![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
High Court of Ireland Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (C.) v. D.P.P. [2005] IEHC 112 (9 March 2005) URL: https://www.bailii.org/ie/cases/IEHC/2005/H112.html Cite as: [2005] IEHC 112 |
[New search]
[Context]
[Printable version]
[Help]
[2005] 112
THE HIGHCOURT
![]()
JUDICIAL REVIEW
[Record No. 2003/762JR]
BETWEEN
C.D.
APPLICANT
AND
THEDIRECTOR
OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT of O'Sullivan J.delivered
the 9th
day
of March, 2005
Introduction
The applicant seeks an order restraining prosecution by the respondent of offences of rape and indecent assault made against him on foot
of
complaints
by his niece and indecent assault and attempted buggary by his nephew. A third
complainant,
now living in Australia, made similar allegations but
does
not
wish
to proceed
with
the
charges
and a nolle prosequi
will
be entered in respect of those.
The complaints
of his niece P.
D.
are alleged to have occurred between June 1971 and
December
1981,
when
she
was
aged between
four
and
fourteen,
while
those made by J.
D.
are alleged to have occurred between January 1963 and
December
1967,
when
he
was
aged between six and a half and ten and a half. The applicant
was
aged between twenty nine and thirty nine
when
P.
D.'s
complaints
allegedly occurred and between twenty one and twenty
five
when
those of J.
D.
allegedly occurred. All these ages are approximate.
P.D.
complained
to the Gardaí on 21st March, 2001, that is some twenty years after the latest of the offences she alleges. J.
D.
complained
on 13th July, 2001, that is some thirty
four
years after of the later of the two offences alleged by him.
The applicant was
charged
on 16th September, 2002 and again on 18th November, 2002, having been interviewed in respect of P.
D.'s
complaint
on 28th March, 2001, and J.
D.'s
complaint
on 19th July, 2001.
The presentchallenge
The main ground of complaint
now made by the applicant is that his trial
will
be prejudiced by reason of the elapse of time between the
dates
of the alleged offences and the
dates
on
which
formal
complaint
was
made. No specific prejudice is alleged. He also relies on prosecutorial
delay.
The applicant has made a cautioned
statement on 28th March, 2001, admitting a long sequence of sexual misbehaviour against P.
D.
generally speaking such as she herself
describes
in her
complaint.
The same is true in a
further
cautioned
statement made by him on 19th July, 2001, in relation to the
complaint
made against him by J.
D.
with
the qualification that
whereas
there is only one
complaint,
namely indecent assault, the statement appears to refer to many more. On the basis of this statement there is a
charge
of attempted buggery of J.
D..
The applicant has sworn two affidavits in these proceedings but neither suggests that he is or will
be
contesting
these statements in any
way.
In his principal affidavit the applicants says:
"I say that thedelay
in the
commencement
of these proceedings is inordinate. I have not
contributed
to the
delay.
I say that my
defence
of these
charges
![]()
will
be prejudiced as a result of the excessive
delay
that has arisen."
There is no reliance on any specific prejudice.
Counter-challenge
![]()
The respondent, however, alleges that the applicant "contributed"
to the
delay
insofar as an affidavit has been sworn on its behalf by a
clinical
psychologist, Paul Gilligan,
who
has examined both
complainants
and offered an opinion in the
case
of P.
D.
that her
delay
in reporting the alleged offences
was
due
to the
fact
that the alleged abuse had a lasting psychological impact on her and has
contributed
significantly to her reluctance to report the abuse. On the
contrary,
in the
case
of J.
D.
his
delay
in reporting the alleged assault
was
due
to the
fact
that it had no lasting effect upon him and that in this
context
his
delay
in reporting
was
reasonable and understandable.
I will
return in a little more
detail
to this topic shortly.
Unquestionably the delay
in making a
complaint
to the Gardaí in this
case
of some twenty years in the
case
of P.
D.
and in excess of thirty
four
years in the
case
of J.
D.
are such that the
courts
will
look very
carefully
at any suggestion that the applicant is unlikely to get a
fair
trial.
During
the hearing, I asked
counsel
whether
they
could
point to any one
case
where
a
court
had stopped a trial merely on the grounds of a long
delay
and
without
any suggestion of prejudice other than
delay.
No such
case
was
turned up.
I will,
however, return to this topic in more
detail
at the end of this judgment.
Whilst
there are
dicta
to the effect that the
court
has jurisdiction to stop a trial merely on the grounds of a long
delay
it
does
appear that the paramount question always is
whether
it
can
be shown as a matter of probability that an applicant is unlikely to get a
fair
trial. Accordingly, at this point in my enquiry, I
do
not think it
correct
to state that the applicant
will
be automatically entitled to an order stopping the trial unless the
delay
or part of the period of
delay
can
be "laid at his
door"
to use the phrase of his own
counsel.
Reasonfor
the
delay
Paul Gilligan, psychologist, interviewed P.D.
on 11th and 12th of May, 2004, at the request of the respondent. He gave the opinion already referred to. In a report exhibited to his affidavit he points out that the key
factors
influencing the impact on P.
D.
of the alleged abuse
were
the type and
duration
(over a twelve year period), her age at the time (between
four
and sixteen), the age
difference
between her and the applicant (some twenty
five
years), his relationship as her uncle in a position of authority and trust, and the ongoing
contact
with
her
family
(he
frequently
slept in her home and
was
part of the extended
family
circle).
He gave his opinion that the immediate impact on P.D.
was
to make her a quiet,
confused
and
frightened
child
who
first
did
not realise this
was
wrong
and accepted it as normal, and later began to realise it
was
wrong
but
was
too afraid to stop the accused and
was
worried
she
would
be blamed and punished if she told anybody, and later still she became more
frightened
because of his threats that if she told anybody she
would
be "put into
care
where
worse
things
would
happen to her".
The delayed
and
current
impact included
depression,
anger, insecurity,
feelings
of shame and an inability to trust, she becomes tearful, melancholy and sad
with
negative thoughts, her
depression
being made
worse
because many members of the extended
family
did
not believe her allegations and
felt
she had brought shame on the
family.
This made her angry and she takes it out on her husband
who
however understands how to
deal
with
her: he is one of the
few
people
whom
she trusts and she is "very lucky to have such a supportive husband" and "
does
not
deserve
him". He is the only person she really trusts in her life but
constantly
needs reassurance
from
him. She has been hospitalised three or
four
times
for
depression.
Both she and her husband are the prime carers
of her son
who
has been
diagnosed
with
Asperger's Syndrome Attention
Deficit
and Hyperactive
Disorder.
This presents her husband and herself
with
many
challenges.
With
regard to her
delay
in reporting, Mr. Gilligan says she
did
not
disclose
the abuse to anybody at
first
because she
did
not realise it
was
wrong
and later because she
was
afraid she
would
be blamed, punished or put into
care.
Also, she
felt
she
was
to blame. Later she
felt
disclosure
would
bring shame on her
family
and "
destroy"
her parents and given the applicant's
close
relationship to her
father,
she
felt
she
would
not be believed. She
did
promise herself, however, that she
would
disclose
the abuse "if ever a
female
grandchild
was
born into the
family".
She did
in
fact
disclose
the alleged abuse
first
to her husband shortly after she met him and then to a
cousin
in 1991
who
came
back
from
Australia and revealed that he
did
not like the applicant. Seven years later, in 1998, she
disclosed
it to her brother-in-law because she believed the applicant
was
spending a lot of time around his house
where
he had
contact
with
children.
Some three years later, in 2001, she
disclosed
it to her parents in an angry outburst. Although they
were
"
devastated",
they
were
extremely supportive and then she
decided
to report the matter to the Gardaí
which
she
did
some
days
later. This has alienated her
from
many of her extended
family.
Mr. Gilligan in his report endorses these reasons as the reasons which
in his opinion explains
why
P.
D.
did
not
disclose
the alleged abuse. He also says that the applicant
was
in a position of
dominance
in regard to P.
D.
and gave his
conclusion
that in his opinion "the assessment indicates that the alleged incidents of abuse have had a lasting psychological impact on Ms.
D.
and have
contributed
significantly to her reluctance to report the alleged abuse. It is my opinion that Ms.
D.'s
delay
in reporting the alleged incidents of abuse is reasonable and understandable."
Mr. Aylmer S.C.
for
the applicant submits that this opinion
does
not go
far
enough under the authorities to establish that the applicant
contributed
to the
delay.
It is necessary to establish an inhibition as
distinct
from
a
contribution
to a
complainant's
reluctance.
In this context,
I refer to the judgment of McGuinness J. in
D.O'R.
v.
D.P.P.
Unreported, Supreme
Court,
(30th July, 2004) at p. 36
where
she says:
"Thefirst
issue
which
![]()
falls
to be
considered
is the
complainant's
![]()
delay
in reporting the alleged abuse to the authorities and, as expressed by Mr. Gageby,
whether
this
delay
![]()
can
be laid at the applicant's
door.
In accordance
with
the judgement in P.
C.
v.
D.P.P.,
![]()
for
this purpose the
court
may assume the truth of the
complainant's
allegations. In my view,
counsel
![]()
for
the applicant is
correct
in his submissions that it is not sufficient to show that the
complainant's
![]()
delay
![]()
was
'reasonable';
what
must be shown is that she
was
inhibited
from
![]()
complaining,
or incapable of
complaining,
by reason of behaviour
which
![]()
can
be attributed to the applicant. On the
case
law, this behaviour may be manifested in overt actions such as physical violence or threats but it may also be manifested in the more subtle
form
of
dominion
or psychological
control."
![]()
The learned judge went
on, however, to refer to this use of the term "reasonable" –
with
which
she
disagreed
– to be "an error in nomenclature rather than an error of principle." She
was
left in no
doubt,
having regard to the evidence of the psychologist and more so having regard to the evidence of the
complainant
herself that she
was
inhibited
from
and incapable of making a
complaint
to the proper authorities
for
a significant period of time.
I respectfully share Mrs. Justice McGuinness's discomfort
with
the
word
"reasonable".
During
the hearing I asked
counsel
for
the
Director
of Prosecutions, Mr. O'Malley, how
was
I to know
what
precisely Mr. Gilligan meant by this?
Clearly,
it
could
be said to be reasonable
for
the applicant to
delay
complaining
if she thought she
would
not be believed or if she thought that it
would
cause
her parents
distress
or
for
whatever
other reason. But that, equally
clearly,
would
not mean that she
was
inhibited or incapable as
contemplated
in the authorities.
It is clear
to me in this
case,
however, having
considered
the report of Mr. Gilligan that his use of the term "reasonable" is in
fact
in
direct
response to the brief given him by the respondent
which
asked him, inter alia, to assess "
whether
the
delay
in reporting the alleged offence
was
reasonable in the light of the
complainants
circumstances."
Furthermore,
I am satisfied
from
the evidence of Mr. Gilligan that in his use of this phraseology he is in
fact
communicating
a professional opinion that the applicant P.
D.
was
inhibited by reference to the alleged abuse and also by reference to the threats and given her
fragile
personality and the gradually
dawning
appreciation that the abuse
was
wrong,
that it
was
not her
fault,
that she
could
stand up to the applicant and that she
could
tell others – beginning
with
the most trusted and
closest
to her - about it.
Against the background of the features
in the
case
singled out by Mr. Gilligan in his report namely, type and
duration
of the abuse, the
complainant's
age at the time, the age
difference
between her and the applicant in these proceedings, the relationship
constituting
one of
dominance,
the applicant's ongoing
contact
with
her
family
and the
family
functioning,
it must
come
as no surprise to learn that Mr. Gilligan
considered
that the impact of the alleged abuse had a profound and lasting effect. Nor is it a surprise to see that the
complainant
having left home
found
it
within
herself to
confide
first
to her husband
whom
she
clearly
trusts beyond any other individual in her life, next to her
cousin
visiting
from
Australia and then some years later to her brother-in-law because of the applicant's
contact
with
children
in his house. That
was
in 1998 and some three years later in an angry outburst she
disclosed
it to her parents. That
was
in the
context
of her
father
criticising
her husband's parenting of her son –
clearly
a
criticism
of profound impact
which
seems to have spurred her in anger to reveal the abuse. The
clear
inference is, I think, that had there not been this emotional energy she might not have
done
so.
I accept Mr. Gilligan's opinion to the effect that P.D.'s
delay
"in reporting the alleged incidents of abuse is reasonable and understandable" in the
circumstances
which
I have identified above as meaning that she
was
inhibited
from
making the
complaints
until she actually
did
so. I
do
so because I think he
felt
bound to use the "nomenclature" in his brief. He has not sought to
draw
a
distinction
between the making of the
disclosure
to her husband and
cousin
in the early 90s and her brother-in-law in 1998 nor between that and the making of the
disclosure
to her parents in 2001 shortly before she
went
to the Gardaí. His opinion is expressed
without
making a
distinction
between any of these. In light of this and in light, also, of the statement of P.
D.
herself, my view is that her
delay
in making the
complaints
to the Gardaí is explicable (to use the
word
of Keane J. in P.
C.
v.
D.P.P.
[1999] 2 IR 25 at p. 68) by reference to the
conduct
of the accused.
With
regard to the
complaints
of J.
D.
the evidence of Mr. Gilligan is that the alleged offence of indecent assault had no psychological impact on him
when
he
was
a boy nor any
delayed
impact on him. He
dismissed
the incident out of his thinking and never really gave any thought to it. He
did
not
disclose
it
when
he
was
a
child
because the significance of it
did
not occur to him and later because it
was
not an important issue to him and he only
disclosed
it to the Gardaí because he became very angry about the
fact
that many of the extended
family
including his own parents
did
not believe the allegations of P.
D.
and he
disclosed
it to support her allegations.
Clearly
when
Mr. Gilligan says of this that his
delay
in reporting is "reasonable and understandable" he
cannot
mean that J.
D.
was
inhibited but rather that
from
J.
D.'s
point of view the
decision
not to
complain
was
reasonable and understandable.
Clearly
therefore this
delay
is not something
which
is explicable by reference to the behaviour of the applicant.
Once again, there is a statement and whilst
the statement
would
appear to refer to more incidents than those
contained
in the
complaints
of J.
D.
the relevance of the statement is not so much in relation to its
contents
but insofar as it shows that the applicant has some memory of incidents going back as
far
as those alleged to have taken place in J.
D's
complaint.
Risk of unfair trial
Because the foregoing
exercise has involved a suspension,
for
the purposes of that exercise and
for
that purpose alone, of the applicant's entitlement to the presumption of innocence, it is necessary, notwithstanding my
foregoing
conclusion,
to move to
consider
whether,
nonetheless, this trial should be stopped. Keane J. (as he then
was)
in P.
C.
v.
D.P.P.
[1999] 2 IR 25, in part of an oft-
cited
passage put the matter this
way
at p. 68:
"If that stage has been reached, thefinal
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 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."
It is clear
that in proceeding
with
this next part of its inquiry the
court
is engaged in a balancing exercise, that is to say, a balance between the right of the applicant to a
fair
trial on the one hand and on the other the right of the
community
to see
complaints
of a serious nature prosecuted.
In the present case
there is no allegation of specific prejudice, but rather a general
claim
that
due
to the elapse of time that the applicant's "
defence
of these
charges
will
be prejudiced as a result of the excessive
delay
that has arisen."
As part of the balancing exercise referred to it is right, I think, that I bear in mind that it is notoriously difficult
to
defend
allegations of such a nature at so long a remove of time, that even though there may be no
claim
of specific prejudice it is inevitable that memories
will
fade,
that specific
dates
and occasions that may in principle
come
to the aid of a
defendant
will
be
forgotten
or
confused
and that the prosecution
can
easily reduce itself to a
case
of mere allegation and mere
denial.
Admissions by applicant
Am I entitled to take into account the fact
that the applicant has made statements admitting sexual offences against both
complainants?
It seems that I am. In B. v.
D.P.P.
[1997] 3 I.R. 140 at p.202,
Denham
J. speaking
for
the Supreme
Court
said:
"If there has been admission by the accused of all or any of the allegedcrimes
this
will
be a
factor
![]()
for
![]()
consideration.
If the admission is
contested
that is also a matter to be
considered
by the
Court
on an application to prohibit the trial on the ground of
delay."
In D.W.
v.
D.P.P.
(Unreported, Supreme
Court,
31st October, 2003) McGuinness J. said:
"The applicant isfully
entitled to the presumption of innocence in regard to all the
charges
![]()
which
have been brought against him. However,
when
![]()
considering
![]()
whether
his trial on these
charges
is to be prohibited, his own attitude to the
charges
is a relevant
factor."
I note also the observation of Hardiman J. in N.C.
v.
D.P.P.
(Unreported, Supreme
Court,
5th July, 2001) at p. 28,
where
he says:
"Secondly, Iwould
record my agreement
with
the
decision
of the trial judge to attribute no significance to the alleged admissions made by the applicant,
which
are strongly
disputed
by him. The alleged admissions
were
in any event, as the learned trial judge
found,
of a limited nature."
In principle, it seems that where
admissions are not
contested,
and are not of a limited nature, they may be taken into account. Their significance, however, seems to me to relate to the
capacity
of the applicant to recall events in the past rather than to the
contents
of the statements themselves.
In the present case,
however, the applicant has made
detailed
statements in relation to the
complaints
of both P.
D.
and J.
D..
It is important here that I point out, at once, that I have no business at this point in trying to
weigh
the evidence or in
considering
whether
any part of it on either side attains a particular standard of
credibility
or
conviction.
I am
concerned
only
with
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. It there a real and serious risk of an unfair trial?
I am not therefore concerned
with
the
contents
of the applicant's statement but rather
with
the
fact
that it is
demonstrated
thereby that he has a good memory in the
case
of one of the
complainant's
allegations going back to the period
when
these offences are alleged to have occurred. Again, the relevance of the
fact
that these statements are not in anyway
contested
by the applicant is not so much that this tends to show that their
contents
are true but that it shows that he has no present
concern
in relation to his
capacity
to recall events so
far
in the past of in relation to the manner in
which
these statements
were
given by him.
I must also bear in mind that there is no claim
in this
case
of specific prejudice such as the loss of a
witness
through
death
or of
documents
through passage of time.
Delay
and presumption of prejudice
I now turn to consider
in light of the authorities the effect of the elapse of lengthy periods of time before
complaints
were
made against the applicant.
In P.C.
v.
D.P.P.
[1999] 2 IR 25, Keane J. (as he then
was)
said (at p.68)
"Thedelay
may be such that,
depending
on the nature of the
charges,
a trial should not be allowed to proceed, even though it has not been
demonstrated
that the
capacity
of the accused to
defend
himself or herself
will
be impaired."
In J.O'C.
v.
D.P.P.
[2000] 3 I.R. 478, at p. 531 Hardiman J. in a
dissenting
judgment
with
which
Barron J. agreed said:
"For
the reasons set out extensively earlier in this judgment, I believe that a gross lapse of time, in a
case
almost
devoid
of
detail
in relation to surrounding
facts
and
circumstances,
![]()
carries
![]()
with
it a real risk of
wrongful
![]()
conviction.
In the language of the
decided
![]()
cases,
it is so old as to be 'beyond the risk of
fair
litigation'. 'The
chances
of the
courts
being able to
find
out
what
really happened' have been progressively reduced and the
delay
is 'patently and grossly unfair to the
defendant'."
![]()
In that dissenting
judgment it is
clear
that Hardiman J.
would
have stopped the trial.
There appear to have been four
High
Court
cases
in
which
the trial
was
stopped solely on the grounds of
delay
In P.L. v.
D.P.P.
and Her Honour Judge Olive Buttimer, (Unreported, High
Court,
Herbert J., 16th April, 2002) Herbert J.
was:
"satisfied in thecircumstances
of this particular
case,
![]()
from
the length of this
delay
alone [18-24 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 it being unfair even if no specific prejudice is in
fact
established."
In J.B. v. D.P.P.
(Unreported, High
Court,
Ó
Caoimh
J., 14th November, 2003) stopped the trial in respect of one of
five
complainants
where
he had held that the applicant had not
demonstrated
that the
capacity
to
defend
himself
would
be impaired. Nonetheless he said:
"…while
I am satisfied that the applicant has
failed
to show that in the
case
of this
complainant
that his
capacity
to
defend
himself
will
be impaired in any respect beyond that of the other
cases,
I believe that the judgments of the Supreme
Court
in that
case
[P.
C.
v.
D.P.P.
[1999] 2 IR 25] suggest that the trial in respect of this single
complaint
should not proceed as it relates to a single event a very long time ago."
O'Leary J. in P.G. v. D.P.P.
(Unreported, High
Court,
O'Leary J., 10th
December,
2004) prohibited a trial on grounds of
delay
alone saying:
"…it is obvious andwhen
taken together in their entirety the
delay
in making the
complaint
is in breach of the applicant's right to a speedy trial. Therefore, it is
clear
that the applicant is entitled to succeed having regard to the test of general
delay
laid
down
in P.O'
C
v.
Director
of Public Prosectuions by Keane
C.J."
Quirke J. prohibited a trial on the ground of delay
(he
found
the applicant had not established specific prejudice). In reaching his
conclusion
he
cited
at length the
well
known passage
from
Keane J. (as he then
was)
in P.
C.
v.
D.P.P.
referring to
what
he
called
the three stage approach and
concluded:
"Adopting that statement of the law itfollows
that the
delay
of some
fourteen
years
from
the time of the alleged offence to the
complaint
by M.H.
clearly
justifies an inference that the applicant's
constitutionally
protected right to a trial
with
reasonable expedition has been violated."
In J.M. v. D.P.P.,
(Unreported, Supreme
Court,
28th July, 2004) a trial
was
stopped
where
there
was
upwards of thirty years between the alleged
complaints
and the
date
of
charge.
McCracken J. said at pp. 13-17:
"…cases,
such as the present one…
do
not
depend
on a specific prejudice, but rather on a general overview of all the
circumstances
of the
case
![]()
which
![]()
could
affect a
fair
trial….in
considering
![]()
cases
of this nature, the
court
should have regard to the totality of the
circumstances
surrounding the proposed prosecution, even though no single
factor
![]()
would
justify prohibiting the prosecution."
In J.S. v. D.P.P.,
O'Higgins J. (Unreported, High
Court,
O'Higgins J., 2nd April, 2004) prohibited a trial involving a
delay
of between sixteen and seventeen years
from
the
date
of alleged abuse to the
date
of
first
complaint.
He held that the right of an applicant to a trial
with
reasonable expedition had been violated
with
regard to
deterioration
of memory he said at p. 25 if this
was:
"afactor
![]()
which
![]()
can
be taken into account together
with
other matters in accessing
whether
the
circumstances
are such as to give rise to a presumption that the
capacity
of the applicant to
defend
himself has been impaired to the extent that there is a risk of an unfair trial."
In S.F.
v.
D.P.P.
(Unreported, High
Court,
Geoghegan J., 17th
December,
1997) a large number of sexual offences
were
alleged to have been
committed
by a
diocesan
priest between 1981 and 1984 and not reported (other than a handful in 1990) until 1995. this
delay
was
held by Geoghegan J. to be:
"…excessive andfor
the particular reasons
which
I have explained it is not in my opinion a
delay
![]()
which
![]()
can
be attributed to the applicant. As there must be some presumed prejudice to the applicant as there is in the
circumstances
of that
case
no
factor
to be balanced against it, a trial in respect of those offences ought not to be allowed to proceed."
Although this order was
overturned in the Supreme
Court
these views of Geoghegan J.
were
agreed
with
by Hardiman J. in the Supreme
Court.
I have not been able to find
any
case
where
there
was
such a long
delay
that on the authorities it
would
give rise to a presumption,
without
more, that the ability of the applicant to
defend
himself had been prejudiced but
where
the applicant had made a statement admitting the alleged offences and had not indicated that these
would
be
contested.
Application of principles to the presentcase
In the present case
the
complaints
of P.
D.
were
made some twenty years after the latest of the offences alleged; those of J.
D.
some thirty
four
years afterwards. In both
cases
the applicant has made admissions: his admissions in relation to the
complaints
made by P.
D.
are similar to those
complaints
and in my view
demonstrate
an ability on the part of the applicant to recollect events going back to the relevant time and a
capacity
to
deal
with
them. In the
case
of the
complaint
made by J.
D.
which
relate to one offence only, the admission suggests an acknowledgment of significantly greater number of offences. It
was
suggested by Mr. Aylmer S.
C.
on behalf of the applicant that this
factor
called
into question the reliability of that admission.
Given the gross delay
in the making of these latter
complaints
– namely some thirty
four
years – I
consider
that in light of the authorities a
court
should be prepared to presume that the applicant's ability to
defend
himself has been
compromised
by the passage of time and that it is only if that presumption
can
be shown to be incorrect
for
some reason that the applicant
will
be
denied
relief. In the
case
of the admissions made by the applicant in relation to the allegation made by J.
D.
my view is that these are open to question in the
way
submitted by
counsel
for
the applicant and given the very long
delay
involved I
consider
any indication of
confusion
or lack of
clarity
on the part of the applicant as sufficient to revive the presumption that the applicant's ability to
defend
himself has been
compromised.
I therefore propose to make an order prohibiting the respondent
from
proceeding
further
with
the prosecution of the
charges
that refer to J.
D..
In the case
of the allegations made by P.
D.
the elapse of time is also, in my view, sufficiently lengthy to raise a presumption that the applicant's ability to
defend
himself has been
compromised.
In this
case,
however, his statement of admission seems to
demonstrate
a
capacity
to recall and
deal
with
the events as alleged by P.
D.
so that the presumption that his memory and ability to
deal
with
those events has been impaired is in my view
displaced
by his
demonstrated
ability as
contained
in the statement of admission. Once again I emphasise that the relevance of this admission is not
for
its
contents
or in relation to
whether
or not the allegations of the
complainant
are accepted by the
court
as having attained a particular standard – the applicant is entitled to the presumption of innocence
without
qualification at this point of the
court's
enquiry – but rather because these statements indicated an ability on the part of the applicant (
contrary
to
what
the
court
would
have presumed in the absence of such statements) to recall events at the time of these allegations and to
deal
with
them as best he sees
fit.
In those circumstances,
in my opinion and notwithstanding the elapse of a very lengthy time between the years
when
the allegations are said to have happened and
when
the applicant
was
charged
with
them, his ability to
defend
himself has not been
compromised.
Furthermore,
the
difficulty
of
defending
generalised
counts
on this indictment arises because the manner in
which
these offences are laid rather than, specifically, by reason of the passage of time. In those
circumstances
I am not satisfied that it is likely that the applicant
will
be unable to obtain a
fair
trial in relation to these
complaints
and I
decline
to prohibit their
further prosecution.
Approved: O'Sullivan J.