THE HIGH COURT 

JUDICIAL REVIEW

RECORD NO. 82 JR/2002

BETWEEN/

H.M.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Murphy delivered the 26th day of January, 2004.

1.	Issue
	The applicant seeks an injunction by way of judicial review, restraining the respondent from further proceeding with the offences comprised in proceedings entitled “The Director of Public Prosecutions v. H.M., Bill No. 1263/01” at present before the Circuit Criminal Court and a stay on the proceedings pending the determination of the application.  Leave for judicial review was granted on the 18th February, 2002 by McKechnie J. on the basis of para. (d) of the statement dated the 15th February, 2002 and the affidavit of the applicant.
	The Notice of Motion filed on the 27th February, 2002, seeks to injunct all of the eighteen charges.  The reality of applicant’s submissions, given the admissions made by the applicant in relation to two incidents, is that the application is to prohibit the remainder, that is in relation to fourteen of the incidents, from further prosecution.
	The issue in this case is a dispute as to the frequency of incidents.
2.	Charges
	On the 18th August, 2000, the applicant was charged with nine counts of buggery contrary to s. 61 of the Offences Against the Person Act, 1861 and nine charges of indecent assault of a male person, contrary to s. 62 of the Offences Against the Person Act, 1861.  All of the offences were alleged to have been committed at periodical intervals between the 1st August, 1983 and the 31st July, 1985.  All offences relate to one complainant.  The complainant was born on the 10th December, 1967 and the offences were alleged to have been committed when the complainant was aged between 15 years 8 months and 17 years 6 months.
	The complainant first contacted the Gardaí on the 15th February, 1999 and made a formal statement on the 24th April, 1999.  The applicant was interviewed in relation to the offences on the 3rd November, 1999 on a voluntary basis and in the presence of his solicitor.
	
3.	Applicant’s Submissions
	The applicant seeks relief on four grounds:
1.	That the prosecution would be in breach of his rights to be tried with due expedition.
2.	That the further prosecution of the offences would be in breach of natural and constitutional justice and would be fundamentally unfair, having regard to the lapse of time since the offences were allegedly committed.
3.	The further prosecution of the offences would be contrary to natural and constitutional justice and fundamentally unfair that the applicant had been prejudiced in his defence by reason of the lapse of time since the offences were allegedly committed and that there is a real and substantial risk that any trial of the offences charged would be unfair.
4.	In addition, the further prosecution of the offences would be unfair and contrary to natural and constitutional justice, having regard to the failure of the prosecution to properly investigate the allegations against the applicant.

Reference was made to P.C. v. D.P.P. [1999] 2 I.R. 25 at 65 et seq. and to JO’C v. D.P.P. [2000] 3 I.R. 478, PO’C v. D.P.P. [2000] 3 I.R. 87 and J.L. v. D.P.P. [2000] 3 I.R. 122 and, more recently, in D.W. v. D.P.P. (Unreported, Supreme Court 31st October, 2003).
The applicant contended that the lapse of time prior to the making of the complaint was of such a duration as to put the court on enquiry whether the applicant’s right to trial with due expedition had been violated and the circumstances the onus is on the respondent to satisfy the court that the delay is explicable.  In the event that the respondent does not so satisfy the court then the applicant contends that, notwithstanding such explanation, his right to a fair trial has been irretrievably compromised by reason of prejudice which has arisen as a result of the delay.
The applicant submitted that there was a substantial delay from the time the applicant emigrated in 1989 to the time the complaint was made in early 1999.  That delay falls into the second category to which McGuinness J. had referred in D.W. v. D.P.P.  That is the evidence of a psychologist to explain the psychological causes for the phenomenon of delay and to relate those to the facts of the individual case.
The applicant submits that if the court were not satisfied that the delay was explicable the appropriate course would be to injunct the trial (see judgments of the Supreme Court in P.C. v. D.P.P. [1999] 2 I.R. 25 and B.J. v. D.P.P., (Unreported, Supreme Court, 19th December, 2003).
In B.J. v. D.P.P. the applicant’s submissions in that case appeared to McGuinness J. as appearing “to involve asking this Court not to follow P.C. v. D.P.P., in particular insofar as that judgment held that delay alone might lead to a trial not being allowed to proceed even where it had not been demonstrated ‘that the capacity of an accused to defend himself or herself will be impaired’”.
The applicant submits that if the court is ultimately satisfied that the delay between the alleged offence and the initiation of the prosecution is justified, the court must further examine whether there is a real and substantial risk of an unfair trial and whether the capacity of the applicant to defend himself has been impaired.
The offences were alleged to have occurred in the applicant’s residence with a frequency of as much as once or twice a week.  The applicant has averred that three persons, now deceased, would have had knowledge of his routines in the comings and goings to his residence.  It was submitted that the inability of these persons to give evidence has prejudiced the applicant.
Reference was made to the passage of Hardiman J. in JO’C v. DPP [2000] 3 I.R. 478 at 504, where it was stated that where a defendant, who was innocent, was exposed to a trial where the only evidence was unsupported assertion and the only defence was their denial, then his position is indeed perilous.

4.	Submissions of the Respondent
	Mr. Paul Anthony McDermot, S.C. on behalf of the D.P.P., said that the dispute related to the number of incidents only, given that the admission of the accused to two incidents was not disputed.  In the circumstances the matter is best dealt with by the jury.
	The evidence of the complainant was not subject to cross-examination and for the purposes of judicial review proceedings the court should assume that the complainant’s evidence is true.  That is the primary evidence in relation to delay.
	The court is entitled to deal with the matter in a commonsense basis in relation to the difficulty in making a complaint against a middle aged priest by a teenager.  Moreover there was ample evidence in the complainant’s affidavit that he had come for advice and poured out his problems to the priest.  Following the incident the complainant said that the applicant would tell people what happened and that he felt if he told anyone he wouldn’t be the victim but would be the one that caused the priest to come out of grace.  It was he who was fallible.  
	The report of the psychologist, Dr. Dermody, concluded that:
“The delay in the complainant’s complaint is due to the effects of the alleged sexual offences against him.  In addition, the unbalance of power between (the complainant) and (the applicant) at the time of the offences further contributes to a reasonable explanation for the delay in reporting the events.”

	The respondent submits that the role of such evidence in judicial review has been dealt with by McGuinness J. in D.W. v. D.P.P. at p. 37 of the unreported judgment as follows:
“All such evidence is open to challenge in cross-examination.  It must, however, be borne in mind that it is not the task of the expert witness to assess the credibility of the complainant or the guilt or innocence of the applicant.  The truth or otherwise of the complaints is to be tested at the trial of the applicant.”

	In his submission counsel says that the reasons for the delay are in the affidavit of the complainant himself, which evidence is unchallenged and credible and further substantiated by the evidence of the psychologist.
	In relation to prejudice, it was submitted that the three named persons – the housekeeper, the neighbour and the parish priest, all of whom are, the applicant says, deceased, have not been shown to have been able to provide evidence in defence or an alibi.  The question of the applicant’s routine is, it is submitted, not relevant.  None of the persons mentioned was included in the statement to Gardaí by the applicant who attended voluntarily and with his solicitor.  
	In any event, according to the admission of the applicant, the abuse admitted had taken place in private.  Moreover, the accused, in response to questions by the Gardaí, had described his bedroom with a shower in the alcove in similar terms to the complainant.
	Insofar as there were any consistencies in the complainant’s statements, counsel has submitted that the first complaint did not address judicial issues of delay.  Moreover, these consistencies are best dealt with by the jury.  
	The court is entitled, it is submitted, to take into account the attitude of the applicant himself to the charges as being a relevant factor.  Reference was made to p. 33 of the DW case where McGuinness J. stated:
“The applicant is fully 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.”

	He referred to the balancing exercise in relation to the list of factors referred to by Denham J. in B v. DPP [1997] 3 I.R. 140 at 195.  There was no question of any physical evidence being absent as had occurred in PO’C v. DPP [2000] 3 I.R. 87.  There was no issue regarding the memory of the accused.
	In reply, Mr. Colm O Briain referred to the nature of the charges.  While consent was not a defence in rape, it was relevant in the other charges.
	The question of delay was not a matter of whether it was reasonable or cynical but whether a decision had been taken not to complain.  The relevant period was not at the time of the alleged offences but later, after 1989, when the complainant went to London.  The delay from 1989 to 1998 fell into the third category where it was necessary to have a more subtle analysis of the continuous reasons not to complain.  
	The complainant had not initially asked why he did not provide an explanation which he subsequently provided.  He did indeed explain the delay in his first statement to the Gardaí and had further stated that “it was always on my mind”.  There was a lack of cogency of internal consistency in the complainant’s own affidavit particularly in relation to what he alleged to be the directions by the applicant that he should come to the alleyway at certain times.
	There were no specific times referred to in the charges.  There was an allegation of twice weekly.  The witnesses could have helped with regard to the issue of frequency.  Their absence prejudiced the applicant.
	
5.	Decision of the Court
5.1	This is a case where serious allegations have been made against the applicant who was in a position of authority, some 31 years older than the complainant who was 15 at the time of the alleged incident and who has admitted two of the incidents.
	As is conceded, there is no question of the court prohibiting the entire trial in respect of all the charges.  The issue before the court is whether the other charges should be prohibited on the grounds of delay between 1989 and 1998.
	Counsel for the applicant raises an important issue with regard to the decision not to complain.  The psychologist, in her evidence, had stated that she was not comfortable with the word ‘decision’ in relation to what she said was a process of coming to a decision to complain.
	It is clear from the evidence of the complainant that, as a result of the incidents alleged, that his life was in chaos.  The psychologist refers to it being on his mind even when he left the jurisdiction.  She described his problems with addiction.  She saw no inconsistency with the matter being on his mind and him attempting to put it out of his mind.
	Matters came to a head where he, having consulted with his general practitioner, had been given an appointment to see a Consultant Psychiatrist in relation to migraine suffered from a head injury where he fell.  Before meeting the consultant he had made complaints to the Church, to the police and, through them, to the Gardaí.  He was subsequently referred by the psychiatrist to a therapist.
	Emphasis had been placed on the complainant’s decision not to complain by the applicant as indicating an ability to complain and freedom from dominance after 1989.  On the other hand, the psychologist was satisfied that the eventual complaint was a process rather than a change in decision.  The etymology of the word derives from the word to cut in Latin and indicates a determination, resolution of a trial, contest or question.  To that extent it is clear cut and not an ambivalence, feeling or postponement.  It does not seem to me, from the evidence, that there was any determination, any positive action in relation to not deciding but rather an unfortunate sequelae dating from the time of the complainant’s Junior Certificate which led to his not achieving to the same extent as his older siblings, and eventually led to his emigration to London.  The psychologist says that the only trauma that he had was in relation to the alleged abuse.  Taking as I must that the complainant’s complaints were truthful and, in the main, uncontradicted, it seems that it was this factor that predominantly led to the chaos hinted at by the complainant himself and described by the psychologist in relation to the drink and drugs abuse.  The process of making the complaint emanated not from a complaint to his G.P. and consultant but rather to the head injury, migraine and appointment with the psychiatrist in April, 1999, to make the complaints to the Church and, ultimately, to the Gardaí in February, 1999.

5.2	In Z v. DPP [1994] 2 I.L.R.M. 481 at 498, Finlay C.J. stated:
“This Court in the recent case of D v. DPP [1994] 2 I.R. 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair, is that he should establish that there is a real risk that by reason of those circumstances . . . he could not obtain a fair trial. 
. . . that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge.  The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.” (at 499)
	
I have carefully considered the factors enunciated by Denham J. in  B v. DPP [1997] 3 I.R. 140 at 195.  There was a delay.  Reasons were given by the complainant himself and commented on by the psychologist as reasonable.  The applicant, as accused, according to the evidence of the complainant did make threats at the time but there was no evidence of any threats made after the incidents ceased.  The accused has asserted his constitutional rights, as is his entitlement, but has also admitted to some of the incidents.
	It does not appear to me, on the balance of probabilities, that the applicant will suffer prejudice in his trial.  There is no doubt that the court will not accede to, nor does the applicant go so far, to prohibit the entire trial.  In relation to the matters in which there has been no admission, it does not seem to me that the absence of the parish priest, the housekeeper or the neighbour can prejudice the accused.  Not alone has the applicant (the accused) not stated what evidence they could have given other than the issue of his routine, but it is clear, on his own admission, that the charges in relation to which some admission has been made were incidents in relation to which none of these, nor other persons were present.  Essentially they were in private.
	No evidence has been given in relation to the pre-trial incarceration or of the length of time of pre-trial anxiety and concern of the accused.  The question of limitation or impairment of the defence does not extend to the recollection of the applicant nor are there any circumstances which render the case into a special category other than the category of a person in authority against a young teenager.  It is clear to me that the community has a right to have offences prosecuted.  The applicant is entitled to the presumption of innocence and to all the defences available to him in the trial.  It would appear to me that many of the issues relate to the credibility of the parties and are best dealt with by the jury.  
	I should echo the comments by the Chief Justice in Barry v. DPP, (Unreported, Supreme Court, 17th December, 2003) by emphasising a conclusion reached by this court is on the assumption that the complaints were true.  Manifestly, making such an assumption for the purpose of a judicial review application does not and cannot amount to a finding regarding the applicant’s guilt, as a matter of probability, of either the matters in relation to which he has made admissions or in relation to other matters.  Accordingly I refuse the application.
	In the circumstances the application cannot succeed.