Where child sex abuse case delay is explicable, accused seeking prohibition must prove specific prejudice.
A (S) (applicant) v Director of Public Prosecutions (respondent)
Judicial review - Application for order of prohibition - Allegations of child sexual abuse - Delay between complaint and charge - Delay in application for review - Whether delay explicable - Unavailability of evidence due to the delay - Whether prejudicial publicity - Whether applicant can rely on presumed prejudice - Onus of proof.
The High Court (before Mr Justice O'Neill): judgment delivered July 18th, 2005.
Where it is apprehended that by reason of delay an accused person may not get a fair trial, there is an onus on that person's legal representatives to establish as best they can what evidence is available before applying for judicial review, provided this is done in an expeditious and timely manner so not to cause any further undue delay.
In child sex abuse cases inordinate delay may be explained and excused where it is shown that the delay was the result of the dominion of the accused over the alleged victim, or the inherent psychological effects of the alleged crime If the court is satisfied that the delay is explicable, the accused cannot rely upon presumed prejudice, the accused must be able to point to specific prejudice in the form of significant impairment of his defence.
Where an accused person could identify inaccuracies or impossibilities in some of the detail of the allegation made against him, it can be said that his defence is prejudiced where, by virtue of the passage of time, it is no longer possible to prove these. The applicant must demonstrate, on the balance of probability, the nature of the evidence that would have been given by a witness no longer available, and the relevance of that evidence to an issue that may arise in the trial, Mere speculation of what that evidence might be will not suffice.
The High Court so held in refusing the application for prohibition on prosecution of the offences charged.
Shane Gerard Murphy SC with Paul Anthony Mc Dermott BL for the applicant; Anthony M. Collins SC with Sunniva McDonagh BL for the respondent.
Mr Justice O'Neill said the applicant is a Christian Brother. By order of the High Court, and on appeal to the Supreme Court, in 2002, he was given leave to apply for judicial review and orders of prohibition in respect of eight charges of buggery, 63 charges of indecent assault and one charge of attempted buggery allegedly perpetrated against six minors, five of whom were inmates of Artane Industrial School and the sixth, a female, who was the grandchild of an employee of the Christian Brothers. The offences against the residents of Artane were alleged to have been committed between July 31st, 1961, and January 31st, 1964, and the offence against the sixth person was alleged to have been committed between August 15th, 1964, and July 6th, 1969.
The applicant's case was that because of the very lengthy delay between the dates of the alleged commission of the offences and the making of the complaints, in 1998, 1999 and 2000, and further, by reason of the delay in prosecuting the offences, the applicant could not now get a fair trial. Specifically, his defence to these alleged crimes was prejudiced by reason of the fact that essential witnesses, such as lay workers in the kitchen in Artane, the nurse in the infirmary and a brother who was allegedly an eye witness to some of the offences, were either dead or non-traceable.
The applicant also complained that there was an absence of independent evidence as to the layout of the kitchen and that it could not be proved whether the door of the storeroom could be locked or not, and it could not now be established who had access to which rooms. Further, by reason of the large amount of extremely prejudicial press coverage of Artane school in recent times, it would not be possible to find a jury that was not irretrievably biased against a Christian Brother charged with the offences alleged, and hence it would not be possible for the applicant to get a fair trial, and it would not be possible for the trial judge by way of directions to cure or even ameliorate that bias.
The respondent resisted the application on a number of grounds; that it was not brought promptly or within a period of three months from the relevant date as required by O.84 of the Rules of the Superior Courts; the respondents contended, relying on the evidence of the complainants and also of a psychologist, that the delay in bringing the complaints was explained and excused by reason of the dominion of the applicant and/or the inherent psychological effects of the alleged crimes on the complainants.
Furthermore, the respondent contended that there was no culpable delay on the part of the State authorities in the prosecution of these offences, and in this regard point to the fact that there were a large number of complaints of a similar kind against members of the congregation serving in Artane, such that it was necessary to set up a special Garda unit to deal with the complaints, that it was necessary to conduct extensive inquiries to establish the bona fides of the complaints, including an extensive search for and retrieval of old records. The respondent also contended that it would not have been practicable to have treated each complaint as a separate case for the purpose of court proceedings, and they waited to assemble all complaints against individual perpetrators before referring these to the respondents for his decision on whether to prosecute. The respondent submitted that the applicant had not been at all prejudiced in his defence, that in his interviews with the Gardai he demonstrated a detailed memory of time and place and surrounding circumstances, and that those persons who were either deceased or non-traceable could not in all probability materially assist the applicant's defence. In regard to the publicity concerning Artane, the respondent submitted that none of this referred to the applicant himself, and in any event much of it was now a number of years old, and by the time the applicant's trial would come on, the 'fade factor' would have worked, and in any event it was well settled that this is a problem amenable to appropriate directions by the trial judge.
Mr Justice O'Neill said the first issue to be confronted was the delay on the part of the applicant in bringing these proceedings. The judicial review proceedings were commenced in January 2002, which was slightly less than four months after the returns for trial. In an affidavit, the solicitor for the applicant, Mr. Sheehan, provides an explanation and excuse for the delay in making the application commencing these proceedings. He stated that before commencing the proceedings, he sought to obtain as much discovery as he could from the State, and in that regard, as late as December, 2001, relevant and important disclosure was still coming from the State. In addition he was making his own inquiries to ascertain what witnesses and documentation might be available.
Mr Justice O'Neill said that the problem of delay in alleged sex abuse cases against children has led to a vast amount of litigation, in which accused persons have sought to have their trials prohibited on the grounds of inordinate delay in the reporting of alleged offences, and in a relatively small number of cases, because of delay in prosecution of those offences. From this large corpus of jurisprudence, Mr Justice O'Neill said he took the following principles to be now well settled: 1). the right to a speedy and expeditious trial derived from Article .48.1 of the Constitution may be invoked not only where the complaint is of prosecutorial delay but also where the complaint is a lapse of time from the commission of the alleged offence until it is reported to the Gardai;
2). delay or lapse of time may be of such an inordinate degree as to give rise to an inference or presumption of prejudice such that a fair trial cannot be expected to ensue;
3). child sexabuse cases are in a special category insofar as treatment of delay or lapse of time is concerned;
4). in child sex abuse cases inordinate delay may be explained and excused where it is shown that the delay was the result of the dominion of the accused over the alleged victim, or the inherent psychological effects of the alleged crime which can be shown to have had the effect of preventing the victim from reporting the alleged crime. The perpetrator should not escape justice where in effect the delay is itself the consequence of the crime;
5). to inquire whether delay can be explained and excused it is necessary for the court to assume the truth of the complaint, as otherwise it would be necessary to prove the facts of the alleged complaint;
6) once the inquiry into delay is completed, the presumption of innocence is fully restored, and if the court is satisfied that the delay is adequately explained, the court must then consider whether or not the accused can demonstrate that it is probable that a specific defence which was available to him is no longer available or has been seriously weakened, by passage of time, and if so satisfied, whether the degree of prejudice so caused is such as to create a serious risk of an unfair trial;
7). if the court is satisfied that the delay is explicable, the accused cannot rely upon presumed prejudice resulting from the delay. If the trial is to be halted the accused must be able to point to specific prejudice in the form of significant impairment of his defence. If the delay is not explained adequately to the satisfaction of the court, an accused person can avail of presumed prejudice the weight of which will vary according to the length of the delay itself and the nature and extent of the evidence actually available. For example, there would be much less prejudice presumed in a case which depended on documentary evidence as compared to one depending solely on oral testimony;
8). this approach strives to strike a just balance between the community's right to prosecute in child sex abuse cases and the right to a fair trial of the accused, bearing in mind that the right to a fair trial takes precedence over the community's right to prosecute;
9). a critically important factor in determining whether to hold a trial is whether or not the difficulties presented can be adequately dealt with by appropriate directions from the trial judge.
Mr Justice O'Neill said the first issue was whether or not there had been inordinate delay and secondly, whether or not it was adequately explained and excused. The first formal statement of complaint, from K.K., was taken in January, 1996.The applicant was not interviewed in relation to this complaint until April, 1997, when he denied the allegations. On May 30th, 1998, the Gardai established a separate Artane School inquiry. The other complainants came forward and made statements. Garda evidence was given that a great deal of work had to be done in the taking of a large number of statements from a large number of complainants. In turn this led to the enormous task of conducting inquiries to establish the bona fides of the complaints, which involved the search for and retrieval of a large volume of records.
On June 22nd, 1999, the applicant was charged in respect of five complainants, and on November 11th, 1999, was charged in respect of the sixth complainant. Mr Justice O'Neill said that from May, 1998, onwards he was satisfied that there was no inordinate or inexcusable delay in the conduct of the prosecution. The court was also satisfied that between January, 1996, when a statement was taken from K.K., there was unreasonable delay in progressing the investigation of allegations made by K.K., however the applicant had not pointed to any particular prejudice, presumptive or actual, relative to the delay for that particular period, and so that particular delay did not contribute in any significant way to a risk of an unfair trial in respect of the charges relating to K.K. Accordingly, the applicant's claim for prohibition of further prosecution of charges in respect of K.K. could not be entertained.
Mr Justice O'Neill then referred to the lapse of time from the commission of the alleged offences until they were reported. The period of delay ranges from 30 years at a minimum to 36 years at the maximum. Delay of this magnitude could not rationally be considered as anything other than inordinate. That being so, the onus rests on the respondents to explain and justify the delay in question. In this regard, affidavits were filed by all of the complainants, and the respondent also relied on the evidence of a clinical psychologist. In this case all complainants relied upon similar reasons to explain their delay, in summary;
a). fear that any complaint while they were residents in Artane would result in dire consequences;
b). guilt at their level of involvement in these activities;
c). a sense of shame;
d). an overwhelming sense that having regard to the nature of the complaints, their own low status and the high status of the clergy, that they would never be believed and if they did complain there would be dire consequences for them. Mr Justice O'Neill said that remembering, for this part of the inquiry, the court must assume the truth of the complaints made, the court did not have any difficulty in understanding the reasons advanced.
Mr Justice O'Neill said that in light of the fact that the delay had been explained, and was, in the opinion of the court, excusable, the applicant could not rely upon presumptive prejudice resulting from that delay and must point to specific prejudice to his defence. The applicant pointed to a number of areas in which evidence was lost through the passage of time. Firstly, it was submitted that the applicant's own memory was impaired, apart from the passage of time, he was then 74 years of age and had difficulty remembering events so long ago. Having considered the memos of interview with the applicant, it appeared to the court that they gave a strong impression of a good intact memory. Mr Justice O'Neill said that it is the case that all memory deteriorates with time and age, but in the absence of evidence of disease or dementia affecting memory, the court would conclude that the applicant had a normal functional memory of the period, and had a good or ready recollection of a great deal of detail and a strong sense of exactitude about a lot of it. The applicant also complained that several if not all of his fellow Brothers, as well as a number of lay workers, were either dead or not traceable.
Mr Justice O'Neill said that a number of factors were crucial to a determination of whether an applicant had been prejudiced by the passage of time in regard to a specific defence.
Firstly, sexual abuse is invariably a furtive practice and it is extremely rare that there be independent witnesses to it. Because of dominion or inherent psychological effects of the crime itself, absence of corroboration in the form of a complaint to an appropriate authority is a hallmark feature of offences of this kind. Because of all this, defending allegations of this kind tends to be by bare denial. Thus the real issue becomes the credibility of the person making the allegation. The only means of attacking that credibility is to demonstrate inaccuracies in the evidence of a complainant usually in regard to surrounding circumstances. These inaccuracies may be of such seriousness as to demonstrate either the impossibility of the commission of the offence in the manner alleged, or to give the accused an alibi. Thus, where an accused person could identify inaccuracies or impossibilities in some of the detail of the allegation made against him, it can be said that his defence is prejudiced where, by virtue of the passage of time, it is no longer possible to prove these. The applicant in this case did not point to any particular factual matter which he said is no longer capable of proof, but what he said is that the surrounding circumstances and detail of time, place and practices to do with the kitchen and storeroom cannot now be established so as, in effect, to prove the improbability of the occurrence of these alleged offences in the kitchen or dining area. The first thing to be observed is that one of the two lay workers in the kitchen is alive and available and has been interviewed by the Gardai and thus the working practices of the kitchen and storeroom can be explored with him.
Apart from the availability of one of the lay workers, Mr Justice O'Neill said it appeared to him that what the applicant wished to establish was that the kitchen area was very busy, where some 400 boys were fed three times a day, and in addition to the kitchen staff, teams of boys of up to 30 or 40 were employed for various duties in the kitchen, and hence that it was unlikely that offences of the kind alleged could have occurred in any part of the kitchen or dining area. The court said it was satisfied that the applicant failed to discharge the onus of demonstrating that any defence he would wish to make in respect of the offences alleged would be prejudiced by the passage of time and in particular by the non-availability of one of the lay workers.
With regard to the applicant's complaint that the grandfather of one complainant was no longer available to give evidence as to the frequency of visits by the applicant to the grandfather's house, the court observed firstly that not all of the allegations of abuse by that complainant related to visits to the house, and apart from that, the prospect of contradiction by the grandfather of the evidence of that complainant was a matter of pure speculation on the part of the applicant. Mr Justice O'Neill said it appeared to him that it was necessary for the applicant to do more than simply speculate as to the nature of the evidence that would have been given by a witness no longer available. The applicant must demonstrate, on the balance of probability, what the nature of that evidence was or would have been, and its relevance to an issue that may arise in the trial, e.g. the credibility of the complainant. Mere speculation of what that evidence might be will not suffice.
The applicant also listed several members of the congregation who are now either dead or untraceable, and complains that the absence of their evidence prejudices his defence.
Mr Justice O'Neill said that having carefully considered all the allegations of prejudice advanced by the applicant, he was satisfied that the applicant had failed to demonstrate any specific prejudice to his defence by reason of the delay in the initiation of the prosecutions in respect of the various charges. With regard to the complaint about prejudicial publicity, none of this publicity referred personally to the applicant. Mr Justice O'Neill said that while a great deal of prejudicial publicity had been directed at the Christian Brothers, as time goes on there is undoubtedly a fade factor, in any event this was a problem whish could be and had been dealt with by the trial judge by way of appropriate direction.
Mr Justice O'Neill so held in dismissing the application for an order of prohibition.
Solicitors: Garrett Sheehan & Partners (Dublin) for the applicant; Chief Prosecution Solicitor for the respondent.
P.J.Breen, barrister
[This case is under appeal]