High Court 

In re a criminal prosecution entitled "The People (Director of Public Prosecutions) v SF", pending before the Circuit Criminal Court at the town of (X) in the (Y) Circuit: 

SF v Director of Public Prosecutions and the Presiding Judge of the Circuit Criminal Court sitting at the town of (X) in the (Y) Circuit (notice party) 

1996/340 JR 

17 December 1997 

GEOGHEGAN J: 

This is all application for Judicial Review brought pursuant to leave granted by me on the 11 November, 1996. The application seeks a number of Declarations and Orders with the intent of stopping a forthcoming trial upon indictment of the Applicant on some sixty-six charges of sexual offences. The Applicant is a diocesan priest and would undoubtedly have been an authority figure in the sense that that expression is used in these cases in relation to each of the alleged victims of the alleged offences. 

THE OFFENCES 

All the offences relate to boys and all are alleged to have occurred a long time ago. Twenty-eight of the charges relate to PM and were allegedly committed between the 1 September, 1981 and the 31 August, 1984. The offences were reported to the Guards for the first time in March 1995. All the offences are either indecent assault or the procuring commission of an act of gross indecency. 

A further twenty charges relate to CO'G and these are alleged to have occurred between the 1 June, 1981 and the 31 December, 1983. The offences were first reported to the Guards in February 1995. They include one alleged buggery, three offences of committing an act of gross indecency, eight offences of procuring the commission of an act of gross indecency and a number of offences of indecent assault. 

Six charges relate to DN and comprise three offences of procuring the commission of an act of cross indecency and three offences of indecent assault. These occurred allegedly between the 1 December, 1981 and the 30 June, 1982. The first reporting to the Guards was in 1990. There are single charges of indecent assault in relation to PC, PJ and BC. In the case of PC and PJ, the offences were allegedly committed in 1982 and reported in 1995. In the case of BC, the offence was allegedly committed in 1987 and reported in 1995. 

In the case of JR, an offence of procuring the commission of an act of gross indecency was alleged to have been committed in 1986 and reported in 1995. 

In the case of DL, an offence of indecent assault and an offence of procuring the commission of an act of gross indecency are alleged to have occurred in 1982 and were reported in 1995. 

GROUNDS OF APPLICATION 

The grounds of application are set out in a formal Statement of Grounds but summarised as follows:- 

1. There cannot be a fair trial having regard to the length of time between the alleged commission of the offences and the commencement of the prosecution. 

2. There has been excessive adverse pre-trial publicity which has prejudiced the constitutional right to a fair trial. 

3. The charging of the Applicant with sixty-six criminal offences constitutes an abuse of the jurisdiction of the Court and is oppressive and unjust in that it renders the preparation of a proper defence impossible and especially so if at a point in time close to the trial particular counts are selected to be tried to the exclusion of others. 

I will deal with each of these grounds in turn. The question of when a trial may be prohibited on grounds of delay has been considered in a large number of cases and in relation to sexual offences, the most important obviously is the Supreme Court decision in B v Director of Public Prosecutions, [1997] 2 ILRM 118. 

The Judgment of Denham J in that case with which the other members of the Supreme Court concurred refers first to the general principles to be applied to the question of whether delay should defeat a prosecution. These general principles were considered by the Supreme Court in DPP v Byrne, [1994] 2 IR 236. Denham J in referring to that case pointed out that:- 

"The Court must look at the circumstances in each case, the issues and the constitutional interests of the parties, to determine the matter. There is no definitive time limit. There is no exhaustive or exclusive list of factors. There are interests which must be protected in the constitutional scheme of things." 

Denham J went on to list the factors which had to be analysed and the issues which had to be determined. Her list is not exhaustive but included the following:- 

"(i) the delay in the case; 

(ii) the reason or reasons for delay; 

(iii) the accused's actions in relation to the events in issue; 

(iv) the accused's assertion of his constitutional rights; 

(v) actual prejudice to the accused; 

(vi) pre-trial incarceration of accused; 

(vii) length of time of pre-trial anxiety and concern of the accused; 

(viii) limitations or impairment of defence. 

(ix) circumstances which may render the case into a special category; 

(X) the community's right to have the offences prosecuted." 

The learned Judge then went on to refer to the well established principle throughout the common law world but enunciated in this jurisdiction by Finlay CJ in the Supreme Court in Hogan v President of the Circuit Court [1994] 2 IR 513 at 521 that sexual offences involving young children can fall into a special category. This was further elaborated on by the former Chief Justice in G v DPP, [1994] 1 IR 374 where at p 380 he says the following:- 

"The Court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the Applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order." 

Denham J cites this passage and she points out that factors relevant in this regard may include relationships, dominion, a question of whose delay was involved, the nature of the offence, for example, alleged sexual abuse in the home, alibi, the question of a witness, the admission of guilt etc. I suspect that if Mr Carroll, the psychologist who gave evidence in this case, and who frequently gives evidence for the State in these cases, was to compile a list,. it would be considerably more exhaustive. I have the impression from his oral evidence, which I had the benefit of hearing, that he takes the view that irrespective of the issue of "dominion" there may be all sorts of reasons involving secret feelings of guilt, reluctance to involve other people such as parents, general desire to forget the past etc, which may all come into account in what he would regard as good and satisfactory reasons for delay in reporting sexual offences to the prosecuting authorities. I do not think, however, that any of the cases decided by the Courts and particularly the Supreme Court and above all the latest authority, B v DPP cited above, were intending to go that far in the sense of discounting delay as a ground for Prohibition in situations other than where the original dominion which the abuser held over the abused continued in a psychological sense. Indeed, McGuinness J in her judgment in Collins v DPP (otherwise PC V DPP and Brennan J) (unreported judgment delivered 24 July, 1997), has taken the view that B v DPP and the other relevant cases should not be taken as authority for the proposition that in all cases where an accused is charged with sexual abuse of a child or young person which took place some years ago, any claimed prejudice on account of delay can be negatived by a claim that the accused exercised "dominion" over the complainant. I agree with that view and have already expressed such agreement in my own unreported judgment delivered the 31 October, 1997 in DC v DPP. All the surrounding circumstances of the case must be taken into account. The corollary of this is that it would, in my view, be only in the rarest of circumstances that a Court should allow a prosecution for sexual offences against children or young people which have occurred a very long time ago to proceed in the absence of this element of "dominion" and its psychological continuance. I can well understand that even in the case of an adult who has reached a certain level of composure, and is no longer under the spell or dominion of the original abuser, he or she may still be reluctant to go to the Guards for all kinds of reasons. But some of those reasons could also apply in any ordinary case involving non-sexual offences also. It seems to me that apart from exceptional cases it is only that continuing "dominion" element which brings sexual offences into a special category so as to defeat an Order of Prohibition where such an Order would otherwise have been granted. 

THE APPLICATION OF THE LAW TO THIS CASE 

If I am correct in the above principles, I have no difficulty in applying those principles to the facts of this case. Having regard to the evidence of Mr Carroll in particular, I am satisfied that the Applicant has not discharged the onus of proof here either that there was excessive delay in itself or that there is delay which causes him prejudice such as removal of alibi, of a kind that would entitle him to an Order of Prohibiton in so far as the prosecution relates to CO'G, DN, PC, PJ, BC, JR and DL. But I take a wholly different view in relation to the alleged offences relating to PM and these in fact amount to twenty-eight charges in all. In my opinion the Applicant has discharged the onus in relation to these charges. 

There is no doubt that at the time of the alleged offences against PM, he would have been under the domination of the Applicant who had brought him in as a regular altar boy and later reader in the church where he was curate. But in 1986 when PM was approximately 16 years of age, the Applicant was replaced in the parish by a new curate, Fr D. The following passage appears in Mr Carroll's report of his interview with PM relating to what happened after the arrival of Fr D:- 

"Gradually over a period of time, Mr M confided in Fr D and eventually disclosed to him what had happened between himself and Fr F. According to Mr M, Fr D had asked him what he wanted to do about it and that they had considered the options. The options considered were either going to the Gardai or processing his complaint through the church. According to Mr M he decided to process his complaint through the church and he heard nothing for a long time. Eventually Mr M, travelled to All Hallows College in Dublin where he was interviewed by a person who he beheves to have been a priest. This individual asked him to write down everything that had happened to him and subsequently he received a letter of thanks from the local bishop which did not specifically mention the allegations against Fr F. Mr M also stated that time that he had informed Fr D, he also informed his mother. He stated that she was very shocked and upset that he had not been able to tell her at the time these incidents were taking place." 

The said report goes on to say that:- 

"Mr M stated that he is now in a long term relationship, that he has no fear of intimacy and tries not to think of these events at all." 

Mr Carroll's summary and conclusions read as follows:- 

"The events described by PM represent a gross betrayal of trust, an abuse of power relationships by Fr SF. Fr F exploited a legitimate position of power over PM and used that position of dominance and authority to engage him in sexual activities. His use of the pretext of developmental cheeks allowed him to engage in activities that were clearly in breach of accepted moral accepted standards between a priest and a child. Mr M always regarded the activities as wrong and eventually as abuse but felt unable to prevent their occurrence. In my opinion PM's circumstances, taken in conjunction with the known dynamics of sexual abuse, adequately explains his failure to make a complaint at the time these incidents were taking place." 

I have no reason to doubt that Mr Carroll's conclusion is correct up to a point but he leaves out of account altogether the arrival of Fr D and what clearly appears to have been a good relationship built up between the Applicant and Fr D. There is no evidence as to whether Fr D advised PM to go to the Guards or not but irrespective of whether Fr D advised him to go to the Guards or advised him merely to make an internal complaint within the diocese, it is difficult to see why after that PM should be perceived as being under such continuing dominance of the Applicant that the Applicant must be taken as being responsible for the delay in the ultimate reporting of the offences. One priest was being replaced by another effectively and given the good relationship which PM had with the replacement priest, it is hard to see how he could still be under the dominance of the earlier priest. If on the other hand he was advised not to report to the Guards by Fr D, that may be an explanation for the delay in reporting but it is hardly one which is attributable to the Applicant's offences. Any delay caused by Fr D advising PM not to report the matter to the Guards was neither a foreseeable nor a natural consequence of the Applicant's original offences or domination over PM. It was, as it were to use lawyers' jargon, "a novus actus interveniens". In summary, therefore, the time lag between the alleged offences and the prosecution is, prima facie, excessive and in the absence of some cause attributable to the Applicant himself, the Applicant should not as a matter of fair procedures face a trial so long after the events. In this particular case, unlike the other cases that I have examined in this application, the domination cannot be said to have survived the build up of the good relationship between the new curate Fr D and PM. I therefore believe that an Order of Prohibition should issue in respect of the charges relating to PM. In the case of all the others I am satisfied that the Applicant has not discharged the onus on him of showing that natural dominance, which he would have had from his position, did not continue so as to impede reporting and I think that this is particularly true in the case of CO'G where a reasonable inference might be drawn, if the allegations are true, that the Applicant knowingly exploited an existing homosexual tendency. 

I now turn to the question of the adverse pre-trial publicity. There is no doubt that there was such adverse publicity but I do not believe that it has prejudiced the Applicant's constitutional right to a fair trial. The Supreme Court has indicated on several occasions its view that proper directions by the trial Judge to the Jury can resolve these difficulties. I do not think that this case has any special or exceptional factors which would negative that general presumption. I therefore refuse any relief sought on the basis of this ground. 

Nor do I consider that an Order of Prohibition should issue by reason of an alleged excessive number of charges. First of all since I am making an Order of Prohibition in relation to the offences relating to PM, there will be an automatic reduction in the charges with which the Applicant is faced. Twenty-eight of the existing charges relate to PM. But even if I were not prepared to grant a limited Order of Prohibition as suggested, I still do not consider that there would be any grounds for Prohibition based on the number of charges with which the Applicant is faced. The trial Judge of course will have to ensure that there is a fair trial. In order to achieve a fair trial it might well be necessary for the prosecution to reduce the charges which the Applicant would actually have to face at the trial. But any problems arising out of this are a matter for the trial Judge. All I will say at this stage is that if and in so far as there are charges in sequential periods which are of a similar nature but are not specific, an indictment containing counts of that nature may not be bad or unfair as specificity would in that situation be impractical and impossible. This is the clear view of the Supreme Court as expressed in the judgment of Egan J in DPP v EF, (unreported, 24 February, 1994). But if on the other hand the incidents alleged against the Applicant in relation to a particular victim are specific incidents and if the DPP is being selective as to the counts to be included in the indictment or at least is being selective as to the actual counts to be tried, reasonable notice should he given to the Applicant as to what specific incidents by reference to facts are being referred to in each count so that there will be proper time to prepare the defence. 

I will therefore grant the limited Order of Prohibition which I have indicated. The delay in the case of the offences against PM is excessive and for 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 and 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. In G v DPP, [1994] 1 IR 374 it is made clear by the Supreme Court through the judgment of Finlay CJ that if a person's trial has been excessively delayed so as to prejudice his chances of attaining a fair trial, the appropriate remedy is a Judicial Review even though the court of trial also has jurisdiction to prevent the trial. 

I will of course refuse the reliefs sought in relation to all the remaining charges not involving PM.