Neutral Citation No: [2005] IEHC 32
By order of the High Court, (Carroll J.), dated 21 st October, 2002, the applicant was given leave to seek relief by way of judicial review including an order prohibiting the respondent from embarking upon the trial of the applicant on an indictment containing 25 counts alleging indecent assault on various dates between the first day of October, 1982 and the 31 st January, 1987.
The applicant was also given leave to seek an order prohibiting the respondent from taking any further steps in the prosecution of the applicant in respect of the alleged offences.
The facts which are relevant in these proceedings are as follows:
On 25 th March, 1995, J.G. a young woman, then aged 17 years, made a complaint by way of a written statement to the Garda Siochána. The complaint was that the applicant had committed the offences which are the subject of these proceedings.
On 1 st May, 1995, the applicant made a written statement to the Garda Síochána in which she withdrew the allegations which she had made on 25 th March, 1995. That statement provided as follows:
On 25 th February, 1999, during a meeting with the Gardaí which had been instigated on the initiative of J.G. she repeated verbally her earlier complaints against the applicant.
On 5 th March, 1999, J.G. completed a written statement in which she set out details of the offences alleged against the applicant.
Between 5 th March, 1999 and 2 nd November, 1999, Det. Garda Anne Tierney worked continually upon the investigation of the complaint made by J.G. She did so efficiently and expeditiously.
On 2 nd November, 1999, the applicant was arrested under s. 4 of the Criminal Justice Act 1984. He was released later on the same day.
By the 17 th December, 1999, Det. Garda Tierney had completed her investigation. Five months later on 30 th May, 2000, she sent a file to the respondent. I am satisfied that the period of five months which elapsed between the 17 th December, 1999 and 30 th May, 2000, when the file was sent to the respondent was not excessive in the circumstances and has been adequately explained in evidence by Garda Tierney.
On 7 th November, 2000, a decision was made by the respondent which was communicated to the Gardaí and on 14 th December, 2000, the applicant was arrested and charged with the offences which form the subject of these proceedings.
After various court appearances the applicant was returned for trial to Clonmel Circuit Court on 13 th November, 2001.
I am satisfied on the evidence that there was no excessive delay on the part of the respondent in prosecuting the applicant between the date of his arrest and charge on 14 th December, 2000 and the date of his return for trial on 13 th November, 2001.
In a statement in writing made by J.G and dated 9 th September, 1999 and contained within the book of evidence J.G. stated inter alia that she had told the following persons about the sexual abuse which forms the basis of the charges preferred against the applicant:
In addition J.G. wrote to her brother V. in New Zealand advising him about the abuse.
In March, 1995, J.G. made the statement referred to earlier to the Gardaí. Thereafter she received counselling on one occasion from a Mrs. Anne Canty and thereafter she was counselled by Mr. Pat Carroll who was the Community Welfare Officer with the Mid-Western Heath Board. Mr. Carroll testified in these proceedings.
In December, 1996, J.G. was expelled from school. She had been drinking alcohol (vodka) in substantial quantities. Shortly thereafter there was an incident in which she attempted self harm by cutting her wrists.
Shortly thereafter J.G. was referred to Mr. Eamonn Butler who was a clinical psychologist at Glenroy Nenagh. She received treatment from Mr. Butler who testified in these proceedings.
In September, 1998, J.G. went to New Zealand. She returned to this jurisdiction in February of 1999.
J.G. is the third child of a family of four having two older brothers and one younger sister. She, together with her three siblings, were physically abused by their father on a regular basis for any of their alleged transgressions. These beatings finished some time in 1994 when the father was assaulted by J.G's older brothers.
Dr. Anne Byrne-Lynch who is a clinical psychologist assessed J.G. on 21 st March, 2003, during a full morning session and thereafter had two telephone consultations with J.G.
She again assessed J.G. on 28 th June, 2003, by way of a full interview.
Dr. Byrne- Lynch was of the opinion that J.G.'s description of:
Dr. Byrne-Lynch testified in these proceedings.
She agreed with Mr. Christle that during the assessment of J.G she was unaware and was not made aware that J.G. had been subjected to physical abuse by her father in her home and that this abuse was systematic until 1994.
Dr. Byrne-Lynch took the view that this psychical abuse, if disclosed to her, would not have had an impact upon her conclusions.
She was of the opinion that the abuse "… didn't detract" from the difficulty in disclosing the abuse – it added to it. She indicated that the victims of physical abuse are generally vulnerable by nature and indicated that it was a "sad fact" that children who are subjected to physical abuse are doubly at risk. They have less familial support and therefore they are less inclined to report the abuse.
Commenting upon the withdrawal by J.G. in May of 1995, of her earlier complaint of March, 1995 Dr. Byrne-Lynch indicated that this did not surprise her. She said that the formal making of a complaint activates painful memories which intrude into the consciousness of the complainant. In consequence they often decline to proceed any further.
Dr. John Cuddihy who is a general practitioner then working at Dean St. Medical Centre in Kilkenny testified in these proceedings. He indicated that in October of 1996, J.G was seen by his brother Dr. Bill Cuddihy and by him in relation to the support which she required.
He said that he had concluded inter alia that J.G.:
Dr. Cuddihy saw J.G. the following day at Kilkenny College where he tried to speak with her in confidence but she was reluctant to talk to him. He said she " did not appear suicidal…" at that time but he kept her under close observation.
When cross-examined Dr. Cuddihy indicated that he had been aware when he examined J.G. that she had been the subject of physical abuse at home which ended in 1994.
Dr. Eamonn Butler who is a senior clinical psychologist at Nenagh Co. Tipperary first assessed J.G. on 6 th January, 1997, having been referred by J.G.'s GP.
Initially in January of 1997, Dr. Butler saw J.G. on five occasions for treatment.
Subsequently when J.G. returned from New Zealand she began to attend him regularly and he treated her on 22 occasions between 24 th January, 2000 and 22 nd February, 2001.
In cross-examination Dr. Butler said he had not addressed the issue of earlier domestic violence i.e. from J.G's father. He said that whilst J.G. would mention it to him from time to time in passing that violence".. never presented as a salient presenting issue for treatment…"
He went on to conclude that:
A " clinical marker" for trauma of the type sustained by J.G arising from the sexual abuse is "avoidance" and he described the condition of " …approach/avoidance dynamic …" which he described as "a well known result of this type of abuse". He said that the victims feel the need to speak to someone about the abuse and having spoken about it then to withdraw from any help that is offered. He concluded that J.G. was still "very much embroiled in" this "…approach/avoidance dynamic."
He said that this condition was not specific to adult victims of child sexual abuse but was characteristic to such victims.
Mr. Pat Carroll who was a Community Development Officer for the Mid- Western Health Board also testified in these proceedings.
He stated that J.G. was referred for counselling on 4 th March, 1996 and attended five sessions which concluded on 21 st October, 1996.
He indicated that most of his discussion related to J.G.'s domestic violence at the hands of her father. He said that she indicated that she wished to talk about her sexual abuse at some time but found it difficult to discuss this topic and consequently avoided it.
The general principles of law which apply to applications to prohibit, on grounds of delay, the prosecution of offences of a sexual nature allegedly committed against children (and reported only after very substantial periods of time) are now well settled. They have been stated by the courts within this jurisdiction on countless occasions and are to be found in such cases as Barker v. Wingo 407 U.S. 514 [1972], B v. Director of Public Prosecutions [1997] 3 I.R 140, P.C. v DPP [1999] 2 IR 25 , PO'C v. Director of Public Prosecutions [2000] 3 I.R. 87, J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122, and JO'C v. Director of Public Prosecutions [2000] 3 I.R. 478 and many others. It is accordingly unnecessary to restate them herein.
It is not contended that the applicant has suffered specifically identifiable prejudice of the kind which, by itself, would give rise to an order prohibiting his trial. What has been contended is that the applicant has suffered presumptive prejudice which is unavoidable by virtue of the passage of time and which has occurred between the date when these offences were allegedly committed and the date of the applicant's return for trial on 13 th November, 2001.
The applicant claims that his constitutionally protected right to a trial with reasonable expedition has been violated in two respects that is:
On behalf of the State it is contended:
that there was neither pre-complaint delay on the part of
That the applicant has failed to seek the relief which has been
A period of approximately five years elapsed between March, 1994, when J.G. first reported the abuse alleged to a friend (M.N.) and 5 th March, 1999, when she made a written statement to the gardaí outlining the details of the complaints.
It is argued on behalf of the applicant that between 1994 and 1999 the applicant exercised no " dominion " over J.G. and that accordingly the delay on the part of J.G. in reporting in 1994 (and 1995) could not be ascribed to any conduct on the part of the applicant.
I do not accept that contention.
At the time of the alleged offences J.G. was a child between five and nine years old and the applicant was a mature adult man. Accordingly the relationship came within the category of relationships identified by Keane J. (as he then was) in the case of P. C. v. Director of Public Prosecutions . Accepting, as I do for the purposes of this exercise, the veracity of the complaints made by J.G. then it follows that the failure on the part of J.G. to report the incidents between the date of their alleged commission and March of 1994 was referable to the conduct of the applicant. That is not disputed on behalf of the applicant.
Accordingly the issue which this court is required to determine is whether, in the circumstances of this case, any "inaction" on the part of J.G. between March, 1994 and November, 1999 can be rendered " explicable " within the meaning ascribed to that term within P.C. v. Director of Public Prosecutions.
In other words the court is required to determine whether a reasonable, convincing explanation exists which would justify the failure of J.G. to report the alleged abuse between March, 1994 and March, 1999.
The principle underlying this inquiry is that the applicant may not reasonably complain that his constitutionally protected right to a trial with reasonable expedition has been violated if that violation was caused by his own conduct.
It is conceded that the delay on the part of J.G. in reporting the matter between 1982/87 and 1994 (or 1995) was referable to the conduct alleged on the part of the applicant.
This court is required to determine whether the further delay of five years between March, 1994 and March, 1999, was also caused by the effect upon the J.G. of the conduct alleged on the part of the applicant.
Again accepting, as I must, the veracity of the complaints of J.G. (for the purposes of the exercise in which the court is engaged) I am satisfied that the delay on the part of J.G. in reporting the incidents which occurred between March of 1994 and March of 1999 was in fact referable to the conduct which forms of the basis of the charges which have been preferred against the applicant.
I am satisfied on the evidence of Dr. Byrne-Lynch and Dr. Eamonn Butler (and I should say that I accept the testimony of both of the witnesses without qualification) that between March 1994 and March 1999, J.G. could not reasonably have been expected to make a complaint in respect of the offences alleged against the applicant or to pursue the complaint which she made and then retracted in March and May of 1995.
In particular I accept the evidence of Dr. Byrne-Lynch which indicated that J.G. was likely to have suffered " a severe psychological reaction…" which disrupted J.G.'s psychological stability.
I accept also the evidence adduced by Dr. Byrne-Lynch indicating that she was not surprised that J.G. had withdrawn in May of 1995, the complaint which she had made in March of the same year. She indicated that this formal complaint activated painful memories which intruded into the consciousness of the complainant.
This diagnosis by Dr. Byrne-Lynch is quite consistent with the finding of Dr. Eamonn Butler. I think it is of considerable significance that Dr. Butler's relationship with J.G. was that of treating psycho-therapist and it is in that capacity that he assessed her and treated her on some 27 occasions.
I accept his evidence that J.G. suffered from " approach/avoidance dynamic" and that J.G. is still " very much embroiled in..." this condition.
I also am satisfied on the evidence of Dr. Byrne-Lynch and Dr. Butler that the domestic violence endured by J.G. at the hands of her father was not a significant factor in the delay by J.G. in reporting the abuse between 1994 and 1999.
On the evidence J.G. had been subjected to this domestic violence by her father at all material times before during and after the offences complained of.
I accept the evidence of Dr. Byrne-Lynch that she was therefore a person who was "doubly vulnerable" in respect of the conduct alleged on the part of the applicant.
I also accept the evidence of Dr. Butler that the domestic violence "… never presented as a salient presenting issue…" in the treatment which J.G. required.
The sexual abuse was the presenting issue which required to be treated by Dr. Butler.
It follows from what I have found that I am satisfied that a valid reasonable and convincing explanation has been provided by way of evidence which justified the delay between March 1994 and March 1999, on the part of J.G. in reporting the offences to the prosecuting authorities.
It has been established on the evidence and on the balance of probabilities that the primary cause of that delay was the psychological condition of J.G. during the period in question.
That condition, in turn, was referable to the earlier conduct alleged on the part of the applicant.
Accordingly there was no pre-complaint on the part of J.G. in reporting the offences and no breach, on that ground, of the applicant's constitutionally protected right to an expeditious trial. That is so because the breach complained of was caused by the applicant's alleged conduct.
As I have indicated earlier I am satisfied
Mr Christle has not argued for any prosecutorial delay other than these two periods of time.
I am satisfied on the evidence that the nature of the investigation and the need for care and precision warranted the steps which, on the evidence were taken.
It follows that I do not accept that there was prosecutorial delay on the part of the respondent and there certainly was not delay of the kind to which I have earlier referred which has been identified by Geoghegan J. in P.P.
Order 84 rule 21 of the Rules of the Superior Courts provides as follows:
In this case the applicant was returned for trial to Clonmel Circuit Court on 13 th November, 2001.
Accordingly the " grounds for the application" within the meaning ascribed to that term within O. 84 r. 21 first arose on 13 th November, 2001.
The applicant did not seek liberty to seek the relief which has been sought herein until 21 st October, 2002 which is almost twelve months after the date upon which the grounds first arose.
Accordingly, Mr. O'Malley on behalf of the respondent contends that the applicant is barred by the provisions of O. 84 r. 21 from seeking the relief which he seeks and he further contends that no " good and sufficient reason" has been advanced on behalf of the applicant which would warrant or, indeed, empower this court to exercise the discretion vested in it by the order to extend the period within which the application may be made.
Mr. Christle, on behalf of the applicant points to the averments of the applicant's solicitor Mr. Thomas J. Kelly to the effect that in November of 2001 he felt that a psychiatric assessment of the applicant was required in the latter's interest. Accordingly the applicant was examined by Mr. Patrick Ryan clinical psychologist and by Mr. Don Lydon who apparently is a psychiatrist.
However at paragraph 7 of his affidavit sworn on the 17 th October, 2002, Mr. Kelly continued that:
No evidence was adduced indicating that a report from Mr. Lydon ever became available to the applicant or if his solicitor sought such a report from Mr. Lydon or, if so, when such a report became available.
Furthermore neither the applicant nor his solicitor has adduced evidence indicating an intention on the part of the applicant to seek the relief which has been sought in these proceedings at any particular point in time. In particular neither the applicant nor his solicitor has averred in evidence that the psychiatric or psychological assessment of the applicant at the end of 2001 and the beginning of 2002 was a factor which influenced any decision on the part of the applicant to seek (or fail to seek), the relief which has been sought in these proceedings or that it inhibited in any way the application which has now been made in these proceedings on behalf of the applicant.
It follows from what I have just found that I am not satisfied that the applicant has provided a good and sufficient reason to this court which would warrant or justify this court exercising its discretion to extend the time limited by O. 84 r. 21 within which the applicant is obliged to seek the relief which has been sought in these proceedings.
I am satisfied on the authorities that before reaching a final decision on the exercise of its discretion to grant or refuse an extension of the time limited by O. 84 r. 21 in applications such as this it is necessary for the court to consider whether an extension of time should be granted "in the interests of justice" if there is a bona fide risk that the applicant, on the evidence, will not receive a fair trial "…in due course of law" as guaranteed by Bunreacht na hÉireann.
However, since it is not contended on behalf of the applicant that he has suffered specific identifiable prejudice by reason of a delay complained of and since I have also found that there has been neither pre-complaint delay on the part of J.G. nor prosecutorial delay on the part of the State I am satisfied that an extension of the time limited by O. 84 r. 21 is not required "…in the interests of justice " for the reasons which I have just set out.
Accordingly, whilst no formal application was made to this court on behalf of the applicant to extend the time limited by O. 84 in which the application may be made I am inferring such an application but declining to grant any extension of time on the grounds that no good or sufficient reason has been provided by or on behalf of the applicant which would warrant an extension of time.
It follows that the relief sought on behalf of the applicant must be declined.