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Cite as: [1999] IEHC 121

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O'Connor v. D.P.P. [1999] IEHC 121 (4th March, 1999)

THE HIGH COURT
JUDICIAL REVIEW
Record No. 31 JR 1998
BETWEEN
PADRAIC O'CONNOR
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE PRESIDENT OF THE CIRCUIT COURT
RESPONDENTS

JUDGMENT of Mrs. Justice McGuinness delivered on the 4th day of March 1999

1. This matter comes before the Court pursuant to an Order made on the 23rd January 1998 by the President of this Court (Morris P.) whereby the Applicant was given leave to apply by way of judicial review for an Order of Prohibition or in the alternative an injunction restraining the Respondents from further proceeding with the prosecution of the Applicant on the charges which have been preferred against him. The grounds upon which the Applicant seeks such relief are:-

(a) The Applicant has been deprived of his right to a trial with due expedition because of the delay between the alleged commission of the offence and the trial of the Applicant .
(b) The Applicant has been prejudiced by the delay in his being brought to trial.

2. The Applicant was arrested on the 2nd September 1996 and was charged with various counts of indecent assault. He was subsequently brought before the District Court and in due course the Director of Public Prosecutions directed that the trial of these charges should be heard on indictment. The indictment contains five counts alleging that the Applicant assaulted Padraic Keane on five different dates between the 1st day of January 1982 and the 31st day of December 1983. The Complainant Padraic Keane was born on the 8th day of December 1972 and would have been nine years of age at the time of the first alleged assault.

3. The Applicant was served with the Book of Evidence pursuant to the provisions of the Criminal Procedure Act 1967. This Book contained a statement from the Complainant alleging that he had been assaulted on various occasions while attending music lessons at the College of Music where the Applicant was his music teacher. The alleged assaults consisted of fondling the Complainant's private parts in the course of the lesson during which it is alleged that the door of the room was locked. The Book of Evidence also contained statements from a Declan Lonergan who stated that the Complainant had made an allegation of sexual assault in relation to the Applicant in August 1995. A statement from the Complainant's parents indicated that during the course of an argument with his father in August 1995 the Complainant suddenly indicated that he had been abused and that he then went on to say that the Applicant had carried out this abuse. The Complainant was not in a position to nominate specifically the dates on which these assaults were carried out and it appeared that no complaint had been made until 1995 which was approximately twelve years after the last assault complained of.

4. The Applicant taught in the College of Music from January 1981 to June 1986; the Complainant was a pupil of the Applicant there from early 1981 to June 1986.

5. Mr Garrett Sheehan, Solicitor for the Applicant, averred in an affidavit sworn on the 23rd January 1998 that on receiving instructions from his client he made enquiries from him in an attempt to ascertain whether it might be possible to interview witnesses or collate evidence which might be of assistance in defending him against the allegations made against him.

6. Mr Sheehan was unable to gather any evidence which would help to disprove these allegations and in particular was not able to discover if and when keys had been made available to the various tutorial rooms in the College of Music. It appears that keys were available to staff in the college only from a date in 1984, although locks had been fitted to at least some of the rooms from 1981 onwards. Prior to 1984 it appears that keys were held by the college porter. Enquiries were made of Mr Frank Heneghan, who was Director of the College of Music at the time, but he was unable to throw any further light on the matter, stating in a letter to the Applicant that " details such as those you seek constitute the minutiae that fade from the memory simply because they seem of no particular import at the time ." Detailed information in regard to the provision of locks and the availability of keys was important because the Complainant alleged that the Applicant had locked the door of the room while the alleged assaults were carried out. Other details in regard to the day to day running of the College of Music at the time were equally unascertainable.

7. The case against the Applicant was first listed for trial in the Dublin Circuit Criminal Court on the 23rd July 1997. On the day of the trial a copy of Additional Evidence dated the 22nd day of July 1997 was served on the Applicant. This contained the opinion of Dr. Paul McQuaid, a Psychiatrist, as to why the Complainant might have delayed in making his complaint. The report was dated the 24th day of June 1997. As was pointed out by Senior Counsel for the Applicant, Mr Gageby, this proposed evidence consists in large part of hearsay; it is also highly prejudicial since it is clearly based on an assumption that the Applicant is guilty of the offences with which he is charged.

8. The learned Trial Judge in the Circuit Court adjourned the trial on the application of the Applicant because of the delay in serving this evidence and in order to give the Applicant's Counsel and Solicitor time to consider it. A new trial date was subsequently fixed for the 15th day of October 1997 and this was subsequently changed to the 16th day of October 1997.

9. At the opening of this trial Counsel for the Applicant applied to the Trial Judge to rule out the evidence of Declan Lonergan, whose statement in the Book of Evidence dealt with a purported complaint made to him by the Complainant in August 1995. Having heard submissions the Trial Judge ruled that evidence of this complaint was inadmissible on account of the delay between the alleged offences and the making of the complaint.

10. Subsequent to this ruling, on the 18th October 1997, the Prosecution served a notice of additional evidence consisting of a statement from one Kenneth Walsh which had been made on the 17th day of October 1997. This statement contained details of a complaint allegedly made by the Complainant to Kenneth Walsh in or about June 1990. An objection was made on behalf of the Applicant to the late introduction of this evidence on the basis that this was trial by ambush. The Trial Judge upheld this objection, discharged the jury, and put back the case to allow for the fixing of a new trial date. This date was fixed for 26th January 1998. The Applicant issued the present judicial review proceedings on the 23rd January 1998.

11. The first-named Respondent filed a statement of opposition on the 17th July 1998. The stated grounds of opposition included, inter alia , that:

(a) There is no time bar to the prosecution of such offences as are charged herein
(b) There has not been the alleged or any delay by the first-named Respondent in charging or prosecuting the Applicant in respect of the charges laid against him.
(c) If there was delay in the making of complaints against the Applicant herein, the Applicant has been responsible for the said delay. The Applicant, was at the time complained of, a music teacher of the Complainant's and in a position of dominance and control over him.
(d) The Applicant has not established that any alleged delay has caused or will cause him to suffer prejudice in the preparation or presentation of his defence to the charges laid against him.
(e) In so far as the length of time from the commission of each offence to the date of trial of the Applicant is concerned, same will not be so great as to render the trial unfair, particularly having regard to the capacity and duty of the Trial Judge, by appropriate directions to counter any alleged prejudice and to secure that the trial of the Applicant will be fair in all respect.

12. The Respondents' Statement was supported by a brief Affidavit of the Complainant, an affidavit of Superintendent Noel White of the Garda Siochana and an affidavit of Elaine Fitzgerald, Senior Clinical Psychologist of the Institute of Psychosocial Medicine, Dun Laoghaire. Ms Fitzgerald in her affidavit exhibits a report which she wrote following an interview with the Complainant on the 16th June 1998. It appears from the introduction to this Report that Ms Fitzgerald was asked by the Chief State Solicitor's Office to assess whether the sexual abuse of which the Complainant had complained "has had any, and if so, what. effect (including long and short term) on him and in particular whether any, and if so, which effect may have inhibited him complaining of this said abuse until relatively recently". Ms Fitzgerald also gave oral evidence before this Court and was cross-examined.

13. Ms Fitzgerald is clearly a highly qualified witness of considerable expertise in the area of Child Sexual Abuse. Her evidence was more cogent and more impressive than that presented before me by the State in an earlier case of a similar nature heard by me. I accept her evidence in regard to the reasons which in general lie behind delay in the reporting of sexual abuse by victims who are young children at the time of the abuse. Her explanation of the particular reasons why the Complainant in the instant case did not make a complaint at an earlier date is credible within the general theoretical framework.

14. In her psychological report Ms Fitzgerald reports the Complainant as saying that the Applicant told him that this was "our little secret" and because he colluded in this he felt that he too was a guilty party. The Complainant said that it did not occur to him to speak to anybody about the abuse in the early years. The Applicant left the school when the Complainant was twelve years of age and he began to have a growing awareness that what had been done to him was wrong. He described his embarrassment and shame growing over the years rather than diminishing and found it more and more difficult to disclose what had happened to him. Ms Fitzgerald reports him as saying that he was reluctant to speak of the matter to his parents, not because he felt that he would not be believed but because he felt his parents would be upset and blame themselves. He said that these matters had been playing on his mind over the years and with his growing awareness that he was not the guilty party he began to confide in his friends. With their support he made the decision to tell his parents. Ms Fitzgerald concludes that it is not possible to prove retrospectively that Mr Keane was psychologically "disabled" in the most narrow legal sense of the word, but in terms of his emotional development and taking into account the context of the alleged abuse, it was more than reasonable that his disclosure was delayed.

15. This court, however, must always bear in mind that the entire of Ms Fitzgerald's assessment is based on her acceptance of the Complainant's account of events as given to her; to put it in another way, her conclusions derive from an assumption both that the Complainant was sexually abused and that it was the Applicant that abused him. She herself stated in evidence that she had to assume that what the Complainant was saying was true, and in the course of cross-examination accepted that what she found was that the delay was explicable "if you accept that the abuse took place".

16. In drawing attention to this factor I am by no means critical of Ms Fitzgerald or of her evidence; she carried out the instructions she was given in a highly competent and professional manner and was at all times fair in replies to Counsel. The difficulty which I have referred above stems from the nature of these cases; it is the Court's difficulty and not that of Ms Fitzgerald.


Submissions of Counsel

17. In his submissions to the Court Counsel for the Applicant, Mr Gageby, accepted in regard to onus of proof that the onus was on the Applicant to demonstrate that, as a result of the delay in prosecuting him for the alleged offences, there is a real risk that he will not obtain a fair trial if the prosecution against him is allowed to continue. Such a real risk might exist where the accused's ability to defend himself had been impaired, for instance, by reason of the lack of specificity of the charges brought, the unavailability of witnesses, the inability accurately to recall events or the unavailability of other exculpatory evidence. A real risk could also arise by reason of the efflux of time even where no specific prejudice was shown.

18. He submitted that there were two periods of delay in the instant case: firstly, a delay from the 1st January 1982 to August 1995 by the Complainant in making a complaint against the Applicant, and secondly a delay from August 1995 to the 26th January 1998 in the prosecution of the applicant for the alleged offences.

19. Mr Gageby listed four specific ways in which the Applicant was prejudiced in the conduct of his defence as follows:-

(i) The Complainant alleges that prior to each of the alleged assaults the Applicant locked the door of the music room. The Applicant has been unable to locate any witness who can recall when, and to which rooms, locks were fitted. The Applicant has also been unable to find any documentary evidence with regard to these matters. If the Applicant had been prosecuted for these offences at an earlier date this information would have been available. As a result of this, the Applicant is in the same position as if a witness had died.
(ii) As a result of the lack of specificity of the charges made against the Applicant, the Applicant has been unable to locate any alibi witnesses, or to recall any events, or to obtain any evidence that might aid him in disproving the allegations made against him.
(iii) By reason of the efflux of time since the alleged commission of these offences and the prosecution of them, there is a real danger that the Applicant will not receive a fair trial.
(iv) As a result of having stood trial on two previous occasions, which trials were aborted as a result of delay on the part of the Respondents, the Applicant has suffered considerable anxiety and concern.

20. In addition, Counsel for the Applicant submitted that this case can be distinguished from the other cases of this nature which have been decided by the Superior Court in that the allegations do not relate to persistent and repeated abuse over a prolonged period of time but rather are of five occasions of abuse only over a period of two years. He referred to the judgment of the learned Keane J. in C v DPP (unreported Supreme Court 28th May 1998) where, at page 10 of his judgment, the learned Judge stated:-

"There is finally the question of prejudice, in cases of this nature where the allegation is not of an isolated incident or even a relatively small number of incidents but of a repeated pattern of sexual abuse over a number of years, the charges, of necessity, will be lacking in particularity as to dates and times. That undoubtedly creates difficulties for the Applicant in defending the charges but he would have been in a broadly similar position had the complaint been made ten years ago: they would similarly have been lacking in such detail,. There is no such specific prejudice alleged peculiar to this case and deriving from the delay which might have weighed in the balance against the reasons of the delay in making the complaint."

21. Mr Gageby re-emphasised that in the instant case, apart from the fact that the alleged abuse is said to have occurred on five occasions only, the Applicant has suffered specific prejudice in regard to the evidence relating to the locks on the music room doors.

22. Mr Gageby also submitted that while in the cases of C v DPP (supra) and B v DPP [1997] 3 IR 140 it was held that as a result of the dominant position held by the Applicant over the Complainant the Applicant was responsible for the delay in bringing proceedings and such delay was thereby rendered explicable, in the instant case the Applicant did not hold a position of dominance over the Complainant nor was he responsible for any delay in the bringing of the prosecution against him. He also submitted that, since the Applicant stood indicted before the Circuit Criminal Court of criminal offences, and the application was to prohibit the trial of those offences, the Applicant was entitled to the presumption of innocence in these proceedings in the same way that he would be entitled to such a presumption if he were applying to the Trial Judge to exclude evidence on the grounds of delay. He argued that any observations to the contrary in the C v DPP case as regards the presumption of innocence were clearly obiter and did not form a necessary part of the decision in that case.

23. In addition, even if the Court found that the Applicant was responsible for the delay or that the delay was otherwise explicable, the Court would still have to examine whether there was a real risk that the Applicant would not receive a fair trial by reason of efflux of time.

24. Finally, Mr Gageby submitted that there were no rulings or directions that the Trial Judge would be able to make which would avoid the trial of the Applicant being unfair. There was no common law or statutory rule that permitted a judge to rule evidence inadmissible merely on the basis that it was old. There was no legal rule or precedent which required a Trial Judge to caution as to the considerable time between the date of the commission of the alleged offences and the trial. Further, there was no legal requirements that a jury be cautioned on the dangers of convicting on the basis of uncorroborated testimony. Jurors took an oath to try a case on the evidence. Any direction to the jury asking them to consider the difficulties in the case because of the delay would be inviting the jury to try the case on what the evidence might have been. Further, inviting the jury to consider what evidence might have been presented, and what difficulties the delay had caused the Applicant, would be to ask the jury to decide what this Court was asked to decide; it would make the jury the arbiters of fairness in the trial. Also there was no special question that could be put to the jury on the subject of delay or prejudice which the jury would be capable of answering without speculating on what evidence might have been available, or what recollections witnesses might have had, if the prosecution had been brought at a date nearer to the alleged commission of the offences.

25. Counsel for the Respondent, Mr O'Caoimh, referred to the report of Dr Paul McQuaid and to the report and evidence of Elaine Fitzgerald as offering an explanation for the Complainant's delay that was consistent with the type of emotional and psychological reaction that commonly occurs in abuse of the nature alleged.. He accepted that the Courts would restrain a trial where there was a real or serious risk that the accused could not obtain a fair trial and referred to D v The Director of Public Prosecutions [1994] 2 IR 465.

26. In regard to the appropriate test to be applied in cases such as the instant case, he referred to the judgment of Finlay CJ in Z v DPP [1994] 2 IR 476 (at pages 505-507) where the learned former Chief Justice stated that the Supreme Court in D v DPP had "unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an Order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances......he could not obtain a fair trial." and went on to say "with regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in D v Director of Public Prosecutions that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the Trial Judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."

27. Mr O'Caoimh referred to a number of earlier cases in regard to delay where the allegations were those of sexual abuse. These included B v Director of Public Prosecutions [1997] 3 IR 140, EO'R v The Director of Public Prosecutions High Court [1996] 2 ILRM 128 Supreme Court (unreported) 18th March 1997 and O'C v The Director of Public Prosecutions High Court (Barr J.) 17th November 1994 Supreme Court (unreported) 27th January 1997. With regard to the alleged difficulty of an accused in defending a case such as the instant prosecution Mr O'Caoimh referred to the ex tempore judgment of O'Flaherty J. in the Supreme Court in the EO'R v DPP case where he stated (at page 8):

"However, we seem at the end of the day to be down to a single point - that the accused is going to find it difficult to defend the case. That, as I say, applies in nearly every case of this kind, even where there is no significant delay."

28. As regards lack of specificity in regard to the dates of the offences Mr O'Caoimh pointed out that the Supreme Court had identified this situation in a case of the Director of Public Prosecutions v EF (unreported Supreme Court 24th February 1994) and did not consider the trial to be unfair by reason of the lack of specificity in the charges in that case. This position had been re-asserted by the Supreme Court in a number of subsequent cases. Mr O'Caoimh finally submitted that there had been no undue delay in the case and no basis existed for the Court to grant the Applicant the relief sought. While there had been some delay occasioned by the difficulties surrounding the trial of the Applicant the only period for which the Court should have regard was the period from July 1997 when the first trial was due to commence to the 28th January 1998 when the Applicant's trial would have proceeded but for the Applicant's own application for judicial review and the consequent stay of the proceedings.




The Law and Conclusions

29. It is common case between the parties that there is no time bar to the prosecution of the offences with which the Applicant is charged and that the onus of proof is on the Applicant to demonstrate that, as a result of the delay in prosecuting him for the alleged offences, there is a real risk that he will not obtain a fair trial if the prosecution against him is allowed to continue. I also would accept that it is settled law that as stated by Finlay CJ in D v Director of Public Prosecutions "where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the Trial Judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial." (at page 507).

30. There is now a considerable body of case law as to the circumstances in which delay may defeat a prosecution and as to the applicability of the general principles to the special and peculiar circumstances of sexual offences against children and young persons. The applicable principles in such cases were considered in some detail by the Supreme Court in B v DPP [1997] 2 ILRM 118 and more recently in C v DPP (unreported 28th May 1998). Both these cases, in common with other Supreme Court decisions, deal with cases where the Supreme Court refused an Order of Prohibition, the grounds for the refusal as set out in the B case being considerably widened in the C case. It is, perhaps, unfortunate that, so far as I am aware, there has been no recent decision of the Supreme Court in which an Order of Prohibition has been granted in a case where the Applicant was charged with sexual offences against a minor, as such a decision would provide authority and guidance in regard to the circumstances in which this Court might be entitled to prohibit such a prosecution.

31. In his judgment in C v DPP the learned Keane J. admirably summarised the traditional jurisprudence in regard to the right of an accused person to a reasonably expeditious trial as follows (at page 1):-

"The right of an accused person to a reasonably expeditious trial has been recognised as an essential feature of the Anglo-American system of criminal justice for many centuries. In Klofper v North Carolina [1967] 386 US 213, Chief Justice Warren traced it to the Assize of Clarendon in 1166, to chapter 29 of Magna Carta and to Coke's Institute. He pointed out that, not merely did it enjoy a prominent position in the Sixth Amendment as a discrete right 'to a speedy and public trial': it was also expressly guaranteed by the Constitutions of several of the individual States which formed the new Union.

As to its constitutional status in Irish law, Lavery J. in In Re Singer [1963] 97 ILTR 130 declined to accept that the framers of the Constitution could ever have contemplated that the right of an accused person to be brought before the first available Court - 'a right enjoyed for centuries' - should be abridged. In The State(Healy) v Donoghue [1976] IR 325, Article 38.1 of the Constitution, providing 'that no person shall be tried on any criminal charge save in due course of law was construed by Gannon J. as recognising the right of an accused person to a trial with 'reasonable expedition' a view upheld by this Court in State (O'Connell) v Fawsitt [1986] IR 362.

The modern jurisprudence of the United States Supreme Court on this topic has evolved in the context in the failure of the Courts and the prosecuting authorities to ensure that cases are speedily brought to trial. A remarkable example is Barker v Wingo [1972] 407 US 514, which arose out of a murder committed in 1958, but was not disposed of by the Supreme Court until 1972..........Common to all cases where significant delay has occurred however is the possibility that the ability of the accused person to defend himself or herself against the charge will be seriously impaired. As Powell J. put it in Barker v Wingo 'the inability of a Defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if the defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."

32. In her judgment in B v DPP the learned Denham J. dealt with the same background, pointing out that the Constitution places relevant parameters on the criminal trial in cases of unreasonable delay. She went on to say (at page 125):

"The Constitution does not state expressly that there is a right to a speedy trial. Article 38.1 provides that no person shall be tried on any criminal charge save in due course of law. In addition Article 40.3 imposes duties on the State, and thus on the Courts as the judicial arm of Government, which include the protection of such rights as fair procedures.
The right to reasonable expedition was cited by Gannon J. in the State (Healy) v Donoghue [1976] IR 325 at page 336 and in State (O'Connell) v Fawsitt [1986] IR 362 Finlay CJ stated that:
'A person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition'
The right to reasonable expedition must be assessed in each case in the light of the particular circumstances of that case. If the accused's defence has been explicitly prejudiced by the State's delay, for example by the non-availability of material witnesses, then he is entitled, on the delay being unreasonable and prejudicial, to an order prohibiting the trial ....."

33. In the instant case the delay between the first alleged offence and the complaint to the Gardai was some fourteen years. The Applicant has at all times denied that he had committed any of the alleged offences.

34. However, it is clear that this case belongs to the special category where the accused is charged with sexual offences against a child and therefore different considerations must apply. Keane J. in his judgment in C v DPP sets out the approach that should be adopted by a Court asked to prohibit the trial of a person charged with such offences. He refers to the judgments of Denham J in that case and in the previous case of B v DPP and goes on to state (at page 4):

"Clearly, 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. Moreover, even in cases of unlawful carnal knowledge or sexual assault where the Complainant is a girl under the age of consent, it is to be borne in mind that the alleged perpetrator may himself be a child. There are cases, however, of which this is one, where the disparity in age between the Complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases there may be threats, actual or implied, of punishment if the alleged offences are reported.
The delay may also be readily more explicable in cases where not merely is the person concerned significantly older than the Complainant at the time of the alleged offences but occupies a particular role in relation to him or her e.g. as parent, step-parent, teacher or religious. In such cases dominion by the alleged perpetrator over the child may be more readily inferred.
This is not to say that the Court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the Court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every such case is whether the Court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved."

In B v DPP the alleged abuse was by an extremely dominant father against his young daughters. On the evidence as found by the Trial Judge the father had a violent, dominant and menacing personality; during their childhood his daughters had been completely dominated by him and had been living in fear of him. The same had applied to his wife. In the Supreme Court Denham J. held on these facts that on account of his dominion over them his daughters had been unable for many years to complain of his abuse of them. The delay was due to the accused's own fault.
In C v DPP the concept of delay which was the fault of the accused person was extended to cover very different circumstances and the concept of dominion was enlarged to include very much more subtle considerations. In that case the Applicant, C, had been a bus driver who drove a group of school children from their school to their weekly swimming lessons and from time to time joined them in the swimming pool. The Complainant, who was one of the school girls, had had virtually no contact with the alleged abuser for some ten years before she made her complaint against him. Denham J, however, held that the Complainant's delay in reporting her abuse must be laid at the door of the Applicant. At page 27 of her judgment she states:-
"But the matter is more complex than the issue of simple dominance. Our knowledge of the extent and the dynamics of child sexual abuse is of very recent origin and is growing. Expert evidence was placed before the Court by two experts. It is clear that dominance even if is not overtly evil and menacing can, because, for example, of an age disparity, exist in the form of adult authority and power. Even when this overt dominance is lost, when a child grows up to first sense they can do something such as the Complainant did in this case at the age of sixteen, the effect of the years of abuse are not lost. It appears that rational consideration of abusive events is frequently suppressed for complex personal, family and social reasons. Unless there is counselling the victim may not be able to complain formally. "

35. This formulation must surely apply in virtually every case where the accused person is some years older than the Complainant and/or is in any position of moderate authority over the Complainant - once, of course, the assumption is made that the accused person is guilty of the offence. Given this authority, which is binding on me, it seems to me that on the facts of the instant case and on the evidence before me, and assuming the complaint is truthful, the Complainant's delay as a matter of probability is explicable. The Applicant was the Complainant's music teacher; he was known to the Complainant's parents and moved in the same musical circles as they did. The dynamics behind his delay in complaining are clearly set out in Ms Fitzgerald's report and evidence, which I accept. On the authorities, therefore, the delay in the Complainant's making of his complaint was referable to the accused own actions.

36. However, this is not the end of the matter. The considerations which apply have again been set out by Keane J. in his judgment in C v DPP where he states at page 6:

"...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 that 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 the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

37. This also was the course followed by the learned President of this Court in John O'Connor v The Director of Public Prosecutions (unreported) 25th November 1998) where the learned President stated that he was satisfied on the balance of probability that the Complainant's delay in reporting her abuse flowed from the Applicant's conduct and that he could not rely on that delay in seeking the relief which he claimed. However, the learned President went on to prohibit the trial on the ground that, for a number of other reasons including the death of a possible witness, the Accused's lack of opportunity of co-relating his whereabouts to the dates of the alleged offences, and his age and ill-health, the Applicant would be deprived of a fair trial in accordance with his constitutional rights. He therefore prohibited the trial.

38. In many cases of this type the Court has found that because of the very nature of the offence there is a likelihood that there would be no witnesses to a series of acts which occurred in private over a long period of time. Therefore the trial would, regardless of whether or not there had been any delay, be in its essence a contest between the evidence of the Complainant and that of the accused person. There would be no "specific prejudice" against the accused receiving a fair trial.

39. The position in the instant case is somewhat different. The charges against the Applicant are far more specific as regards number and time than in most sexual abuse trials - five occasions during a two year period. Also the place in which the incidents are alleged to have taken place is relatively public in nature and there would have been considerable numbers of persons going to and fro in the building. The timing of any incident such as those alleged by the Claimant would be subject to the exigencies of the timetable of the activities in the college. More importantly, as highlighted by Counsel, there is the question of the locks and keys of the music room doors. All of these matters would be clear in the memory of the Applicant and his colleagues in the College of Music had his trial taken place in the immediate aftermath of the alleged offences or even shortly thereafter. All of these details have by now faded from the memory of the Applicant and of his erstwhile teaching colleagues, and of the school administrators. A concrete example is the reply given by Mr Heneghan to the solicitor's query concerning the locks and keys.

40. Referring to the final question of prejudice in the C v DPP case, the learned Keane J. said (at page 10 of his judgment):

"In cases of this nature, where the allegation is not of an isolated incident or even a relatively a number of incidents, but of a repeated pattern of sexual abuse over a umber of years, the charges, of necessity, will be lacking in particularity as to dates and times. That undoubtedly creates difficulties for the Applicant in defending the charges but he would have been in a broadly similar position had the complaints been made ten years ago: they would similarly have been lacking in such detail. There is no specific prejudice alleged peculiar to this case and deriving from the delay which might have to be weighed in the balance against the reasons for the delay in making the complaint."

41. It seems to me that the situation in the instant case is very different, and that for the reasons set out above there is specific prejudice which is peculiar to this case.

42. To this must be added the fact that the Applicant's trial has had to be aborted on two occasions due to no fault of his own. On the second occasion a jury had actually had been sworn and had to be discharged. Failure of the State to have all of its necessary witnesses available when the Applicant's trial was originally listed for hearing may be explicable, but in a case such as this, where a hitherto respected and established teacher is charged with serious sexual offences, further unnecessary delay of his trial cannot but have a damaging and traumatic effect on him, adding further to the difficulties of his offence.

43. In essence it appears to me that the trial of the Applicant in these circumstances and after so long a delay would be unfair.

44. I now turn to the question as to whether this basic unfairness can be avoided by proper rulings and directions to the jury by the Trial Judge during the course of the trial.

45. There are circumstances where it is clear that a jury may be given directions aimed at eliminating potential unfairness in a trial. A good example is the situation where there has been undue and prejudicial pre-trial publicity. Here the Trial Judge, who in any case would be reminding the jury that they must, in accordance with their oath, tried the case on the evidence which is given before them, can stress the need to ignore all extraneous material and concentrate solely on the evidence which they hear at the trial. (See, for example, Z v DPP [1994] 2 IR 476).

46. Over the years, also, the Courts, often under the direction and guidance of the Supreme Court or the Court of Criminal Appeal, have developed rules as to when, for instance, a Trial Judge should direct the jury as to the need for or the desirability of corroboration.

47. Prosecutions for sexual abuse which was perpetrated against a child many years in the past have arisen as a regular occurrence only in recent years. While a number of Judges in the Supreme Court have indicated that the prejudice against the Accused arising from delay before the making of a complaint may be greatly reduced and perhaps eliminated by proper directions to the jury by the Trial Judge, no guidance has yet been given as to how such directions might be framed or at what point in the trial the jury should be so directed. I feel sure that Judges who try this type of case both in the Circuit Criminal Court and in the Central Criminal Court would welcome some explicit guidance from the Supreme Court as to the exact nature of the directions which should be given by the Trial Judge in these "delay" cases.

48. For myself, I accept the weight of the considerations raised by Mr Gageby on behalf of the Applicant in his submissions in regard to this point. There is at present no legal requirement for a Trial Judge to caution the jury as to the considerable delay between the date of the commission of the alleged offences and the trial; nor is there any legal requirement that a jury be cautioned on the dangers of convicting on the basis of uncorroborated testimony. A direction to the jury asking them to consider the difficulties in the case because of the delay has the danger of inviting the jury to try the case on what the evidence might have been rather than on the evidence which they have heard. This would arise particularly if the Judge were to attempt to point out the specific matters (as outlined above) where it has not been possible for the Applicant to obtain evidence because of the efflux of time. In the instant case I believe it would not be possible on a practical level for the Trial Judge to off-set the unfairness of the trial by proper rulings and directions.

49. It would appear to me, therefore, that the proposed trial of the Applicant on these charges would be unavoidably unfair.

50. I will therefore grant the relief sought.


© 1999 Irish High Court


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