished to speak with him about the Applicant. He says that he finally got to speak with Mr. Eagar in, he believes, December 1998 and that he (Mr. Eagar) told him that the Applicant did not wish to come forward for interview.
This situation was confirmed the following April in a letter from the Applicant's solicitors. But as I say, it is not in dispute that as of December 1998 the Gardaí were aware that the Applicant did not wish to go forward to be interviewed. The previous October a letter apparently was written by Messrs. Garrett Sheehan & Co. Solicitors seeking a response in relation to the proposal that then stood at the time for the Applicant to be interviewed. Garda Kelly indicates that he has never saw that letter at the time. What is striking is that Garda Young, who apparently took over the investigation of this matter, has not sworn any affidavit whatsoever in these proceedings. It is not clear what steps were taken by him.
There then appears to have been a situation from December 1998 where Garda Kelly, or Sergeant Kelly as he now is, says that he sought to establish the whereabouts of the Applicant. The Applicant in fact had always worked at the same place; a place to which a visit was made by Garda Kelly in May 1999, being The Cement Roadstone Club. It is apparently clear from the evidence that at that time he did know that the Applicant worked in that club and could be found there but that on the particular day he visited he was off duty.
Sergeant Kelly was cross-examined on his evidence and what is most striking about his evidence is the fact that apparently no notes had been kept by him in relation to his activity. He seems to be relying entirely on recollection, and certainly with regard to a number of matters raised in the course of cross-examination his recollection was established to be clearly inaccurate. He made very far-reaching claims in the course of his evidence which ultimately were not stood over by the Director of Public Prosecutions. This related to suggestions that he had spoken to Mr. Eagar who had refused to disclose the Applicant's address. Mr. Eagar has put forward an affidavit before this court, which has not been questioned, in which he emphatically denied any such suggestion, and in the circumstances this court has no hesitation in accepting the evidence put forward by Mr. Eagar in this regard. It is remarkable that if Sergeant Kelly wished to speak to the Applicant, that he at no stage addressed any query in relation to the whereabouts of the Applicant at a time when the Applicant may have sold his former residence and yet, as I have indicated, a period of several months elapsed before he went to the club in question in May 1999. Sergeant Kelly indicated steps that he took by reference to checking records - apparently social welfare records, motor taxation records and other records - to establish the Applicant's work position and where contributions might be made. But it is amazing that he does not appear to have addressed to the Applicant's solicitors any query in regard to establishing the whereabouts of the Applicant, because he indicates that it was his intention to arrest him.
He indicates that in May 1998 he established where the Applicant was employed and that on 20th July 1999 he arrested him at this location. I take the view that certainly from December 1998 to July 1999 a period of apparently seven months was allowed to elapse; a period which I believe to be inordinate in the circumstances and grossly excessive in the conduct of matters by the Gardaí.
The Applicant was apparently arrested and interviewed and the interview recorded on video tape. That as I say took place on 20th July 1999. Sergeant Kelly has sought to explain what happened thereafter. He indicates that the prosecution file was prepared and sent to the Respondent, The Director of Public Prosecutions, on 13th January 2000. Some period of time seems to be explained by reference to seeking to trace a Dr. Patrick McGrath. But again, it is clear that he was traced in September 1999 and a report was forthcoming from him some short number of weeks thereafter. So, again, the period from July to January 2000 was one where it can be said safely that matters were taking a very leisurely course.
It is indicated that submissions were raised by the professional officer responsible and that queries were raised and sent to the Garda Síochána under a letter of 11th February and that certain matters were confirmed on 15th February 2000. It appears that Sergeant Kelly approached the Laragh Counselling Services in Tallaght and the Eastern Health Board seeking reports in relation to the complainant, and these were received by him on 26th May 2000.
But the initial letter which was sent to the Eastern Health Board, which apparently was sent in February 2000, was mislaid and a second one was forwarded to them. Again it is not stated when the second letter was forwarded to them, but a reply to this letter received on 13th June. So again a period of months was allowed to elapse before that matter was taken in hand.
It is indicated that the response was sent to the Director of Public Prosecutions by letter of 26th June 2000. It was stated that a query not having been responded to, further information was sought under cover of a letter dated 4th July 2000. He says that this received a response dated 31st July 2000. He indicates that further submissions were made and considered on the file and that on foot thereof on 7th November a direction issued from the Director of Public Prosecutions to prosecute the Applicant and that he was arrested, charged and cautioned on 11th December 2000.
With regard to the various periods referred to, I take the view that certainly matters were allowed as I have said earlier - to drift with regard to the initial contacting of the Applicant with a view to having him interviewed in circumstances where the Applicant did not come forward at a time in June 1998, which apparently was the time when Sergeant Kelly anticipated that a response was going to be made on foot of the initial contact by Mr. Sheehan. Certainly no active steps were taken to expedite matters and as I have indicated matters were allowed to drift. I believe that certainly the period of approximately six months before a firm indication was given that the Applicant didn't wish to be interviewed was a period of time which shouldn't have been allowed to elapse and is excessive in the circumstances.
I cannot say that all the periods referred to are all periods of gross delay but they are certainly what has been I think fairly conceded by Mr. Collins on behalf of the Director to have been periods of time which have not been explained. There are gaps in this regard in relation to the periods.
In light of this situation I believe that there is certainly a period of prosecutorial delay arising in this particular case. The issue that arises therefore for consideration by this court is whether that period of delay or periods of delay is such as to entitle the Applicant to the relief which he seeks. This court has been addressed by counsel on both sides in relation to this area and a number of authorities have been referred to the Court. The difficulty that arises, arises in the context of apparent conflicting authority in this regard. In the case of P.P -v- Director of Public Prosecutions [2000]I.I.R. 403 a decision of this court delivered on 5th October 1999, Mr. Justice Geoghegan addressed the issue of prosecutorial delay in a case of some similarity to this insofar as it related to prosecutorial delay in the context of a case of delayed reporting of sexual abuse. A period of apparently 20 to 22 years was at issue in that particular case.
At page 410 of the report in that particular case, Geoghegan J. stated, having reviewed the circumstances of that case, that he had to decide whether preventing a trial from proceeding should arise. The issue was whether the additional blame-worthy delay caused by the Garda authorities should give rise to the relief. He indicated that arguments had been made that the additional blame-worthy delay caused by the Garda authorities in that case would not have added to any prejudice which already existed in the Applicant's defence. He dealt with the circumstances of that case, but he said:
"The difficulty with the argument is that it could equally be made if there was a further two years delay caused through the fault of the Gardaí."
And he stated as follows at page 411:
"I think that where there has been a long lapse of time as in these prosecutions for sexual offences between the alleged offences and the date of complain to the Gardaí, it is of paramount importance that the accused's constitutional rights are to be protected and there is no blame-worthy delay on the part of either the Gardaí or the Director of Public Prosecutions. If there is such a delay the courts should not allow the case to proceed and in addition actual prejudice need not be proved."
He conceded that a period at that time was to some extent uncertain with regard to the point that arose as to what the correct legal position was, but he concluded that in his view a constitutional right had been clearly infringed and therefore the trial should not be permitted to proceed.
This decision was followed in a decision of BF -v- Director of Public Prosecutions [2001] 1 IR 656.In this particular case again Mr. Justice Geoghegan, now a member of the Supreme Court, delivered judgment of the Supreme Court in which he made specific reference to his earlier decision in the case of P.P -v- Director of Public Prosecutions. He noted that his decision in the earlier case had not been appealed to the Supreme Court and he said that to some extent by analogy he took the view that in the case of a criminal offence alleged to have been committed by a child or a young person, as was the circumstance in the case of B.F -v- Director of Public Prosecutions that there is a special duty on the State authorities over and above the normal duty of expedition to ensure a speedy trial having regard to the obvious sensitivities involved. This related to the fact that in P.P -v- Director of Public Prosecutions he indicated that it was particularly incumbent on the State authorities not to contribute to further delay.
While recognising these authorities, counsel for the Director of Public Prosecutions has addressed to this court a number of other cases in which the courts have recognised circumstances of inordinate delay but refused nevertheless to grant to Applicants relief of the nature sought in those proceedings which was restraining the prosecutions in question - the matters have been addressed by the courts in the context of the right to a trial with reasonable expedition as opposed to the issue of whether an unfair trial is going to result - and authorities referred to by counsel for the Director in this regard include a decision of this court delivered by Mr. Justice Kelly in the case of McKenna -v- The Presiding Judge of the Dublin Circuit Criminal Court and the Director of Public Prosecutions; a decision which is unreported but delivered on 14th January 2000. In that particular case there was excessive delay which was indicated to exist, but nevertheless the Court in that particular case concluded that notwithstanding the inordinate and inexcusable delay on the part of the prosecution of those charges, the Applicant had not demonstrated that such delay had given rise to a real risk of an unfair trial; that no actual prejudice had been shown and the circumstances are not such as to give rise to the inference that the risk of an unfair trial has been established as a reality.
In a further authority Anthony McNamara -v- Judge Uinsinn MacGruairc the Supreme Court delivered judgment on 5th July 2001 in which Murphy J. delivered the judgment with which the other members of the Court agreed, where he was again faced with the issue of undue delay. He found the explanation for the delay to be unconvincing in the particular case. On the last page of his judgment he says:
"Unquestionably the right of an individual to a fair trial far transcends the communal interest or indeed that of the victim to see that suspects are duly prosecuted. Nevertheless the interest of the public is, as was pointed out in the Wingo case, a factor to be considered. Likewise, regard may properly be had to the fact that the Applicants were not incarcerated pending trial. Again, it may be appropriate to avert to the fact that none of the Applicants appear to have made an enquiry as to the progress of the case or demanded the return of property taken from them for forensic testing. There is no suggestion that the Applicants were lead to believe that they would not be prosecuted or that the were left in any particular state of anxiety or concern with the delay which did take place."
He concluded:
"Whilst I am satisfied like the trial judge that a delay did occur and I take he view that there was no adequate explanation for it, I am satisfied that the delay has in no way prejudiced the Applicants or any of them. But in the circumstances haven regard to all the material facts, that it would be unjust and unnecessary to grant the relief sought."
He then concluded that the appeal should be dismissed. The further authority relied upon by the Director is the case of P.M. -v- Malone [2002] 2. I.R. 580 in which the Supreme Court addressed the issue of delay again. This included the question of a fair trial and the issue of a trial with reasonable expedition. In that particular case the Supreme Court restrained the further prosecution of the Applicant but did so in the particular circumstances of that case.
It appears in the judgment of the Supreme Court in that particular case that the view was taken that notwithstanding a finding of a breach of the right to a trial with reasonable expedition, that that wasn't necessarily a determinant of the matter in that particular case and the matter still remained to be addressed by the Court. At page 579 of the report the Chief Justice stated inter alia as follows:
"I am accordingly satisfied that in determining whether the concern and anxiety caused to an accused person is such as to justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated, the Court depending entirely on the circumstances of N e particular case ma be entitled to take into account no merely delay subsequent to his being charged and brought to trial but also delay prior to the formal charge.
It is to be remembered that in upholding the Applicant's right in such case, the Court is not merely vindicating and protecting the rights of all persons coming before the courts to the dispatch of criminal proceedings against them with reasonable expedition, it is also upholding the general public interest in the speedy prosecution of crime."
It appears that the Court in that particular case addressed in the context of whether it should grant the relief, the interest adverted to by Powell J. in Barker -v- Wingo, which included issues of pretrial incarceration, anxiety and the question of a fair trial.
On behalf of the Director it is submitted that in this case the question of a fair trial is not being denied by reference to the delay complained of. There has been no pre-trial incarceration, and in the context of the case that this court should not grant to the Applicant the relief in view of the overall circumstances of the case notwithstanding any assertion on the part of the Applicant in relation to anxiety. In this regard at paragraph 48 of his affidavit the Applicant addressed the question of his right to trial in due course of law and a trial with reasonable expedition. At paragraph 47 he indicated that his anxiety and worry in respect of the matters alleged had been significantly exacerbated by his apprehension and fear and that the lapse of time outlined above by him rendered him unable to adduce evidence of an exculpatory nature.
The position therefore is that while in the earlier decision of B.F. the Supreme Court took into account the particular circumstances of the age of the Applicant and addressed the issue of the entitlement to the relief on the basis of the prosecutorial delay, in P.M. -v- Malone the Court inferred anxiety and granted relief. The issue really arises as to whether it is necessary in the circumstances of any case for an Applicant to identify any particular circumstances other than mere delay on the part of the Prosecution. This is the difficulty that is faced by this court in trying to reconcile these decisions. But in all of the circumstances I take the view that the only case that is directly on point in one sense is the P.P case which was approved by the Supreme Court in the B.F. There is undoubtedly an apparent conflict between the decision in that case and the case of P.M -v- Malone. If I was asked to determine this case on the basis of any finding of prejudice, I could not find prejudice to have been established by the Applicant in this case. I am not at all satisfied that the circumstances addressed by him in paragraph 47 of his affidavit give rise to any serious increase in anxiety. But undoubtedly there must have been some anxiety once confronted by the Gardaí. But matters have been allowed to drift unnecessarily, and in all of the circumstances I believe, having regard to the earlier authority in P.P. followed by the decision in B.F., that I should grant to the Applicant the relief which he seeks having regard to the complaint of prosecutorial delay which I found to have been established at least to some degree but certainly not to the degree of 34 months. In the circumstances I will grant to the Applicant the relief which he seeks.
MR. O'BRAONAIN:
In the circumstances I would ask the Court to make an Order providing for the Applicant's costs
MR. O'BRAONAIN:
I cannot resist the Applicant's application for costs but I would ask your Lordship for a stay on that Order in the usual terms?
MR. JUSTICE O'CAOIMH:
I think that follows, yes.
END OF JUDGMENT
Andrais ÓCaoimh
29-vi-2004
