THE SUPREME COURT
Keane C.J.
Denham J.
Murphy J.
Barron J.
Hardiman J.
349 & 351/98

BETWEEN:
J. O’C.
Respondent/Applicant
and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant/Respondent

[Judgments by Keane C.J., Murphy J. and Hardiman J.; Denham J. agreed with Keane C.J., Barron J. agreed with Hardiman J.]

JUDGMENT delivered the 19th day of May 2000 by Keane C.J.

The applicant is a retired member of an Garda Síochána, now aged 69, who has been charged with 16 counts of indecent assault of C.O’S over a period of time between 20th October 1974 and the 19th October 1978. C.O’S was at the time of the alleged offences a girl aged between 10 and 13 years of age. Her father is a retired sergeant of An Garda Síochána who was a next door neighbour of the applicant. Both her parents were said by her to be very friendly with the applicant.

This case is one of a number which have come before the High Court and the Supreme Court in recent times in which persons charged with offences of this nature

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have sought orders of prohibition restraining the continuance of the proceedings against them on the ground that, having regard to the lapse of time since the offences are alleged to have been committed, it would be difficult or impossible for them to be afforded a trial in due course of law. In the present case, the President of the High Court acceded to the application and from his judgment and order an appeal has now been brought to this court.

The statement of the evidence to be given by C.O’S contained in the book of documents served on the applicant pursuant to s. 6(l)(d) of the Criminal Procedure Act, 1967 is as follows:

“1 am 31 years old, single and living at the above address. I am employed as a secretary in [firm named]. My father, M. is a retired sergeant in An Garda Síochána. When I was about 5 or 6 years old, I moved from B. to S. My father and four other Gardaí built a number of houses beside each other on [B] Road. My next door neighbour was Garda J.O’C., No. 6 B. Road. We lived at No. 4. J. O’C. is now retired. There were 5 children in my family. I had one sister M. (aged 35 years) and three brothers, D. (36 years), P. (22 years). My other brother N. died 4 years ago in a traffic accident. He would have been 33 years old now. My parents were very friendly with Garda J. O’C and his wife M. My mother used to visit M. regularly and I was often in their house. I used to play with the O’C children, one, who was 2 years older than me and one who was about 2 years younger than me. When I was about 9 or 10 years old Mr. O’C started to molest me. It started when I was in 5th Class in National School. Mr. O’C always tickled me and

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(3)

played with me and I liked him. I cannot remember the first time he molested but he used to bring me into his garage and put his hand up my skirt and rubbed my chest. He then used to put his hand down my pants and touched my vagina. He used to rub himself up against my back. I didn’t know what he was doing but I could feel his penis against me and it was hard. He did this about once a month for years until I was 14 or 15 years old. He told me never to tell anyone what he was doing or I would be put in jail or sent away for being bad. As I grew older he used to comment that my breasts were growing and he used to comment on my pubic hair when it started to grow. He used to make crude remarks about it being spiky. He always started off playing a game and then he would start rubbing and feeling me. He always stuck his finger into my vagina.. This used to hurt me. This always happened in the Garage. I can remember when I was about 12 years old, I was in his house. He was by himself. He took me into the sitting room. He lay down on the couch and pulled me onto it with him. He kissed me on the neck. He took down my trousers and pants and started feeling me. He took out his penis and I could see it. He started rubbing it against my bum. He didn’t enter me. I don ‘t know if he ejaculated. This went on for about 10 minutes but I can ‘t be sure. He continued to molest me on a regular basis. I remember when I was thirteen, he took me into his Garage again and put his finger into finger into my vagina. That night I got my first period and I thought I was bleeding because of what he had done. I remember when I started wearing a bra, he used to pull it up at the front to feel my breasts. I never told anybody what he was doing. When I was 14 or

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(4)

15 years old, I knew that what he was doing was wrong. I avoided him and ran off if I saw him coming near me. As the years went on he never said any thing to me but he always gave me a look as if he was sneering at me. In 1985 when I was 21 years old, my family moved back to B. I have seen J. O’C a few times since then but I have never spoken to him except to sympathise with him when his wife died in 1993. As a teenager I became very disruptive at home. I started to drink a lot when I was 17 years old. I found it very hard to have a relationship with fellows and I have never really had a proper relationship with a man. I blame this on what J.O’C did to me. About six months ago I took a lot of drink and overdosed on 40 anti-depressant tablets. My brother, P. found me the next morning and I was taken to Hospital. I was placed on a life-support machine for a few hours. I have received counselling and during the counselling, I told the Counsellor what J. O’C did to me when I was young. The first time I told anybody what had happened was when I was 24 years old. I returned home from America after working there for 3 years and I told my mother. She was very upset. I later told all my family and my sister.

I was sexually assaulted by J. O’C approximately 40 or 50 times over the years 1974 to 1979 or 1980.
In answer to your question why didn't I report the abuse earlier I can only say that Mr. J.O’C was a neighbour and friend of my parents and for many years I felt I was to blame and was filled with shame and anguish. Through counselling I realised that the abuse was not my fault and that the actual damage it had caused me had been destructive to me in later life. The

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child living next door to Mr. O’C was turning 10 or 11 years old at the time I reported the abuse. and as my conscience could not leave this matter rest, I felt I had to protect this child from him. I feel I am now a much stronger person and looking back with hindsight realise that I should have reported him years ago but unfortunately the effects that the abuser holds on the ‘child within’ even after all this time still sends a shiver down my spine.”

The applicant was interviewed by the Gardaí on 17th November 1996 and denied the allegations. In his grounding affidavit in these proceedings, he says that his wife died on 12th March 1993 and that if she were alive she would have been able to give evidence about the frequency of visits by C.O’S to their house and whether it would have been possible for him indecently to assault C.O’S when she and his children were living there. He also says that he does not recall ever having been alone with C.O’S in the house and would have had no reason for being there alone with her. The applicant also deposed that he has a severe heart condition and was admitted to Beaumont Hospital for treatment on 28th February 1997 and detained for 14 days. He also says that he has been diagnosed as suffering from diabetes. He says that the bringing of the criminal proceedings against him has resulted in great stress and anxiety.

An affidavit was also filed by his general practitioner to the effect that he believes that the applicant has been under severe psychological stress since first learning from the Gardaí that he was being accused of child sexual abuse. The doctor also expressed the opinion that physically the applicant would have difficulty in coping with the pressure and stress of a trial before a judge and jury.

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(6)

During the hearing in the High Court a consultant psychologist gave evidence of having assessed C.O’S. She concluded that the delay on the part of C.O’S in reporting the abuse was “reasonable”. In particular, she attached importance to the fact that C.O’S had brought the matter to the attention of her mother in 1988 when she was an adult, and that her parents had not taken any action at that time. She said that this would have confirmed C.O’S’s view that her parents would not have been able to support if she had informed them of the alleged abuse when she was a child: it was absolutely crucial for a child in such circumstances to have one adult ally to believe and support them.

In his judgment, the President said that he was satisfied on the evidence of the psychologist that C.O’S’s delay in reporting the case was brought about by reason of the effect which her association with the applicant had upon her at the relevant time. He said that he was satisfied that her capacity to speak about the incident arose only as a result of counselling and because of what she saw as the necessity to prevent the child living next door to the applicant from being subjected to similar abuse.

The President said, however, that in the light of a number of factors, he was satisfied that the effect of the delay in the case, however it might have been caused, would result in the applicant being deprived of a fair trial. These were:-

(a)	The inability of the applicant to have available to him the evidence of his wife as a witness for the defence;

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(b)	The delay which would deprive him of the opportunity of establishing his whereabouts on the dates of the alleged offences;

(c)	The fact that he was then 67 years of age and not as astute and sharp as he would have been approximately twenty years ago;

(d)	His present state of health.

He summed up his conclusion as follows:-

“I now accept that he is a man in delicate health, limited in his capacity to defend himself, deprived of what might well have been one of his best witnesses ...a trial of the applicant in these circumstances will not constitute an observance of his constitutional right to a fair trial.”

It is unnecessary to traverse again a series of decisions in this court which have set out the principles relevant to applications of this nature. They have been explained in detail in the recent decisions of this court in B .v. The Director of Public Prosecutions [1997] 2 ILRM 118 and C. .v. the Director of Public Prosecutions (unreported; judgments delivered May 28th, 1998). In each case, the first enquiry must be as to whether the delay has been 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 himself or herself will be impaired. Special considerations apply to cases of alleged sexual offences against children where, as here, no blame for the delay can be attached to the prosecuting authorities. In such cases, the court invited to stay the prosecution must decide whether, as a matter of probability,

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(8)

assuming the complaint be truthful, the delay in making it was referable to the accused’s own actions.

In the present case, I have no doubt that the President was entirely justified in arriving at the conclusion which he did that, assuming the complaint to be truthful, the delay in making it was so referable to the applicant’s own actions. Given the respective ages of the applicant and C.O’S and the fact that he was not merely a significantly older person but a person in authority, this was classically a case in which there might be a considerable unwillingness on the part of the child to make any complaint. That is entirely borne out by the uncontradicted evidence of the psychologist. Again, the further delay from 1988, when she made a complaint to her mother, to 1995 was considered to be entirely explicable by the psychologist on the ground that the failure of her parents at that stage to do anything about the matter would have been an understandable factor in leading C.O’S to the conclusion that there was not much point in pursuing the matter. In my view, the President was entitled to draw the inference from the psychologist’s evidence that the failure of C.O’S to take any action, until the episode in 1995 when she received counselling and realised that she might be putting another child in jeopardy, was ultimately referable to the applicant’s actions, assuming the complaint to be true.

Even in cases where, assuming, as one must do for the purpose of the application, that the complaints are true, the court finds that the delay is essentially due to the applicant’s own conduct, there remains the paramount necessity to ensure that the applicant receives a trial in due course of law. While I am satisfied that the President

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(9)

was correct in law in going on to consider the various factors which might, in the circumstances of the present case, have deprived the applicant of a trial in due course of law because of the delay, I am also satisfied that he was not correct in drawing the inference which he did that the degree of prejudice was such as to give rise to a real and serious risk of an unfair trial.

While it was said during the course of argument that the allegations were not of a specific nature, I find it difficult to understand the basis for that suggestion. I have set out in full at an earlier part of this judgment the statement of C.O’S contained in the book of documents. It is undoubtedly the case that she does not specify the dates and times at which the alleged abused occurred. Even if this complaint had been brought within a period where the complaint as to the delay would have been so insecurely based as to be almost unarguable – say within a period of three or four years from the date of the alleged abuse - it would have been surprising if she had been able to specify the dates and times in that manner. In a case of this nature, where the complaint is of a repeated pattern of sexual abuse stretching over a relatively lengthy period, such lack of detail is almost inevitable and it does not appear to me that the statement in this case is any more defective in this respect than statements in other cases in which this court has been satisfied that the inference of the necessary degree of prejudice could not be drawn.

In this case, as in the recent decisions of this court in which the applicable principles of law were laid down and from which we were not invited to depart, the court must proceed on the assumption that the allegations are well founded and, to that

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10

extent only and solely in the context of these specific proceedings, the presumption of innocence does not apply. Were the law otherwise, it would inevitably follow that, even in cases where the abuse has been perpetrated in the home by a parent or step-parent in circumstances such as arose in B. .v. DPP, the court would be obliged to restrain the continuance of the trial or itself embark, without a jury, on a trial in which the guilt of the accused would effectively be determined by a judge sitting without a jury. That, in my view, is not and should not be the law.

It is undoubtedly the case that, in prosecutions of this nature, it is more difficult to conclude that the real and serious risk of an unfair trial can be avoided by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. That, however, of itself cannot be a reason for refusing an order of prohibition where, as here, it has not been established that there is real and serious risk of an unfair trial.

While the applicant says that he will be handicapped in his defence by the fact that his wife is now dead, it has to be borne in mind that, if the complaints of C.O’S are true, it is unlikely that the offending conduct would have taken place while his wife was actually in the house and that he would probably have taken steps to conceal his behaviour from her. His state of health, although it will doubtless add to the stress which he is already undergoing, will not, of itself, affect his ability to defend himself. As for the possible absence of alibi evidence, this is a feature which arises in almost every case of this nature and is not specifically related to the time which may have elapsed since the offending conduct is alleged to have taken place. It must always be

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11

remembered that, in any event, these are all matters which can be drawn to the attention of the jury at the trial of the applicant.

I would allow the appeal and dismiss the cross-appeal and would substitute for the order of the High Court an order refusing the application for an order of prohibition.

THE SUPREME COURT

JUDICIAL REVIEW

RECORD No.64 JR 1998
APPEAL No. 349/98 & 351/98

KEANE CJ
DENHAM J
MURPHY J
BARRON J
HARDIMAN J
BETWEEN:
O’C.
APPLICANT/RESPONDENT
AND

DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT/APPELLANT

JUDGMENT OF MR. JUSTICE FRANCIS D MURPHY DELIVERED THE 19TH DAY OF MAY, 2000

J.O’C (the applicant) was charged on the 23rd day of September, 1997 with sixteen separate charges of indecent assault on Ms C. O’S. between the 20th day of October, 1974 and the 19th day of October, 1978.

Pursuant to the liberty given in that behalf the Applicant applied by way of Judicial Review for an order of prohibition prohibiting the Director of Public Prosecutions (the DPP) from continuing with the prosecution of the charges pending against the Applicant in the Dublin Circuit Court.

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The two grounds on which the Applicant relied were as follows:-

1 That the Applicant has been deprived of his rights to a trial with due expedition by virtue of the delay in bringing the prosecution.

2 The Applicant has been prejudiced in his defence of the proceedings by virtue of delay in bringing the proceedings.

The application was heard by the President of the High Court on the 13th day of November, 1998. In his judgment delivered on the 25th day of November, 1998 the learned President reached two distinct conclusions. First, he was satisfied on the evidence of Ms Elaine Fitzgerald, Consulting Psychologist, that the Victim’s delay in reporting the case was caused directly or indirectly by the actions of the Applicant. Secondly, the President concluded that the effect of the delay would result in the Applicant being deprived of a fair trial. He adverted to the fact that the Applicant was 67 years of age; suffering from a severe heart condition and from diabetes. The evidence was that he was suffering from severe psychological stress as a result of the complaints made against him and that the proposed proceedings would cause further stress and anxiety to him. In those circumstances the President made an order prohibiting the trial on the charges aforesaid. From the second conclusion and the order made thereon the DPP has appealed and the Applicant has cross-appealed the President’s decision on the first issue.

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For the reasons set out in the judgment delivered by me in SF v. The Director of Public of Prosecutions (unreported judgment delivered the 30th day of June. l999). I question the interpretation and application of some of the principles which appear to have emerged in the evolving jurisprudence relating to the delay in the institution of criminal proceedings and the effect which such delay may have on the constitutional rights of defendants. As explained in my earlier judgment I take the view that the implicit constitutional right in this country to a trial with reasonable expedition - like the express constitutional right in the United States for a speedy trial - can be measured only against a time scale which commences with the Director of Public Prosecutions or other appropriate State agencies obtaining sufficient information and evidence to prosecute the crime ultimately alleged against an accused. I do not say that all other delay is irrelevant. In addition to the right to a trial with reasonable expedition (which, to my mind, is the correlative of the absence of delay on the part of the relevant authorities) every citizen has a constitutional right to a fair trial. No doubt the passage of time renders more difficult the prosecution of the crime or the presentation of the defence to it. However the mere lapse of time is of itself no bar to a prosecution. There is no statute of limitations expressed in our statutory laws or implied in our Constitution in relation to criminal charges.

In the present appeal the parties confine themselves to what are generally accepted principles governing the effect of the passage of time between the commission of an alleged offence -and in particular a sexual offence - and the trial of an accused in respect thereof. Where a lengthy period of time has elapsed since the commission of the alleged offences - and clearly that is the present case - and the Defendant seeks an order restraining the prosecution in respect of them it is now the established practice for the DPP to arrange to have the victim

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examined by a competent medical expert with a view to satisfying the Court that the effect of the Defendant’s wrongdoing on the victim was such as to prevent her (or him) from reporting the crime to the appropriate authorities. It had been readily understood that a young person who had been abused by an adult, and in particular an adult who enjoyed a position of authority and respect in the community, would have grave difficulty in reporting the crime. What was less widely understood was the domination which a wrongdoer may achieve over his victim and which can survive over a lengthy period and that notwithstanding the maturity of the victim and the acquisition of a changed and secure environment by her.

The DPP sought to obtain evidence of that description in the present case. Ms O’S was assessed by a consultant psychologist on the 25th May, 1998. Ms O’S was then approximately 34 years of age. In her report and in her subsequent evidence to the Court the psychologist, Ms Elaine Fitzgerald, recalled the horrific consequences for Ms O’S of the abuse perpetrated on her by a close neighbour and respected friend of her family. As to the consequences of the abuse on her capacity to take action in respect of it she explained Ms O’S’s position in the following terms:-
“In Ms O’S’s case she reports that she did not want ‘friction’, had an affectionate relationship with the alleged abusers wife and wished to take her feelings into consideration, and in any case had a fear of not being believed.”

In the summary contained in her report the psychologist added:-

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‘Having averred further sexual abuse by the age of 14 Ms O’S felt that no further action needed to take place until new matters came to light, namely, her concern for another child.”

She went on to express her conclusion in the following terms:-
“It is not possible to retrospectively prove that Ms O’S was psychologically ‘disabled’ in the most narrow legal sense of the word, but in terms of her emotional development and taking into account the particular context in which she was growing up, it was more than reasonable that her disclosure was delayed. Given the psychological problems that Ms O’S subsequently suffered (listed above) one gets some idea of the level of stress that she was under as a child. This distress was ‘put on hold’ and is now being resolved in adulthood.”

There is no dispute as to the appalling physical and psychological consequences endured by Ms O’S as a result of the repeated sexual abuse on her as a teenager. What the psychologist says, as I understand her evidence, is that it was reasonable and understandable that Ms O’S did not report the matter to her family before the year 1988 and did not report the matter to the Eastern Health Board - who in turn reported the matter to the Gardaí - until nearly ten years later.

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The circumstances of the Defendant too have changed since the date on which the last of the crimes alleged was committed. He is now some 20 years older and. as the President pointed out in his judgment, not as astute and sharp as he would have been at an earlier time. There is also uncontradicted evidence that he is suffering from a variety of ailments which would be aggravated by the prosecution of the proceedings against him.

However, it was the death of his wife in 1993 to which particular attention was drawn. For the years immediately after the alleged offences she was residing with the Defendant as also were members of his family. What evidence the deceased might have been able to give of the circumstances in which the offences were alleged to have taken place is not known. It may be a matter of some speculation. The fact is that this is a potential source of valuable information no longer available to the Defendant. In analysing the circumstances affecting the trial the learned President concluded his judgment with the following observations:-

“I now accept that he (the Defendant) is a man in delicate health, limited in his capacity to defend himself deprived of what might well have been one of his best witnesses and I believe that a trial of the Applicant in these circumstances will not constitute an observance of his constitutional right to a fair trial”.

Without in any way minimising the consequences of the appalling outrage perpetrated on her, I do not believe that the evidence of Ms Fitzgerald supports the conclusion that Ms O’S was so dominated by the wrongdoer or so disabled by his conduct as to prevent her from reporting the wrongs done to her. It seems to me that the thrust of the evidence given by the psychologist is that Ms O’S made a conscious, reasonable and understandable decision not to

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speak of the matter. The psychologist herself accepts that she cannot prove “disablement” in relation to the reporting of the crime and seeks rather to explain the reasonableness for the failure so to do. The analysis by the psychologist was that, by the age of 14, the young victim managed to escape further abuse and concluded that “no further action needed to take place”. Clearly Ms O’S revised that judgment - and was able to do so - when she became apprehensive that another child was being exposed to a similar risk of sexual abuse as had been suffered by her.

Ms O’S did report the abuse to her family about 1988. Again it is entirely understandable that the parents of Ms O’S would be reluctant to involve their daughter in reliving the horrific events of 10 years earlier or enduring the embarrassment of giving evidence in a criminal trial but there is no question of either parent being dominated or excessively influenced by any action of the wrongdoer.

If the law requires the DPP to satisfy the Court that the delay which occurred was caused by the Accused or some malign influence exercised by him then, in my view, that onus has not been discharged.

As to the changed circumstances of the Defendant I do not believe that any of the factors referred to are such as would render a trial unconstitutional. Even if the wife of the Defendant could or might have provided evidence of significant importance to the Defendant I do not believe that her unfortunate death would render the trial unfair or unconstitutional. There must be many cases in which a material witness dies before a case comes to trial. If the death were to occur during a period where there had been culpable delay on the part of the

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prosecution then the potential injustice to the accused would have to be weighed against the public interest in the prosecution of crime (see Barker v. Wingo [1972] 407 US 514 and The State (O’Connell) .v. Fawsitt IR 362). However in the absence of delay on the part of those responsible for the investigation and prosecution of crime the exercise is different. The onus is on the Defendant to prove affirmatively that a fair trial is impossible. In the present case the Defendant has indicated a variety of difficulties and problems but in my view they fall far short of establishing that a trial in these circumstances would not possess the character of a fair trial as required by the Constitution.

In those circumstances I would allow the appeal by the DPP and set aside the order made by the learned President prohibiting further prosecution of the charges against the Applicant.

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THE SUPREME COURT
349 & 351/98

Keane C.J.
Denham J.
Murphy J.
Barron J.
Hardiman J.
O’C
APPLICANT/RESPONDENT
AND

DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT/APPELLANT

JUDGMENT of Hardiman J. delivered the 19th day of May 2000

By order of the 25th November 1998 the High Court (Morris P.) granted an injunction restraining the Appellant, the Director of Prosecutions, from further proceeding with a prosecution of the Applicant entitled D.P.P. v O’C. The Director has appealed against this order and the Respondent has cross-appealed against certain specific findings of the President.

In the criminal proceedings the Director has preferred sixteen charges of indecent assault involving the same alleged victim. These are alleged to have taken place between October 1974 and October 1978. The grounds on which the injunction was sought relate to

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the lapse of time between the alleged offences and the proposed trial, and to the lack of specificity in the charges.

Undisputed Facts

The following are the undisputed facts which form the background to this appeal. The Applicant is a retired member of an Garda Síochána and will be 70 years of age on his next birthday. He is a widower with two adult children, his wife having died in March 1993. He suffers from a number of medical conditions which will be detailed later.

The alleged victim of the offences is a Lady who will be 36 years of age on her next birthday. She is single and lives with her sister. Apart from a three year period between 1985 and 1988 when she worked in America, she has been employed in a large Irish company in a personnel/administrative capacity. She suffers from a variety of psychological and emotional difficulties which will be referred to later. She has four surviving siblings.

It appears that in or about 1970 the Applicant and the alleged victim’s father, together with other members of an Garda Síochána built a number of houses in North Dublin and resided there with their families. The Applicant and the alleged victim’s families resided in this location at all times material to the alleged offences. The alleged victim’s family moved away to another county in or about 1986.

In April 1996 the Gardaí were informed of allegations of sexual abuse by the Applicant against the alleged victim. This was some twenty two years after the offences were alleged to have commenced and eighteen years after they were alleged to have ended. After certain steps had been taken the Applicant was made aware of these allegations in November of that year. He denied the allegations at the time and again denied them when charged and has denied them on oath in the affidavit grounding his application for injunctive relief. After

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further steps were taken by the Gardaí the Applicant was charged with sixteen offences on the 23rd September l997 and was returned for trial in February 1998.

The allegations themselves are of a an unspecific kind. They allege indecent assault at undefined times between the time when the Applicant was 9 or 10 years of age and the time she was 14 or 15. They are alleged to have taken place in the garage of the Applicant’s house with the exception of one indictment which it is alleged to have taken place in the Applicant’s sitting room. The alleged victim claims that the abuse occurred “about once a month for years until I was 14 or 13 years old.” The charges have been formulated by taking the period between the 20th October 1974 and the 19th October 1978 and preferring a single charge in respect of each three month interval between those dates.

It is undisputed that the alleged victim made no complaint to any person at or near the time of the alleged offences. Approximately a decade later, 1988 or 1989, she told first her mother and then all her family what she alleged. Her parents took no step at that time because, as her father told the Gardaí:

“I felt that my daughter was an adult then and able to make up her own mind as to what she should do.”

Nothing further was done by the alleged victim or any other person in relation to the allegations until 1996. At that time the alleged victim contacted the Health Board because. she says, she was aware that a young child had moved into her original home and she felt the child was at risk. The Eastern Health Board notified the Gardaí. On the evidence, this led to the criminal proceedings. The alleged victim’s own attitude, according to a Psychologist who swore an affidavit on behalf of the Director was that:

“she never had any intention for it to end up as a legal matter. It was taken out of her hands by the Health Board and the Gardaí.”

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Date of Intended Trial

On the above facts, and assuming that, if the Director succeeds in this appeal it will be possible to hold a trial later in this calendar year, that trial would take place approximately 26 years after the alleged offences are said to have commenced and 22 years after they are said to have ended.

The Applicant’s Case

The Applicant relies upon the lapse of time between the alleged offences and the proposed trial. He says that this deprives him of a right to trial with due expedition; that it prejudices him in his defence and that he is further prejudiced by virtue of the lack of specificity in the charges. He says that to the best of his recollection he was never in his house alone with the alleged victim and had no reason to be there alone with her. He says that his late wife would have been able to give evidence about the frequency of the Complainant’s visits to their house and whether it would have been possible for her to have been assaulted in the manner and with the frequency she describes. He has been in retirement since 1987, he is approaching 70 years of age and is not as astute and sharp as he would have been 20 years ago. His doctor has also sworn an affidavit which he says that the Applicant has been under severe psychological stress since first learning of the allegations; that since about February 1997 he has been suffering from a severe heart condition which he was hospitalised but failed to respond to medical treatment. Later in the same year he was diagnosed as having diabetes which requires further separate treatment. The doctor says that the stress he is enduring in relation to the prosecution is having a detrimental affect on his

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health and that if put on trial he would find it difficult to cope with the inevitable pressure and stress.

The Applicant also complains of a lack of specificity in the charges in the context of the very long lapse of time which has taken place. By reason of these things he says he is unable to correlate his movements and other matters sufficiently to give his solicitor specific instructions with which he might hope to conduct the defence.

The Applicant’s substantial complaint is a common one in cases of this nature. It is that (even leaving aside factors peculiar to this Applicant) lapse of time between the alleged offences and the date of trial renders it very difficult to make any defence other than bare denial. He complains that this, together with the specific factors mentioned, creates a real risk of an unfair trial which would not be a trial in due course of law, as required by the Constitution.

The Appellant’s Case

The Appellant, the Director of Public Prosecutions, denies that there has been any delay by him in prosecuting the Applicant. He says that if there was delay in the making of complaints in the criminal case, the Applicant himself has been responsible for the delay. He claims that the Applicant was, at the time of the alleged offences a member of the Gardaí and a neighbour and friend of the Complainant’s parents and in those circumstances “was in a position of dominance and control” over the complaint. He further says that there is no “time bar” to the prosecution of the relevant offences and that the Applicant has not established that any alleged delay has caused or will cause him prejudice in the preparation or presentation of his defence. The Director denies that the Applicant has been deprived of his right to a trial with due expedition. He says that the length of time elapsing between the date

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of the alleged offences and the date of trial will not be so great as to render the trial unfair. He says this particularly having regard to the capacity and duty of the trial judge, by appropriate direction, to counter any alleged prejudice and secure that the trial of the Applicant will be fair in all respects. He says that the Book of Evidence contains the evidence against the Applicant “with as much specificity as is available giving the nature of the offences charged”. He says that the lack of precision complained of is not such as to make it impossible for the Applicant to defend himself.

In further submissions the Director concedes that the Courts will restrain a trial where there is a real or serious risk that the accused cannot obtain a fair trial, but submits that the onus of proof of the proposition that there is a real risk that the Applicant could not obtain a fair trial is on the Applicant. He further submits that the Applicant must establish that the risks of an unfair trial could not be avoided by appropriate rulings and directions on the part of the trial judge.

The Director relies on a series of cases in which this Court has enunciated the principles to be applied to an application such as the present one: these will be further discussed below.

The Director specifically submits that the offences are alleged to have been committed over a period of years when the alleged victim was very young and submits that while there was undoubtedly delay in reporting the alleged offences, it is self-evident that the alleged victim continued to suffer trauma and has not deliberately postponed the making of the allegations in circumstances where any culpability could attach to her. At the hearing, the D.P.P. further contended that the presumption of innocence applies only in a criminal trial, and not in these proceedings.

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Outline of Judgment

I propose to deal with the legal aspects of this matter in the following way:

I. The general effect of lapse of time on a proposed trial.

II. Specific aspects of lapse of time in alleged sexual offences involving children.

III. Specific aspects of the present case.

Affect of Lapse of Time on Fairness of Trials: General

The term “delay” is very often used in cases on this topic to describe the lapse of time between the happening of an event which gives rise to legal proceedings and the trial of the action based on it. It seems to me, however, that this term has, in some of the cases at least, acquired a connotation of a lapse of time for which some person is culpable. While culpability may well be an important consideration, especially in determining the parties entitlement to the indulgence of the Court, it is best avoided at least at the early stages of this discussion. Accordingly I prefer the more neutral term “lapse of time”. In reviewing the authorities however the word “delay” will frequently appear in quotations and it must be gathered from the context whether culpability is or is not implied.

It has long been recognised that lapse of time is intrinsically prejudicial to the fairness of a trial. There is ample authority for this proposition in relation to cases of all kinds, civil as well as criminal and whether the trial is to be held with or without a jury.

Leaving aside very old cases, the decision of this Court in O’Domhnaill v Merrick [1984] IR 151 is a convenient starting point for a survey of this topic. This is because the case mentions several of the earlier Irish decisions and was itself applied subsequently.

O’Domhnaill was a case in which a Plaintiff issued proceedings in 1977 in respect of a road accident which occurred in 1961 when she was three years old. The Statute had not

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run against her by reason of infancy She did not deliver a statement of claim within the time limited and in 198 she applied for an extension of time to do so. The application was refused and an order was made dismissing her action for want of prosecution. She appealed to this Court against that order. The Court noted that, if she was successful, she would be unlikely to get her action on for hearing before the following year, which would be 24 years after the accident. The delay was held to be inordinate and inexcusable. On the topic of its effect on the Defendant, Mr Justice Henchy speaking for the majority in this Court said:

“I consider that it would be contrary to natural justice and an abuse of the process of the Court if the Defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learnt 16 years after the accident.”

More generally the Learned Judge said:

While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1983 of a claim far damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result in terms of the issue of liability or the issue of damages, or both. Consequently opinion, the Defendant who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial.”

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Having noted the fact that the Plaintiff’s action was not defeated the Statute of Limitations Mr Justice Henchy added:

“But that does not mean that the proceedings may not be struck out for being an abuse of the process of the Courts.”

The learned Judge then noted that the Courts in the past had been reluctant to exercise their equitable jurisdiction to terminate stale claims at a time when the statutory period of limitation had not expired. He continued:

‘However the Statute of Limitations 1957 was enacted in a legal milieu which makes such reluctance to intervene inappropriate. Apart from implied constitutional principles of basic fairness of procedures, which may invoked to justify the termination of a claim which places an inexcusable and unfair burden on the person sued one must assume that the Statute was enacted (there being no indication in a of a contrary intention) subject to the postulate that it would be construed and applied in consonance with the State’s obligations under international law, including any relevant Treaty obligations. The relevance of that rule of statutory interpretation in this case lies in the fact that Article 6(1) of the Convention of the Protection of Human Rights and Fundamental Freedoms (1950) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law’.” (emphasis added)

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The learned judge however expressed no concluded view on whether the Statute should be deemed to be in conformity with the Convention because the point had not been argued. He concluded:

“Although the Plaintiffs claim is not statute barred. I would hold that the lapse of 24 years between the cause of action and the hearing of the complaint - a delay which is virtually entirely the fault of the Plaintiff or her advisers - so patently and grossly unfair to the defendant that her claim to have the case against her dismissed is unanswerable.”

In a previous case of the same sort, in Sheehan v Amond [1982] IR 235 the Supreme Court was unanimous in dismissing for want of prosecution a claim where the lapse of time involved would have been 17 years. The Court found “unanswerable” the Defendant’s submission that:

“….it would be contrary to the fundamentals of fair court procedures if after what would be at least 17 years after the accident in question, the Defendant were to be expected to be mount an effective defence against a claim which the Plaintiffs solicitor has inexplicably allowed so to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation.”

The reasons underlying this view are suggested in an earlier passage, describing the history of the case:

“After eight years of silence, after the infant Plaintiff had grown from childhood to manhood, when memories of the circumstances of the accident had inevitably become dulled or distorted with the passing years, when the scene of the accident

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may possibly have changed when medical and other evidence may have lost sharpness or reality, when money values had changed out of all recognition. when the many other changes that are the inevitable consequence of the fading of events into the distant past must have taken place, is it any wonder that in those circumstances the response of the Defendant to the belated efforts of the Plaintiff’s solicitor to resuscitate this seemingly entombed action was to bring a motion to have it struck out?”

In Dowd v Kerry County Council [1970] IR 27 O’Dálaigh C.J., giving the judgment of the Court, found “wholly admirable” the following observations of Diplock L.J. in Allen v Sir Alfred McAlpine & Sons Limited [1968] 2 QB 229:

“where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the Courts being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard.”

Dowd’s case was a medical negligence action in which one would expect a much larger volume of documentation to be available than in a road traffic action, or of course a criminal allegation. However, the action was permitted to proceed only when it transpired that witnesses thought to be unavailable had in fact been found.

In O’Reilly v C.I.E. [1973] IR, the Court was concerned with another road traffic case where the lapse of time would have been of the order of eight years. This was regarded by the Court as:

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in itself a possible cause of a miscarriage of justice, both for the Plaintiff as well as for the Defendants.”

It was said:

“Furthermore, the possibilities of success of either side may have been made haphazard by the fact that the passing years may have dulled or distorted the memories of the witnesses.”

The action was permitted to proceed only on the basis that the Defendants had been informed of the claim shortly after it occurred and had taken statements from the eye witnesses at the time and had also had the Plaintiff medically examined in the year of the accident.

In O’Keeffe v Commissioners of Public Works Supreme Court 24th March, 1980, unreported, the majority of the Court regarded as “a parody of justice” a hearing which would take place 23 years after an industrial accident in which the Plaintiff had lost an eye in circumstances where one witness had died and another’s memory “had been all but obliterated by the passage of time”. This was because the hearing:

“would come at a time when the Defendants through no fault of theirs, had been deprived of a true opportunity of meeting the Plaintiff’s case.”

The majority regarded the situation as one of estoppel and held:

“The basis of estoppel in those circumstances is the inequity or injustice which would necessarily attach to the hearing of a negligence claim at this stage. Natural justice requires that both parties to an action be heard before the decision can be said to have legal validity. Where one party, by his words or conduct, without any

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contributory act or default in that respect on the part of the other party, has put a beyond the capacity of that other party to be effectively heard in the sense of presenting the potentially successful case which his opponent’s conduct has put beyond his reach, the Court will hold the party thus in default to be estopped from bringing the matter to a hearing. The reason is that a hearing in those circumstances would lack the mutuality and fairness which are necessary for the due administration of justice.

In Toal v Duigan and Others [1991] ILRM 135 and 140 separate applications were made by different Defendants to dismiss the Plaintiffs action for medical negligence. Both judgments approved “the principles laid down in the judgment of Henchy J. in O’Domhnaill & Merrick”. These are summarised by’ Finlay C.J. in the judgment on the first application. at page 135 of the report as follows:

Where there is a clear and patent unfairness in asking a Defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that Defendant has not himself contributed to the delay, irrespective of whether the Plaintiff has contributed to it or not, the Court may as a matter of justice have to dismiss the action.” (emphasis added)

A little earlier it had been stated:

“Even though therefore the Plaintiff may be blameless in regard to the date at which these proceedings have been instituted and with regard to the period of 23 to years since the events out of which they arose, as far as these Defendants are

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concerned there would be an absolute and obvious injustice in permitting the case to continue against them.”

This was because “it would be impossible for either the hospital authorities or the consultants engaged, in the absence of the most detailed clinical notes and records to defend themselves, 26 years on from attendance at a birth in 1961.” The position was further worsened in that case by the deaths of two of the doctors involved.

Another Defendant was a locum general practitioner who had been called to attend the Plaintiff some ten years after his birth. She had no notes and little recollection of her single attendance. The Court held that she:

“would find it virtually impossible to defend herself against the particular allegations which are now being made.”

In the second application in this case, the Court was specifically invited to reconsider O’Domhnaill & Merrick and particularly the question of whether the Court in its discretion had jurisdiction to strike out a claim which was not statute barred. While in the present case there is no suggestion that the Court has no jurisdiction to restrain the prosecution of the proceedings, the reasoning of the learned Chief Justice is instructive. He said:

“I adhere to the view expressed by me in the previous appeal in this case that the Court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give the Oireachtas a supremacy over the Courts which is inconsistent with the Constitution.

If the Courts were to be deprived of a right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an

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unjust result merely by reason of the fact that the Oireachtas has provided a time limit which in the particular case has not been breached would be to accept a legislative intervention in what is one of the most fundamental rights and obligations of the Court to do ultimate justice between the parties before it.” (emphasis added)

Examples of the application of these principles in civil cases can be multiplied. Enough, however, has been said to indicate that it has consistently been held:

(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: “the chances of the Courts being able to find out what really happened are progressively reduced as time goes on”.

(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his “capacity…to be effectively heard”.

(c) that such lapse of time may be so great as it would be “contrary to natural justice and an abuse of the process of the Court if the defendant had to face a trial which (he or) she would have to try to defeat an allegation of negligence on her part in an accident that would taken place 24 years before the trial…”

(d) That, having regard to the above matters the Court may dismiss a claim against a Defendant by reason of the delay in bringing it “whether culpable or not”, because a long lapse of time will “necessarily” create “inequity or injustice”, amount to “an absolute and obvious injustice” or even “a parody of justice.”

(e) That the foregoing principles apply with particular force in a case where “disputed facts will have to be ascertained from oral testimony of witnesses

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recounting what they then recall of events which happened in the past…” as opposed presumably cases where there are legal issues only, or at least a high level of documentation or physical evidence, qualifying the need to rely on oral testimony.

Criminal Cases

It can scarcely be doubted that the principles summarised above are applicable to criminal cases as well. It would be strange indeed if the Courts were less solicitous of a person in peril of his liberty and reputation by reason of having been charged with a criminal offence than of a civil litigant who will often (as Henchy J. observed in O’Domhnaill’s case) be indemnified by an insurer.

These principles were applied, and the availability of a remedy by way of judicial review in such circumstances was confirmed, in the judgment of this Court in The State (O'Connell) v Fawsitt [1986] IR 362. In that case, a person was charged with an indictable assault said to have taken place in January 1981. He was returned for trial in July 1982 but his case was adjourned from time to time in the Circuit Criminal Court until June 1984. It was then the subject of further short adjournments until the following month when a trial date in November 1984 was sought. By that stage the Defendant in the criminal proceedings was missing a witness who had previously been available. The matter had been adjourned for trial to April 1985 when he sought judicial review in the form of an Order of Prohibition.

It was undisputed that the delay in holding a trial related to the pressure of work in Cork Circuit Criminal Court.

The High Court judgment contains a very thorough survey of the authorities relating to delay in criminal cases up to that time, but the learned High Court Judge refused relief on

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the basis that all of the adjournments had been judicially granted and that the trial judge would correct any injustice which might arise by appropriate warning or directions. The Supreme Court however granted the order and Finlay C J said at page 379 of the report:

I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an Order of Prohibition. It may well be that an equal remedy or an alternative remedy in summary cases is an application to the Justice concerned to dismiss because of the delay. In the case of a trial of an indictable charge, however, I am not satisfied that it is correct to leave to the trial judge a discretion as to whether, as it were, to prohibit himself from letting the indictment to go forward. A person charged with an indictable offence and whose chances of a fair trial had been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury.”

The learned Chief Justice also considered that the unavailability of the witness for the defence was a determining factor in establishing prejudice. He stated:

That fact alone, having regard to the extreme length of the delay, makes this a case in which in all the circumstances I am satisfied that the delay can be considered as being both excessive and prejudicial and that accordingly the Prosecutor was entitled to his Order of Prohibition.” (emphasis added)

In the High Court judgment in the same matter, the basis of the right invoked by Mr O’Connell was found to have identified in the judgment of Mr Justice Gannon in The State (Healy) v Donoghue [1976] IR 325. There, the learned Judge had identified a number of

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“natural rights” of an individual charged with an offence including “the right to reasonable expedition and the right to have an opportunity for preparation of the defence.”

He continued:

The rights I have mentioned are such as would necessarily have a bearing on the result of trial. In my view, they are rights which are anterior to and do not merely derive from the Constitution, but the duty to protect them is cast upon the Courts by the Constitution.”

This passage was expressly approved in the judgment of the Supreme Court (O’Higgins C.J.) in the same case.

In O’Connell’s case, Murphy J. in the High Court also considered the decision of that Court in In the Matter of Paul Singer (No.2) (1960) 98 ILTR 112. There, the President had concluded that there was “no culpable delay in bringing delay in bringing the Prosecutor to trial”. Murphy J. commented:

It seems to me, therefore, that the authorities have established that the Constitution guarantees to every citizen that the trial of a person charged with a criminal offence will not be delayed excessively; or to express the same proposition in positive terms, that the trial will be heard herewith ‘reasonable expedition’. If the phrase ‘culpable delay’ was intended only to convey that the accused was entitled to be protected from and only from that type of delay which is caused by an intentional of abuse of the rights of the accused, or neglect to make use of available facilities to prosecute the charge - and I doubt very much if that is what the then President of the High Court had in mind - I would respectfully reject that as an accurate description of the rights of the accused in this connection.”

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Mr Justice Murphy’s decision does much more than trace the origin of the right to a speedy trial in Irish constitutional law. It traces the right through the Sixth Amendment to the United States Constitution:

“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial…”

and further shows that the American authorities notably Klopfer v North Carolina (1967) 386 US 213 traced it much further back. In that case Chief Justice Warren explained that it derived from their English law heritage, remotely from the Assize of Clarendon (1166) but more directly from Magna Carta (1215). He referred to Cokes Institutes where the provisions of Magna Carta were analysed and cited as authority for the proposition that every subject of the realm should be entitled to his remedy by course of law “fully without denial, and speedily without delay”. He referred finally to Strunk v United States (1973) 412 US at 434 where it was held that when an accused has been denied the right to a speedy trial, the dismissal of the proceedings against him is “the only possible remedy” for the deprivation of his constitutional right. I am happy to adopt the whole of Murphy J’s scholarly and elaborate tracing of the origins of this right.

It is clear from the authorities cited in O’Connell’s case and perhaps in particular from The State (Healy) v Donoghue and the judgment of Hailsham L.C. in R. v Lawrence [1982] AC 510 that the rationale underlying the right, which itself has been recognised from very remote times, is as follows:

1. A recognition of the inevitable pressure, grief and acute anxiety caused by the pendency of serious criminal charges. This must bear most heavily on a person of previous good character, perhaps advanced in years or of uncertain health, facing charges in respect of which general knowledge will inform him that very lengthy

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sentences are frequently imposed by the Courts. This effect is of course greatest it the accused is deprived of his liberty pending trial but is a very significant feature in any case. It is obvious that an elderly person charged with very old offences will suffer these effects in a pronounced form.

2. To minimise the effect of lapse of time on the memory of witnesses, both those actually available and those who might have had something to say if approached at an earlier date.

3. To minimise the risk that witnesses will die, become ineffective due to age or disease or simply drop out of sight.

4. Otherwise to minimise the risk of justice being “put to the hazard”.

It seems to me that, apart from the humanitarian concern for the position of a criminal Defendant, which will almost always be a much more acute one than that of his civil counterpart, the underlying principle is precisely the same as that applicable to civil proceedings. This is that, in the words of Lord Diplock, “the chances of the Courts being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard.”

This last phrase is a memorable one, but the expression is perhaps dated. I take it to mean, in more contemporary language, that the Court’s ability to do justice by establishing what really happened is compromised. In a criminal case, this can only mean that the chances of a miscarriage of justice are increased.

It seems to me that the chances of such compromise occurring are, generally speaking, greater in a criminal case than in most civil actions. This is because in criminal cases generally “disputed facts….have to be ascertained from the oral testimony of witnesses

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recounting what they then recall of events which happened in the past….”By reason of the nature of many offences there is unlikely to be a “paper trail” or items of real evidence such as one would expect to find, for instance, in a commercial case or a medical negligence action. Moreover, in many civil cases cited, there was no dispute but that the event sued on actually happened. Here, the very actus reus itself is disputed, and there is no physical evidence that it occurred.

The effect of documentary physical or forensic evidence, where they exist, is to provide some basis on which the part of the case which depends on mere assertion can be assessed and tested. Inevitably there will be a certain number of criminal cases, and far fewer civil ones, in which no such evidence exists. In such a case each side will naturally look to the surrounding circumstances: the Prosecution to see whether there is corroboration or at least evidence consistent with allegations being true, and the defence to see if there is material with which the Complainant’s story can be contradicted, even on a collateral matter, or his credibility challenged. Apart from the effect of lapse of time on the memories of those principally involved, an interval of 20 or more years makes it difficult if not impossible to clarify the surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the parties can be correlated and tested. The element of hazard or chance which this state of affairs introduces into a trial has been recognised for centuries. The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all.

Effect of Lapse of Time in Cases such as this

The precise effect of lapse of time in these cases requires elaboration and has not, I think, been sufficiently explored in some of the reported cases. This, in turn, may be based

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on a misconception as to how a case such as this, where the allegation is denied, can be defended.

Mr Gaffney S.C. for the D.P.P. said that a case like this comes down to assertion and denial This, he says, makes less grave the effect of lapse of time, since the trial would have been of the same nature whenever it took place. This approach derives some support from passages in the judgment of Denham J. in D.P.P .v P.C. [1999] 2 IR 25 at pages 63 and 64.

If a Defendant who is innocent is exposed to a trial where the only evidence is unsupported assertion and the only defence bare denial, his position is indeed perilous. Where these cases have been successfully defended it has, in my experience, always been because it has been possible to show that the Complainant’s account is inconsistent with objectively provable facts relevant to the allegations, or that the Complainant has made other allegations against other people which are lacking in credibility. The relevance of the latter factor will be discussed in the context of certain decided cases referred to later in this judgment.

It has been stated, for example in P.C. that the effect of lapse of time is “damaging to both parties” (at page 63). I do not agree with this assessment, particularly if it is intended to suggest that both parties are equally damaged. It is contrary to actual experience of these trials, where the prosecution case is often in fact strengthened, since many alleged victims may give clear evidence of the alleged offences but assert failure of memory due to lapse of time when asked about the all important surrounding circumstances. These, of course, are the only possible basis of an attempt to test the evidence.

Moreover, the effect of this inability to test evidence is compounded by two factors. First, there is no general requirement for corroboration and the prosecution may well be able to argue that the absence of corroboration is understandable and is in the nature of the case.

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Secondly, there is practical, if not legal, pressure on a Defendant to address the question “if this isn’t true why would he or she it.?” If the surrounding circumstances are irretrievable due to a lapse of time, and if the Complainant’s general credibility cannot be tested against specific facts, this question will usually be impossible to address. It is of course true that the Defendant can avoid being personally asked this question by not giving evidence but experience equally shows that a Defendant in these cases who does not give evidence is taking a huge risk. In any event the question will almost certainly arise in the mind of the tribunal of fact.

The case of D.P.P. v T tried in July 1999 in the Circuit Court illustrates the type of evidence that may be available after a less gross lapse of time. There, it was of the order of seven to nine years. The allegations were of sexual abuse over a period of years in the Defendant’s home. The defence produced a video tape of a children’s party showing that the alleged location of the assaults had not been as the Complainant described it being at the relevant time. They produced the Defendant’s wife to prove that the circumstances of the visits of the Complainant, a neighbour, virtually excluded the type of assault alleged. They produced two contemporaries of the Complainant to prove that she had, at the time, described to them being violently raped by the Defendant, which she agreed had never occurred. And they showed that she had made allegations of sexual abuse against two other persons. one of which she agreed was untrue. There was an acquittal. That case was similar to the present in as much as the alleged location was the Defendant’s home. It was, however, dissimilar in that there was an element of detail in the Complainant’s allegations which it was possible to contradict in the usual forensic fashion.

In D.P.P. v F Court of Criminal Appeal, 2nd December, 1996, unreported, a conviction in the Central Criminal Court leading to a sentence of seven years for Section 4 rape, and lesser

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sentences for indecent assaults, was quashed. A retrial was not sought. There, there had been a trial, and June of 1995 in respect of offences the most serious of which was very specifically said to have taken place in July 1992. An essential part of the prosecution case was that the victim, who was 13 at the date of the trial, had been sharing a room at the time of the offence with another girl. This girl’s presence was also relied upon to establish or make more likely the presence of the Defendant, who denied being at the scene at all.

No complaint had been made until November 1993, an interval which is trivial compared to that in the present case.

The second girl gave evidence for the defence at the trial. She was a school girl resident in the United Kingdom and said that her school terms would have precluded her presence until the very end of July. A solicitor later swore in an affidavit that while this was true the girl had been absent from school for most of the relevant month.

It is clear that neither the Defendant nor the second girl were believed on oath in this regard, since there was a conviction.

Subsequent to the conviction and sentence of seven years imprisonment it transpired that the girl had not, and could not have been, in Ireland at all in the relevant month. She had, it turned out, suffered two serious injuries involving broken bones in June and July of that year and had been receiving hospital treatment throughout the period. This was eventually accepted by the prosecution.

The Defendant in F owed his release to the eventual discovery of this state of affairs. but more fundamentally to the fact that the Complainant had volunteered a relatively specific date for one at least of the alleged offences and had further volunteered the fact that the other child had been present. But for this, the Defendant might still be in jail and stigmatised for life as a child abuser.

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I regard F as a chilling of the effect even of a relatively short lapse of time on the memories of witnesses Furthermore, both the girl and her mother who was also present at the trial as defence witnesses would certainly have volunteered anything favourable to the Defendant if it had been present to their minds. A dramatic event such as the sustaining of two separate fractures within a month is precisely the sort of thing that might be thought likely to stick in the memory of a child, or certainly of a mother but it simply did not. Considerations of anonymity make it impossible to reproduce in this judgment the entire facts of the F case but the omitted facts tend to make the failure of memory even more remarkable.

It should also be noted that the Defendant in F had the advantage that the circumstances of the case (the alleged victim, too, lived abroad) in themselves tended very much to narrow the “window” when the relevant persons could have been together in rural Ireland. Despite these advantages, as compared with the circumstances of the present case, and despite a careful charge after a full defence by competent Counsel the Defendant suffered conviction and imprisonment and only belated vindication.

The case graphically illustrates the proposition that in considering lapse or distortion of memory the memories of persons other than the Complainant and the accused must be considered. It demonstrates that a relatively short period (compared to the periods after which prosecutions are now habitually instituted) may be sufficient to obliterate memory even in connection with relatively dramatic events. In particular it can entirely obliterate the correlation between a remembered event (presumably no one could quite forget sustaining two fractures within a month) and other events or allegations said to have taken place at the same time. And this process can take place in adults as well as children.

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This process of failure to remember or failure to correlate one memory with another can also take place in official bodies and official individuals as well as in lay people. In D.P.P. v W & McC Criminal Appeal November 1999, unreported, two people had been convicted of the rape of a young girl. One was sentenced to life imprisonment and the other to twelve years imprisonment. Within days, they were released on bail by consent. The D.P.P. was unable to stand over the convictions and later decided not to seek a retrial. The reasons for this hinged on the calling of a witness for the prosecution whom it had previously been decided not to call, and the failure of the prosecution to make certain disclosures about her which would have been appropriate if her evidence was to be relied on. These disclosures would have related to criminal allegations made by this person leading to a criminal prosecution which was ended by judicial review proceedings in December 1997.

Once the witness was called, however, it did not occur to any person or body to notify the defence of the previous allegations. This was undoubtedly due either to failure of memory or failure to correlate the events developing at the trial with those in the judicial review proceedings less than two years previously. A further complication of cases which involve lapse of time is that false evidence may be given without any consciousness on the part of a witness that it is false. In F’s case no one suggested that the girl was deliberately lying about the presence of her companion and it must be assumed that she believed her evidence to be true. This phenomenon, quite understandable after even a relatively short lapse of time, has very grave consequences for a case which, if it proceeds, would turn on credibility. If there are no surrounding circumstances or other evidence which can be used to test the Complainant’s account, and if a Complainant may quite sincerely give false evidence believing it to be true, there can be no conceivable scientific yardstick on which credibility can be assessed. Any techniques or

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impressions which the police, judges or jury may think they can deploy to identify a lie will be useless. In view of the tendency one sometimes finds to think that credibility is something that can be assessed quite easily in the absence of evidence of surrounding circumstances, it is useful to recall what was said by Lord Atkin in Lek v Matthews (1926) 25 Lloyds Reports 525:

The lynx-eyed Judge who can discern the truth teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the bench.”

On the difficulties posed by the absence of known facts surrounding an allegation, the same learned judge said in Soc. d’Avances Commerciales v Merchants Marine Insurance Company (1924) Lloyds Reports 140:

“I think that an ounce of intrinsic merit or demerit in the evidence, that is to say. the value of the comparison of evidence with known facts is worth pounds of demeanour.”

In dealing with issues of credibility, it is important to bear in mind what Mrs Justice McGuinness has said, in a passage quoted later in this judgment, as to the undesirability of substituting for a discredited orthodoxy of the past a new but equally rigid orthodox view.

It is salutary to consider cases such as R v Burnett The Times 8th April 2000, unreported. There, the Court of Appeal (Criminal Division) quashed the conviction of a man who had served 14 and a half years of a life sentence for a rape which, the court held, “almost certainly never happened”. Judge L.J. said:

“This is a profoundly disturbing case. If nothing else, this case provides a salutary reminder that an allegation of a rape is not always true, and that the man against

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whom it is made is not necessarily guilty. It should serve to ensure that proper safeguards against the wrongful conviction of innocent individuals are preserved.”

I have cited three unreported cases, two of which can be recapitulated only from the trial material and affidavits in the Court of Criminal Appeal and one from the trial materials alone. It is a great misfortune, in my opinion, that it is not possible to scrutinise these and other cases in a more formal way. Cases which produce insupportable results in grave matters should be properly scrutinised. This, emphatically, is an area which must be approached in the light of experience of actual cases. In the light of such experience, some difficulties may prove to be academic only and some preconceptions, such as that delay damages both sides, may be proved false. But that is a task for the future. In the meantime, the cases I have cited illustrate, I believe, both the sort of material necessary to mount a potentially successful defence and the way in which lapse of time can lead surprisingly quickly’ either to the obliteration of memory or to the failure of the ability to deploy it in a useful way.

Child Sexual Abuse Cases

It has been recognised for a considerable time that cases involving the alleged sexual abuse of children have features which distinguish them from others for the purposes of considering the effect of lapse of time on whether the prosecution should be restrained from proceeding to trial. It is obvious that a child may be inhibited from making a complaint at the time of the alleged offence or shortly afterwards. This may occur as a result of threats to induce silence, but even in the absence of such threats it may occur for a number of other

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reasons. These reasons fall into a number of categories which have been analysed in the judgment of the Supreme Court (Denham J.) in B. v. DPP [1997] 3 IR 140 at 197 ff.

The general principle which places child sexual abuse cases in a special category was described by Finlay CJ in G. v DPP [1994] 1 IR 347:

“The Court asked to prohibit the trial of a person on such offences. even after a very long time might well be satisfied and justified in reaching a conclusion that the extent to which the Applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order.”

B’s case somewhat expanded this statement by recognising that the father and daughter relationship which obtained there “affects the Complainant so that the usual concepts as to reasonable time may not apply.” That factor does not arise here.

In B’s case a prosecution was commenced in 1992 in respect of offences involving three daughters of the Defendant said to have taken place between 1962 and 1974. The family circumstances were on any view appalling and the wife and children had been continuously victimised by the Defendant. The wife and mother had died in 1991 and it was found that “until her death the Complainants were unable to approach the authorities.” It was also held that, even apart from that factor, “the daughters were psychologically incapable of approaching the authorities and making the complaint until after 1991.” This was due to what was described as “dominion” arising from the Applicant’s relationship to the Complainants and his “violent, dominant and menacing personality.” In the circumstances of the case it was held that “this dominance is the kernel reason for the delay and the factor

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carrying most weight.” The actual features of the dominion, and its effect on the Complainants was established by psychological evidence.

The “dominion” aspect of the ratio decidendi in B was considerably expanded in P. C. v DPP [1999] 2 IR 25. There, the High Court had prohibited the prosecution from proceeding because there was no evidence of dominion and the Court was satisfied that there was a real risk of an unfair trial. However the Supreme Court reversed this decision, and in doing so supplemented the previous test by a concept of “suppression” described as “this consequential effect of dominance and alleged child abuse”. The effect of this seems to be to excuse nondisclosure after dominion has ceased, on the basis that there may be a continued suppression. It does however seem to require that dominion existed in the first place.

The abuse in the P.C. case was alleged to have taken place between 1982 and 1984. It had been disclosed to various persons in 1988 but no complaint was made to the Gardaí until 1985. Denham J. said:

“On the evidence the Complainant was still suffering the effects of child abuse from 1988 to 1995. The delay was caused by the Complainant’s inability to make a formal complaint until 1995. This was a consequence of the alleged sexual abuse, the alleged criminal actions. Thus, fault lies with the alleged perpetrator of the actions - the Applicant. The Applicant may not profit from alleged illegal actions. Thus he is not entitled to prohibition on the ground that fault lies with the Complainant in delaying them making a formal complaint.’” (page 63) Emphasis added.

It is quite clear that the Applicant in any of these cases should not profit from his own illegal actions. If he were indisputably identified as the perpetrator of sexual offences on the

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Complainant no conceivable difficulty could arise. But it seems difficult to disentitle him to which he might otherwise be entitled on the basis of allegations which are disputed and, as yet, unproved. This difficulty is addressed in the judgment of Lynch J. in the same case where he sets out the manner in which he considers the Court should approach cases of this kind at pages 77 and 78:

“In considering this application to prohibit the Respondent from proceeding with the prosecution the Applicant, the Court must first look at the circumstances from the Applicant’s point of view and on the assumption that the Applicant is innocent of the charges preferred against him. On that assumption the Court should consider to what extent delay or other circumstances may create difficulties for the Applicant in defending himself over and above what would be the normal difficulties to be expected in meeting charges such as those preferred against the Applicant in this case. If the Court finds that there are such added difficulties, then the Court should consider the case on the assumption that what the Complainant said is true and, if so, who has really caused the added difficulties for the defence. On that assumption if it appears that it is really the Applicant who is responsible for the circumstances giving rise to these added difficulties then the Applicant cannot validly complain of those difficulties in these proceedings and the prohibition should be refused. (Emphasis added).

The position is put slightly differently in the judgment of Keane J. (as he then was) when he says, at page 68:

“Manifestly. in cases where 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

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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 himself or herself will be impaired. In other cases the first inquiry must be as to what are the reasons for the delay and, in a case such as the present….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.

If that stage has been reached, the final issue to be determined will be whether the degree to which the 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, giving the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of complaint, it follows that in the light of the presumption of innocence to which he is entitled, the Court has 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.” (emphasis added)

The making of an assumption as to the truth of the Complainant’s account is in varying degrees is central to these approaches. Although not explicitly put in that way in the judgment of Denham J. it is necessarily implied because in no other way could the conclusion “thus fault lies with the alleged perpetrator of the actions - the Applicant” be arrived at.

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This emerges even more clearly from the judgment of Denham J. in B where, at page 200. the delay in that case “was viewed from the Applicant s point of view” as follows:

“From the point of view of the Applicant, if the allegations against him are proved, his actions of control and subjugation of his family must be viewed as actions by him which delayed the trial. As such they should not entitle him to a form of immunity which would be to the detriment of the Complainants and society in general.”

Only an assumption along the lines described in the passage cited above from Lynch J. could explain the omission to consider the possibility, and indeed the presumption, of the Applicant’s innocence when considering the lapse of time “viewed from the Applicant’s point of view.” This must, however, be read subject to the next citation from the same learned Judge.

Priorities

It is clear from the cases cited, and other authorities, that the dominant consideration, with priority over all others is whether a real risk of an unfair trial had been established. In the judgment of the Court in B, per Denham J. at page 196 it was stated:

“The Community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the Applicant would not receive a fair trial then, on the balance of these constitutional rights the Applicant’s right would prevail, see D v Director of Public Prosecutions [1994] 2 IR 465 at 473 and Z v Director of Public Prosecutions [1994] 2 IR 476 at 506

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This ordering of the priorities obtaining amongst the rights involved is, to my mind, a central feature of the present case.

Onus of Proof

It is also a feature of the cases referred to that the onus of proof in injunctive proceedings such as the present is held to lie on the Applicant. In P.C. having recited that both the preliminary’ examination and the trial would take place before judges who would be obliged to conduct the proceedings with due propriety and in accordance with the Constitution and of law, Lynch J. held at page 77:

“….the onus of proving that, despite the intervention of these judges duly appointed under the Constitution and the law, it is probable that the trial would be unfair and not in due course of law, having regard to matters which happened prior to the prosecution coming before the District Judge, rests fairly and squarely on the Applicant.”

In S.F. Applicant v DPP and Others High Court 17th December 1997, Supreme Court 30th June, 1999, the Defendant was charged with offences of a sexual nature against boys said to have taken place between 1981 and 1984. The alleged offences were reported to the Guards in early 1995. In the High Court, Mr Justice Geoghegan held that:

“…the time lag between the alleged offences and the prosecution is, prima facie, excessive and in the absence of some cause attributable to the Applicant himself the Applicant should not as a matter of fair procedures face a trial so long after the events”.

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In that case, Mr Justice Geoghegan’s order prohibiting the trial on certain of the names was overturned by the Supreme Court and the passage quoted specifically disapproved as a “misstatement of the law” in the judgment of Mr Justice Murphy. This was on the basis that the learned judge did not accept “that lapse of time, however great, between an offence and the date on which it is reported gives to the accused any right to have the trial on those offences prohibited.” In view of the citations given above from the judgments in P.C. I do not think that this view in itself accurately states the law. However that may be, I prefer the approach of Mr Justice Geoghegan and would be prepared to hold that in the case of a very lengthy lapse of time (and the period here is greater than that in question in S.F. the Defendant can discharge the onus which lies on him, in the first place by pointing to a lapse of time which is “prima facie excessive”. This, in turn, can be countered by demonstrating that the lapse of time was due to “some cause attributable to the Applicant himself” and in that regard the onus lies on the Respondent.

I would also agree with the statement of Mr Justice Geoghegan, earlier in the same judgment that:

“…..it would in my view, be only in the rarest of circumstances that a Court should allow a prosecution for sexual offences against children or young people which have occurred a very long time ago to proceed in the absence of this element of ‘dominion’ and its psychological continuance.”

I believe that this approach is consistent with and mandated by the long standing attitude of the Courts to lapse of time in both civil and criminal cases. Numerous examples of this attitude have been quoted earlier in this judgment. In particular I consider that,

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slightly to adapt the words of the majority of the Supreme Court in O’Domhnaill v Merrick it would be:

Contrary to natural justice and an abuse of the process of the Court if the Defendant had to face a trial in which (he or} she would have to try to defeat an allegation relating to incidents which would have taken place more then twenty years before the trial, in the absence of extraordinary factors.”

The many and long standing reasons for this consistent judicial attitude have already been set out. To my mind they apply with all the more force to an allegation of sexual abuse without surrounding circumstances to offer corroboration or the prospect of contradiction.

In saying this, I am in no way departing from the central finding in a number of recent cases that allegations of sexual abuse of children are in a separate category. In my view, this special feature is properly and amply reflected by the potential for the prosecution to show that the lapse of time, prima facie excessive, was brought about by “some cause attributable to the Applicant himself”. But unless this is done, I believe that, in cases of gross lapse of time, the Applicant is entitled to discharge the onus that lies on him in the first place in the manner I have described because after such a lapse of time prejudice arises “necessarily” in the phrase of Mr Justice Henchy. For example, the absence of detail is a consequence of lapse of time and a major aspect of prejudice. The exercise of asking one self how one could rebut an utterly undetailed allegation of grave misconduct said to have occurred in one’s own home in 1974 or in 1978 is an instructive one.

A special category

It has been acknowledged in many- of the reported decisions that cases of alleged child sexual abuse are in a special category because of the effects which such abuse may have on

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children. I believe, however, that they are in a special category for another reason as well: because of the chilling and destructive effect which a long lapse of time may have on the ability even of an innocent person to defend himself or herself. It is for this reason that, in the absence of dominion or similar, it is “only in the rarest circumstance that a Court should allow a prosecution for sexual offences against children or young people which have occurred a very long time ago to proceed.”

A failure to recognise that these cases are in a special category for the foregoing reason also can lead to reasoning which only be described as somewhat reductive. In P. W. v DPP High Court 27th November 1997; Supreme Court 24th June, 1998 unreported, the High Court had restrained the continuance of a prosecution in circumstances where a potential witness, another person against whom the Complainant had made similar allegations, had died. Mr Justice Flood had held:

“The defence is thus deprived of a vital witness. It is not for this Court to speculate whether L.C. was or was not a credible witness. The fact remains that by virtue of the lapse of time a potentially vital element of the Applicant’s defence no longer exists.”

The Supreme Court, however, reversed this decision. In the judgment of the Court Mr Justice Lynch said:

“…if the death of L.C. could result in the prohibition of the criminal prosecution the subject matter of these proceedings the same would seem to apply in the case of the death or disappearance of a witness whom the defence might have wished to call or cross-examine no matter how promptly the case might have been brought to trial. This cannot be and is not the law.”

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This approach equates the position in cases where there has been a gross lapse of time with cases where the prosecution has been commenced promptly. There can be no real comparisons between these cases. The proposition that a witness might, of course, have died even a complaint had been made within a month does not logically allow a court to disregard such if a death if in fact it has occurred only after many years. The risk of a death or unavailability of witnesses has long been recognised as one of the risks of unfairness attaching to long lapse of time. In my view, in such cases, it is for those wishing to proceed to establish that a trial can be had fairly and not for the Defendant to negative the proposition that the witness might have been useless or unavailable even at a much earlier time.

Moreover, the approach taken by Lynch J. is inconsistent with earlier decisions of this Court. In Toal v Duignan, for example, the deaths of two of the doctors alleged to have acted negligently was a significant feature. Similarly the witness in O’Keeffe v Commissioners of Public Works. Obviously all these people might have died immediately after the alleged negligence had occurred. They did not actually die until many years had elapsed. The Court in each case considered their deaths as an aspect of the lapse of time and consequent prejudice. Until these and other cases have been specifically overruled, I would decline to follow the approach informing the judgment in P. W. , where the Court was not referred to these cases.

Equally, the decisions of this Court in the various cases set out in the first part of this judgment, to the effect that lapse of time “necessarily” gives rise to “inequity or injustice” which “whether culpable or not” may put the matter “beyond the reach of fair litigation” are all, in my view, relevant here. They do not appear to me to have been disapproved or distinguished in B or P.C. The undoubted fact that cases such as the present are in a special

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category (for two separate reasons, I believe) does not in my view permit of the avoidance of a long line of authority by means of an assumption, unless and until that line of authority is expressly argued considered and found inapplicable to circumstances like the present ones.

The right asserted by the Applicant in these proceedings - the right to a trial in due course of law which he says has been subverted - is of course a constitutional right. It is rightly regarded as a superior right, for example in the judgment of Denham J in P.C. cited above. Accordingly, if it were necessary to do so, I would assert the freedom from the constraint of earlier decisions relied upon in the dissenting judgments of Denham J. and Keane J. (as he then was) in S.P.U.C. v Grogan [1998] 4 IR 343, and the authorities cited by them in that connection. But I do not believe this step to be necessary, because I do not believe that this Court was referred to all relevant materials in P. W. and other relevant cases. See Mogul of Ireland v Tipperary (R.R.) C.C. [1976] IR 260 at 272.

Presumption of Innocence

Mr Gaffney S.C. specifically submitted that the application of the presumption of innocence was confined to criminal trials. He said it was merely an evidential presumption within a trial. It did not apply at all to these civil proceedings. Counsel confirmed the content of his submission in this regard in answer to a specific question.

I was at first surprised to hear this submission but on reflection I have concluded that it is in fact central to the Director’s case. In fact, the ratio decidendi of some of the judgments in P.C. goes further: it involves not merely suspending the operation of the presumption of innocence for some purposes at least but, for the same purposes actually assuming the contrary. Specifically, it involves assuming, for the purpose of seeing who is truly responsible for the lapse of time, “that what the Complainant said is true”

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or “assuming the complaint to be truthful”. To my mind, this is indistinguishable from assuming the guilt of the Defendant for a limited purpose.

The judgments in B and in P.C. are not precisely to the same effect in this regard. Only the judgment of Lynch J. in the latter case appears. at page 77, expressly to limit the presumption of innocence to the trial of the criminal proceedings only. None of the other judgments in those cases or elsewhere appear to me to go so far. For example, the judgment of Keane J. (as he then was) in the same case is to the effect that, having made the relevant enquiry assuming the complaint to be truthful:

“….the final issue to be determined will be whether the degree to which the 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 is necessarily grounded on an assumption that the truth of the complaint, it follows that in light of the presumption of innocence to which he is entitled, the Court…must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial.”

I cannot subscribe to the proposition that the presumption of innocence applies only in the actual trial of criminal proceedings or is capable of suspension for any purpose relating to the trial, such as the disposal of injunctive proceedings like as the present ones. Nor do I think that either of these things is necessary in order properly to approach proceedings such as these, bearing in mind that they belong to a special category.

Quite apart from the foregoing, and even if the presumption did not apply to civil proceedings, or were capable of suspension in such proceedings for some particular purpose,

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there is in my view no basis whatever for assuming the truth of the allegations against the Defendant, prior to conviction, for any purpose or in any proceedings. This assumption, even for a limited purpose, is a much greater step than merely not applying the presumption, great as that is in itself. It involves assuming the contrary.

The presumption of innocence, of course, confers no immunity. It merely requires evidence to displace it.

The foregoing points are matters of legal principle, based on reasons set out below. But apart from that I believe it is inherently illogical to make one assumption “that the Applicant is innocent of the charges preferred against him”, for one purpose (the purpose of considering “to what extent delay or other circumstances may create difficulties for the Applicant in defending himself over and above what would be the normal difficulties to be expected……”) and a directly contrary assumption for another purpose, that of deciding “who has really caused the added difficulties for the defence”. It is difficult to see how a conclusion two of whose premises are founded on assumptions directly contradictory of each other can be a coherent one. I believe that the question of whether the Applicant was wholly or partly responsible for the delay falls to be decided as a matter of fact on the balance of probabilities rather than on any assumption. An assumption such as the one in question here is indistinguishable from a presumption; the category of legal presumptions is a well defined one and does not extend, as I understand it, to a presumption that what the Complainant said is true for any purpose whatever.

I believe that the submission on behalf of the Director as to the non-application of the presumption of innocence to these proceedings is incorrect. It is contrary to principle, authority and a recent formal statement which the Director himself made to the Court of Criminal Appeal in DPP v W and McC. The facts of that case have already been

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summarised. In announcing to the Court of Criminal Appeal his decision not to seek a retrial of the counts on which the Defendants had been convicted, the Director had a statement read to the Court on his behalf. In this he stated:

“….the Director’s concern to defend the propriety of the decision to charge the two accused does not in any sense detract from the fact, which is fully and ungrudgingly accepted by the Director that the two accused are entitled to be presumed innocent of all the charges which were brought; not only those of which they were acquitted by the jury, but also those which were set aside and which are not to be the subject of any further proceedings.”

In making this acknowledgement, the Director was unambiguously recognising that even outside the context of legal proceedings, or after an acquittal, or after a conviction has been quashed, as well as during a trial, the presumption of innocence applies. It ceases to apply only on conviction, and while that conviction subsists. I believe it is an aspect of the citizen’s right to his or her good name, as well as part of the right to a fair trial.

The applicability of the presumption to proceedings other than a criminal trial, in that case a bail application, is to be found in the judgment of O’Dálaigh C.J. in Attorney General v O’Callaghan [1966] IR 501 and 508. There, dealing with a submission that the Applicant should be detained in custody because he might otherwise commit further offences, the learned Chief Justice said:

“The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man should be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted.

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R v Hickey and Others, an apparently unreported judgment of the Court of Appeal Criminal Division on the 30th July 1997, is also instructive on this point. This was the well known case of three men whose conviction for the murder of Carl Bridgewater in 1978 was quashed by the Court of Appeal on that date, almost 20 years later. The fourth Defendant had died in prison. At an early stage of the judgment of the Court of Appeal, Roch L.J. set out the functions of the Court on the hearing of the matter, which had been referred to it for the second time as a result of the discovery of undisclosed evidence. He said:

“At a subsequent hearing we indicated that the sole function we had to fulfil was to decide in the case of each Appellant whether his convictions on Count 1 and 2 in the Indictment were safe or unsafe and if we concluded that the convictions were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all unconvicted persons would be re-established. We were not going to carry out an enquiry as to whether the Appellants were in fact innocent, we being neither empowered by the act nor armed with the necessary powers to do so.” (Emphasis added)

Mooney v An Post High Court Keane J. unreported 11th February 1994, is also of interest in this context. The Plaintiff was a Postman whose dismissal was in question. He was alleged to have “mistreated” a number of items consigned to the post. In relation to one class of item he had been criminally prosecuted but acquitted by a jury. In relation to a second item, which had been deliberately placed in his way by the authorities in order to see what happened, there had been no prosecution. The civil proceedings related to the procedures appropriate to his proposed dismissal. In a section of the judgment entitled “The

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applicable law.” Keane J. (as he then was) set out certain relevant principles and concluded, at page 25-26:

One other principle remains to be mentioned. No issue arises in this case as to the guilt or innocence of the Plaintiff in relation to what took place at Coolock on the 27th March, 1984. That issue was conclusively resolved in favour of the Plaintiff when he was acquitted by a jury on all of the relevant criminal charges. Nor does any issue arise in this case as to whether the Plaintiff was guilty of a criminal offence in relation to the postal packet which the Defendants say they entrusted to his care on the 4th April and which, they say. disappeared. No charge was brought against the Plaintiff in respect of any such alleged offence and he is entitled to be presumed innocent of any criminal conduct in relation to the packet in question.”

The presumption has also been considered directly relevant and applicable in a case of precisely the same sort as the present. In M.F. v Director of Public Prosecutions High Court unreported (McCracken J.) December 1997, the Applicant complained of prejudice by reason of the unavailability of two witnesses. At page 9 of the judgment the learned Judge said:

“It is urged by the Respondent that nobody knows what evidence would have been given either by the Complainant’s father or by Patrick Reilly. This is, of course, true but I can only repeat that I must decide this application having regard to the presumption of innocence. If the Applicant is innocent, he is being deprived of two witnesses who would contradict the prosecution evidence. Without these witnesses the only way in which he can defend himself is by his own evidence. This is hardly unsatisfactory for two reasons, firstly because his evidence is not independent, and

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secondly, and perhaps more importantly he has an inherent right not to give evidence. To put him in a position which the only way he can answer the prosecution allegations is to give evidence, because witnesses are unavailable due to delay that inherent right which in my view would be unjust.

From these materials it appears quite clear that the presumption of innocence applies to all unconvicted persons. This is so whether they are unconvicted because the trial has not vet taken place or because a conviction has been quashed. In the latter case it applies even if there was to be no retrial, as was the position in the first and third cases cited above. If the presumption of innocence applies in those circumstances it seems to me to follow that it applies in all circumstances unless and until the Defendant is convicted.

With the probable exception of the judgment of Lynch J in P.C. some role for the presumption of innocence is envisaged on the hearing of an applications such as the present one in the reported cases. Apart from the passages already cited, one might refer to Kelly J’s list of propositions applying to cases of this kind and set out in D.O’R. v Director of Public Prosecutions [1997] IR 273, at pages 283- 84. The eighth and last of these is:

“In considering the circumstances, it must be borne in mind that the accused is entitled to the presumption of innocence and the right to silence.”

In general, however, the precise role to be attributed to the presumption of innocence on the hearing of these applications is not very specifically stated. The most specific application is that described in the judgment of Keane J. (as he then was) in the passage already quoted from his judgment in P.C.. If I understand this correctly, its effect is that it is applied as part of a third, overall, test, after the two conflicting assumptions had been made

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and that its application requires the Court finally to “ consider whether the degree of prejudice is such as to give rise as to a real and serious risk of an unfair trial.”

I believe that the sole issue in these proceedings is whether there is a real risk that the Applicant will not receive a fair trial, that is whether in all the circumstances including, principally, the lapse of time there is a risk that these allegations cannot fairly and safely be prosecuted. It does not appear to me to be necessary, in order to address that issue, to assume for any purpose that the allegations of the Complainant are true. In any event it does not appear to me that there is any legal mandate for the making of such an assumption. And in practice to do so involves a determination of the question of responsibility for the lapse of time wholly on the basis of an unproven assumption that what the Complainant says is true. The Defendant has no control whatever over what the Complainant says and it is as unfair to him or her to make an assumption as to its truth as it would be to the prosecution to assume, for any purpose, that the entire contents of the Defendants affidavit was correct. A statement like “Thus, fault lies with the alleged perpetrator of the actions - the Applicant,” converts the fact that an allegation has been made by another person into a “fault” on the part of the object of the allegation. The mechanism of this conversion is an assumption. I believe this to be unwarranted and very damaging in its results.

Furthermore, if, like Mr. Justice Henchy in O’Domhnaill v Merrick, I may assume that our laws are to be expounded in the context of the State’s international obligations including the European Convention on Human Rights, it is relevant to refer to Article 6.2 of that instrument. There it is provided that:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

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In Minelli 25th March 1983 A. 62 at page 18 the Court held that this second paragraph of Article 6 was violated if:

“….without the accused having previously been approved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty.”

I express no concluded view on the question of whether the assumption made in P.C. constitutes “an opinion” of the sort referred to in this extract, because the point has not been argued. However, it seems clear from the jurisprudence of the Court of Human Rights that the general body of rights contained in Article 6 are not limited to the strict confines of a criminal trial but may apply- to any steps taken after “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” (Deweer 27th February 1980, A.35). These rights may also apply in proceedings closely analogous to criminal proceedings such as disciplinary and certain administrative proceedings. See generally Theory and Practice of the European Convention on Human Rights, Van Dijk and Van Hoof, the Hague 1998 page 407 ff.

I make these references to the Convention for completeness and because of their obvious potential relevance. I am not founding my decision in any way on them.

Other Matters Arising from the Foregoing Points

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On the basis of his submissions as to onus of proof and the non-applicability of the presumption of innocence, Mr. Gaffney went on to develop certain submissions specific to the facts of this case. For example, he said that there is no evidence of prejudice here. The Applicant’s late wife might have had nothing to say. He agreed that memories may have faded, but says that that does not prove that there was ever anything useful to remember. He says it is for the defendant to prove specific prejudice and that in the absence of such proof the trial must proceed.

Where constant visits to the Defendant’s home by a child neighbour forms an essential part of the background, ordinary’ experience suggests that a housewife working at home will have much to say about the circumstances of the visits, if they happened as alleged. Still more so, where the prosecution case involves frequent and regular visits to a particular part of the house by the Complainant and the Defendant alone. If the wife were alive, it would be extraordinary and very damaging to the defendant if he did not call her. Nor can it fairly be said that her evidence would add nothing to the Defendant’s own. It is corroboration from a source other than a person accused of a reprehensible offence. And the wife may very well be able to say more than the Defendant: whether the child called when he was not there, what he or she did in the house, whether visits to the alleged location of the crimes occurred in other contexts, whether she herself would have been absent or otherwise engaged often enough and long enough to allow’ the husband to behave as alleged so frequently.

To require the Defendant to prove affirmatively that the wife had specific evidence to give, when no allegation had been made in her lifetime, is to require him to attempt the impossible. Experience, certainly that of anyone who has acted in any number of these cases strongly suggests that she will have some relevant, and perhaps vital, evidence in circumstances such as those of this case. And if the wife is an impressive witness, the very

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fact of her support and her evidence as to character is significant, and not capable of substitution by any other relative or friend. To suggest that that evidence itself might not have been available is to ignore the presumption of innocence and to use the onus of proof as a sort of Catch 22. It is no doubt for that reason that the Respondent in this case felt obliged to contend for the non-applicability of the presumption and against the concept of the inferring of prejudice from very long delay.

Mr. Gaffney equally submitted that while memories, whether of the Complainant, the Defendant or other persons might well have faded so as to make detail unavailable, this was not really relevant in a case involving multiple allegations over a period of years. Even if the Defendant could show that one allegation, or a few allegations, could not be true or were most unlikely, that would not avail him in relation to the bulk of the charges.

In my view this submission runs contrary to common experience of criminal trials. If a vital witness is demonstrated to be incorrect about one charge it will undoubtedly affect the confidence which a jury will repose in him or her on the others. In DPP v F, cited above, the fatal defect affecting a particular period of time did not exclude the possibility that the Complainant might have been assaulted at some other time in respect of which no such difficulty arose. However, the Director did not seek a retrial presumably on the sensible basis that the Complainant’s reliability in general had been gravely compromised.

Again, it is said that insofar as there is any prejudice the trial judge would be able to put it right by suitable warnings and interventions. I believe that this is simply unreal. I agree with what McGuinness J. said on this topic in P.C. at pages 43 and 44 of the report. In cases relating to excessive pre-trial publicity, the nature of a trial judge’s warning and advice to a jury is perfectly clear. They must put it out of their minds. I have yet to hear any actual formulation of what a judge might usefully say in relation to a lapse of time in excess of 20

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years. No doubt the Director would contend, as has on this and other cases that there is no prejudice whatever because, no matter when the trial was held, it would still come down to an assessment of credibility and, in any event the lapse of time was damaging to both sides. Certain dicta in this Court in the P.C. case might be cited in support of these contentions. In other cases where warning or advice is required, such as visual identification and pre-trial publicity, the Superior Courts have indicated in general terms the outline of their content. I am unaware of any attempt to perform a similar exercise in relation to very lengthy lapses of time. I do not believe it is possible to devise a satisfactory formula which would be fair to both sides. In all probability, the attempt to do so would degenerate into circularity. If the Judge were to say “you must bear in mind the possibility that the enormous lapse of time may have deprived the Defendant of evidence tending to prove or suggest his innocence in respect o one or more of the charges,” that might be of some, very unspecific, assistance to the Defendant. It would however strongly suggest that the case should not have proceeded at all. If he were to add. “on the other hand, you should bear in mind the possibility of the long lapse of time is a direct consequence of the abuse itself”, which presumably would be the prosecution’s standpoint, he would cancel out the first caution thus achieving complete circularity.

Until some specific form of warning or advice in this matter is suggested to us, I would not consider that there is anything a trial judge can do in a case such as the present to mitigate the risk of an unfair trial in cases where the lapse of time is very long.

The Present Case

I now propose to consider the facts of the present case in light of the authorities cited and of my own views as set out above.

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The basis facts have been outlined in the early part of this judgment. To these there must now be added the evidence of the psychologist who examined the Complainant for the sole purpose of considering the cause of the lapse of time in making a complaint.

The role of such a person was instructively considered by- the High Court (McCracken J) in M.F. v D.P.P. (High Court, unreported 5th December 1997). In that case, the Defendant was charged with the abuse of two children between 13 and 16 years when a complaint was made. The children themselves had a very difficult family background and a record of sexual abuse and worse by three relations. The Applicant was not a relation but lived nearby and had a business connection with their father. They, too, were examined by a psychologist for the purpose of giving evidence as to why so long a period had elapsed between the alleged abuse and the complaints. The psychologist met each Complainant once, for between one and two hours. He did not, however, mention in his report the other abuse which the Complainants had suffered or consider the psychological effects which this might have had. He stated that he was not told specifically about the principle past abuser and simply did not know of the allegations against the others. He stated that he did not see that the fact that the Complainants had been abused by some one else should form part of his report. McCracken J. held at page 3 of the judgment:

“It is my strongly held view that where a witness purports to give evidence in a professional capacity as an expert witness, he owes a duty to ascertain all the surrounding facts and give that evidence in the context of those facts, whether they support the proposition which he has been asked to put forward or not. I cannot accept that the background of abuse of these Complainants were not relevant, and consequently I would give very little weight to the evidence of (the psychologist).

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In this case the Complainant was referred to a Psychologist by the Chief State Solicitor’s Office with a view to assessing what effect the sexual abuse of which he complained had on her “and in particular whether any, and if so, which effects may have inhibited her complaining of this abuse until relatively recently.” The Psychologist, Ms F swore an affidavit in these proceedings in which she exhibited a report dated the 26th June 1998. She was cross-examined before the learned High Court Judge. She had met the Complainant once for about ninety minutes. She summarised the allegations and made a number of general statements in relation to children in such circumstances. She recorded that the Complainant was counselled for a period of one year and four months at a time she does not identify in the report. She says that during this period the Complainant took an overdose of antidepressants which she described as a “suicide attempt”. Under the hearing “long term effects” she records the Complainant as describing sleep disturbances, self-injurious excessive alcohol consumption. sexual difficulties, panic attacks, deterioration in school performance over the ensuing years, enuresis, nightmares and claustrophobia. She says that the Complainant has ongoing psychotherapeutic needs “which would appear to have a strong relationship to the symptoms reported by victims of sexual abuse”. Ms F records a number of statements about the Complainant’s parents to the general effect that they were not easily emotionally available to her as a child and that they had remained on civil terms with the Applicant even after she had made allegations to them in 1988. She records a specific statement about the mother presumably by way of accounting for this state of affairs. She makes a number of general statements about the factors which lead children to delay making allegations of this kind which, as general propositions, are no doubt true. She says little about the history of the Complainant after she had made statements of this sort to her family in 1998 but concludes that:

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“in terms of her emotional development and taking into account the particular context in which she was growing up, it is more than reasonable that her disclosure was delayed. Given the psychological problems that (the Complainant) subsequently suffered (listed above) one gets some idea of the level of stress that she was under as a child. This distress was put on hold and is now being resolved in adulthood.”

The report ends with the statement that:

“If the Statute of Limitations applies in these kinds of cases the law should be changed as (the Complainant’s) behaviour was developmentally appropriate and predictable.”

Of course, there is no Statute of Limitations in this matter.

This report focuses heavily on the position of an allegedly abused person in childhood. In cross-examination Ms F said that she understood that her brief had been a narrow or limited one. She understood her role to be to answer the question as to whether the person who had made these allegations had reasonable grounds for delay. She did not do a victim impact report and she did not do formal psychometric personality analysis. She felt that a clinical interview, in view of her experience would be sufficient. She said that this was the first case of this kind she had dealt with. She had not read the Complainant’s statement or any other case materials. She did not know the statement was available to her. She did receive any documents other than a letter of referral.

Ms F stated that she had seen in the Complainant “a cluster of behaviours” which were the result of child sexual abuse. She was then asked “were there other factors in her family home” and immediately stated:-

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“I would like to correct the fact that the report seems to indicate that the abuse was the only reason for these effects. It is not a simple cause/effect. One simple effect cannot lead to an adult’s presentation. There are other contributory factors. She told about some of the difficulties she had. I spent some limited time talking about what had happened to her subsequently, that is how I know about her present problems. We spoke about what had happened to her as a child and her present state. One cannot logically relate all her present state to what happened in childhood. Child sexual abuse has contributed to her difficulties. Others also.”

Ms F was then asked as to what other matters referred to were and she stated “I didn’t go into life events very much after that.” She added “there were a cluster of behaviours which fit with sexual abuse. If there were other factors they may have contributed I expect there were other factors, not that I am aware of in detail.” She made certain remarks about the Complainant’s family background and said “she had difficulties in family life - the sexual abuse compounded her difficulties. This was not the only reason for her difficulties. Her life was not ideal.”

Asked specifically if similar symptoms (the cluster of behaviours) in her siblings might be relevant, she said:

“My brief was not to examine or analyse the cause of the difficulties. My brief was to analyse the difficulty regarding delayed disclosure.”

Asked specifically whether it would be relevant if a particular relation had exhibited similar psychological disturbance she said:

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“I still maintain that the cluster of behaviours was referable to sexual abuse, (the other person) might) have had a similar experience.”

There was, on the papers before the court, no evidence whatever that the other person had. or had ever claimed to have had, a similar experience.

In further cross-examination, it transpired that Ms F had never become aware that the Complainant had made allegations in 1988 to persons other than to her mother. She said she should have asked the Complainant about this. Asked if she had considered it appropriate to read the Complainant’s statement (in which she gave an explanation for delayed disclosure) she said:

“In the letters of referral there were no papers. This was the first such case I had dealt with - I didn’t know the statement was available to me. I didn’t receive anything other than the letter of referral.”

She stated that she had made no enquiries as to the circumstances in which the Complainant had presented for therapy, nor of what she had said to the Therapist. She said she did not focus so much on the Complainant’s later life.

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In my opinion the nature of the examination carried out by the Psychologist retained by the Chief State Solicitor was a gravely inadequate one. She based her opinion on a cluster of behaviours which she attributed to sexual abuse. In her report, there is no suggestion whatever that these behaviours could be caused, or contributed to, by any factor other than sexual abuse. Immediately on the possibility of other factors playing a role being raised in the most general terms she stated that she would like to correct this aspect of the report. Having acknowledged that there were other factors she stated that she had not listed them and was not aware of what they were in detail. She had apparently not asked about them or. if she had asked, not recorded the details. She made statements about the Complainant’s parents by way of explaining both the nondisclosure to them until the late 1980’s and the subsequent nondisclosure to the authorities, but it transpired that she had not verified these statements or interviewed the parents or the other siblings. She had not apparently thought it relevant to see if the “clusters of behaviours” on which she placed emphasis were replicated in other relevant people. When confronted with the possibility that this was so she immediately and, on the evidence, groundlessly speculated that another identified person might have had a similar experience (in relation to sexual abuse) although there was no evidence at all for this.

In my view, it is unacceptable in a person in Ms F’s position giving expert evidence on a vital matter deliberately to refrain from exploring, except in the most general terms, other experiences or conditions capable of causing or contributing to the “clusters of behaviours” which are a significant part in the formation of her opinion. She did not volunteer, and perhaps was unaware of, even the general nature of these other matters. While this may be because it was the First such case she had dealt with, the position is an unsatisfactory one. She made no enquires about the therapy the Complainant had undergone, the presenting symptoms or nature of the treatment. She had made statements without

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verification as to the reasons why disclosure to one of her parents might have had unsatisfactory results from the Complainant’s point of view, but did not discover that she had made other disclosures. While her general statements as to the effect of sexual abuse on children as general propositions she has little specific to say about nondisclosure in adulthood by this Complainant and indeed had failed to elicit basic facts about it.

As to nondisclosure in childhood. Ms. F. does not record being told of the alleged threat (in the Complainant’s statement in the Book of Evidence) that she would be sent to jail if she told anyone. Ms. F. does not comment on the variation between this account and the reasons offered to her, set out below, because she had not read the statement and was not told of the threat mentioned in it.

In these circumstances I cannot place significant weight on Ms F’s evidence, particularly in relation to the period after 1988. Having regard to the views I have already expressed in relation to the onus of proof applicable to these matters, this leads me to allow the Applicant’s cross appeal. I do not believe that there is evidence that the Complainant’s delay in reporting was brought about by reason of the effect which her association with the Applicant had on her at the relevant time, or that her capacity to speak about the incidents arose only as a result of counselling. There is in fact no evidence whatever as to the nature or effect of the counselling or indeed as to the symptoms recorded when she presented for it.

It is also noteworthy that two of the specific reasons given for nondisclosure in cross examination were that “she was afraid that if she told what had happened her parents might go to jail” and “she was afraid of losing her relationship with the Applicant’s wife with whom she had a close bond.”

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The first of these reasons is scarcely capable of survival into adulthood in a person of normal intelligence who is actively employed in the business world. Nor is there any evidence that, at any time, it was a view induced by the Applicant. The second is of course a matter on which the Applicant’s wife, were she alive, would clearly have evidence to give. Furthermore. it is a matter whose effect scarcely survived the departure of the Complainant’s family from the locality in or about 1986, by which time the Complainant was living and working in the United States.

In my view it is essential that an expert witness in a case such as this should ascertain all facts relevant to the question of whether a delay in reporting alleged abuse is referable to the act of the alleged abuser. Where the delay is attributable to, or the reasons for it evidenced by, specific symptoms. the cause of such symptoms is clearly relevant. For a professional witness to state (only when asked) that there were factors other than alleged sexual abuse present, but not to identify them and therefore to be unable to discuss the actual causes for the Complainant’s presentation, is inadequate.

The judgment of Mr Justice McCracken quoted above highlights one such background matter which is clearly relevant: past sexual abuse other than by the Applicant. This, where it is present, has obvious relevance for an assessment of a delayed account of similar abuse by another alleged perpetrator, and for the credibility of the reasons offered for the delay the Burnett case, cited above, the conviction was quashed largely because a quite separate sexual allegation by the Complainant transpired to have been fabricated. But there are other factors of potential relevance. To fail to enquire about the presence or otherwise of any relevant “cluster of behaviours” in a related person seems remarkable. And it is questionable to proceed on the basis of unverified statements about the attitudes and habits of third parties such as the Complainant’s family, when these are easily verifiable.

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It would appear that modern psychological practice, quite apart from legal requirements, suggests a much more thorough and broader approach to assessments of this kind: see Browne Scheflin and Hammond: Memory, Trauma, Treatment and the Law Norton & Company’, New York 1998, page 621 ff. Moreover, quite apart from the specifically psychological context, if it is desired to prevail upon a court to permit very old cases to proceed there is in my view an obligation on the prosecution to attempt to elicit as much general detail as is possible in circumstances, no matter which party it favours, so as to avoid a situation in which bare assertion is countered by bare denial.

The necessity for thoroughness in the investigation generally, and the psychological portion of it expressly, is borne out by what is presently known about child sexual abuse as a phenomenon and by the considerable controversies to which it is given rise amongst professionals dealing with it. As Denham J. remarked in P.C. (at page 64):

Our knowledge of the extent and the dynamics of child sexual abuse is of very recent origin and is growing.”

In Casey and Craven: Psychiatry and the Law, Oak Tree Press, Dublin, 1999 the alarming observation is made that:

“Increasingly, there are accusations of child sexual abuse directed at those who have committed no such crime” and the authors instance certain psychological disorders and the pressures arising in situations of marital breakdown as causes for this (pp 69/70).

In the American publication referred to above cites, at page 614, a study suggesting that almost three times as many unfounded allegations of sexual abuse are made in good faith as opposed to maliciously or deliberately is cited, but all such studies are undermined by the lack of any determinant for the assessment of whether allegations are indeed false or

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unfounded. Accordingly, though I entirely agree with Denham J. that knowledge of the extent and dynamics of child sexual abuse is growing it has not of course extended to the point at which any major contribution can be made to the determination of whether particular allegations are or are not true. The psychologist in this case specifically disavowed any such object in her inquiry. The investigation which she did conduct, limited as it was to a specific question, does not appear to me to be remotely thorough enough to be reliable for the purpose of this case: indeed in many respects it raises more questions than it answers.

Apart altogether from the deficiencies as I see them, of the psychological evidence, there is the Complainant’s own statement recorded by the Psychologist that:

“She never had any intention or it to end up as a legal matter. It was taken out of her hands by the Health Board and the Gardaí.”

This seems to me, as a matter of probability’, to be the reason for the lapse of time, certainly subsequent to 1988. By that year, on the evidence, the Complainant was plainly capable of making an allegation and was, as her father put it, “an adult then and able to make up her own mind as to what she should do.” I am unconvinced that there was any inhibition on disclosure to any party at that stage. and perhaps earlier. I am entirely unconvinced that any action which could be properly attributed to the Applicant was constraining her in any way. I find generally applicable to this case the conclusion of McGuinness J. in the High Court in P.C.:

I cannot but conclude that the delay from 1988 onwards, however understandable. was the Complainant’s own delay and to a lesser extent to that of the persons to whom she made her complaint in 1988. There is no factual evidence that this delay

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from 1988 to 1996 was caused by the applicant. This is in stark contrast to the facts in B v Director of Public Prosecutions [1997] 3 IR 140.

In fact, the position in this case is a clearer one in that that there is no reliable evidence here, in my view, that the persons to whom the Complainant complained in 1988 in any way caused or contributed to a delay in reporting: so to hold would, I believe, be pure speculation.

Decision

I have already indicated that I would allow the cross appeal and set aside the findings of the learned trial judge based on the evidence of Ms F. I propose to express my decision on the Director’s appeal principally in the form proposed by Keane J (as he then was) in P.C. I do this notwithstanding the reservations I have expressed about a central part of the ratio of that case, both by reason of its authority and because that approach seems to me most consistent with a presumption of innocence.

I must First enquire, therefore, whether the delay or lapse of time in this case is such that a trial should not be allowed to proceed, bearing in mind:

“The fact that the offence charged is of a sexual nature is not of itself a factor which would justify the Court in disregarding the delay, however inordinate, and allowing the trial to proceed.”

For the reasons set out extensively earlier in this judgment, I believe that a gross lapse of time, in a case almost devoid of detail in relation to surrounding facts and circumstances, carries with it a real risk of wrongful conviction. In the language of the decided cases, it is so

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old as to be “beyond the risk of fair litigation”. “The chances of the Courts being able to find out what out what really happened” have been progressively reduced and the delay is “patently and grossly unfair to the Defendant.”

In view of that finding, it is strictly unnecessary to enquire whether it has been “demonstrated that the capacity of the accused to defend himself or herself will be impaired.” Nevertheless, I propose to consider the question. I believe it has been demonstrated that the Defendant has suffered an impairment in his ability to make a proper defence. Again, I have referred above to the sort of material on which alone a Defendant faced allegations such as these can hope to defend himself successfully and I note that, as far as the evidence of this hearing goes, none of these are available. I consider the unfortunate fact that his wife died before these allegations were made to have considerable relevance both from the nature of the allegation and the place the abuse is said to have taken place, as detailed above, and from the fact that the Complainant specifically claims to have had an affectionate relationship with the deceased lady. If that is not so, the deceased would have contradicted it: if it is so the deceased would have had more specific evidence to give about the Complainant than might otherwise be the case. In any event I believe that the Defendant would suffer from the lack of detailed evidence as to the household in which the abuse is said to have been perpetrated, and unquestionably from the lack of the endorsement and evidence as to character from this irreplaceable source. For the reasons given above, I do not accept that it is for the Defendant to establish specifically what the deceased wife’s evidence would have been and I reiterate that it would be impossible for him to do this having regard to her death before any hint of these allegations was available for her consideration.

There was controversy in the course of the hearing as to the relevance of the evidence about the Applicant’s age, loss of “sharpness” and his state of health. The Director of Public

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Prosecutions strongly maintained that the Defendant’s state of health, so long as it did not amount to in capacity to stand trial or on fitness to plead was wholly irrelevant.

I do not think that these factors are at all decisive in the present case and I do not rest my decision on them in any way. However. I believe that the learned trial judge was entitled to have regard to them as part of the general circumstances of the case. If there is a huge lapse of time so that more then twenty years elapses between the time of the alleged offences and the hearing, it is quite foreseeable that a Defendant would be physically and psychically less able to meet them. I have cited earlier in the judgment from authorities suggesting that one of the reasons why Courts lean against long lapse of time in criminal cases is a humanitarian concern for the anxiety and distress this causes a Defendant. Of course, if the Defendant is innocent, it follows that he can have suffered no anxiety or distress whatever in the long period up to the making of the allegations. But it would be utterly unrealistic to ignore the fact that a person of good character, uncertain health, widowed and somewhat advanced in years will be gravely affected, and in some cases perhaps almost disabled, by being suddenly confronted with allegations of this uniquely disgraceful kind. All these factors are compounded by the effect of the inability of the Defendant to take any step by way of defence other than bare denial. I agree with the learned President that there might well have been steps he could have taken had the allegations being made many years ago: because they would then have been presumably more specific in time and place he might well , in view of his occupation, have been in a position to demonstrate that some of them were impossible. But one cannot do more than note the possibility. It is here that the views I have expressed to the applicability as to the presumption of innocence and in relation to the onus of proof would become significant if the case hinged on demonstrable prejudice. If loss of time makes proof impossible, it seems to me quite wrong further to penalise the Applicant who complains

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that too much time has gone by to allow him to defend himself properly, by holding that the same lapse of time also disables him from establishing prejudice. This of course, applies with particular poignancy in relation to the position of the deceased wife.

If it were necessary to address the question as to whether the delay in making the complaint was referable to the Applicant’s own actions, I would answer it in the negative. I have already expressed my grave reservations about assuming, for this purpose, that the Complainant’s account is true and I will not reiterate them here. Even taking at its face value. however, the evidence adduced in the High Court and in this Court by the Director, particularly that of Ms F., I find it quite unsatisfactory for the reasons already set out.

If, however, it were necessary to apply Keane J.’s final test - whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial - I would answer this question in the affirmative. For the reasons already amply set out I believe that a very old case where mere assertion is countered by mere denial is intrinsically hazardous. I do not accept that these cases, if prosecuted in a timely- manner, need be mere contests of credibility. More fundamentally, I believe that a contest of pure credibility after very many years, without supporting evidence on either side, is as likely to lead to a wrong result as a right one. It is scarcely a forensic contest at all, precisely because the real issue is “beyond the reach of fair litigation.”

I would add that it seems impossible on the evidence in this case to find the existence of “dominion” as that term was described in B. If dominion were the issue then, in my view, the case would have to be resolved in favour of the Applicant no matter how it were approached. To some degree the decisions in P.C. supplement the notion of dominion with a more general category of suppression, described as “this consequential effect of dominance

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and alleged child abuse.’ (page 64). The notably vague psychological evidence in this case does not, in my view, establish any such thing:

I would respectfully endorse what McGuinness J said in P.C.:

it would be unfortunate if the discredited orthodoxy of the past were to be replaced with an equally rigid orthodox view and in all cases of delay in making complaints of sexual abuse the delay can automatically be negatived by dominion. This is emphatically the ratio of the B v DPP judgment. In fact Denham J. is more careful to repeat at several points of her judgment that each case must be analysed and decided on its own circumstances and facts as she herself as done in B’s case.”

In my view, the gravest consequence of deciding any issue in these cases on the basis of an assumption that the Complainant’s evidence is correct is that it will almost invariably lead to a decision that the delay or lapse of time is to be attributed to the Applicant, even where this is not so. Nor can one further assume that the assumption will do no harm because one can rely on credibility being accurately assessed in the end: it is salutary to remember what was so well expressed in the judgment of McGuinness J. in Gilligan v Criminal Assets Bureau [1998] 3 IR 185 at 230):

“The Defendant’s argument here seems to me to tend towards a sophisticated version of ‘the innocent have nothing to fear’, which I would not accept as being sufficient in itself to offset a threat to the privilege against self-incrimination. There have been sufficient miscarriages of justice in the history of crime in this and other jurisdictions to indicate that a belief that ‘the innocent have nothing to fear’ is not necessarily the whole answer.”

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With the substitution of the “presumption of innocence” for “ the privilege against self-incrimination”. I would reiterate that passage here.

I would also emphatically reiterate that, if there is a real risk of an unfair trial, it is the role of the High Court and this Court to prevent it by prohibition or injunction. In the words of Finlay CJ. in The State(O’Connell) v Fawsitt [1986] IR 362:

“A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury.”

Cases of this sort present the courts with an acute dilemma. There is indisputable evidence that the incidence of sexual abuse of children was much higher than was generally believed. This has been graphically brought home to civic society in general by a long series of cases, some of them involving people in trusted positions in society. It is understandable that these repeated disclosures would have the effect of leading other persons make disclosures or allegations. Taking a rigid view, for example that no such prosecutions could be initiated after some specific period, would be in effect to confer an amnesty in relation in such matters. No one suggests that this is appropriate or legally possible.

On the other hand, the difficulties, sometimes extreme, which an innocent person faces in defending such allegations after a gross lapse of time must never be lost sight of. However time consuming and painstaking the exercise, each case where the courts jurisdiction is invoked must be considered on its own facts. The exercise involved - that of assessing whether a fair trial is now possible in the individual circumstances - is emphatically not one that involves a decision as to the truth or falsity of the allegations. Nor is a decision. in an individual case, that a trial cannot fairly be had in the particular circumstances in any

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sense a denigration of the Complainant or an arbitrary closing of the door of the court to him or her. It is simply a recognition that, in particular circumstances, the matter has gone “beyond the reach of fair litigation” That is a decision which the courts have been making in relation to all sorts of litigation for many years and one which, as Finlay CJ. said, is a vital part of their jurisdiction.

I would therefore restrain the further prosecution of the charges against the Applicant and dismiss the appeal.