Judgment Title: P.L. -v- DPP & anor
Neutral Citation:  IESC 110
Supreme Court Record Number: 348/03
High Court Record Number: 1992 442 JR
Date of Delivery: 20/12/2004
Court: Supreme Court
Composition of Court: Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Geoghegan J.
Status of Judgment: Approved
Other (see notes)
Other (see notes)
Other (see notes)
Notes on Memo: Allow and set aside and grant order of prohibition sought
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THE SUPREME COURT
Hardiman J. 348/03
HER HONOUR JUDGE BUTTIMER
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2004.
This is the applicant/appellant’s appeal against so much of the order of the High Court (Herbert J.) perfected the 9th September, 2003 as refused to restrain the second-named respondent from taking any further steps in relation to a prosecution of the appellant. In the prosecution, the Director has preferred eight counts of indecent assault on one B.L. These are said to have taken place between the 1st July, 1966 and the 30th June, 1968 i.e between 36 and 38 years ago.
The appellant seeks relief on the substantial ground that the delay and lapse of time between the dates of the alleged offences and the prosecution thereof is such that of itself, and in all the circumstances of the case, will as a matter of probability cause the appellant prejudice in the defence of these proceedings. He says that to proceed with the criminal trial would be unfair and unjust and would constitute a violation of his right to a trial in due course of law.
The applicant was born in April, 1928 and is accordingly now in his 77th year. He is a retired teacher and a member of a religious order. The complainant was born in May, 1956 and is now in his 49th year. He works as a public relations consultant having formerly worked as a child care worker and in the advertising industry. He is the holder of a diploma in psychotherapy, awarded in the mid 1980ies. He has been seeing a psychiatrist since that time.
The allegations The allegations relate to a time when the appellant was a teacher and the complainant a pupil at a school in a large provincial town. The complainant alleged that while he was in fifth and perhaps sixth class in the National School he was sexually abused by the appellant in the following context. He said that the appellant had a stamp collecting class on Saturday mornings between 10am and 12 noon. At this class, he said, the appellant would sit at his desk at the front of the class. He would call the boys up one by one with their stamp books. In view of the arguments
made on the hearing of the appeal I set out in full the complainant’s description of the desk:-
The desk itself was on a raised platform.
“The desk was tall, enclosed at its front and sides and as one looked up towards it from the class the only portion of one’s body visible was the chest upwards”.
The form of abuse alleged was that, while looking through the complainant’s stamp book, the appellant allegedly felt his private parts by putting his hand up the leg of the appellant’s short trousers when he was wearing these and by pulling his trousers down if he was wearing long trousers. He also said that the appellant exposed himself on these occasions though he also stated that he was unable to say how he managed to do this since he always wore a soutane. At the relevant time, the complainant was been between 10 and 12 years old and the appellant between 38 and 40 years.
Conflict on facts.
The appellant was interviewed on several occasions by the Gardaí and he consistently denied the allegations. He said he could not remember the complainant individually but from records was aware that he had taught him in sixth class in 1967/68. He had never taught 5th class. It seems that during most of his career he taught scholarship classes until these were abandoned with the introduction of free secondary education in 1967. Up to then, he said, he was teaching on Saturdays because the scholarship classes would have extra tuition. With the ending of the scholarship classes he said he began to play golf on Saturday mornings from 8.45am onwards. He did not recall at all bringing students to the desks during stamp class and doubted if he himself sat there. His denials of the allegations were repeated and couched in very strong terms. He appears to have cooperated fully with the Gardaí and identified his handwriting in the rolls for the relevant years. There were however no rolls for Saturday morning. The applicant denies that the stamp collecting classes ever took place on a Saturday morning.
After service of the Book of Evidence, which contained the description of the desk quoted above, the applicant said in an affidavit that to the best of his recollection the teachers’ desks:-
He said however that he could not independently verify his recollection of the desks because the items themselves were not available for inspection having been replaced by more modern classroom furniture and that the authorities of his Order could not establish exactly when the replacement took place.
“… were not enclosed but were low tables with drawers on one side and that they were placed on a raised platform at the front of the classroom… They were not as described by the complainant”.
It appears that the appellant’s suggestion that he was elsewhere on Saturday mornings in and after 1967 may have been put to the complainant because other evidence was produced suggesting that the stamp collecting classes had perhaps occurred on Friday evenings. In a replying affidavit the complainant stated that “stamp collecting classes were held occasionally on Saturday mornings in the school by the appellant”. (Emphasis added)
Islands of fact.
The two factual matters mentioned above – the day on which the stamp collecting classes took place and the nature of the desk – appear to be the only islands of fact, as I have used that term in other cases, in what is otherwise a case of unsupported assertion and bare denial.
The role of such isolated factual elements in a case such as this was described, in my judgment in JO’C v. DPP  3 IR 478 at 504:-
The role of evidence in relation to surrounding circumstances was more fully discussed in PO’C v. DPP  3 IR 87. There, the continuation of a trial was prohibited on the basis that the applicant was able to point to a relevant aspect of the case – whether or not a particular door was capable of being locked – “which it is reasonable to think could have been the subject of irrefutable evidence one way or the other but for the very lengthy lapse of time”, and which would have been useful to the defendant.
“The effect of documentary, physical or forensic evidence, where it exists is to provide some basis on which the part of a 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 cases, in which no such evidence exists. In such a case each side will normally look to the surrounding circumstances: the prosecution to see whether there is corroboration or at least evidence consistent with the 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 twenty 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”.
Proceedings in the High Court.
By order of the High Court (O Caoimh J.) of the 29th November, 1999 the applicant was granted leave to seek certain reliefs by way of judicial review. These were, firstly, a declaration that by reason of delay in the institution of the criminal proceedings there is a real risk that the applicant will suffer prejudice in making a defence at the trial of the said charges against him and in consequence that the applicant has been denied his right to a fair trial; and secondly an order restraining the Director from taking any further steps in the said criminal proceedings. The grounds on which he was permitted to seek these reliefs were:-
The statement of grounds was verified by the affidavit of the applicant. In this he said that he spent the period between 1949 and 1992 training and subsequently working as a primary school teacher, apart from a brief period of illness. He stated without qualification that at no stage did he take his stamp collecting classes on a Saturday morning; that he could not specifically recall the attendance of the applicant at his academic class or indeed his stamp collecting class. He denied the allegations strongly and complained of the lack of specificity in them. In a subsequent affidavit he made the complaint, summarised above, about the nature of the desks behind which the abuse was said to have taken place. The complainant swore a largely formal replying affidavit but subsequently, on the 9th November, 2001, swore a further affidavit in which he altered his previous account by accepting that he was in 6th class, not 5th class, at the time he alleged the abuse occurred; stating that the stamp collecting classes were held “occasionally” on Saturday mornings and confirming that “What I experienced with [the applicant] happened behind the classroom desk”.
(i) That the delay and lapse of time between the dates of the alleged offences and the prosecution thereof, the delay being such that of itself and in all the circumstances will as a matter of probability cause the applicant irreparable prejudice in his defence of the proceedings.
(ii) That to proceed with the criminal trial would be unfair and unjust to applicant.
(iii) Violation of the applicant’s right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution.
It is significant to note that, at the time the judicial review proceedings were commenced, the applicant was charged with offences of indecency against three boys in all, the other two being the present complainant’s brother and another person who had been a class mate of the present complainant. In the case of these other complainants, the prosecution was restrained: it continues in the case of one complainant only, Mr. B.L.
A number of features of the High Court judgment are of considerable relevance on this appeal. First of all, the learned trial judge distinguished the cases of the other two complainants from that of the present complainant by holding that, in their cases, the Director “has wholly failed to discharged the burden of proving on the balance of probability that the reason for the delay of between eighteen and twenty-four years in making these complaints after all dominance by [the applicant] had ceased, is attributable to the alleged actions of the applicant.” In relation to the present complainant, however, he held this burden had been discharged (assuming the account of the complainant to be true). He made his finding, however, wholly on the evidence of the complainant himself. He dismissed, for cogent reasons set out at length in his judgment, the evidence of a psychologist called on behalf of the Director and he pointed out that a psychiatric witness had declined to express an opinion on the topic.
On the question of prejudice he held in relation to the other two complainants:-
This is a finding on the first test described in the judgment of Keane J. (as he then was) in P.C. v. DPP  IR 25, at 68. This test will be discussed at greater length below. There is no statement in the judgment of why the present applicant was not entitled to succeed on this test. In relation to the allegation of specific prejudice (the third test in P.C.) the learned trial judge emphasised that there would be no obligation on the applicant at the trial to prove the day on which the stamp collecting classes were held, his whereabouts on Saturday mornings, or the position and structure of the desk. He also pointed out that one of the original complainants actually agreed with the applicant’s recollection of the structure of the desk and that it had not been proved that others did not do so. He also said that:-
“I am satisfied that in the circumstances of this particular case, from the length of this delay alone [eighteen to twenty-four years] that the court is entitled to presume and does so presume that the capacity of the applicant to defend himself is thereby materially impaired and that accordingly the trial in respect of these two complainants should not be allowed to proceed because of the risk of its being unfair even if no specific prejudice is in fact established”.
“It is open to the applicant to give evidence himself or for others to give evidence as to his or their recollection of the form and placement of the desk. The probative value of this evidence will of course depend entirely on whatever credibility the particular testimony might command before a jury. Physical evidence of the form and the placement of the desk would be an item of factual evidence by which a jury could assess the accuracy and reliability of the recollection of two of the complainants. As this evidence is no longer available and as it cannot be ascertained for how long it has not been available, the applicant contends that he is significantly prejudiced in the conduct of his defence.”
The applicant appealed to this Court from the judgment and order of the High Court in so far as it refused relief in respect of the trial of the allegations made by B.L. The respondent did not appeal against either the prohibition of the trial of the allegations made by the other two complainants nor against such of the findings of the High Court in relation to the case involving the present complainant as were adverse to him.
Apart from grounds relating to the findings of responsibility for the delay, which will be mentioned below, the relevant grounds of appeal which were actually argued were the following:-
“(5) That the learned High Court judge, having held that periods of eighteen to twenty years and nineteen to twenty-four years delay on the part of the other complainants was such as to impair the capacity of the applicant to defend himself against the allegations, erred in law in failing to hold that the lapse of time with regard to the third complainant did not import such a risk;
(6) That the learned High Court judge erred in law and in fact failing to hold that the applicant had established specific prejudice so as to give rise to a real risk of an unfair trial;
(7) That the learned trial judge erred in law and in fact in failing to find that the applicant would, in the particular circumstances of the case suffer an impediment to his ability to defend himself as a matter of probability;
(8) That the learned trial judge erred in law and in fact failing to find that the delay in and of itself amounted to prejudice in the particular circumstances of this case.”
The applicable tests.
In P.C. Keane J. (as he then was) set out p. 68 of the report three issues requiring to be addressed in cases such as the present. He began:-
The learned judge continued:-
“Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of 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 person to defend himself or herself will be impaired”.
He then continued:-
“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 where no blame can be attached to the prosecuting authorities, whether the Court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused’s own actions.”
These three sections of the judgment set out what I have called the first, second and third tests to be applied in cases of this sort. The judgment in which they are enunciated is an authoritative one which must be regarded as binding in the present case.
“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 inquiry, in my view, in every such case, because given the finding that the delay is explicable by reference to the conduct of the accused it 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.”
The first test.
It must first be observed that this is a very old case, even by the standard of child abuse cases. If the Director is successful in this appeal it may be anticipated that the trial will come on for hearing approximately thirty-nine years after the first cause of complaint allegedly occurred. Moreover, this will occur in a case wholly dependent on the recollections of the complainant and the applicant with no relevant “island of fact” which can be used to test the reliability of the complainant’s memory or the accuracy of his account.
This is a matter of grave concern because, as I said in my judgment in JO’C, cited above:-
Neither of these factors are present in this case.
“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”.
In the same judgment, I set out at some length what the longstanding attitude of Irish Courts to greatly delayed cases had been, prior to the advent of the present large number of child abuse cases. The classic Irish formulation is to be found in the judgment of Henchy J. in this Court in Ó Domhnaill v. Merrick  IR 151 at 157. This was a case about a traffic accident which had occurred some twenty-four years before the hearing of an application by the plaintiff for an extension of time to serve a statement of claim. Henchy J. 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 learned 16 years after the accident.”
Henchy J. concluded:-
“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”.
There are many other authoritative dicta to the same effect. In Sheehan v. Almond  IR 235 the Supreme Court regarded a seventeen year old accident as having faded “into the dim uncertainties of the past so as to be beyond the reach of fair litigation”.
“Although the plaintiff’s case 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 – is so patently and grossly unfair to the defendant that her claim to have the case against her dismissed is unanswerable”.
I consider that this formulation is another way of expressing the substance of the first test quoted above: is the matter simply “beyond the reach of fair litigation”?
O’Reilly v. Coras Iompair Eireann  IR 278 was a case where the lapse of time was about eight years. This was regarded by the Court as:-
In O’Keeffe v. Commissioners of Public Works (unreported, Supreme Court, 24th March, 1980), which was an industrial accident case, the Court considered that a hearing which would take place twenty-three years after an accident would be “a parody of justice” because one witness had died and another’s memory had been” all but obliterated” by the passage of time.
“… In itself a possible cause of miscarriage of justice both for the plaintiff and for the defendant… 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 witnesses”.
It must be emphasised, firstly, that these examples could be multiplied and citations to similar effect found in cases from jurisdictions other than our own. Several of the Irish cases cite with approval the observations of Diplock L.J. (as he then was) in Allen v. Sir Alfred McAlpine and Sons Ltd.  2 QB 229 at 232:-
Secondly, it must be emphasised that, in considering the question of the fading or distortion of memories, it is not sufficient to consider only the memories of the complainant or the defendant. The memories of third parties who might have been able to give evidence about vital surrounding circumstances are also liable to fade. In PO’C v. DPP  3 IR 87, the vital surrounding circumstance was whether, at a date some eighteen years previously, a particular door in a music school had been fitted with a lock. The retired principal of the institution was approached for information on this topic and he replied:-
“… 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 Court being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard”.
This, I believe, is a statement of general application and ordinary human experience, aptly and elegantly expressed. It is however a feature of these very old child abuse cases that minutiae – the form and structure of a teacher’s desk, the day of the week on which stamp collecting classes were held – suddenly become of great importance many years later because they are the only potential islands of fact in what is otherwise a case of mere assertion and bare denial.
“Unfortunately, details such as those you seek constitute the minutiae that fade from the memory simply because they seem to be of no particular import at the time”.
Thirdly, the risks of a trial featuring only mere assertion and bare denial fall disproportionately on the defence. In JO’C, I rejected the view that long delay prejudices both parties equally saying:
“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”.
The truth of this, in my view, is illustrated in the present case. The applicant was first confronted with allegations relating to extracurricular classes said to have taken place on Saturday mornings in his school. He advanced the alternative view of the facts, and the possible alibi, described above. The prosecution’s reaction to this was to suggest that the classes may have taken place at another time, and to file an affidavit of the complainant saying that the classes took place occasionally on Saturday mornings. The vagueness on this point may be quite understandable after almost forty years, but, understandable or not, it deprives the plaintiff of one of the two islands of fact in the case. Furthermore it is an unfortunate reality of criminal trials that a complainant may resile from his or her position about a matter of detail such as that under discussion quite easily, but if a defendant were to do so it would, in practice, be gravely prejudicial to his or her credibility.
A forensic contest. On an application such as this, it is essential to bear in mind the fundamental nature of a trial in due course of law, and certain realities about such a contest. In a passage cited above it is said that “The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all”. The reason for this is that a forensic inquiry proceeds as far as possible upon evidence, not prejudice or mere impression and each of the protagonists in such a trial seeks to offer reasons why the result it urges should be arrived at, as opposed to unreasoned appeals to give credence to their side of the case. It would be quite wrong to convict a person of a serious offence, likely to lead to prolonged imprisonment, social familial and often financial destruction, and lifelong stigmatisation as a sex offender, purely on the basis of impression, as opposed to reason. Despite this, there will often be aspects, and sometimes important aspects, of a serious criminal trial which depend on an assessment of credibility. This situation is fraught with the risk of miscarriage of justice. There is no litmus test, in such circumstances, for determining who is telling the truth. I make no apology for reiterating the passage I cited in an earlier case from a judgment of Lord Atkin in
Lek v. Matthews  25 Lloyds Reports 525 at 543:-
Every conscientious fact finder is, I think, conscious of this limitation. A purely impressionistic decision is as likely to be wrong as right, and one cannot hope to justify it objectively. When one adds to the centuries’ long experience aphorised by Lord Atkin the disturbing fact, illustrated below, that with lapse of time, and perhaps in other circumstances as well, a person may state with perfect honesty and every appearance of conviction. that which is false, the difficulty is compounded. In particular any comfort one might derive from an assessment of the demeanour, that is the presentation and affect, of the witness is gravely undermined.
“The lynx-dyed 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”.
In such circumstances it is both natural and essential to seek some objective factor in the evidence for the purpose of forming a reasoned opinion as to where the truth lies and for the almost equally important purpose of being able to justify a conclusion. The reason behind this almost instinctive search for an objective factor was, as it happens, pithily expressed, again by Lord Atkin when he said:-
This is in no way to denigrate the necessity for the tribunal of fact to see and hear the witnesses, the value of that exercise, or the difficulty, amounting in many cases to impossibility, of reaching a conclusion without doing so. But it serves to emphasise that to proceed without any element of comparison with known facts is a profoundly hazardous matter.
“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”.
A special case. There is no doubt that cases of child sexual abuse do constitute a special case from the point of view of considering delay in making the allegations, for the reason set out by Finlay C.J. in G v. The Director of Public Prosecutions  1 IR 374 at 380. It is for these reasons that cases have been permitted to continue after periods of time which would prevent any other class of prosecution from proceeding to trial. I believe however that these cases are in a special category for another reason as well: because of the insidious and destructive effect which a long period of time may have on the ability of an innocent person to defend himself or herself. There have already been alarming cases of apparently wrongful convictions: I have discussed some of them in my judgment in JO’C. In my view, there is alarmingly little evidence available to the Courts as to the effect of long periods of time on the reliability of complainant’s, or other persons’, memories. I do not propose to reiterate the illustrations of this which I have given in previous cases but I will mention two recent cases which suggest that the fallibility of memory over time is astonishing, and as yet not properly explored.
In J. v. DPP (Supreme Court, unreported, 19th December, 2003), the witness in question was a retired Detective Sergeant of An Garda Síochána. There was no question whatever about his honesty and integrity. He was asked to give evidence about a vital conversation which he had with the applicant in that case some ten or eleven years before he gave evidence in the High Court. Asked whether he was absolutely certain in his recollection and the detail of his recollection he said “Absolutely no doubt about it”. He denied any possibility of mistake. Almost immediately afterwards, confronted with some documents, he acknowledged that he was in fact radically mistaken: he seems to have confused one case with another. Commenting on this I said:-
In DPP v. George Redmond (Court of Criminal Appeal, unreported 28th July, 2004) the defendant had been convicted of two charges of corruption relating to the receipt by him of a bribe of £10,000. The only significant witness for the prosecution, a business man, said that he had given the defendant £10,000 in cash on a date in 1988. He stated categorically that he had withdrawn the money from his account in a particular suburban branch of a named bank on the day on which he gave it to the defendant. Up to the trial, both sides had believed that there were no records of the banking transaction, due to lapse of time. The witness was emphatic in his recollection of the source of the cash, and repeated it nine times in the course of the trial. It subsequently came to light that there were extant records and that they did not show withdrawal of the sum in question, or any significant sum, at the relevant time. While it appears from the judgment that the witness was not a person of the highest character, he would of course have had no reason to lie about this detail, even from a strictly prudential point of view, because of the risk that he could be contradicted as eventually happened. He had clearly convinced himself that he had withdrawn the money from the relevant branch even though he had not, to the point where he repeatedly and emphatically denied on oath suggestions to the contrary.
“Even more chilling is the fact that the true position emerged only out of skilful cross examination. The basis of this cross examination, however, was the fortuitous survival of a written statement in a discontinued case and of ten year old private letters. But for this there is every reason to believe that the detective sergeant’s subjectively honest but radically mistaken evidence would have been accepted at face value. Indeed, the prosecution were in possession of the written statement but apparently failed to notice that it was inconsistent with the Sergeant’s affidavit. These facts, in my view, graphically illustrate the acute dangers to the prospects of a trial in due course of law which are posed even by relatively moderate lapses of time… In my view the lessons of such cases – that lapse of time can distort in a radical manner the memories even of trained and experienced people – must be appreciated. So must the chilling fact that this process can occur without leaving any trace so that the mistaken witness confidently and honestly asserts what is false, quite apart from forgetting what is true”.
These cases, combined with others mentioned in earlier judgments, illustrate the astonishing capacity of persons to forget what is true and to supplant it with a false version, even a detailed one. This can happen in lay witnesses, but also in trained and experienced ones. It can happen quite unconsciously, so that the witness does not give the impression of lying even to a skilled and experienced observer. It can happen to people who are perfectly honest.
Apart from such dramatic examples of distortion and replacement of the true account with a false one, there is the situation where the material is not forgotten, but the ability to correlate it with other material so as to bring out its relevance is lost. This occurred in the very disturbing case of DPP v. F., described in my judgment in PO’C. In that case, two witnesses who were desperately anxious to assist the defendant were, after the strikingly short interval (as these cases go) of two years, unable to deploy a recollection they undoubtedly had – that one of them, a teenage girl and the daughter of the other, had been in hospital in England at a period when her presence in rural Ireland was central to the prosecution case. The trial, without this evidence, led to a conviction and a sentence of seven years imprisonment, fortunately set aside after a few months when another family member made the connection and the hospital records were consulted.
It is a matter of deep significance that in the three cases just mentioned the true state of affairs came to light more or less adventitiously. In J., old documents survived and their significance was realised by the defence; the prosecution had had one of the documents but did not realise its significance. In Redmond, the bank records were still extant, though both sides had been told they were not: they came to light due to a chance remark by a witness whose statement did not include the information that the records were extant, probably because he did not realise its significance. In F., the child witness’s grandmother, who had not been told of allegations before the trial in order to protect her peace of mind, was, alone of her family, able to connect the hospitalisation of the child with the time of the alleged incident.
In each of these cases there turned out, albeit belatedly, to be an island of fact against which the otherwise uncorroborated and unsupported assertion of the complainant could be checked. What judge or juror would otherwise have accepted, for example, on the unsupported evidence of the defendant in J., that the absolutely emphatic and subjectively honest account of an experienced detective sergeant was in fact radically false?
No island of fact. Against that background, one turns to consider the case where no actual prejudice can be demonstrated, perhaps due to lapse of time. The three cases just discussed show clearly that absence of evidence of prejudice is not evidence of its absence. In each of them there was actual prejudice, although this could not be demonstrated until, more or less fortuitously, missing or unappreciated evidence came to light. What of cases where chance withholds this favour?
In a very old case where there is no apparent island of fact a defendant may suffer a double handicap. There is nothing with which he or she could hope to check or contradict the evidence of the complainant: this deprives him of the basic components normally used to construct a forensic defence. Equally, if the surrounding circumstances are lost beyond recall, he may be unable to avail of the third test mentioned above, that relating to whether the real risk of an unfair trial can be demonstrated. This double difficulty is illustrated by portion of the High Court judgment to the present case. The learned trial judge did not find prejudice in relation to the issue of the form of the desk, in part because the applicant could not demonstrate when the class room furniture in use in the mid 1960ies had been disposed of: the items might have been unavailable even at an earlier time. This meant that the same lapse of time which caused the items to be unavailable also, in the judge’s view, caused the applicant to be unable to demonstrate legally recognisable prejudice flowing from their absence.
It is in this sort of situation that the first test is particularly important. After nearly four decades, and perhaps after a much shorter period of time, it will be a matter of chance whether any physical or documentary evidence survives, or any useful recollection of third parties. If it does not, the trial will be a pure contest of credibility.
The risks of a pure contest of credibility are very easy to underestimate. Ordinary experience demonstrates that a plausible and attractive witness is not necessarily telling the truth, nor a furtive and cowed one lying. Either a complainant or a defendant may be overwhelmed by the very pressure of the proceedings themselves and their likely consequences in the case of the defendant, to the point where he or she may be unable to do themselves justice. An elderly person may be particularly vulnerable in this respect.
Experience of prosecuting and defending sexual case, especially since the abolition of the requirement for a corroboration warning, shows that there is in practice a need for a defendant either convincingly to challenge some material aspect of the prosecution account or in some way to address the question of why the complainant would give the account which he or she has given if it is not true. That question will naturally arise in the mind of the tribunal of fact. In cases initiated shortly after the alleged offence, the prosecution and the defence will almost always be able to find some corroborating or consistent material, or some indisputable factual matrix with which the account of the other party can be correlated. Certainly, each side will look for such material and even its absence after proper inquiry may itself be significant. In a very old case, on the other hand, even the total absence of such material will not cause surprise.
If this situation is reached, a trial turning on the credibility of the witnesses will very largely depend on their presentation and affect. This in turn will be heavily influenced by matters which are entirely fortuitous: how good is their memory? Are they articulate or otherwise? Are they sharp, confident, alert and able to deal with hostile questioning or dull, confused in recollection or terrified? These matters will of course be factors in any trial but rarely indeed will they be the sole deciding matters. If they are, there is clearly a strong case for the view that the accusation is, by reason of lapse of time, simply beyond the reach of fair litigation. This position will have been reached if, in the words of another of the cases cited above, “… 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 witnesses”.
The third test.
This test raises the question of whether the degree of prejudice caused to the defendant in the criminal proceedings by the lapse of time “is such as to give rise to a real and serious risk of an unfair trial”.
This test must be contrasted with the first test, extensively discussed above, which focuses on the existence of delay such that the trial should not be allowed to proceed “even though it has not been demonstrated that the capacity of the accused person to defend himself or herself will be impaired.” One of the contrasting features is that the third test focuses on prejudice which can be demonstrated whereas the first relates to prejudice presumed in particular circumstances, especially a very long lapse of time, to exist even though its existence cannot be demonstrated.
Especially in the case of very long delay, however, the tests to some extent connect with each other. For prejudice to be demonstrable there must have been some island of fact, some indisputable factual matrix, with which an account of long past events can be correlated. Here, there were two possible islands of fact: the day on which the stamp collecting classes took place and the structure of the desk behind which the abuse allegedly occurred.
This complainant stated without qualification that the stamp collecting classes happens on a Saturday morning. This was not the applicant’s recollection, and he gave the Gardaí two specific pieces of information which, if established in evidence, would cast doubt upon, and might even conclusively contradict, the case against him in this regard. These were (a) That until the ending of scholarship classes with the introduction of pre-Secondary education he was always engaged in teaching the scholarship class on a Saturday morning and (b) That after the ending of the scholarship class teaching on Saturday mornings he played golf on those mornings, starting at 8.45am.
The question of whether or not t he applicant could establish his whereabouts on Saturday mornings is discussed in the judgment of the learned High Court judge. It does not however appear to have been appreciated that the significance of this whole topic as possibly generating an island of fact has been undermined by the change of position in the complainant’s third affidavit. There, he simply changes from the unqualified position that the stamp classes happened on Saturday mornings between 10 and 12 to the proposition that they “occasionally” happened on Saturday mornings. There is no suggestion that the classes themselves happened only occasionally, so this change of front implies that the classes usually happened at some other time, but this time is not stated. This, in turn, must be read in the context that the prosecution has produced other material in the Book of Evidence suggesting that perhaps the classes happened on Fridays. The effect of this is that when the prosecution were confronted with information which might be the basis of a successful challenge to the complainant’s first account, it deliberately and consciously retreated into vagueness on the question of when the classes had taken place. There is no third party evidence on this point. There is no evidence in the papers before this Court that the Gardaí sought information from non-complaining members of the class or if they did what these persons recollections were. They were aware of the identity of several such members because the applicant had supplied the names and current locations or occupations.
In summary, I believe that there is no useful island of fact or factual matrix arising in connection with the day of the week on which the stamp collecting classes took place. There was such an island of fact on the case as originally presented but it has vanished as a result of the subsequent position adopted by the prosecution.
A further potential island of fact existed, based on the complainant’s assertion that the abuse occurred while he was in 5th, and perhaps 6th, class in the National School. The applicant stated emphatically to the Gardaí that he had never, at any stage of his career, had anything to do with 5th class: this appears to have been accepted because, in the complainant’s affidavit, he accepted that he was in 6th, and not 5th, class at the time the alleged abuse occurred. No explanation is given for this change of recollection.
In my view, the reaction of the prosecution to the defendant’s raising points which might successfully challenge the State’s initial account amply supports the reasoning, quoted above, leading to the conclusion that long delay prejudices the defendant disproportionately, and may actually assist the prosecution. If this were a recent case, it would be a major advantage to the defendant if he could demonstrate, for instance, that the stamp classes had not taken place on Saturday mornings. Because it is an old case, however, the complainant or the prosecution is entitled to say “It is perfectly understandable to be vague on these matters after so many years have gone by”. In saying so, they are in fact seeking to retreat into a position where any challenge to the complainant’s account is belittled, and sought to be deprived of significance, on the basis that no-one could reasonably expect a reliable recollection after so long. This puts justice to the hazard.
The desk. The abuse in this case was said to have been perpetrated in the presence of perhaps 15 to 20 classmates. It is said to have been concealed from them by the desk behind which the teacher sat. The detailed description of this desk quoted above is taken verbatim from the complainant’s initial statement. In the context of that statement, the purpose of the description is to explain how the abuse could have taken place in the presence of so many young persons without being observed by them. The complainant has not resiled from his description of the desk. Indeed, this description, particularly the information that the desk was “tall, enclosed at its front and sides” seems essential to the form of abuse described in which the applicant was alleged not only to have interfered with the complainant but to have exposed himself while doing so.
It is indisputable that the applicant would gain a considerable advantage at his trial if he were able to establish that the desk was open fronted or partially so: the contrary has not been argued. Instead, the Director points out that one of the other original complainants actually agrees with the applicant’s description and suggested that the applicant might rely on the evidence of this person. This suggestion, in my opinion, is wholly lacking in reality. The witness upon whose evidence the Director thinks the applicant might rely is one clearly hostile to the applicant, as the statements in the Book of Evidence makes clear. It would be an act of imprudence to call him or to cross-examine him.
In my view the absence of the desk or credible evidence as to its structure is a matter “which it is reasonable to think could have been the subject of irrefutable evidence one way or the other but for the very lengthy lapse of time”, and which would have been useful to the defendant. That is what an applicant must show in a case like the present and in my opinion this applicant has done so here. I also note that, though the authorities have been aware of the applicant’s recollection in relation to the structure of the desk for some years now, there is no evidence on the papers that the Gardaí, with their considerable resources, have been able to take this question further, as one must assume they tried to do.
As indicated above, I would grant relief on the grounds that the unavailability of the desk, and the inability to produce secondary evidence of its structure usable by the defendant, has created a real and serious risk of an unfair trial.
In the circumstance of this case, I would in any event have been prepared to grant relief on the basis of the first test. The case is a very old one. Apart from the question of the structure of the desk, there is no island of fact which can be used either to contradict the complainant or to demonstrate prejudice. The applicant has sought to develop certain islands of fact, but this has been countered by a retreat into vagueness. After so long a period, in the absence of any corroborating or supporting evidence, after the failure by the authorities to discover any reliable third party accounts (and I stress that one must presume that attempts to do so were made), I consider that a trial of this case would be unduly hazardous and that the issue as to whether or not the applicant abused the complainant is simply beyond the reach of fair litigation.
I would accordingly allow the appeal and substitute for the High Court Order an order prohibiting the Director from taking any further step in the trial of the applicant.
PL&Her Honour Judge Buttimer and the DPP (1)
- 12 -
THE SUPREME COURT
HER HONOUR JUDGE BUTTIMER AND THE
DIRECTOR OF PUBLIC PROSECUTIONS
RespondentsJUDGMENT of Mr. Justice Geoghegan delivered the 20th day of December 2004
The facts of this case are set out fully in the judgment of Hardiman J. and I do not need to repeat them. I have had the benefit of reading also the judgment of Fennelly J. and at p. 10 of his judgment he says the following:
I take the same view and I would, therefore, allow the appeal and substitute for the order of the High Court an order of prohibition against the first-named respondent from proceeding with the trial and an injunction against the second-named respondent from taking any further steps towards the prosecution of the applicant. I want to make it clear however that the view which I have taken is based on that ground only. I do not find it necessary or desirable that I should form a definitive view on the other grounds for relief though I do think it necessary to express some personal views on what to some extent are divergent opinions on the legal issues in the two other judgments.
“Hardiman J., in his judgment, concludes that the trial should be prohibited on the distinct ground that there is a real risk of an unfair trial by reason of the impossibility of producing the desk behind which the offending conduct is alleged to have taken place. In that respect, I agree with his judgment.”
I believe that the view I have arrived at in relation to the “desk” issue is soundly based on the opinions expressed by this court in a number of cases but in particular in PO’C v. DPP  3 I.R. 87. In that case, Keane C.J. in delivering the leading judgment approached the question of whether the applicant in the case was responsible for the delay in reporting the offence, by presuming guilt on his part but having arrived at a conclusion of culpability on that basis applied the presumption of innocence to the question of whether there was a danger of an unfair trial by reason of some specific factual evidence which might have afforded a defence being no longer available.
Although my colleagues Hardiman J. and Fennelly J. have expressed somewhat divergent views on the principles applicable to the other issues in the case, I find myself in the invidious position of not being in complete agreement with either.
Hardiman J. seems to suggest that an applicant is entitled to have his trial injuncted merely because of an absence of an “island of fact” or merely because there might have been a potential “island of fact” which was never explored. I do not think that the jurisprudence of this court has as yet gone that far and I would not be prepared to endorse it or even consider it without a court of five judges. Hardiman J. has expressed similar views in other cases to which he refers in his judgment. Those views do not appear to have been expressly endorsed by a majority of the court and cannot therefore be regarded at the present time as forming part of the jurisprudence of the court. I think that the “desk” is analogous to the “music room” in PO’C and that in each case there was an actual proven island of fact as distinct from a potential island of fact which might have come to light if investigated.
It is clear also that Hardiman J. takes the view that if the evidence is mere assertion contradicted by a mere denial the case should not go to trial. That may well be a tenable viewpoint but I do not believe that this court has ever held that to be the position. In an unreported judgment of this court delivered by me and concurred with by Murray J. (as he then was) and Fennelly J. on the 19th May, 2004 in the case of DD v. The Director of Public Prosecutions, I expressly approved of the following passage in the ex tempore judgment of Kearns J. in the High Court.
Cases of rape or sexual assault which are brought in good time may frequently involve a simple credibility contest between complainant and accused because inevitably a great number of these offences are committed in some secret place and frequently in the dark. Until the law was changed there was a safeguard, to some extent, at least against the danger of a false accusation. There used to be the obligation on the part of the trial judge to instruct the jury that it would be dangerous to convict in the absence of corroboration. That mandatory requirement is now gone but there is still a discretion left in a trial judge and, in my opinion, such a warning should always be given as a matter of discretion in a one to one contest. Memory (I mean by this of course actual memory and not so called “recovered memory”) is not a significant factor in prosecutions for sexual crimes. If a man has committed rape or a sexual assault on another person I would have thought that he will normally remember it for the rest of his life. There may be exceptional cases where memory comes into play, as for instance, where a teacher regularly sexually assaulted his pupils but would not, after many years, remember the particular identity of a complainant as being one of his victims. But subject to that kind of exception, the difficulties attached to a one to one contest in sexual crimes apply just as much or certainly nearly as much when the trial is held shortly after the alleged event as when it is held many years later. For these reasons, I would reserve my position on any widening of the so called “island of fact” principle over and above the situation where particular facts can be identified which if it were possible to prove might lead to an acquittal. The music room is an obvious example.
“Equally, the island of fact which Mr. Gageby says existed by reference to the dormitory arrangements, I am not satisfied that there is an island of fact such as was capable of being pursued in the way Mr. Gageby says it should have been. Accounts available at this point in time seem to me to be equally consistent with either version of events. I do not think there is either an island of fact or a demonstrable specific prejudice in this case in so far as the accused is concerned. I do accept, and it is one of the great misfortunes of this kind of case, that there is inevitably a sense of a potential prejudice and general prejudice, but essentially this case comes down to a credibility contest between the complainant and the accused. That inevitably is the case across a spectrum of different cases. Notably and I took this as an example, in a rape situation where the defence is consent, there are no other witnesses and it all hinges on essentially the resolution of a contest of that nature. That, of itself, cannot be a ground for stopping a case, the fact that there is simply one person’s testimony against another.”
I have the impression from reading the judgment of Fennelly J. that his views on these matters may coincide with mine. But there are other parts of his judgment with which I would have some problems. He has expressed the view (with which I do agree) that Keane J. (as he then was) in PC v. Director of Public Prosecutions  2 IR 25 was not postulating three different tests the first being whether the trial should be prohibited on the ground of delay alone. While undoubtedly reasserting the power of the courts to stop the trial on the grounds of delay alone this has always been postulated in my view as a kind of reserve power to be used for exceptional reasons and in exceptional circumstances and it would be folly on the part of any court to indicate in advance the kind of circumstances in which it would be applied. It would be something quite exceptional and was never intended to be the first of three tests. What Keane J. enunciated was a twofold process. It is quite true that at p. 68 the following sentence appears in his judgment.
I think, however, he was referring there to any criminal case whether sexual or non-sexual where having regard to the constitutional guarantee of a trial “in due course of law” the delay may be such that a trial should not be allowed to proceed. Although he uses the phrase “depending on the nature of the charges” I believe that the power of the court to prohibit a trial in exceptional circumstances on the grounds of delay alone would not be confined to a situation where the nature of the charges led to that being the only course of action if the constitutional guarantee was to be adhered to. I say that having regard to dicta in non-sexual cases by Finlay C.J. and others and I will return to the matter later in the judgment.
“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.”
Keane J. went on to say that “in other cases” (by that he meant, in my view, the normal run of cases), the first inquiry must be as to what are the reasons for the delay and in a case such as a case of sexual assault where no blame can be attached to the prosecuting authorities whether the court is satisfied as a matter of probability that “assuming the complaint to be truthful” the delay in making it was referable to the accused’s own actions. If that is found to be the case it is necessary then to consider (this time applying the presumption of innocence) whether the accused’s defence is prejudiced by the delay. I call that a twofold test and I think that it has been generally accepted as representing the correct approach even though, as Fennelly J. points out certain members of the court have expressed understandable disquiet at the idea of abandoning the presumption of innocence for any purpose.
Where I depart from the views expressed by Fennelly J. is his emphasis on the so-called “special jurisprudence” applicable to sexual cases. I find myself unable to agree with his view that the case law establishes that in a prosecution for sexual offences prohibition can never be granted on the ground of delay alone. As I have already indicated, I am of opinion that that is a reserve power to be exercised by a court in a rare but appropriate case in relation to any criminal prosecution whether sexual or non-sexual where otherwise there would be a real and serious risk of an unfair trial or where in a more general sense the trial would not be “in due course of law” as for instance where there has been an abuse of process or significant prosecutorial misbehaviour. At p. 67 of the report Keane J. in his judgment makes an important observation.
In my opinion, this sentence in particular contradicts the view expressed by Fennelly J. that a case of this kind may never be stopped on the grounds of delay alone. While I do not think that as the case law has developed there is any divergence between the views of Keane J. and Denham J., the latter being responsible for two very important and authoritative judgments in this area, the terminology used in the respective judgments is different. I am not sure whether Denham J. was using the expression “special jurisprudence” to which clearly Fennelly J. has attached considerable importance, as almost a term of art or whether it was merely being used to express particular concepts. I think that the latter is the case. Otherwise, I am bound to confess that I have never been happy with that phrase. There is a danger that its use will give rise to misconceptions in this area of the law.
“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.”
As I see it, there is no statute of limitations applicable to indictable crime. Accordingly, in theory, a trial may take place a great number of years after the alleged crime has been committed. In many instances this would be regarded as unobjectionable as, for instance, in a murder case where the offence could not be proved against a particular person until the body was found many years later and which then provided the evidence. Depending on the circumstances the alleged perpetrator would probably be put on trial. The mere fact that one or two potential witnesses for the defence had died in the meantime would not necessarily prevent a trial taking place. The court would have to balance the factors and determine whether prohibition would be reasonable or not. If on the other hand a person had been burgled many years before and for some reason best known to himself never complained to the gardaí and then did so many years later, a trial in that instance might be prohibited. It is worthwhile quoting again the well-known passage from the judgment of Finlay C.J. in DPP v. Byrne  2 I.R. 236 at 245.
Byrne was a non-sexual case but those principles with which the other members of the court fully agreed even though on the facts Finlay C.J. was in dissent, clearly were intended to apply to any criminal case. In the DD case cited above, I have expressed views as to the interpretation of and the context of remarks of Finlay C.J. in relation to sexual cases in G v. The DPP  1 I.R. 374 and Hogan v. The President of the Circuit Court  2 I.R. 513. I do not think that the former Chief Justice was suggesting that there was a “special jurisprudence” in relation to child sexual cases in the sense that that expression has
“I am driven to the further conclusion that, of necessity, instances may occur in which the delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s capacity to defend himself would be impaired. This must lead of course, to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined.”
sometimes since been used. He was simply adverting to the fact that the prosecuting authorities could not be held to blame for any delay in bringing prosecutions in those cases where the complainant was inhibited from reporting. Rightly or wrongly, I would, therefore, somewhat dissent from the views of Fennelly J. in so far as they relate to a so called “special jurisprudence” or at least in so far as he uses that expression. At p. 19 of his judgment he says the following:
If true, that certainly would be a striking fact but I do not think that that is a necessary consequence of the case law relating to sexual offences. If it could be proved in any case that there was a serious danger of an unfair trial such a trial would be injuncted. On the other hand where an accused has been to blame for delay in his trial it would offend the public sense of justice to stop a trial in advance on the grounds of such delay alone. In all of these judicial review applications to stop in advance trials for sexual offences the Director of Public Prosecutions has already taken a view that there is a prima facie case. If there has been a long delay but no actual prejudice can be proved the court will not normally prevent in advance such a trial if it is established, that if the facts are true, the complainant was inhibited by the conduct of the accused from reporting the alleged crime earlier. There is obviously an immediate clash of interests here. On the one hand if that is in fact the case, it would be unjust that the accused should escape trial. It will normally be perfectly reasonable in those circumstances for the court to permit the trial to go ahead given that the trial judge will always be at large in ensuring that the accused is not subjected to an unfair trial. On the other hand nobody should ever have to undergo an unfair trial. But it may not be possible to form a judgment in advance as to whether a potential trial would be fair or unfair and if in those circumstances the court balancing the relevant considerations takes the view that it should not injunct in advance of the trial, it will then be for the trial judge to ensure as best he or she can that the trial is in fact fair. I do not think that sexual offences are in a different category but they may necessarily involve different considerations.
“It is a striking fact, nonetheless, that, as this passage implies, the appellant may, in the context of the ‘special jurisprudence’ be required to accept the risk of an unfair trial.”
This is all a far cry from the “desk argument”. It is on that ground that I would allow the appeal.
PL v. Her Hon. Judge Buttimer & anor.
THE SUPREME COURT
P. L. Applicant/Appellant
HER HONOUR JUDGE OLIVE BUTTIMER
and THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT delivered on the 20th day of December, 2004 by FENNELLY J.
This appeal presents the Court once more with the dilemma of when to prohibit the trial of an elderly man charged with the commission many years ago of serious sexual crime against a young person. I agree with the proposal of Hardiman J that the appeal be allowed and prohibition ordered. I also agree with him that the impossibility of producing evidence of the structure of the desk behind which the offences are alleged to have been committed creates a real risk that the Appellant cannot have a fair trial. On the other hand, I do not agree, for reasons explained below, that in a case such as the present the court can base an order of the type now proposed on presumed prejudice flowing from the delay alone.
PL (hereinafter “the Appellant”), is a member of a religious community. He was born in 1928. He taught at a primary school run by his order in a provincial town from 1964 to 1968. He was charged with a total of twenty offences of sexual assault against three boys, two of them brothers. The boys were then aged eleven to thirteen.
In January 1999, eight charges of sexual assault on BL from 1st July 1966 to 30th June 1968 were preferred against the Appellant; four on LB from 1st July 1967 to 30th June 1968; eight on PL from 1st July 1965 to 30th June 1967.
The High Court (Herbert J) has prohibited the trial in respect of the charges of sexual assault on the second and third complainants, LB and PL but not those on BL. The respondent has not appealed against the orders in relation to LB and PL. To understand the distinction made by Herbert J, it is necessary to refer briefly to the basic facts of the three cases.
BL and LB state that the offences were committed at special stamp-collection classes, which the Appellant provided. BL said that these were held on Saturday mornings, but later modified his position, as explained by Hardiman J; LB says they were on Friday evenings. PL says that he was abused during ordinary school classes. The modus operandi, according to the complainants, was that the Appellant would call each of them up individually in order to view his stamp collection or to get him to read a book as the case might be. He would look through the stamps or book, with one hand on the book. He would pull the complainant in close to him and with his other hand would fondle his private parts.
There are some differences between the accounts. BL says that the desk was closed at the front and sides so that only the upper part of the body of the person behind would be visible to the rest of the class. The Appellant says that there was an opening in the front of the desk. This is potentially material, because BL’s account of the alleged abuse includes a description of the Appellant exposing his penis, though also stating that the Appellant always wore a soutane. If the Appellant’s description of the desk, which has long since been unavailable, were to be correct, it might be considered that BL’s account was less likely. The Appellant disputes that the desk was enclosed. The difference between BL and the Appellant as to whether the stamp classes were held on Friday or Saturday morning might be material to a suggestion by the Appellant that he often played golf on Saturday mornings.
The Appellant, in his grounding affidavit, says that from 1964 to 1967 he taught the scholarship class at the school. The scholarship system came to an end with the introduction of free secondary education in 1967. In 1968 he was appointed to a post of responsibility in the school, which had the effect that he no longer had a class to teach. He agrees that he ran a stamp class, but says that this was never on a Saturday morning. He also expressly denies any of the wrongdoing alleged by any of the complainants.
The Appellant complains of the effect the very long lapse of time will have, if he has to face trial, on his capacity to defend himself. The lack of particularity of the dates will make it impossible to produce evidence of alibi. Leave to apply for Judicial Review was granted on the following grounds:
“1. That the delay and lapse of time between the dates of the alleged offences, commencing July 1965), and the prosecution thereof commencing in 1999, the delay being such that of itself and in all the circumstances will as a matter of probability cause the Applicant irreparable prejudice in his defence of these proceedings.
2. That to proceed with a criminal trial would be unfair and unjust to the Applicant.
3. That to proceed with a criminal trial would be a violation of the Applicant’s right to a criminal trial in due course of law pursuant to Article 38 sub-article 1 of the Constitution.”
The delay and its explanation
The delay in this case is, even in the context of the many cases of this kind which have come before the courts in recent years, extreme. BL’s first formal complaint to the gardaí was made in August 1997, thirty one years after the date of the alleged commission of the first offence charged and more than 29 years after the last. In the leading case of P.C. v Director of Public Prosecutions and another  2 IR 25, the corresponding period was between ten and a half and thirteen years. The charges were preferred in 1999.
It is essential to a consideration of the decision of Herbert J not to order prohibition of the Appellant’s trial to set out in some detail the history of the delay in this case and the explanations proffered by the Respondent and by BL.
As already mentioned the offences were allegedly committed when BL was in either fifth or sixth class in primary school. He left that school at the end of 1968. He spent one year at the secondary school in the same town. He says he became disruptive in that school and insisted that his parents move him. He then went to a different secondary school in the same town until he left on sitting his Leaving Certificate. He suffered psychological difficulties in his teen years, which I will refer to later.
His career path was set out in a reply to a notice for particulars delivered in a civil action commenced by him in the High Court in October 1997 and quoted by Herbert J as follows:
“1974 - 1976 Student nurse and childcare worker.
1976 - 1977 Childcare worker.
1978 - 1979 Student (full time diploma course). This course was in Childcare.
1979 - 1980 Childcare worker, (with young offenders).
1980 - 1982 Senior childcare worker (School for Members of the Travelling Community).
1983 -1987 Advertising executive - Manager.
1987 - 1992 Advertising executive.
1992 – 1998……… Public relations executive.
1998 onwards the Plaintiff has been and is now involved in public relations and is self employed.”
In addition, he told the clinical psychologist, Mr C that, in 1986-87, he had taken a course in the Creative Counselling Centre and received a Diploma in Psychotherapy.
A matter of some importance in the life of the appellant was the fact that his father was a former member of the Appellant’s religious order, and remained a committed and active supporter of that order all his life, to the extent of raising funds for it and participating in its activities. This was described by Herbert J as “a very special connection.”
The following history of the life of BL, apart from his career are derived largely from what he told Dr C., a Consultant Psychiatrist whom he began attending in 1987 to deal with the memories of the abuse. He attended Dr C. initially for therapy for some two years but thereafter continued to attend fairly regularly for a number of years. At the time of the High Court hearing, he was still attending him regularly twice or three times a year.
He gave Dr C. full details of his complaints of sexual abuse. He said that he started hating going to school, that he suffered high levels of fear and developed respiratory problems and suffered insomnia. He would try to avoid the appellant’s class; he felt “dirty.” He feared being ridiculed if the activities of the Appellant became known. He lacked confidence and became secretive and suspicious. He developed behavioural problems and was in conflict with his siblings and his parents. These problems continued at secondary school. His sexual development was extremely difficult- he worried about his sexual orientation- and he felt like drowning himself. Herbert J summarised, as follows, the evidence of Dr C. based on his report and his evidence when cross-examined:
“Having completed the Leaving Certificate Examination he decided to leave Ireland to "find himself" [sic]. He was still having difficulty trying to work out his sexual identity. After a number of failed relationships with girls he met his future wife in 1979 and they married in 1983. He described their marriage as "fraught with difficulties" but no details of these difficulties are recorded. He and his wife separated in May, 1995. He is presently in a new relationship and has regular contact with his children. These inner conflicts disappeared or faded to the point where they were no longer troublesome between 1979 and March 1987.
In his report Dr C states that the psychological [sic] distress which evolved out of the internalisation of the activities of Brother L. brought BL on a number of occasions through feelings of self hate and loathing to the point of considering suicide. Dr C does not say that this man's crisis of sexual identity is a consequence of or was exacerbated by the alleged actions of the Applicant. Dr C appears to accept the statement of B. L. that, during his adolescence he lived in an atmosphere of impending doom. Dr C describes BL as a fragile individual who has tried at all times to transform himself with all the resources to hand but who is still deeply distressed by "unresolved conflicts (inexperienced experiences)" which he attempts to sublimate through his work.
Dr C has not in his report expressed any opinion with respect to the making of a complaint by BL In cross-examination he said his report was not prepared for any Court and did not explore whether BL should or should not have complained. In cross-examination Dr C said that he was aware that BL had begun a liaison with a woman in 1998 which he believed had come to an end in the last year or so. He said that BL had not been on any drug therapy for depression and did not receive any in-patient hospital treatment for this condition. He said that he saw BL twenty seven times in 1987 and twenty four times in 1988. It was his opinion that after this treatment BL was able to deal with the ups and downs of life, - was psychologically competent, - but there was a continuing danger of a regression at any time. He said that he saw BL in 1989 on six occasions, in 1990 on nine occasions, 1991 on eight occasions, in 1992 on ten occasions, not at all in the years 1993 1994 1995 and 1996, on seven occasions in 1997 and two occasions in 1999.
Dr C said that when BL met and married his wife he was able then at least to put aside his doubts as to his sexual identity and this was an enormous boost to his self esteem. Dr C felt sure that the actions of Brother L had done severe psychological [sic] harm to BL Dr C said however that if he had to decide whether the delay in making a complaint was related to the alleged abuse, - and he had not been asked to and was not expressing any opinion on this, - he would draw upon as much material as he could in relation to BL before reaching a conclusion.”
Herbert J also had the evidence of a clinical psychologist, Mr C., whose evidence he discounted as being insufficiently explained by reference to available scientific literature upon which he said he had relied. He excluded this evidence from his consideration of the adequacy of the explanations offered for the delay.
BL first made contact with the Appellant’s order in 1997. He made a statement of complaint to the gardaí on 30th September 1997. The Appellant was interviewed by the gardaí in November and December 1997. The charges were preferred against him on 2nd January 1999. He was returned for trial on 13th May 1999. The Appellant is now 76 years of age and retired. He has always denied the charges.
The High Court Ruling on delay
Herbert J broke down the period of delay into distinct sections. He accepted that, during his years at secondary school, 1968 to 1974, BL was inhibited from complaining about the alleged sexual abuse through the influence of the Appellant “as a member of a class of persons who continued to be authority figures” in his life. This factor was compounded by the close connection between BL’s father and the Appellant’s religious order.
In respect of the period 1974-1983, he noted that BL completed a Diploma Course in Childcare and had six years experience as a child-care worker in this country and in the United Kingdom. He referred to “an unparticularised suggestion that he did not enjoy a close relationship with his father.” Nonetheless, he concluded that he was “justifiably inhibited by this very special connection between his father and [the order] added to his own anxieties about his sexual orientation, from disclosing or complaining of the alleged abuse.”
Mr Michael Counihan, Senior Counsel for the Appellant, accepted, at the hearing of the appeal that, up to 1983, the year when BL’s father died, the delay was explicable.
After 1983, Herbert J thought that “the question of the existence or not of a continuing causal connection between the failure to disclose or complain… [was] more difficult to determine.” He noted that:
The learned judge went on to refer to BL’s severe depression in 1987-88, stating that it “did not require any form of in-patient hospital treatment or any form of drug therapy.” He also noted that there was “no expert evidence from a psychologist to which the Court may attach any weight that he was inhibited from reporting or complaining of the alleged sexual abuse by reason of some recognised psychological condition.” He, nonetheless, summarised the effect of the evidence of Dr C. as follows:
“BL was now a man of more than twenty eight years of age, a manager in an advertising and public relations business, a husband and a father. The alleged extreme difficulties of his adolescent years and the anxieties with regard to his sexual identity were to a very considerable extent if not totally resolved.”
The ultimate conclusion and reasoning of Herbert J on this issue are as follows:
“Dr C described BL as a fragile individual, a man deeply distressed with a history of self denigration, depression and behavioural problems, originating at the time of the alleged sexual abuse by Brother L. (which allegation I must assume to be true for the purpose of this part of inquiry). In the opinion of Dr C this psychological distress [sic] evolved out of the internalisation by BL of the activities of Brother L. It is clear that these problems have not resolved, as evidence the attendances by BL or Dr C from 1987 to date. His marriage and the birth of his 2 children appeared to have afforded BL a sort of temporary respite only from his difficulties. Dr C expressed the view that Brother L. had done severe psychological [sic] harm to BL”
The relevant principles
“The Court must ask itself, on this evidence and assuming the complaint of BL to be true, whether as a matter of probability the delay on the part of BL in complaining of the sexual abuse was a result of that offending conduct itself. In my judgment the answer must be in the affirmative. In my view this complainant's statement in his affidavit, which I have already cited, but consider worthy of citing again,
‘It took me all these years to come to terms with the fact that I had been abused by Brother L., and that it was only after extensive counselling and therapy that I felt strong enough to come out in the open and talk about what had happened.’
is consistent with the evidence. The fact that he has commenced a Civil Action is no basis for doubting its veracity. Admissible evidence from a psychologist would have greatly assisted the Court and such evidence should be the norm in these cases, but an absence of such evidence is not conclusive and the Court may reach a conclusion on non expert evidence including that of the Complainant.”
The Appellant’s written submissions concentrate on the inconsistency of the High Court judgment, insofar as it distinguished between the cases of BL and the other two complainants. However, Herbert J, in the passages quoted, gave detailed and careful consideration to the complaints made by BL on their own merits. I think it is preferable to follow that approach. I propose to confine myself to a consideration of the correctness of the decision of Herbert J, expressed in the immediately preceding paragraph to the effect the delay in complaining of the alleged abuse was “a result of that offending conduct itself.” Hardiman J, in his judgment, concludes that the trial should be prohibited on the distinct ground that there is a real risk of an unfair trial by reason of the impossibility of producing the desk behind which the offending conduct is alleged to have taken place. In that respect, I have said that I agree with his judgment.
On the separate issue of whether prohibition should issue by reason of the long delay alone, I believe that a number of decisions of this Court require a particular approach to be adopted in cases of long delayed prosecution for sexual offences against minors. In particular, it needs to be considered, as Herbert J did, whether the delay is attributable to the acts of the alleged miscreant. This Court, composed as it is for the hearing of the present appeal, may not disturb precedent established and now enshrined in the law as a result of full consideration by the Court composed of five judges. For that reason, while concurring with the judgment of Hardiman J that prohibition should issue, I take a different view with regard to the first question addressed by him.
It is generally agreed that the correct approach is encapsulated in the judgment of Keane C.J. in P. O’C. v Director of Public Prosecutions and another  3 I.R. 87 at page 93:
Denham J delivered a separate judgment in which she restated the position she had adopted in P.C. v DPP, mentioned above. In effect, her judgment agreed with that of the Chief Justice, in particular in holding that, according to the “special jurisprudence on delay in the prosecution of those accused of child sexual abuse,” the assumption is made that the complaint is truthful. Geoghegan J agreed with the judgment of the Keane C.J. It is true that Murray J, as he then was, and Hardiman J expressed reservations about the propriety of making even a contingent assumption of guilt, but the majority view is that of Keane C.J. Therefore, the Court upheld the decision of the High Court (McGuinness J) to the effect that the delay was excusable. In fact, of course, the Court also upheld the High Court decision on the distinct of specific prejudice. It was on the latter ground, the trial was prohibited.
“There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious crimes. However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge "save in due course of law" entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children and particularly in cases where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent, teacher or religious.
In cases coming within the last named category, the inquiry conducted by the court which is asked to halt the trial necessarily involves an assumption by the court that the allegation of the victim is true. Without such an assumption, it would not be possible for the court to conduct any such inquiry and the court would be obliged automatically to halt the trial of a person because of the expiry of a lengthy period of time, even though the failure to make a complaint was due to domination exercised by the adult over the young child during the period of the abuse and even where - as has happened in a number of cases - the abuse has been perpetrated over many years by a parent or step-parent of a child actually living in the family home with the perpetrator. Since that patently cannot be the law, the presumption of innocence which applies in its full rigour to a criminal trial cannot apply to inquiries of this nature.
If, such an assumption having been made, the court invited to halt the trial is satisfied that, as a matter of probability, the failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without more, will not be a reason for halting the trial.”
The “special jurisprudence,” so described by Denham J had been developed over a number of cases, not least in a number of important judgments of her own. It is worth considering, in particular, the case of P.C. v Director of Public Prosecutions. As I have already mentioned, the delay in that case was of the order of ten and a half to thirteen years. The applicant was a bus driver. He was accused of using his position when driving young girls to swimming lessons and in giving them lessons to commit sexual offences against them. The complainant was one of these girls. This Court reversed a High Court finding that the applicant had not been sufficiently been shown to have a position of dominance or control over the complainant. Judgments were delivered by Denham, Keane and Lynch JJ. Hamilton C.J. and Barrington J expressed agreement with all three.
Denham J stated (page 60 of the report):
It is unnecessary, for the purposes of the present appeal to refer to the evidence which led the Court unanimously to reverse the High Court finding that, at the time of the alleged offence, the applicant enjoyed a position of dominance or authority in relation to the complainant. It is not disputed, in the present case, that the same position prevailed at the time of the alleged offences and for some years thereafter. It is noteworthy that the enquiry is not limited to the period when dominance comes to an end. The broader question is whether the delay in making the complaint, assuming it to be true, is attributable to the actions of the accused. In P.C., the offences were alleged to have occurred in 1982 to 1984. The complaint was formally instituted in 1995. However, a material aspect of the case was that, in 1988, the complainant had told some school friends, her teacher, the school principal and her parents of the alleged abuse, but that none of these persons took any action.
“Fundamental principles at the heart of a constitutional society are at the kernel of this case. These principles and constitutional rights have to be weighed and balanced by the court. They include the community's right to legal issues being determined in the courts; to have criminal charges processed through the courts; the right and duty of the prosecutor to bring to the courts for adjudication allegations of serious child sexual abuse alleged to have taken place; the community's right to have its society protected, especially its most vulnerable - children. Also at the core of this case is the rule of law; the right of the applicant to a fair trial; the right of the community to the rule of law for all, including the applicant.”
In dealing with this matter, Denham J said (page 62):
“If the matter of dominance alone were to determine the issue of the delay from 1988 to 1995, the applicant would have a much stronger case. But it is not the only factor. Each case must be determined on its own circumstances and there can be no definitive list of factors. Factors may include the relative ages of the accused and victim, the issue of dominance, the relationship of the parties, the place of the alleged abuse and the nature of the abuse. As knowledge grows of the nature and effects of child sexual abuse and as medical, psychiatric and psychological evidence is expanded and presented to the courts other factors may become apparent. Also, each case depends on its own circumstances.”
The effects of the abuse, she said, continued after the end of dominance. She relied on the evidence of psychologists to conclude that “the complainant was affected by the incidents… until 1995…” Denham J found the delay until 1995 “comprehensible.” The failure of the “authority figures” to whom she had complained in 1988, when she was still a schoolgirl, to support her meant that she had not taken “an informed decision to make a formal complaint in 1988.” Thus, the delay from 1988 was not the complainant’s delay. She was still suffering from the effects of the abuse from 1988 to 1995. Although dominion ended in 1988, thereafter “there was a repressed effect on the complainant from the alleged actions of the applicant...” (See page 64). It is clear that the learned judge relied on the expert evidence given in the High Court to lead her to this conclusion.
Keane J, as he then was, emphasised (see page 67) that “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.” Having concluded that dominion could be inferred, inter alia, from the age disparity of the parties, he continued, in a much-cited passage:
Lynch J, in his concurring judgment, also concluded (page 79) that “the applicant was largely responsible for the delay by the complainant in making the complaint.” He added, however:
“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.”
“This is not to say that there may not be cases of extreme delay, some of most of which may be attributable to the applicant himself, where nevertheless prohibition might be granted, but this is not such as case.”
So far as is relevant for the purposes of the decision in the present case, I conclude that the cases show:
1. Long delay by a complainant in making a complaint of sexual abuse may be explained by the fact that the accused, by reason of disparity of age, combined with the tenure by the accused of a position of trust or authority over the complainant;
2. For the purposes of the inquiry as to whether the delay is explicable, but not further, it will be assumed that the allegations of sexual abuse are true;
3. Delay, even after the end of the period when the accused is in a position to exercise dominion, may be explained by showing that the alleged sexual abuse continued to affect the complainant in the sense that he or she was psychologically inhibited from complaining. In deciding this issue, psychological or psychiatric evidence may be relevant, but is not essential. All the relevant circumstances of the particular case must be considered. The question is not simply whether the complainant continues to be affected by the alleged abuse, but whether such effects constitute a reasonable explanation for the delay in complaining;
4. The burden of proving that the trial should be prohibited lies on the applicant. However, where the delay is prima facie such as to give rise to a presumption that the applicant’s right to a fair speedy trial is infringed, the Court will have regard to the adequacy of any explanation offered by the complainant.
I believe that the case-law, so summarised, does not entitle the court, in a case such as the present, to order prohibition on the ground of delay alone. My divergence from the view of Hardiman J can be traced, I think, to the interpretation of the passage from page 68 of the judgment of Keane J in P.C. v Director of Public Prosecution. I do not think he was postulating three different tests, the first being whether the trial should be prohibited on the ground of delay alone. I believe that a reading of all the judgments in that case shows that the court was laying down a “special jurisprudence” for cases of child abuse. The later judgment of Keane C. J. in P. O’C. v Director of Public Prosecutions and another, from which I have quoted above, makes it clear that a different approach is adopted on child-abuse cases.
Nor do I think that the absence of an “island of fact” is relevant to this issue. Hardiman J, in his judgment delivered to-day recalls the passage in his judgment in JO’C v DPP  3 I.R. 478 at 504, which concludes:
It has to be remembered that, apart altogether from the cases of delayed trials, there have always been and will continue to be criminal trials, especially for sexual offences, where there are only two witnesses to the crucial events. Even when judges were required to warn juries about the danger of conviction in the absence of corroboration, they were entitled to convict in its absence. More importantly, since the corroboration warning has been abolished by statute, trials may well come down, subject to the ordinary and vital safeguards to which the accused is entitled in every criminal trial, to one word against another. In the absence of presumed or demonstrated prejudice, I do not believe that delay makes this any less likely. Denham J dealt with this issue in a later passage of her judgment in P.C. v Director of Public Prosecution (page 63):
“The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all.”
The “trial of the credibility of witnesses,” must, however, take place in the context where the accused person enjoys the protection of all the guarantees provided by law and the Constitution. The accused, in every criminal trial, is entitled to the presumption of innocence; the prosecution must prove every fact beyond reasonable doubt; a jury is required to act on defence evidence if it might reasonably be true; there are strict rules regarding the admissibility of evidence; increasingly, the prosecution authorities are required to make full disclosure of all information in their possession; finally, our Constitution assigns to the jury the fundamental decision on guilt or innocence. When these matters are taken into account, I do not think a properly conducted criminal trial amounts to a simple and equal contest based on allegation and denial between prosecution and defence or that, in the trial of “credibility of witnesses” equal value is accorded to prosecution and defence evidence.
“There remains the question as to whether the simple efflux of time, for whatever reason, has so prejudiced the applicant that there is a real risk that he will not receive a fair trial. While the delay in this case is very considerable (though not unusual in criminal prosecutions of this kind) it has not altered the nature of the trial. A trial of charges of this type, in the circumstances described, is in fact a trial of the credibility of the witnesses. The delay is damaging to both parties. The nature of the offences alleged is such that it is not likely that any witness could usefully have been called even if the trial took place in the years immediately after the complainant reached 16 years of age. Even the allegations as to what took place in semi-public in the swimming pool relate to actions alleged to have taken place under water when the applicant was teaching the complainant to swim and probably even if the issue were tried in a court of law immediately after the alleged events they would be tried on the credibility of the witnesses.”
Has the delay been sufficiently explained?
The relevant period of delay in this case is the period from 1968, the date of alleged commission of the last of the offences until 1999, when the Appellant was charged. It is over thirty years.
At page 23 of his judgment, Herbert J said, by reference only to the period of unexplained delay in the cases of the other two complainants:
It can be inferred that the failure of the learned judge to make a similar statement in respect of the charges relating to BL was due solely to the fact that, in that case, he found that there was an explanation for the delay. It is a striking fact, nonetheless, that, as this passage implies, the Appellant may, in the context of the “special jurisprudence,” be required to accept the risk of an unfair trial. Where, having assumed for the purpose of that inquiry the truth of the allegations, the Court finds the delay in making them to be reasonable, an accused person may be deprived of his constitutional right to a speedy trial.
“I am satisfied in the circumstances of this particular case from the length of this delay alone that the court is entitled to presume and does so presume that the capacity of the Applicant to defend himself is thereby materially impaired and that accordingly the trial as respects these two complainants should not be allowed to proceed because of the risk of its being unfair even if no specific prejudice is in fact established.”
The length of the delay in this case is, as I have said at the extreme end of the scale. Lynch J postulated the possibility of “cases of extreme delay, some of most of which may be attributable to the applicant himself, where nevertheless prohibition might be granted....” This is, on any view, such a case. The Appellant has discharged the burden of showing that such a long-delayed trial would prima facie be unconstitutional. This does not alter the burden of proof. It merely means that the evidence to counter it and to persuade the court not to order prohibition may need to weigh more heavily in the balance. It is, in my view, not sufficient to say, as some psychologists have said in reports produced in cases of this kind, that it was “reasonable” for the complainant not to complain. That “reasonableness” must be of a quality worthy of setting in the balance against the constitutional right of the accused person. I would agree with the statement of Herbert J, at page 12, that:
In JMB v DPP and others, (Supreme Court, Unreported 17th December 2003), Keane C.J. held that the failure over many years of the patients of a medical practitioner to complain of improper sexual touching of them by him under the guise of medical examination was “perfectly understandable” (page 19 of the judgment.). He held that the trial judge had been entitled to reach the decision he did without the evidence of a psychologist or equivalent expert. He went on to discuss the value of such evidence as follows:
“…there must be evidence that the particular alleged victim of sexual abuse as a minor was inhibited from disclosing or complaining of this abuse by some psychiatric disease or some psychological defect or abnormality duly established by expert or non expert testimony.”
Counsel for the Appellant challenges the conclusion of the learned trial judge that BL’s delay in making the complaint was a result of the alleged offending behaviour. His argument may be summarised as follows. BL was not under any dominion from the Appellant after he left school. His father’s death in 1983 removed one of his stated obstacles to making a complaint. He pursued a professional career in child care. He married in 1983 and had children. Although he said that his marriage was fraught with difficulties, the learned trial judge found that his “inner conflicts disappeared or faded to the point where they were no longer troublesome between 1979 and 1987. He underwent extensive therapy with Dr C from 1987. The learned trial judge cited the opinion of Dr C that, after BL had attended him twenty seven times in 1987 and twenty four times in 1988, he “was able to deal with the ups and downs of life - was psychologically competent - but that there was a continuing danger of regression at any time.”
“As the authorities demonstrate, it may undoubtedly play an important part in inquiries of this nature, where the alleged victims failed to make any complaint in respect of patently criminal conduct even at a stage when they had become adults and might be presumed to be fully aware of the wrongful nature of the offending conduct. It is true that in S. -v- D.P.P., which was also a case in which a medical practitioner was alleged to have committed sexual assaults upon young patients, there were expert reports from psychologists dealing with each of the complainants and offering an explanation for the delay. However, the fact that it was thought necessary, or at least desirable, to adduce such evidence in that case is not a ground for concluding that it is essential in every such case. I have no doubt that the trial judge was correct in the approach he adopted, i.e. of considering the admissible evidence, attaching such weight to it as it deserved and drawing such inferences from the evidence as seemed to him necessary or reasonable.”
The ultimate conclusion of the learned trial judge to the effect that, as a matter of probability, the delay of BL in making any complaint was “a result of that offending conduct itself,” seems to be directly based on the statement made by BL in his affidavit, and cited by the learned trial judge at page 18 of his judgment that:
“It took me all these years to come to terms with the fact that I had been abused by Brother L., and that it was only after extensive counselling and therapy that I felt strong enough to come out into the open and talk about what had happened.”
He said that this was consistent with the evidence. BL has thus persuaded the court that it was only the “extensive counselling and therapy” he had received which made him strong enough to come out in the open. The therapy in question had been provided by Dr C. The clinical psychologist was retained only for the purpose of the Judicial Review proceedings and conducted only one interview. He provided no therapy and Herbert J disregarded his evidence in any case. Therefore, it has to be assumed that it was Dr C’s treatment which made him strong enough to complain and, by necessary implication, that until he had received that treatment, he was not strong enough.
In this context, it is important to recall certain features of the report and evidence of Dr C, most particularly the fact that neither in his report nor in his evidence did Dr C express any opinion as to whether the delay was related to the alleged abuse. In evidence, he said that he would draw upon as much material as he could in relation to BL before reaching a conclusion. It is true that Dr C’s report paints a picture of BL as a seriously damaged individual. He suffered during adolescence from a serious crisis of sexual identity. He internalised his psychological problems to the extent of becoming obsessional and even suicidal. He also suffered trauma as a result of the break-up of his marriage. In the circumstances of this case, I think it is significant that a psychiatrist of undisputed competence and expertise, who had treated BL over a number of years and was intimately aware of his problems felt unable to express any opinion as to whether BL was unable to or even inhibited from expressing an opinion that the undoubted extremely long period of delay in making the complaint was a result, assuming the complaints to be true, of the alleged offending behaviour. It appears that Herbert J based his opinion on the statement of BL himself.
The learned trial judge was obliged, as has repeatedly been said, to take all the circumstances of the case into account. As stated by Denham J in the passage quoted above, these include the relationship between the parties. Clearly, while he was a schoolboy BL was under the care or control of the Appellant’s order and then of another order of teachers in the same town. It is furthermore accepted that the strong relationship of BL’s father with the Appellant’s order was an important inhibiting factor until the latter’s death in 1983. Thereafter, the relationship of the parties ceases to play any role. The only basis for explaining the delay must, therefore, be psychological.
The extreme length of the delay must also enter into account. In my view, it is not simply a question of seeing whether the complainant has justified part of the delay and considering the remaining period as the relevant one. In the present case, that would mean that delay was explained up to 1983, some eighteen years after the date of the last act of alleged abuse, and that the relevant period is from 1983 to 1987, a period of fourteen years. At that time, when considering whether further delay is adequately explained, the earlier period becomes relevant. A complainant, in that situation, must take account of the fact that the person to be accused is likely to face a trial delayed by the cumulative effect of both periods. In this case, the relevant total lapse of time is from 30th June 1968 (the date of the last charge) and 2nd January 1999. It can be described as amounting to over thirty years.
During many of these years, BL exhibited many features of a normal competent person. He married and had children. He pursued a career in childcare and obtained qualifications on that field. He changed his career to the area of advertising and public relations and set up his own business.
In all of these circumstances, I believe the learned trial judge was not justified in concluding that the delay had been adequately explained in the absence of expert psychological or psychiatric evidence. Since he had discounted the evidence of the psychologist, he would have had to have that evidence from Dr C, who pointedly declined to give it.
In summary, the delay was so extreme that cogent evidence attributing the delay to the alleged abuse was required. In its absence, the learned trial judge was not justified in reaching the conclusion he did. For that reason, I would allow the appeal and grant the order of prohibition sought.
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