J.L. (applicant) v Director of Public Prosecutions (respondent).

Criminal Law - Trial - Delay - Sexual offences - Offences allegedly committed almost 20 years ago - Whether delay in making complaint explicable - Whether accused's ability to defend himself impaired by the delay.

Before the High Court (Mr Justice Geoghegan ); judgment delivered 8 June 1999.

In considering whether a prohibition should be granted so as to prevent a trial proceeding on the grounds of delay, the court had to consider whether the delay of the complainant in making the complaint was explicable, and whether the degree to which the accused's ability to defend himself had been impaired was such that the trial should not be allowed to proceed.

Mr Justice Geoghegan so held in dismissing the application for judicial review on the basis that there were sound psychological reasons why an earlier complaint was not made, and that the proposed defence to be put forward could be dealt with by a jury.

Hugh Hartnett SC and Stephen McCann BL for the applicant; John McMenamin SC and Adrienne Egan BL for the respondent.

Mr Justice Geoghegan said that the applicant was seeking to restrain a prosecution going ahead against the applicant for alleged rape and buggery which allegedly occurred between June 1979 and September 1980. The alleged victim was 7 or 8 years old at the time, and the applicant was then a young adult. The applicant denied the offences and claimed that a trial would be unfair at this late stage, since he would not be able to gather the evidence necessary for his defence.

Mr Justice Geoghegan said that if the trial went ahead, the evidence of the complainant would be that at the time there was a caravan on a building site in which two men lived, the younger of whom was the applicant. The evidence would be that on the alleged occasion the applicant was alone in the caravan, and the complainant recalls going into the caravan and sitting on a kind of settee. The alleged sexual assaults then took place. Shortly after the event, the complainant told a friend of hers what happened to her, but did not tell any adult until 1994.

The applicant admitted that he did have a caravan on the site in question, but he claimed that he sold it to a couple living in Co Kildare some three months prior to the earliest date on which the offence was alleged to have been committed. The applicant had only given the Christian names of this couple, and had said that he was unable to trace them. No details had been given of his attempts to trace this couple.

Mr Justice Geoghegan said that the jurisprudence to be applied in judicial review applications seeking to stop trials for sexual offences had been reasonably well-established by the Supreme Court in B. v Director of Public Prosecutions [1997] 3 IR 140 and P.C. v Director of Public Prosecutions (Supreme Court, unreported, 28 May 1998). The position had been summarised by Mr Justice Keane in the latter case where he had pointed out that the mere fact that the offence charged is of a sexual nature was not of itself a factor which would justify the court in disregarding delay however inordinate and allowing the trial to proceed. He had then observed that there were cases where the disparity in age between the complainant and the person accused was such that the possibility arose that the failure to report the offence was explicable, having regard to the reluctance of young children to accuse adults of improper behaviour, and to the feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she saw as wrongdoing. Mr Justice Keane then went on to point out that the delay might be more readily explicable in cases where not only was there a significant age difference but there was a quasi position of trust, such as where the allegation was made against the parent, step-parent, teacher or religious. Mr Justice Geogheghan said that it was implicit in the judgment that there need not be this special position of trust, and that age disparity alone might have the effect of inhibiting the child from reporting. Mr Justice Keane had said: "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."

Mr Justice Geoghegan said that he was satisfied on the evidence of the clinical psychologist/psychotherapist that if the complainant's allegations are true, there are sound psychological reasons why she did not make an earlier complaint. It would have been an offshoot of the applicant's own alleged misconduct which would have inhibited an earlier complaint. However, that was not the end of the matter. It must also be considered whether the degree to which the accused's ability to defend himself had been impaired was such that the trial should not be allowed to proceed. As had been frequently pointed out, there were rarely witnesses to sexual offences, and for that reason it might not be any more difficult to defend them a long number of years after they were allegedly committed, than it would have been if the trial had taken place within a short period. However, a serious alibi defence which could no longer be availed of for some reason or other might well be a ground on which a court would prevent a trial from going ahead. That was the importance of the allegation in this case that there had been a sale of the caravan three months before the earliest time at which the offence was alleged. Mr Justice Goeghegan said that he was quite satisfied that in this case the alleged alibi was not a ground on which he should take the view that there was a serious risk of an unfair trial. First, although the applicant enjoyed a presumption of innocence, he nevertheless had to discharge a certain onus of proof in the judicial review application in order to satisfy a court that as a matter of probability there would be a serious danger of an unfair trial. It was very easy to invent a dead or lost alibi. Mr Justice Geoghegan said that he was not impressed with the bald statement in the affidavit that the had been unable to trace the couple, whose first names only were given, so as to substantiate his defence. No details were given of any attempt to locate those people, and Mr Justice Geoghegan said that he had no reason to believe that any attempt was in fact made. The applicant admitted that he had lived in a caravan in the site alleged, and the only dispute about this was whether he had moved out at the time of the offence. The applicant had made a bald allegation that he had moved into a particular house on or about 7 March 1979. That should be easily corroborated, if not proven, by title documents and other documentary evidence. It should also be taken into account that the address he allegedly moved into was very close to the site where the caravan allegedly was.

Mr Justice Geoghegan said that a jury would be well capable of sorting all of this out, and he could not see that there was any risk of an unfair trial. While even by the standard of some of the recent cases, the alleged offences in this case had been committed a very long time ago, nevertheless, on the basis of the principles enunciated by the Supreme Court and for the reasons indicated, the application for judicial review was refused.

Solicitors: Michael E. Hanahoe & Co. (Dublin) for the applicant; Chief State Solicitor of the respondent.

[This decision is under appeal.]