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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Barry v. D.P.P [2003] IEHC 173 (14 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/173.html Cite as: [2003] IEHC 173 |
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THE HIGH COURT
JUDICIAL REVIEW
No. 407/JR/1997
BETWEEN
JAMES M. BARRY
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
AND (BY ORDER OF COURT DATED 17TH NOVEMBER 1997 THE DISTRICT JUDGE FOR THE TIME BEING ASSIGNED TO DEAL WITH THE PROCEEDINGS ENTITLED "THE DIRECTOR OF PUBLIC
PROSECUTIONS (PROSECUTOR) - AND - DR. JAMES BARRY (ACCUSED)" IN THE DISTRICT COURT CORK
RESPONDENTS
JUDGMENT of O'Neill J. delivered 14th day of February 2003.
The applicant was by order of this court (Geoghegan J. as he then was) on 17th November 1997 given leave to apply for Judicial Review for
(i) an order in the nature of prohibition prohibiting the first named respondent from taking any further steps in the prosecution entitled "The Director of Public Prosecutions Prosecutor - and - Dr. James Barry Accused" in the District Court District Court area of Cork City District No. 19 in respect of each and all of the alleged offences presently charged against the applicant and .
(ii) an order in the nature of prohibition prohibiting the second named respondent in taking any further step whatsoever or in any way purporting to exercise any jurisdiction in the aforementioned proceedings.
Leave to seek the said Judicial Relief was by this order granted upon the following grounds:
1. The initiation of the said prosecution, the application for the warrant for the arrest of the applicant, the granting and obtaining of the said warrant, the arrest of the applicant in all steps in the said prosecution and the continuance of a said prosecution are not, and were not, in accordance with law after the abolition of the offence of indecent assault contrary to conunon law and the abolition of the offence of sexual assault contrary to common law on 19th day of August, 1997, and were, and are, in violation of the rule of law and contrary to article 34.1, article 35.2, article 38, article 40.1 and article 40.3 of the Constitution and contrary to article 5, article 6, article 13, article 14 and article 17 of the European Convention on Human Rights and Fundamental Freedoms and article 3 of the statute of the Council of Europe.
2. There has been gross and inexcusable delay resulting in legal and moral prejudice to the applicant in initiating the said prosecutions amounting to an abuse of the process of the courts and the contravention of article 38.1, article 40.1, and article 40.3 of the Constitution and article 5.1 and article 6 of the European Convention on Human Rights and Fundamental Freedoms.
3. There has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right of constitutional justice which is in violation of article 38.1, article 40.1 and article 40.3 of the Constitution of article 5.1 and article 6 of the European Convention of Human Rights.
On 3oth November 1997 the applicant was arrested on foot of a warrant for that purpose and charged with 237 counts of indecent and sexual assault alleged to have been perpetrated against 42 complainants. The applicant was on that day taken before the District Court and charged accordingly. He was released on bail but as a condition of the same, he was obliged to surrender his passport and to sign on at a Garda Station in Cork on each Monday.
The events leading up to the applicant being thus charged began in May of 1995 when a formal complaint was made to the Gardai by a young female to the effect that she had been indecently assaulted by the applicant and that he had made video recordings of her in the nude or semi naked on a number of occasions. On 4th June 1995 a warrant was obtained from the District Court under section 25 of the Video Recordings Act 1989 authorising a search of the applicant's premises. On 6th June 1995 the house, clinic, and consulting rooms of the applicant were searched. During the course of the search of the applicant's house a number of video tapes were found showing the complainant as she had described and also other naked female patients. Also found in the search of the applicant's house, were tablets obtained pursuant to a prescription made out in the name of and using the medical card of a patient who was unaware of this prescription on the part of the applicant. Subsequently the applicant made a statement admitting this transaction and that he had done the same thing about three times a year for several years. In addition the search also revealed what appears to be a replica pistol and blank ammunition.
As a result of investigative journalism carried out by one Ann Mooney a reporter with the Cork Examiner late in October of 1995, that newspaper published under its headline on 28th October 1995 a story to the effect that a Cork doctor had had a number of video tapes seized from his surgery. At that stage the applicant was not named. Subsequently civil proceedings were taken in the Circuit Court in Cork and an injunction was claimed to freeze the assets of the applicant and as a result of these proceedings it would appear that the applicant's name emerged into the public domain as being the doctor in question.
As a consequence of this public ventilation of the matter, the Gardai received in or about 600 complaints from women claming to have been indecently or sexually assaulted by the applicant. Of these 600, formal statements of complaint were taken from 145.
In June of 1995 the applicant who had been attended by Dr. Peter Fahey psychiatrist was advised that he was medically and psychologically no longer fit to continue medical practice and strongly advised to retire. It would appear that around that time the Medical Council took an interest in the matter and commenced an investigation.
To avoid the incessant attentions of the media and the intense glare of the publicity which these events attracted, the applicant left the jurisdiction late in 1995 and spent a number of months in the United Kingdom, although maintaining contact with the Gardai through a solicitor. In early March of 1996 an interview was arranged with the Gardai at which the applicant attended with his solicitor and counsel. The applicant's solicitor insisted upon being present during the course of the interview. This course was vehemently opposed by the Gardai, and there being no resolution the applicant was arrested under section 4 of the Criminal Justice Act 1984 and detained for a period of six hours which was subsequently extended to 12 hours. During the course of this detention the applicant was from time to time permitted access to his solicitor. In the latter stages of that detention an application was made to the High Court (Carney J.) for an order directing an inquiry into the legality of his detention. This application was in the ordinary way, made ex parte to Carney J. at his home late in the evening at some time in or about 8 o'clock in the evening. Carney J. ordered that the body of the applicant be produced at midnight in the Four Courts. The lawful detention of the applicant pursuant to section 4 of the Criminal Justice Act 1984 expired at 10.30 but with the applicant's consent, on foot of arrangements made by the Gardai and the State Solicitor for Cork Mr. Galvin, the applicant was flown in a private chartered plane to Dublin in compliance with the order of Carney J. In due course on conducting the aforesaid inquiry other article 40, in which it would appear that the issue advanced as vitiating the lawfulness of detention, was whether or not a person detained under section 4 had a right to have a solicitor present during the course of interview during that detention, was heard and determined against the applicant by Carney J.
In April of 1996 the applicant was advised by a solicitor that the State had certain summonses which had issued against him, and a request was made to facilitate the service of same. The applicant attended at his solicitors office on 9th April to facilitate the service of the summonses on him. These summonses were in respect of an allegation that he had dishonestly obtained £5.85 worth of tablets for an indigent patient by prescribing these tablets of foot of another patients medical card and that he was thereby accused of obtaining the £5.85 worth of tablets by false pretences and of handling £5.85 worth of tablets alleged to have been stolen. The other summons were in respect of a charge related to an offence of having 45 "blank" cartridges for a lawfully held replica pistol. The applicant denied these charges, engaged solicitor and senior counsel to contest them when they came before the court on 8th July 1996. On that occasion the first named respondent did not offer any evidence and all three summonses relating to these charges were struck out at Cork District Court.
As mentioned earlier the Medical Council had taken an interest in the matter. This was as a result of twelve complaints received by them against the applicant, four of which were subsequently withdrawn. Because of the apprehension of criminal charges against the applicant the inquiry by the Medical Council under part 4 of the Medical Practitioners Act 1978 could not proceed. On the 18th July, 1996 the applicant's solicitor wrote to John M. McDowell and Co. Solicitors, the solicitors for the Medical Council advising them that there were no criminal charges pending against the applicant, that three charges brought against the applicant as mentioned above were struck out on 8th July. He also in this letter said that there were only three civil actions being prosecuted against the applicant in Cork Circuit Court; that these actions would be vigorously defended and that none of the plaintiffs in these actions had complained to the Medical Council. In the light of these circumstances Mr. O'Sullivan the applicant's solicitor sought agreement with regard to the determination of the complaints which had been made to the Medical Council and he set out a number of concerns of the applicant's; inter alia that the hearings for the Medical Council would be held in public, on the basis that the applicant's reputation had already been taken and that he was entitled to vindication in public. This demand led to separate Judicial Review proceedings against the Medical Council which were finally determined on an appeal to the Supreme Court with a ruling against the applicant's contention.
It was the applicant's stated belief that when the charges brought before the District Court were struck out that there were no further charges to be apprehended and that these charges were the only fruits of the Garda investigation. It was on foot of this belief that the applicant sought the reactivation of the Medical Council proceedings. Subsequently when the charges which are the subject matter of these proceedings were brought against the applicant the proceedings before the Medical Council were again stayed.
In April of 1997 the applicant's solicitor was contacted by a sergeant at Glanmire Garda St. who advised him that he had a summons to serve on the applicant and requested a facility for the service of same. The applicant made himself available at his home to accept service of the summons on 10th April 1997. This process concerned an application under the Police Property Act of 1897 concerning the disposal of the blank ammunition and replica pistol which had been the subject of the charges struck out on the District Court. The applicant was greatly aggrieved by the service of this summons on him because of his apprehension of the publicity which these proceedings in the District Court would attract to him, and that this caused him great distress and anxiety. In order to prevent these proceedings going ahead, through his solicitor the applicant sought the agreement of the Gardai not to proceed and failing obtaining this, initiated High Court proceedings claiming injunctions preventing these proceedings going ahead.
In the event these proceedings did not go ahead because the notice of application was made returnable for a day which turned out to be a bank holiday. Finally, shortly after 7 a.m. on the morning of the 20th October 1997 the applicant was awakened by knocking on the door of his home. The caller identified himself as a member of An Garda Siochana and informed him that he had a warrant for the applicant's arrest on a charge of sexual assault on W.S. on a date unknown between 1st October 1992 and 30th November 1992. He was taken to Anglesea Street Garda Station where a list of the 237 charges as are set out in McCurtain Street Garda Station charge sheet 101 of 1997 was read to him. He was placed in a cell and taken to Cork District Court at about 10.00. In the course of the hearing in the District Court it emerged that the warrant for his arrest had been obtained at 4.30 p.m. on the preceding day. These proceedings in the District Court attracted considerable media attention in various newspapers carrying reports of these proceedings.
As part of the order of Geoghegan J. on 17th November 1997 a stay was placed on all further proceedings in the prosecution of the aforementioned charges of indecent and sexual assault.
These proceedings came on for hearing before me in February of the year 2000. At that hearing the respondent applied for leave to file additional affidavits and were given that leave. In total an additional 33 affidavits were filed. These comprised of 21 affidavits from complainants verifying their statements of complaint and also affidavits sworn by John D Burke, Kieran T. McCann, Anthony K. Fitzpatrick, Michael Comyns, Donal Hegarty, Michael Bambury, Ignatius F. O'Neill and Charles J. Barry all members of An Garda Siochana who had participated in the investigation of these allegations of indecent and sexual assault. Affidavits were also filed by Donal Murray a solicitor and professional officer in the office of the first named respondent, a supplemental affidavit of Thomas Waldron who was a retired superintendent in the Garda Siochana and who had been involved in the investigation, and finally an affidavit of James P. Maloney a solicitor in the Office of the Chief State Solicitor deposing to the service of these affidavits on the solicitor for the applicant.
As a consequence of this material coming into the case it was necessary to adjourn the hearing of grounds 2 and 3 in respect of which leave was granted. A hearing of ground 1 proceeded, but as the issue thereby raised, had been litigated in other proceedings and the judgments thereon subject to appeal to the Supreme Court at that time, I was invited to adjourn my judgment on that issue pending the outcome of the aforementioned appeals in the Supreme Court. In due course the Supreme Court delivered its judgments in the cases of Padraic Grealis v Director of Public Prosecutions Ireland and the Attorney General and in the case of Emmett Corbett v Director of Public Prosecutions, on the 31St May 2001. The effect of these judgments was to determine the issue raised in ground 1 against the applicant and accordingly when the matter was brought on for hearing before me again on 11 th January 2002, the applicant did not proceed with ground
and accepted that there should be a dismiss of that ground but reserving the applicant's submissions already made thereon for the purposes of an appeal in the Supreme Court.
In the hearing before me in February of 2000, the applicant responded to the leave granted to the respondent to file additional affidavits by contending that the question of the inspection of documents should be reopened. The process of
discovery, and inspection had a protracted and very contentious history in this case, which appeared to have culminated in a hearing before Geoghegan J. on 3rd December 1999. In that hearing, which appears to have been relatively brief, the applicant sought two classes of documents only, namely, the statements of the complainants and also the medical reports of a medical expert who had been retained to give his opinion on the conduct, the subject matter of the complaints. Geoghegan J. ordered that the applicant be furnished with the statements but he rejected the applicant's challenge to the privilege claimed in respect of the medical reports.
A lengthy hearing took place before me in February of 2000 on the issue of the privilege which had been claimed by the respondents in respect of a considerable variety of documentation discovered. The applicant contended for inspection of all of these documents and submitted that that was necessary in the context of what was submitted, was the wholly change nature of the proceedings consequent upon the new affidavits to be filed.
In due course I rejected that claim in a reserve judgment delivered on 2nd April 2001, holding that further inspection was not necessary for the disposing fairly of the cause or matter or the saving of costs.
The hearing on the two remaining grounds, which lasted nine days, commencing before me on 11th January 2002. The first of these relates to the issue of delay and this is divided into two compartments, firstly, delay or lapse of time
between the commission of the alleged offences and the formal complaints made in relation to the same in or about late 1995 or early 1996, and secondly, delay in the conduct of the prosecution from in or about October 1995 until the applicant was charged on 30th October 1997 and also delay by the respondents in the conduct of these Judicial Review proceedings. The second issue which arises is that of oppression based on a number of grounds which are set out in paragraph 6 of the applicant's grounding affidavit.
I propose to deal with the issue of oppression first.
OPPRESSION
The basis of the applicant's case on oppression is set out in paragraph 6 of his grounding affidavit and it was contended by the applicant also in paragraph 23. These paragraphs are in the following terms.
" 6. I say that the charges which I am presently accused result from a pattern of abuse of conduct and fundamental unfairness amounting to oppression and in denial of constitutional justice, constituted by the following matters which are more particularly described hereinafter namely: the initiation of prosecutions in April 1996 by the first named respondent which did not have any basis in evidence and which were intended to embarrass, harass and injure me as they in fact did; the service of a bogus summons on me in April 1997, purportedly under the Police Property Act, 1897 which was calculated to embarrass, harass and injure me (as it in fact did) and the threat of repetition of such abuse notwithstanding every effort to have the first named respondent abstain from such a oppression; gross and inexcusable delay on the part of the first named respondent in initiating the said prosecutions with moral and legal prejudice resulting to me from such delay and from the delay on the part of the complainants in making the present allegations; the knowledge of the first named respondent of the prejudice which would result, and has resulted, to me from such delay; the application for, the granting oj,' and execution of, a warrant of arrest on foot of a single charge of alleged sexual assault founded on my having conducted a necessary and proper medical examination as doctor on 29`'' October 1992, on a patient who required a "morning after" pill, and when the first named respondent had made a prior determination that the alleged offence was minor in nature and when I had facilitated the service on me by the Gardai of successive summonses; wilfully delaying the execution of that warrant to early morning to further injure me; attempting to deny me bail on foot of unsubstantiated allegations that the charges were "very serious" and that I was likely to flee the jurisdiction; contriving circumstances of humiliation, publicity and notoriety when I was brought before the District Court on 30th October 1997 to which no other person similarly circumstanced has been subjected in relation to such charges; the failure to provide on request and in accordance with law the sworn complaint required to ground such warrant; contriving in the manner done to prefer 237 charges against the alleging offences against 42 women when there is no conceivable proper justification, given the number of complainants, why certain at least of these charges could not have been preferred a year or more before they were preferred when this course so adopted by the first named respondent was intended to oppress and prejudice me in my defence of the same, to bring overwhelming psychological, media and other pressures to bear on me to plead guilty to certain charges at least because of the sheer burden involved and the number of charges made and brought to bear on me in an avalanche; and the appropriation by the second named respondent to himself of jurisdiction in the proceedings in a manner which was, and is, inconsistent with his prior declaration of interest and was, and is, inconsistent with the impartial administration of justice. "
Paragraph 23 reads as follows:
"I say that it further appears that the warrant was obtained on foot of a single charge only and that no information was given to the judge who granted same of the manner in which I have previously accepted service - indeed, facilitated the service - of successive summonses on me, or of the manner in which those proceedings had been successfully defended. The application for the said warrant was made to the second named respondent whose was judge other than the judge who struck out the summonses in default of evidence by the State on 8th day ofJuly 1996 While no particulars of the charges have been furnished beyond the charge sheet with contains merely a bare allegation of an offence, the single charge of sexual assault on one W S on a date unknown between 1st October 1992 and on 30`h November 1992, can only relate to my professional practice as a doctor and this appears to be indicated by the designated `Dr. 'before my name in the warrant. The said W S was known only to me as a patient and in no other capacity. I say that it was and is, manifest that I had no contact with this person other than in a strictly professional capacity and that the allegation made is that when I medically examined this patient in the course of treating her, the same constituted in an assault. I say that 1 am advised by counsel that in the circumstances the application for, granting of, and execution of the said warrant was oppressive. I further say that I am advised by my solicitor that when application in the prescribed form for a copy of the complaint in writing, grounding the application for the said warrant was made to the District Court office in Cork on 14Th day of November 1997, the file was stated to be unavailable and a copy of the said written complaint could be not be obtained. "
Arising out of the foregoing and the contents of his grounding affidavit generally the applicant makes the case that there was oppression of him in the following ways, viz.
1. The leaking of information to the press to generate improper publicity
2. The arrest and 12 hour detention for interrogation without charge or any intimation of charge.
3. The harassment with trifling (unrelated) prosecutions.
4. The failure to give an intimation of possible prosecutions knowing that in consequence the applicant was engaging in conduct calculated to alter his position, and incur expense, and prejudice any future criminal trial.
5. Harassment by using a bogus summons.
6. The early morning arrest on foot of a warrant alleging a single charge of sexual assault and misconduct in District Court proceedings.
7. The contrived avalanche of charges with an improper motive.
8. The absence of reasonable and probable cause for the charges.
9. The abuse of process in the conduct of these Judicial Review proceedings.
1. THE LEAKING OF INFORMATION TO THE PRESS TO GENERATE IMPROPER PUBLICITY
The applicant's complaint in this regard arises out of the publicity which commenced with the article in the Irish Examiner newspaper featured on 28th October 1995 which was to the effect that video tapes had been seized from a Cork doctor. I am satisfied on the evidence that the only involvement that the Gardai had with this, was to confirm to the reporter in question, Ann Mooney, that such a seizure had taken place but without identifying the applicant or furnishing any further information. It is hardly surprising that the story in question generated considerable public interest and it would appear to have led to the making of the complaints which are now the subject matter of the charges brought against the applicant. As was conceded by Mr. McDonagh S.C.for the first named respondent the better practice when confronted with such an inquiry might have been to have declined the confirmation sought, however the indiscretion thus committed by the Gardai is not in my view a wrongdoing of such weight as should lead to the prohibition of this trial either on its own or in combination with any other factors.
Subsequent proceedings before the Circuit Court in which the applicant was named, no doubt added greatly to the public interest in the story and generated increasing media attention. This attention, from then on resulted, in each stage in the process being closely watched and reported by the media. This of course included the proceedings taken in this Court and in the Supreme Court against the Medical Council in which the applicant sought to have the complaints against him to the Medical Council heard in public, so that he could vindicate his reputation in public.
I have no doubt that the media attention which focused on him, was distressing and caused the applicant a great deal of anxiety but there is no evidence whatever to suggest to me, that unpleasant as the media attention was, that it in any way inhibited him in dealing with the Garda investigation and subsequent events, apart from a period of about three months when he left the jurisdiction to avoid the media. No doubt his absence during that period gave him relief from the anxiety and distress occasioned by media attention but during that time there was contact with the Gardai through his solicitor, and on his return he presented himself for interview as arranged. Nothing that transpired in the course of that interview process or the subsequent section 4 detention could be said to have been influenced or altered by media interest, save perhaps some difficulty in getting in and out of the Garda Station, in attempting to avoid the media.
The applicant does complain about media attention surrounding his being brought before the District Court on 30th October 1997, and of the absence of normal precautions to protect his privacy. Whilst that complaint is made, there is no suggestion in the evidence of any impropriety on the part of the Gardai which resulted in this happening.
Having regard to the nature of the alleged offences, the number of them, the other proceedings, and all of the publicity that is attached to all of these events, it would in my view, be artificial to blame all of this publicity on the indiscretion of the Gardai in confirming to Ann Mooney on 27th October 1995 that there had been a seizure of video tapes from a Cork doctor.
I am satisfied however of two things, firstly, that the considerable publicity which has been attracted to the applicant cannot be blamed on any culpable misconduct of the Gardai, and secondly that although it has been a very unpleasant experience for the applicant, it has not prejudiced him in dealing with the Garda investigation into these matters and court proceedings to date in this prosecution. I am satisfied therefore that there has not been any oppression by the respondents of the applicant on this ground.
2. The Arrest and 12 hour detention for interrogation without charge or any intimation of charge
At this stage the only complaint that the applicant makes about this 12 hour detention under section 4 of the Criminal Justice Act 1994, is that this detention changed the status of the applicant and made him as Dr. White S.C. put it a "marked man ", and that as a consequence of this, there was a heavy onus on the Gardai and the first named respondent to insure that the investigation was completed with expedition and that any charges to be brought, should have been brought promptly and that he should have been kept informed of the continued possibility of the likelihood of a charge.
In my view this complaint is unsustainable. The purpose of any section 4 detention is for the proper investigation of a crime. The mere fact that a detention such as that occurs, does not mean that the investigation is at any particular stage. A detention of this kind may occur at the beginning of an investigation or late into it. A detention under section 4 is merely part of the investigation. The investigation will not be complete until all of the potential evidence has been assembled. Even then further evidence may come to light later, after charges have been laid and an indictment prepared. It could not reasonably be said that there rested upon the Gardai conducting the investigation, any kind of duty or obligation to intimate during the course of an investigation whether or not a charge was likely to be preferred. There are two reasons for this: firstly the incomplete stage of the investigation, and secondly the decision as to whether or not charges would be preferred rests not with the Gardai but with the first named respondent. It is well settled that the first named respondent does not have to give reasons for either proferring charges or declining to do so and his decisions in that regard cannot be challenged in the absence of male fides.
Having regard to both of these factors I would take the view that it would be highly undesirable that the Gardai would give intimations during an investigation, as to whether or not the charge was or was not likely to be proferred.
It is quite clear from the evidence that in this case, no such intimations were given and indeed that is the very complaint which the applicant makes. The fact that he himself reached a conclusion that there would be no charges is entirely based on his own belief, which was not contributed to at all, by anything said or done by members of the Gardai. I am not convinced that he was justified in deriving the kind of comfort which he seems to have got, from the fact that the charges in the District Court in relation to the ammunition, the pistol and the prescription were not proceeded with, having regard to the fact that the subject matter of his questioning during the 12 hour detention was exclusively to do with the complaints of indecent and/or sexual assault made against him.
Under this heading the applicant also complains of the fact that the arrest under section 4 was in respect of an allegation of sexual assault on SF, but no charge was ultimately brought in respect of this allegation. On foot of this, he complains that there was no justification for the arrest.
In my view this complaint is wholly unsustainable. Again it is to be remembered that the purpose of a section 4 arrest is for the proper investigation of an alleged offence. It is to be envisaged that the answers given by a person when questioned in relation to such an offence might be such, as to lead the Gardai, in the first instance, secondly, the first named respondent, to conclude that the evidence thus assembled was not such as to justify a charge. In any event, the decision as to whether or not to prefer charges, is that of the first named respondent and as remarked above in the absence of mala fides his decision to prefer a charge or to decline to do so, cannot be impugned.
I am satisfied therefore that there was no oppression on this ground.
The applicant's complaint here relates to the bringing of three charges against him by way of summons to appear before the District Court in relation to the possession of a replica pistol and ammunition and in relation to obtaining £5.85 worth of drugs by way of false pretences by means of using the medical card of a patient other then the patient for whom the drugs were prescribed. When these came before the District Court no evidence was offered by the State and the summonses were stuck out.
The evidence establishes to my satisfaction that so far as the gun and ammunition were concerned, these were found in the possession of the applicant on foot of a search of his premises. Likewise the tablets were also found on foot of the search in question. Insofar as the tablets were concerned a statement by the applicant was exhibited admitting this transaction.
The evidence falls considerably short of establishing that there was no basis for the bringing of these prosecutions. The decision to proceed with the prosecution of these offences rested with the first named respondent and he declined not to proceed with them by not tendering evidence, when the summons were returnable before the District Court. As said earlier his decision in that regard in the absence of male fides cannot be impugned. The applicant, through his counsel expressly stated that mal fides was not being alleged.
That should be an end to this matter, however it is worth remarking that there is nothing unusual, far less unique in the applicant's situation in this regard. On an everyday basis persons stand facing serious charges in the Central Criminal Court and the Circuit Criminal Court and also face charges in respect of minor matters in the District Court. It could not be seriously contended that merely because there are serious charges pending in the Circuit Criminal Court, that the State should in effect concede an immunity in respect of offences which are considered minor and appropriate to be dealt with summarily in the District Court.
In my view, there is no merit in the applicant's complaint in this regard.
4 . FAILING TO GIVE AN INTIMATION OF POSSIBLE PROSECUTIONS KNOWING THAT IN CONSEQUENCE THE APPLICANT WAS ENGAGING IN CONDUCT CALCULATING IN ALTERING HIS POSITION INCUR EXPENSE AND PREJUDICE ANY FUTURE CRIMINAL TRIAL
I have, in effect dealt with this complaint earlier. The fact that the applicant choose to reactivate the proceedings before the Medical Council in July of 1996 was based solely on is own belief that no further charges would arise. In that regard no fault can be attributed to the Gardai. Indeed on the contrary in my view they were entirely correct in not giving any intimation at that stage, as to the likelihood or otherwise of further charges.
It could be said that the Gardai, if requested to do so, could have confirmed that there was an ongoing investigation into allegations of sexual and/or indecent assault against the applicant. However, there is no evidence that this request was ever made by the applicant or his solicitor. There is exhibited in the affidavit of the applicant correspondence commencing on the 14`h day of April 1997 in which complaint is made about the Notice of Application under the Police Property Act 1897 and an assurance is sought that this process will not proceed. Curiously, nowhere in the letters from the solicitor is there any request for confirmation that there are no further charges contemplated or for confirmation that the investigation into the allegations of sexual and/or indecent assault is at an end. Indeed it could be said that the whole tenor of the complaint made by the applicant in this correspondence, implies a belief on his part that these allegations were still alive; otherwise it is hard to understand his objection to this application proceeding at all.
5. HARASSMENT USING A BOGUS SUMMONS.
The application under the Police Property Act of 1897 was a routine application, so that the Gardai could, with legal certainty and protection, dispose of the property, the subject matter of the application. It is the correct way to deal with property seized by Gardai when there is a doubt as to the true ownership of same. Without recourse to this statutory procedure the Gardai would be at risk of civil action by parties with a potential interest in property seized by Gardai.
As matters turned out the summons was returnable for a day on which the court was sitting and therefore the application did not proceed. The day in question was a bank holiday and I would be content to draw the inference, on the basis of the evidence before me, that this resulted from a mistake or oversight or the part of an official in the District Court. The description of this notice of application as a "bogus summons " implying as it does some form of dishonesty or mala fides, is wholly unwarranted. The initiation of this application was in my view an entirely correct and bona fide procedure, and it failed because of the mistake in regard to the return date. As a consequence of that error the matter did not come on before the District Court and therefore the applicant was not exposed to the publicity which he feared. Therefore no harm was done to him in that regard. Apart altogether from that the applicant was not entitled to be free from all other legal process merely because, at the time in question he was under investigation in respect of other serious criminal charges. In this regard of course it is worth noting that it was his stated of belief that at that particular time there were no other charges awaited, in which case his complaint of a sense of harassment arising out of this proposed application fails to convey conviction.
The obtaining of a warrant for the arrest of the applicant from the District Court on the afternoon of the 29th October, 1997 was a correct and normal procedure. Likewise, the arrest on foot of a warrant in respect of one offence was correct and normal. Can it be seriously suggested, that in order to effect a single arrest it was either necessary or even desirable that the court should be asked for 237 warrants i.e. one for every charge.
In my view there was nothing unlawful or indeed unreasonable in the execution of the warrant on the morning of the 30th in that it kept to a minimum the amount of time in which the applicant was kept in police custody.
It is suggested that the proceeding should have been commenced by way of summonses rather than an arrest on foot of a warrant. I am satisfied that the normal procedure and indeed a correct procedure was to proceed by way of obtaining a warrant for the arrest of the applicant. It would seem to me, that proceeding by way of summons, would having regard to the very large number of charges involved have been extremely unwieldy and in any event having regard to the volume of the charges and the serious nature of them, proceeding by way of summons with the kind of notice that that would give to an accused person together with the delay in the return before the court, would create an imprudent risk of flight. I am satisfied therefore that the procedure chosen and was correct and normal.
The applicant complains that evidence was given in the District Court, in relation to an application for bail, to the effect that the applicant had previously left the jurisdiction at an early stage in the investigation. I would have thought evidence of this kind entirely predictable, having regard to the fact that this indeed was the case, viz. that the applicant had left the jurisdiction for a period of approximately 3 months early in 1996. I can see nothing whatever in the evidence concerning the conduct of the proceedings in the District Court which was even unusual let alone oppressive.
I am satisfied that there is no merit in this complaint of alleged oppression.
The applicant's complaint in this regard is that a large volume of charges were held back and that they were all brought together in what he describes as an "avalanche " so as to maximise the psychological pressure on the applicant thereby pressurising him into a plea of guilty. It is contended by the applicant that the absence of a specific denial of this motivation, in the affidavits leads to a conclusion that, that was indeed the design of the Gardai dealing with this matter.
I do not accept that submission. I am quite satisfied from the averments contained in the affidavits filed by the Gardai who are involved in the investigation of this matter that this was not their motivation.
The Gardai, in dealing with this investigation were confronted with very grave problems having regard to the very large volume of complaints they received. I am satisfied on the evidence, that the decision of the first named respondent in respect of the charges to be brought, was not received by the Gardai until shortly before the application for the arrest warrant.
In my view, the suggestion that the charges should have been brought in respect of some of the offences at earlier stages when they were ready is unrealistic. Obviously, and this was alluded to many times during the case by Dr. White, an essential part of the investigation was the obtaining of medical opinion in relation to the conduct alleged. There was nothing unreasonable in obtaining this from one expert and it would be unrealistic, in my view, to suggest that this would have been obtained in separate stages or tranches. The medical opinion was obtained on the l 11h March 1997 at which stage a complete file was forwarded to the first named respondent. In my view, there was no oppression of the applicant in this regard. In the context of the delay issue I will return to this topic later.
There is no doubt that facing 237 charges is a very difficult and daunting prospect for the applicant. However neither the Gardai nor the first named respondent can be blamed for the number of charges involved. This volume arises necessarily from the number of complaints that were made which when properly investigated by the Gardai and considered by the first named respondent led to that number of charges. There was no easy way to deal with the problem resulting from the sheer volume of charges. The suggestion that these charges would be brought in stages seems to me to create a worse situation, in the sense that this approach would involve bringing the applicant before the District Court on numerous occasions with the attendant and unavoidable prospect of publicity. This approach would also result in numerous returns for trial and several indictments, which in the light of the decision of the Supreme Court in the case of Conlon -v- His Honour Judge Cyril Kelly and the D.P.P and The Honourable Mr.Justice Esmond Smyth, [200112 LL.R.M. 198, could not subsequently be joined, thus resulting in a multiplicity of trials. In my view that would impose a far greater burden on the applicant in dealing with these charges, in that he would be subjected to the huge additional cost of a multiplicity of proceedings and the much greater exposure to unfavourable media publicity.
I am satisfied that having regard to the very great difficulties of processing such a large volume of charges against the applicant that the manner in which it was done, by bringing them all together was the method, which was least burdensome to the applicant and hence I find there has been no oppression on this ground.
The applicant has two complaints under this heading. The first of these relates to the content of the statements of the complainants and is to the effect that they do not reveal by and large criminal conduct. This complaint was not pressed by Dr. White in his oral submissions and indeed a cursory examination of the statements in question reveals the absence of merit in such a contention.
The second complain is that there is no evidence of the existence of medical evidence to the effect that the conduct alleged was improper in the context of the medical examinations being conducted, at the time that the charges were brought. This complaint is derived from two sources namely a perusal of the affidavits filed in respect of which, it is submitted by Dr. White that there is no positive averment to the effect that evidence of this kind existed and secondly, entry no. 188 in part 2 of the first schedule to the affidavit of discovery sworn by Thomas J. Waldron on 8th July 1998 which reads as follows "188. Report of Prof O'Dowd re: 32 cases and copy of the C V 7`h March 1997. "
Mr. McDonagh S.C. for the respondents objects to the hearing of this claim on the grounds that it was not made in any express way on affidavit and therefore leave in respect of it was not granted. It is clear that this complaint was not raised as an express ground of complaint in the grounding affidavit, and the complaint is derived from an analysis of the affidavits filed in these proceedings in opposition and by way of discovery. That being so, it can indeed be said that it was not a matter in respect of which the Court was appraised when leave was granted, and hence in my view it was not a complaint which is open to the applicant to pursue in these proceedings.
That having been said however, I would add that it is a claim which is manifestly premature in the sense that these proceedings were brought immediately after the charges were preferred, and as a consequence of the order granting leave, the prosecution was stayed and hence the book of evidence was not served. As a consequence of that, the case which is being made by the prosecution has not been revealed. It therefore becomes pointless to speculate as to the existence or otherwise of sufficient evidence to support the charges. Specifically in this regard an extrapolation from entry no. 118 in part 2 of the second schedule to the affidavit of discovery of Thomas J. Waldron, to the effect that this evidence. does not exist is in my view entirely untenable.
Bearing in mind, the absence of any express complaint on this ground in the grounding affidavit, were it necessary for me to decide whether the affidavits filed on behalf of the respondents contained averments sufficient to satisfy me on the balance of probabilities that such evidence did exist, I would be prepared to conclude, on the balance of probabilities, that the averments contained in these affidavits pointed to the existence of that kind of evidence.
Were it open to me, or necessary for me, to determine this issue, I would be quite satisfied that the complaint made in this regard does not amount to any kind of oppression of the applicant.
As indicated in my judgment delivered on 21" April, 2001 in regard to the discovery matter, I am satisfied that there was default in the discovery process on the part of the respondents.
So much has been conceded in this hearing by Mr. McDonagh for the respondents. I am satisfied however, that such default as occurred did not amount to an abuse of the process nor was it in any way oppressive to the applicant in the conduct of these proceedings. As indicated also in my judgment of 21" April, 2001 there was default also on the part of the applicant in failing to identify the documents in respect of which privilege was claimed by the respondents, and which privilege was being challenged by the applicant, as was required to be done by an order of the High Court (Geoghegan J.) made on 28th January, 1999. Notwithstanding several affidavits bitterly complaining about the shortcomings of the respondents discovery nothing whatever was done to comply with this order. Eventually it emerged on the hearing of the final discovery application on 3`d December, 1999 that the only documents that the applicant wished to have inspection of were the statements and the report of Professor O'Dowd. The existence of these documents was known to the applicant since March 1998 in so far as the statements of the complainants were concerned, it having been disclosed in paragraph 11 of the affidavit of Thomas Waldron sworn on the 6th of March 1998, that statements were taken from 145 complainants, including the 42 in respect of which charges were brought. The report of Prof O Dowd was disclosed in the affidavit of discovery of Thomas Waldron sworn on the 8th of July 1998. Although the statements were not formally discovered until the affidavit of discovery of Kieran McCann sworn the 7th of October 1999, it is none the less surprising that the applicant in seeking further discovery did not focus on these at a much earlier time. The failure to have discovered these earlier as should have been done, did not in my view disadvantage the applicant. Ultimately, when the respondents introduced the statements in evidence in the proceedings the applicant criticised this reliance by the respondents on the statements, on the basis, that these statements had, earlier, been sworn by the respondents to be irrelevant.
What is clear at this stage is that a vast amount of documentation was discovered at the behest of unusual persistence on the part of the applicant and at the end of the day only two items were of interest to the applicant and these were known to exist since July of 1998.
I am quite satisfied that notwithstanding the admitted default of the respondents in the discovery process that this did not amount to any kind of oppression of the applicant, nor could it be said that the length of time consumed by the discovery process and the numerous adjournments involved were in any way oppressive of the applicant and indeed it can be fairly said that the prolongation of the process of discovery was in large measure attributable to the conduct of the applicant in failing to identify the documents in which they had a real interest.
The applicant also complains that the filing of 33 affidavits after the case had opened on 22nd February, 2000 which had the result of an adjournment of the hearing of grounds 2 and 3, worked as oppression on the applicant. The applicant also complains about the absence of any explanation on affidavit, for the necessity for the respondents to take this course, and specifically draws attention to the fact that the respondents in these new affidavits, put in evidence the statements of the complainants notwithstanding that they had previously sworn on affidavit that the contents of these statements were irrelevant, and that they relied upon the statements for the purposes of explaining delay. In my view, the consequence of the adjournment necessitated on 22nd February 2000 was to cause delay in the hearing of these proceedings and I will deal with that later in this judgment. Apart from causing delay, I am not satisfied that there was as a result of this adjournment any oppression of the applicant.
In the course of his submissions on the question of oppression at my invitation Dr. White defined oppression as being conduct which was unnecessary and avoidable resulting in unnecessary hardship being brought to bear, and being conduct calculated to bring pressure to bear on the applicant. He submitted that this was to operate as an objective test.
Dr. White was unable to point to any authority for this proposition and it would appear to me that both as a ground for relief, and as to its content, the concept of oppression is unknown to our law in the sense of being a separate and independent cause of action. It would of course be undoubtedly the case, that the constitutional right to fair procedures would come to the aid of a person who in the course of a prosecution was being subjected to behaviour on the part of prosecution authorities which had the effect of causing them real disadvantage in the conduct of the defence in criminal proceedings.
I am satisfied however that the specific grounds put forward by the applicant in this case, under the heading of oppression do not give rise to any such disadvantage and I am also satisfied that the specific claims of impropriety or unfair conduct
levelled by the applicant against the Gardai are unfounded in law and not supported by the evidence.
THE DELAY ISSUE
The applicant's complaints in regard to delay fall into two compartments, the first being delay or a lapse of time from the alleged commission of the offences until these were reported to the Gardai by way of formal statements and secondly the delay occurring in the investigation of the offences up to the point of the preferring of the charges on the 30th October 1997 and the delay occurring in the course of these
Judicial Review proceedings.
11. LAPSE OF TIME ON COMMISSION OF OFFENCES 2 CHARGE
12. The case made by the applicant is that there was inordinate and inexcusable delay on the part of all of the 42 complainants in reporting their complaints to the Gardai: that a delay of 30 years or more was manifestly inordinate but also short delays in the reporting of an assault including delays of up to three years or less are inordinate in the contest of an allegation of the commission of the crime of assault and require explanation. Over recent cases the first named respondent has devised a method or system for explaining delay in child sex abuse cases which consists of the filing of affidavits which expressly explain and justify the delay, and also the exhibiting of the report of a psychologist likewise to explain and justify the delay in question. In a case where the facts are similar namely S -v- DPP (judgment delivered 19th December 2000), the court was given affidavits from each of the complainants explaining delay, the reports of the psychologist on each of the complainants and also medical reports in dealing with the alleged misconduct. In stark contrast in this case none of these kind of proofs are being furnished to the court to enable it to conduct the kind of practical inquiry mandated by the judgments of the Supreme Court in cases such as PC -v- DPP, POC -v- DPP, JOC -V- DPP and S -v- DPP. Not only are the usual proofs not furnished in this case, but the first named respondent in the course of the hearing invited the court to find an explanation of delay by way of inference from the statements of the complainants notwithstanding the facts that in an affidavit of discovery sworn on 7th October 1999 by Superintendent Kieran McGann, it was sworn that contents of these statements were not relevant to the matter in question between the parties in these proceedings. Whereas in previous cases affidavits were furnished explaining delay from the complainants in this case of the 42 complainants only 21 swore affidavits verifying their statements and in none of these affidavits was there any express explanation of delay. So far as the other 21 were concerned no affidavits at all were furnished, and no explanation was given on affidavit for these departures from what has become the established method of dealing with these cases as mandated by the judgments of the Supreme Court in recent years.
As a consequence of this gross failure or omission, there is no explanation of delay in these cases and the court is left, or indeed invited to speculate as to what that explanation might be, solely by reference to the statements of the complainants which in themselves do not address the question of delay at all. In these circumstances it was submitted that the court must approach the resolution of the issues in the case on the basis that there is no explanation of delay and apply the appropriate legal principles accordingly.
Dr. White S.C. for the applicant further submitted, that the following were the appropriate legal principles which applied both to the question of lapse of time between the alleged commission of these offences and the date of the reporting of them to the Gardai and from them up to the date of trial.
1. An accused person had a right under article 38.1 of the Constitution to a trial with reasonable expedition. A necessary corollary of this right was that there rested upon a complaint the duty to report the crime within a reasonable time of the commission of the alleged offence: that charges would be laid within a reasonable time: and that the trial would proceed within a reasonable time.
2. That the aforementioned constitutional right of an accused person was a very important constitutional right and ranked as a "superior" right in the hierarchy of constitutional rights.
3. That the aforementioned constitutional right was there for the purposes of protecting a particular interest of an accused person and that interest might be characterised as including
(a) prevention of unnecessary pre trial incarceration,
(b) to minimise anxiety to an accused person and his family caused by excessively prolonged criminal proceedings,
(c) to limit defence impairment
(d) to prevent interference with the business and social life of an accused person as far as it is possible
(e) to prevent interference, as far as possible with the normal rights and liberties of an accused person
4. That the range of prejudice to an accused person was not limited merely to the risk of an unfair trial. (Cahill -v- Murphy [1994] 2 I.R. 262).
5. That a breach of the aforementioned constitutional right could occur even though no prejudice either actual or presumptive or as set out above was demonstrated (DPP -v- Byrne)[1994] 2 I.R. 236, DPP -v- Arthurs [2000] 2 ILRM 363, and DF -v- DPP (22nd February 2001).
6. As the court must engage in a balancing exercise to see if the constitutional right of the accused has been breached and the court must look at all of the circumstances (B -v- DPP [1997] 3 I.R. 140).
7. Denham J. in B -v- DPP identified 10 factors, though not an exhaustive list, which must be taken into account in achieving the correct constitutional balance. Item 9 on that list are circumstances which take the case into a special category.
8. The "protected interest" of an accused person as set out above should logically get a special importance in the balancing exercise.
9. Special importance should also be attached to evidence or the absence of evidence explaining the delay.
10. The process of achieving a balance requires a necessary substratum of evidence which is absent in this case. No inference can be drawn from the nature of the offence itself (See judgments of Keane CJ) in PC -v- DPP (1999) 2 I.R. 25 and PLC -v- DPP [2000] 3 I.R pg. 7).
11. Innocent delay is relevant because it must be added to capable delay to ascertain whether in the overall, the delay has breached the constitutional right. 12. In child sex abuse cases delay may be excused by the conduct of the accused person in exercising a dominion over the victim.
13. For the purposes of the practical inquiry necessary to determine whether delay is explained and excused the evidence of a psychologist is mandatory and that must expressly explain the delay.
14. Evidence which justifies the delay must be specific and cogent by which is meant that it must be expressly addressed to the problem of delay and contain an express explanation of each period of delay differentiating between the each period, according to the reason advanced to explain each delay, and by cogent is meant that the evidence must contain more than a mere assertion by the complainant but must contain an explanation supported by evidence which would render it more likely than not that the explanation is true.
15. This kind of practical inquiry is now mandated by judgments of the Supreme Court in cases of PC -v- DPP, PLC -v- DPP, JOC -v- the DPP and S -v- DPP and cannot be departed from unless and until the Supreme Court departs from the jurisprudence thus established in these cases.
16. The applicant in these proceedings carries the burden of proof but that burden shifts to the first named respondent where matters are in issue which are within his own knowledge or the knowledge of those he represents.
17. In the balancing exercise in this case, the first named respondent has put nothing into the scales. The applicant has put all of his protected interests as set out above.
18. The delay so far as all of the complainants was inordinate in the context of a complaint of alleged assault and create a presumptive prejudice. In the absence of any credible explanation or excuse of this delay the court must attach decisive weight to that presumptive prejudice, in the balancing exercise and as a result prohibit any further prosecution in relation to these charges.
For the respondents Mr. McDonagh S.C. makes the following submissions on the appropriate legal principles applicable to the lapse of time from the date of commission of the alleged offences until the time when the applicant was charged on 30th October 1997.
1. There was no duty resting on a victim to his or her assailant to report the crime in a particular time frame. It could not reasonably be said that the lapse of time in reporting the crime by a victim was a breach of the perpetrator's constitutional right to an expeditious trial.
2. It could not be said that the State or its relevant agencies i.e. the Garda Siochana or the first named respondent could be in breach of an accused persons right to an expeditious trial, in respect of matters that took place or didn't take place before the crime was reported. Mr McDonagh acknowledged that the initiation the prosecution in circumstances where by reason of prolonged delay prior to reporting, it was apparent that there was a real risk that the accused person would not get a fair trial by reason of lapse of time, that in that circumstance the State by the continuance of the prosecution could be said to breach the accused persons right to an expeditious trial.
3. The appropriate test to be applied when dealing with cases of lapse of time from the date of the alleged commission of the offence up to the reporting of it to the appropriate authority is that which is set out in the judgment of Denham J. in B -v- DPP at page 196 as follows:
"The test is whether there is a real risk that the applicant by reason of the delay, would not obtain a fair trial, and that the trial would be unfair as consequence of the delay. The test must be applied in the light of the circumstances of the case and of the law. "
4. Mr. McDonagh submitted that this test permeates all the subsequent decisions of the Supreme Court and is expressly reaffirmed and readapted in the unanimous decision of the Supreme Court in the case of S -v- DPP.
5. This case can be brought within the dicta of the Supreme Court in particular in the judgment of the Supreme Court in PLC -v- DPP and S -v- DPP. It was submitted that applying the test of Denham J. in B -v- DPP as repeated by McGuinness J. in S -v- DPP each case must be decided upon its own facts, having regard to whether or not by reason of delay the applicant will not get a fair trial. That is the beginning, and it was submitted that the end, of any case which the applicant can make before this court.
Mr. McDonagh draws attention to the reasoning in the American case of Barker -v- Wingo [1972] 407 U.S. 514 and its seminal influence on the recent line of authority in this jurisdiction, dealing with this type of case, and he highlights the fact that in the earlier cases which originally followed the reasoning in Barker -v- Wingo the delay involved in those cases was prosecutorial delay, rather than a lapse of time from date of commission of the alleged offence up to the reporting of the crime. He submits that the first case in which there is a judgment of the Supreme Court dealing with a lapse of time rather than a prosecutorial delay is in the judgments of the Supreme Court on the ex parte application in the case of G -v- the DPP [1994] 1 I.R. 374. From there the line of authority moved to B -v- DPP from which Mr. McDonagh submitted the appropriate test emerges in the judgment of Denham J., which has been followed since that time in relation to that kind of delay. Mr. McDonagh draws attention to the absence of discussion in the more recent cases, concerning the application of the dicta of Powell J. in Barker -v- Wingo outside of the parameters of that particular case, viz., to delay which is not prosecutorial delay.
6. He submits that recent Supreme Court decisions demonstrate that where the first named respondent can show that delay was due to psychological inhibition the trial will not be prohibited.
7. Mr. McDonagh stresses the importance of presumptive prejudice, which he submits, was the trigger mechanism, without which no inquiry in relation to delay can start. He submitted that this means delay which was of a sufficient length to give rise to a presumption of prejudice, and that this must be an ingredient in the test postulated by the Supreme Court in recent decisions. He submitted that without such recognition the contention might be made as indeed has been submitted in this case by Dr. White that a complainant owed a duty to her abuser to complain promptly and that the complainant may violate the abusers right to a speedy trial by not doing so. He submitted that the only entity that can violate the accused right of a speedy trial is the State. He submitted that the rights of a speed trial does not exist in vacuo. It depends on the assumption, that because the complainant could have come forward sooner and a long interval has elapsed since the day of the alleged offence, the accused cannot get a fair trial. But since the complainant owes no duty to the accused, if the court is satisfy that a fair trial is still possible there is still no violation of the accused's right to an expeditious trial.
8. He submitted that although the recent line of Supreme Court decisions might be interpreted the effect that delay by the State may in certain circumstances involve a violation of the right to a speedy/expeditious trial without any consideration of whether such trial would be unfair, this proposition is not supported by the US Supreme Court decision in Barker -v- Wingo. He acknowledges that delay by the State may combine with other factors to give grounds for prohibiting a trial such as where the State delays in processing a case in which there already has been a substantial lapse of time, where the accused has suffered some prejudice other than the risk of an unfair trial, such as where there has been fundamental change in his circumstances in the period of delay. He submitted that in cases covered by Barker -v- Wingo, the triggering mechanism is always delay giving rise to some element of presumptive prejudice.
9. Insofar as this case is concerned, Mr. McDonagh submitted that there was no requirement emanating from the authorities or otherwise that the respondents must adduce any particular type of evidence such as the evidence of a psychologist. The respondents had quite properly placed reliance upon the statements of the complainants and, whilst that might not have been the case in earlier part of the proceedings, thus leading to the application for leave to furnish additional affidavit, it was neither appropriate nor necessary that the respondents be required to explain or justify that change of approach.
10. The statements of the complainants are properly in evidence and the court is entitled to draw such reasonable inferences as the contents of these statements support.
11 What these statements reveal is that so far as a significant number of the complainants are concerned, the offences took place within a relatively short period of the reporting of them i.e. between 1992 and 1995. It was submitted that in relation to these the applicant would fail to get past the initial staring test of demonstrating that there was delay there, of such length as to give rise to the presumption of prejudice. 12. It was submitted that almost all of the statements in effect explained delay in the following terms, viz., that the acts which were complained of were done allegedly by the applicant in his capacity as a doctor examining and treating the complainants and that while in many instances distressed and upset by them the complainants, because of the relationship of doctor and patient did not understand that what was done was wrong or unlawful or inappropriate. The circumstances would have heightened significance for a great many of the complainants who were teenagers at the time of the alleged offences. It was submitted that these circumstances readily explain the delay in reporting.
13. It was submitted that the onus rested on the applicant to establish a point from which time ran, so far as a complaint of lapse of time is concerned. Where it was the case that the complainants were not aware that an assault had been perpetrated on them, it could not be said that there was any obligation to report, until such time as each complainant did become aware that a wrong had taken place which ought properly to be reported to the Gardai. It was submitted therefore that time did not run until each complainant became aware or should have become aware of this criminal significance of the alleged conduct of the applicant.
14. Mr. McMcDonagh submitted that should the court be concerned by the absence of any psychological report or psychiatric report supporting the view, that it was reasonable not to have reported the assault at an earlier time he commended to the court the judgment of Murray J. in POC -v- DPP at page 195 of the Law report, and he submitted that the delay in the reporting by the complaints in this case was explicable by reference to the nature of the offence, and the context of the relationship i.e. doctor and patient, in which it was alleged these offences took place.
15. He submitted that any application to restrain a trial based on delay must always have regard to the effect of that delay on the chances of a fair trial a view which he submitted was supported in the judgment of Hardiman J. PLC -v- DPP, page 119 of the report.. Mr. McDonagh submitted that the applicant has not made out any case in the evidence that he has or will suffer any specific prejudice in that any specific defence might be disadvantaged by the delay. He does not point to any particular problem, other than in a general way to his age and frailty. No case is made that he does not have, as would be expected with a medical practitioner, normal records. His case thus falls to be considered under the heading of presumptive prejudice. For many of the complainants the length of delay involved is not sufficiently long to give rise to this, and in any event in all of the cases because of the circumstances in which the offences are alleged to have occurred i.e. in the context of a doctor patient relationship, the delay is explicable and justified. Hence the applicant on the basis of the principles set out in the authorities cannot avail of any such delay to assert a breach of his constitutional right to an expeditious trial.
16. In these circumstances it necessarily follows that the trial cannot be prohibited.
DECISION ON THE ISSUE OF LAPSE OF TIME FROM THE DATE OF ADMISSION OF ALLEGED OFFENCES TO THE DATE OF REPORTING OF SAME.
The first issue which in my view necessarily arises for consideration is whether or not this case is one which is governed by the line of authority stemming from B -v- DPP through POC -v- DPP culminating in S -v- DPP i.e. whether this is a case which is to be treated as one in the special category of sex abuse cases, and if so whether the respondents are required, as was submitted by Dr. White to produce evidence of a particular kind, namely the evidence of a psychologist and evidence on affidavit from each complainant expressly addressing the issue of delay in order to establish that some kind of dominium existed or that the delay was otherwise explicable.
The case of S -v- DPP is in my view particularly helpful in approaching the difficult issues in this case. That case too concerned a medical practitioner, a consultant surgeon; the complainants in it were 11 boys in their middle to late teenage years. The difference in that case, as was pointed out by Dr. White was that the proofs which were preferred to explain delay in complaining, were the affidavits of the complainants explaining the delay, expert reports from a psychologist dealing with each complainant and explaining the delay, and also medical evidence dealing with the alleged misconduct of the applicant in that case.
I am of the view that Mr. McDonagh is correct in his submission to the effect that no particular proofs are mandated by the decisions of the Supreme Court. It is of course the fact, that in this line of cases the same type of proofs were adduced and in this case these usual proofs have not been adduced. Nevertheless, in my view that does not preclude the respondents from advancing the case they make, in regard to the explanation of the complainants for their delay in complaining. It is undoubtedly the case that the proofs offered on that issue are not of the same type as in other cases. But what the court has to do, as in all cases, is to consider the admissible evidence, to attach such weight to it as it deserves and to draw such inferences from that evidence to the court appear necessary or reasonable.
Whilst Dr. White criticised the reliance by the respondent on the statements, having in an earlier affidavit sworn their irrelevance, nevertheless the statements have been put in evidence and I must assess their contents and where appropriate draw inferences.
I am satisfied that in almost all of the statements there is an explanation for the delay in complaining. The essence of that explanation, in almost all of the statements, is to the effect that the complainants because of the doctor/patient relationship, did not comprehend that the alleged conduct of the applicant was wrong and unlawful. Many of the complainants expressed themselves as distressed and upset by that conduct, but believed or accepted that what was alleged to have been done by the complainant was appropriate, because it was done by a doctor as part of an appropriate medical examination or treatment. Many of the complainants were in their teenage years when the alleged conduct is said to have taken place and that in my view would have reinforced the impact on them, of the role of the applicant.
In my view all of the complainants except no. 33 SK, no. 26 DG no. 37 KM, no. 42 KA, no. 19 VK, no. 34 LV, no. 35 TDW, no. 11 CM, no. 23 MOC, no. 32 MM, no. 18 COB, contained material which explains delay. As said earlier the essence of the explanation is lack of comprehension as to the criminal nature of the alleged behaviour. That explanation gives rise to two potential consequences. Firstly it could be said, as was submitted by Mr. McDonagh, that because they were unaware of the fact that a crime had been committed, it could not be said that they should have reported it until such time as they did become aware that a crime in their view had been committed. Secondly these explanations, related as they are to the particular role of the applicant as a doctor can lead to a conclusion that the authority of the applicant as a doctor, was not to be doubted by the complainants and indeed was not; thus what he is alleged to have done was invested with an aura of correctness and authority, with the result that the complainants even though distressed and upset and perhaps even confused, did not have had a sense of comprehension, far less a conviction of wrongdoing which would justify taking the drastic step of reporting to the Gardai that a medical practitioner, with a high standing in the community, had perpetrated on them sexual or indecent assaults.
In my view having regard to the context in which the conduct of which the complainants complain took place, the explanations to be derived from their statements are readily understandable and acceptable to me. I take the view in respect of those complainants who not enumerated above, that their statements satisfy me, that they did not realise that the offences as alleged, had been perpetrated on them, and in all probability could not have reached such a conclusion without some outside intervention to demonstrate to them or point them to a conclusion that what was allegedly done to them was in fact a crime and not an appropriate medical intervention.
That outside intervention came, I am satisfied on the evidence, in the Autumn of 1995 with the great amount of publicity which was initially attracted by the report of the seizure of video tapes for the Cork doctor and then subsequently the identification of the applicant in the context of Circuit Court proceedings. I am quite satisfied on the evidence that this prompted the complainants to come forward and report in the form of their statements what they alleged happened to them. That does not mean of course, as was suggested by Dr. White that they must at that stage have necessarily and clearly known that what was allegedly done was in fact a criminal act. At that stage of reporting, it is clear from the statements, that their thinking had advanced to the point where there was a belief, that what was allegedly done to them was wrong. It is of course appropriate, that having gone to that state of knowledge, that they would report the alleged offences. In my view it cannot be said that they had any obligation prior to the stage where they moved from perhaps a sense of distress, to a belief that a wrongdoing had taken place, to have come forward and reported. Thus whether one looks at the explanation as being to the effect that they had not yet advanced to a sufficient stage of knowledge to justify reporting or whether they were held back from reaching that stage by the authoritative role of the applicant, hardly matters. I take the view however, that it was the relationship with the applicant, giving him the authorative role of a professional person, which was the dominant factor, because it was that relationship which obscured from them the true nature of the alleged conduct. Thus, in my view, time did no run until the Autumn of 1995, when there was an outside intervention which brought them to the stage of realising that the alleged conduct may have been criminal.
The end result is that there is an explanation for the delay which is in my view understandable and acceptable to me, so as to excuse any delay in reporting up to the point in time i.e. the Autumn of 1995 when as a result of the public controversy there was a prompting to them which had or should have had the result and did have the result of causing them to report their alleged experiences.
In my view what the authorities establish is not as is contended by Dr. White that particular proofs must be adduced but that the evidence which is put before the court either directly or by way of inference from it, explains and excuses the delay. I derive support for this approach and conclusion from the following passage in the judgment of Keane J. (as he then was) in the case of PC -v- DPP [1999] 2 IR 25 where he says as follows:
"The delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offence, but occupies a particular role in relation to him or her e.g. as parent, stepparent teacher or religious. In such cases, dominion by alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred.
"That is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crime 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 from 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. "
I am satisfied in this case, that as a matter of probability that insofar as all of the complainants except the ones listed above, are concerned, there is to be found in their statements an explanation of the delay in complaining which excuses that delay. In the S case the following conclusion was reached by McGuinness J. where she said;
"On balance I would accept that the delay of the complainants in reporting the alleged offence has been the result of the position ofpower and authority occupied by the appellant and by the continuing influence which this power and authority had over them. While this is not an exact parallel with the concept of "dominion " as described in V -v- DPP and subsequent decisions, it is in my view sufficient to bring the case into the "special category" of cases of child sexual abuse as accepted by this court. The applicant's trial on these charges ought not, therefore, be prohibited on grounds of delay alone. "
In my opinion, a similar view is warranted in this case and I would hold that this case ought also be dealt with as being in the "special category" of cases, notwithstanding the fact that indeed some of the complainants were not minors when the alleged conduct took place.
Insofar as those complainants who are enumerated above are concerned it would seem to me that notwithstanding the absence of explanations in their statements, their complaints are of such a similar nature to the other complaints that it would be artificial to treat them on a different basis merely because of the absence of material in their statement which could be said to explain the delay. I am inclined, in relation to these complainants, having regard to the great similarity between their complaints and those whose statements contain material directly relevant to the issue of delay, to conclude that I should infer that the delay in these cases is also explained by the relationship of doctor and patient with the consequent difficulty of realising that the alleged conduct was criminal in nature.
In the case of no. 33 she was 18 at the time of the alleged offence and the offence was alleged to have taken place in 1994. Because of its recent date I am satisfied that there has not been a delay of the kind which could give rise in this case
to a presumption of prejudice, and in the absence of any assertion of specific prejudice it would seem to me that this complainant, should for this reason alone be treated the same as the others. In regard to no. 26 DG, at the time of the alleged offence she was 11 to 12 years of age and the offence is alleged to have taken place in 1992. Thus in the Autumn of 1995 she was still only 15 years of age. In the first place having regard to the relatively short period of delay it cannot be said that presumptive prejudice arises and in the absence of an allegation of specific prejudice it would seem to me that the trial of the offence alleged by this complainant should not be prohibited. Applying the principles set out in the above authorities, leads in my view to the conclusion that the trial of the applicant cannot be prohibited simply because of the existence of a delay, the case falling into the "special category" . In any event, I would be inclined to the view that insofar as the complaints which allege indecent or sexual assaults from the year 1987 onwards, I would not be prepared to hold that having regard to the length of delay involved that prejudice to the applicant was to be presumed.
The applicant has not in his grounding affidavit, or by way of submission made out any case of specific prejudice in relation to the conduct of his defence. He does not say that he doesn't have adequate records or adequate recollection. The only factors he points to, are his age and his frailty. These two factors fall significantly short of satisfying me that he would be prejudiced in the conduct of his defence. In any event there is no evidence before the court of any particular problem of ill health and it is of course the case that should the applicant's physical and mental health deteriorate to the point where he is not fit to stand trial, an application to the trial judge in that regard can in due course be made. As is clear the context in which the allegations are made, is that it is alleged that assaults were perpetrated under the guise of medical examination or treatment. Insofar as the applicant would wish to assert as part of his defence that any alleged conduct, if admitted, was appropriate in the context of the medical examination or treatment in question, he is at no disadvantage in terms of calling expert medical evidence to support that case.
Finally, going back to the residual test, as mentioned earlier, I am satisfied that the applicant has so far as the lapse of time from the commission of the alleged offences to the date of the reporting of same is concerned failed to demonstrate that there is a real risk of an unfair trial.
DELAY BETWEEN THE REPORTING OF THE ALLEGED
OFFENCE AND THE CHARGES IN RESPECT OF SAME ON 30TH OCTOBER 1997.
The case which the applicant makes in regard to this is that notwithstanding the number of complaints involved, that the respondents have not in evidence pointed to any lack of resources or problem with resources, and hence that there is no excuse for the delay from the time when the said statements were assembled in late Autumn or early 1995 or early 1996, until the same were ultimately submitted to the first second named respondent together with medical evidence, and that the respondent can't excuse the delay by saying that the papers in the case were sent from one state agency to another so that each could discharge their respective roles. It was submitted, that having regard to the relatively simple nature of the allegations made, that the delay of approximately two years from the Autumn of 1995 to the date of charging was excessive and has not been adequately explained.
It would seem to me that acceptance of the complaint made by Dr. White in regard to this alleged delay would necessarily require an unreal standard of performance in dealing with cases of this kind. Without doubt this case would have presented for the Garda investigating team and indeed the first named respondent a huge burden because of the volume of initial complaint, and then the volume of formal complaint in formal statements. In addition there was added complication of it being necessary to obtain medical evidence in relation to all of these complains. In the S -v- DPP a delay of up to two and a half years was accepted as reasonable in the context of that case. I would be inclined to the view that a period of two years from the initial reporting of these complaints i.e. in late 1995 until the date of charge was not unreasonable and in that regard I am mindful of the various steps which had to be taken and of the complexity of the case as has been set out in the supplemental affidavit of retired superintendent Thomas Waldron. I am satisfied that this aspect of the applicant's complaint on delay must fail.
DELAY AND ABUSE OF PROCESS IN THE CONDUCT OF THESE JUDICIAL REVIEW PROCEEDINGS
Delay under this heading breaks down into two sections, namely the delay which occurred in the discovery process and delay resulting from the necessary adjournment of the proceedings on 22nd February 2000 because of the filing by the respondents of a considerable number of additional affidavits.
I have dealt in detail with the discovery process in my judgment of the 2"d April 2001. It is unnecessary for me therefore to rehearse again hear the history of that episode. As I said in that judgment and indeed as have been conceded in these proceedings by Mr. McDonagh, the respondents were in default during that process. However, it is held by me in my judgment of the 2nd of April 2001, that the applicant too, was in default in failing to have complied with an order of Geoghegan J. made 28`h January 1999 which directed that the applicant within two weeks, in an affidavit to be sworn by the applicant's solicitor, specify which of the documents discovered by the first named respondents in relation to the first named respondent claimed privilege was being disputed and stating the reasons for such dispute. Notwithstanding several lengthy affidavits throughout 1999 in giving them to complaints by the applicant's solicitor of the default on the part of the respondents, no attempt was made to comply with that order of Geoghegan J. Thus it was only when the matter finally came on for hearing on 3`d December 1999 that the applicant identified the documents in respect of which they were disputing the privilege claimed. By this time extensive discovery, albeit belatedly, had been made by the respondents with extensive claims for privilege.
Out of all of this documentation the applicant only wanted two classes of documents, namely the statements of the complaints and the report of the medical expert. These documents were discovered or their existence disclosed, by July of 1998 and it is hard for me to comprehend why it took a year and a half almost for the applicant's solicitor to say that these were the documents that they were interested in. In my view had the applicant adopted a somewhat more focused approach to the question of discovery that process would have been brought to an end much earlier and whilst it is undoubtedly the case that the respondents were in default in furnishing discovery, nevertheless it is now quite clear that the vast bulk of discovery that they were pressed vigorously to make, was wholly unnecessary. This of course is a very familiar tale, and is a problem which bedevils modern litigation.
I am quite satisfied that while the respondents were in delay in making discovery, that delay, in no way could be said to amount to an abuse of process. I am also satisfied that the applicant contributed substantially also to the delay in the prolongation of the discovery process. In short, therefore, a conclusion that the applicant was prejudiced by the default of the first named respondent in making discovery, is not warranted.
This brings me to the question of delay arising from the necessary adjournment of the proceedings on 22nd of February 2000 because of the filing of additional affidavits by the respondents.
Undoubtedly the respondents were at fault and were entirely to blame for that necessary adjournment. Dr. White criticises the absence of an explanation for this change of course by the respondents. In a general way that criticism might be justified, but an application was made to the court for leave to file these affidavits and that was granted. Because of that, an application was made to adjourn and that necessarily also had to be granted. Beyond dealing with those two applications, it would seem to me that it is not for this court to constitute itself as a disciplinary tribunal inquiring into the manner in which either party conducts its case. There is no doubt however that as a consequence of the default of the respondents, in this very late application to file additional affidavits, that the proceeding had to be adjourned and this resulted in time being lost. In the ordinary course of events, a short adjournment could have been arranged. However that course was not open because both sides in the proceedings wish to await the judgments of the Supreme Court in the cases of Patrick Grealis and Emmet Corbett, as these judgments would govern the outcome of the first ground in respect of which leave to apply for Judicial Review was granted.
Because of this, the case was not listed for hearing again until after the Supreme Court had delivered its judgments in May of 2001, and thereafter the matter came back before me for hearing on 1 lch January 2002.
In my view because of the unusual circumstance, of awaiting the judgments of the Supreme Court in the Grealis and Corbett cases, the default of the respondents resulting in the adjournment of the proceedings on 22nd February 2000, did not result in any significant delay in the Judicial Review proceedings which could be attributed to the default of the respondents.
In conclusion therefore I have reached the view that although there has been obvious unfortunate delay in the completion of these Judicial Review proceedings and although there has been admitted default on the part of the respondents, that default does not appear to me to have been responsible for the unusual length of time that this case has taken.
For the reasons set out above, I must refuse the reliefs sought in these proceedings.
