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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O. (E.) v. D.P.P. [2005] IEHC 32 (20 January 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H32.html Cite as: [2005] IEHC 32 |
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Neutral Citation No: [2005] IEHC 32
THE HIGH COURT
[2002 No. 648 J.R.]
BETWEEN
E.O.
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
EX-TEMPORE JUDGMENT of the Honourable Mr. Justice Quirke delivered the 20th day of January, 2005.
By order of the High Court, (Carroll J.), dated 21st October, 2002, the applicant was given leave to seek relief by way of judicial review including an order prohibiting the respondent from embarking upon the trial of the applicant on an indictment containing 25 counts alleging indecent assault on various dates between the first day of October, 1982 and the 31st January, 1987.
The applicant was also given leave to seek an order prohibiting the respondent from taking any further steps in the prosecution of the applicant in respect of the alleged offences.
FACTUAL BACKGROUND
The facts which are relevant in these proceedings are as follows:
"In relation to the statement I made…on 25.03.95 about being sexually abused by my neighbour, E. O., I do not want the Gardaí to investigate this matter. I have decided I want to go through counselling and get on with my schoolwork. I don't feel that I am ready to have this matter investigated and I have discussed this with my mother and my father knows nothing about it. I am absolutely certain I do not want to go through with this."
After various court appearances the applicant was returned for trial to Clonmel Circuit Court on 13th November, 2001.
(a) a friend M.N. in March, 1994,
(b) another friend I.McD. in November 1994,
(c) a teacher C.A. shortly after the disclosure to I.McD.
(d) a cousin of J.G. called A.B.
In September, 1998, J.G. went to New Zealand. She returned to this jurisdiction in February of 1999.
She again assessed J.G. on 28th June, 2003, by way of a full interview.
Dr. Byrne- Lynch was of the opinion that J.G.'s description of:
"…the events of the abuse and its concealment and her subsequent reaction on disclosure is consistent with patterns observed in victims of child sexual abuse, where a disclosure which necessitates the allowing of the events of the abuse which have been largely repressed into consciousness, causes a severe psychological reaction in the victim and disrupts a tenuous psychological stability. In addition it is difficult to deal with the aspect of public scrutiny of what were private and shameful events. At the time of her second statement, (J.G)… was likely to be in a better position to deal with the rigours of legal proceedings."
She continued inter alia in her second report:
"It is common for abuse to be repressed into the teenage years until the child's developing sexual knowledge provides a context and a vocabulary for dealing with this experience. In relation to the second period of disclosure the allowing of the experiences of abuse which have been repressed into consciousness is often associated with a severe period of disruption of psychological stability. Adolescence is in any event often a difficult period of adjustment with regard to issues of sexuality and relationships and the disclosure during this period was therefore compounded by the adjustment issues of adolescence. The experience of abuse as experienced was shameful by …(J.G.)…and the public disclosure of the abuse therefore was extremely difficult. In these kind of circumstances it is not unusual for the victim of abuse to feel unable to proceed as occurred in this instance and indeed delaying proceedings in this way has meant that she is now more resilient psychologically and is likely to be better able to cope with stressful proceedings."
She agreed with Mr. Christle that during the assessment of J.G she was unaware and was not made aware that J.G. had been subjected to physical abuse by her father in her home and that this abuse was systematic until 1994.
Dr. Byrne-Lynch took the view that this psychical abuse, if disclosed to her, would not have had an impact upon her conclusions.
She was of the opinion that the abuse "…didn't detract" from the difficulty in disclosing the abuse – it added to it. She indicated that the victims of physical abuse are generally vulnerable by nature and indicated that it was a "sad fact" that children who are subjected to physical abuse are doubly at risk. They have less familial support and therefore they are less inclined to report the abuse.
He said that he had concluded inter alia that J.G.:
"…provided him with a history of both the alleged sexual abuse and the psychical beatings which she received from her father."
Dr. Cuddihy saw J.G. the following day at Kilkenny College where he tried to speak with her in confidence but she was reluctant to talk to him. He said she "did not appear suicidal…" at that time but he kept her under close observation.
When cross-examined Dr. Cuddihy indicated that he had been aware when he examined J.G. that she had been the subject of physical abuse at home which ended in 1994.
Initially in January of 1997, Dr. Butler saw J.G. on five occasions for treatment.
Subsequently when J.G. returned from New Zealand she began to attend him regularly and he treated her on 22 occasions between 24th January, 2000 and 22nd February, 2001.
Dr. Butler concluded inter alia that J.G.
"…has been unwilling and unable to address the issues specific to her alleged sexual abuse. This is not uncommon. She comes from a troubled background and, apart from the alleged sexual abuse, has other issues to contend with. Her account of the events described above and her approach to addressing them is consistent with someone who has been for a combination of factors including disgust, embellishment, shame, guilt and feelings of responsibility is unable to approach them until more preparatory therapeutic work is complete. Indeed my impression is that. ..(J.G…) finds therapy a very difficult proposition and is often torn between the need to have her issues addressed and the need to push them entirely from her mind."
He went on to conclude that:
A " clinical marker" for trauma of the type sustained by J.G arising from the sexual abuse is "avoidance" and he described the condition of "…approach/avoidance dynamic …" which he described as "a well known result of this type of abuse". He said that the victims feel the need to speak to someone about the abuse and having spoken about it then to withdraw from any help that is offered. He concluded that J.G. was still "very much embroiled in" this "…approach/avoidance dynamic."
He said that this condition was not specific to adult victims of child sexual abuse but was characteristic to such victims.
He stated that J.G. was referred for counselling on 4th March, 1996 and attended five sessions which concluded on 21st October, 1996.
He indicated that most of his discussion related to J.G.'s domestic violence at the hands of her father. He said that she indicated that she wished to talk about her sexual abuse at some time but found it difficult to discuss this topic and consequently avoided it.
THE LAW
The general principles of law which apply to applications to prohibit, on grounds of delay, the prosecution of offences of a sexual nature allegedly committed against children (and reported only after very substantial periods of time) are now well settled. They have been stated by the courts within this jurisdiction on countless occasions and are to be found in such cases as Barker v. Wingo 407 U.S. 514 [1972], B v. Director of Public Prosecutions [1997] 3 I.R 140, P.C. v DPP [1999] 2 IR 25, PO'C v. Director of Public Prosecutions [2000] 3 I.R. 87, J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122, and JO'C v. Director of Public Prosecutions [2000] 3 I.R. 478 and many others. It is accordingly unnecessary to restate them herein.
THE APPLICANT'S CLAIM
It is not contended that the applicant has suffered specifically identifiable prejudice of the kind which, by itself, would give rise to an order prohibiting his trial. What has been contended is that the applicant has suffered presumptive prejudice which is unavoidable by virtue of the passage of time and which has occurred between the date when these offences were allegedly committed and the date of the applicant's return for trial on 13th November, 2001.
The applicant claims that his constitutionally protected right to a trial with reasonable expedition has been violated in two respects that is:
1. By delay on the part of the complainant J.G. in making a complaint to
the prosecuting authorities in relation to the offences of which she complains.
Mr. Christle, on behalf of the applicant, concedes that, having regard to the fact that J.G was a child of very tender years and that the applicant was a mature adult throughout the whole of the period during which the offences are alleged to have occurred, he cannot argue that no reasonable explanation has been provided for the failure by J.G. to report the incidents complained of until March of 1994.
That is so because, accepting the veracity of J.G.'s complaints, which, for the purposes of investigating a pre-complaint delay, this court is obliged to do, her failure to report the incidents complained of while she was a child was referable to the conduct of the applicant.
Mr. Christle however agues, that, on the evidence, J.G. reported the alleged abuse to other parties (notably friends and acquaintances) as early as March 1994 and he says that between March 1994 and the 5th March, 1999 J.G was guilty of excessive and inordinate delay in reporting the incident. He says that she was not inhibited in any respect during that period by any other factor and that her failure to report was not referable to any conduct on the part of the applicant.
Accordingly he says that the period of approximately five years between 1994 and March, 1999, which J.G. allowed to elapse before reporting the incidents, comprises delay of a character which gives rise to a violation of the applicant's right to a trial with reasonable expedition and
2. The applicant further claims that the prosecuting authorities
were guilty of inordinate and excessive delay by allowing a period of two years and eight months to elapse between the date when J.G. made her second complaint in respect of the offences and the date when the applicant was returned for trial.
It is contended that this delay was of a character which, of itself, is of such gravity as to give rise to an order prohibiting the trial of the applicant in respect of the offences concerned.
On behalf of the State it is contended:
- that there was neither pre-complaint delay on the part of
J.G .nor prosecutorial delay on the part of the State in this case and
- That the applicant has failed to seek the relief which has been
sought herein either "promptly" or within the period of three months limited by O. 84 r. 21 of the Rules of the Superior Courts It is argued that the court should not extend the time limited by O. 84 r. 21 within which the relief may be granted and that no "good and sufficient reason" has been advanced on behalf of the applicant as to why the time limited by the rule should be extended.
PRE-COMPLAINT DELAY
A period of approximately five years elapsed between March, 1994, when J.G. first reported the abuse alleged to a friend (M.N.) and 5th March, 1999, when she made a written statement to the gardaí outlining the details of the complaints.
It is argued on behalf of the applicant that between 1994 and 1999 the applicant exercised no "dominion" over J.G. and that accordingly the delay on the part of J.G. in reporting in 1994 (and 1995) could not be ascribed to any conduct on the part of the applicant.
I do not accept that contention.
At the time of the alleged offences J.G. was a child between five and nine years old and the applicant was a mature adult man. Accordingly the relationship came within the category of relationships identified by Keane J. (as he then was) in the case of P.C. v. Director of Public Prosecutions. Accepting, as I do for the purposes of this exercise, the veracity of the complaints made by J.G. then it follows that the failure on the part of J.G. to report the incidents between the date of their alleged commission and March of 1994 was referable to the conduct of the applicant. That is not disputed on behalf of the applicant.
Accordingly the issue which this court is required to determine is whether, in the circumstances of this case, any "inaction" on the part of J.G. between March, 1994 and November, 1999 can be rendered "explicable" within the meaning ascribed to that term within P.C. v. Director of Public Prosecutions.
In other words the court is required to determine whether a reasonable, convincing explanation exists which would justify the failure of J.G. to report the alleged abuse between March, 1994 and March, 1999.
The principle underlying this inquiry is that the applicant may not reasonably complain that his constitutionally protected right to a trial with reasonable expedition has been violated if that violation was caused by his own conduct.
It is conceded that the delay on the part of J.G. in reporting the matter between 1982/87 and 1994 (or 1995) was referable to the conduct alleged on the part of the applicant.
This court is required to determine whether the further delay of five years between March, 1994 and March, 1999, was also caused by the effect upon the J.G. of the conduct alleged on the part of the applicant.
Again accepting, as I must, the veracity of the complaints of J.G. (for the purposes of the exercise in which the court is engaged) I am satisfied that the delay on the part of J.G. in reporting the incidents which occurred between March of 1994 and March of 1999 was in fact referable to the conduct which forms of the basis of the charges which have been preferred against the applicant.
I am satisfied on the evidence of Dr. Byrne-Lynch and Dr. Eamonn Butler (and I should say that I accept the testimony of both of the witnesses without qualification) that between March 1994 and March 1999, J.G. could not reasonably have been expected to make a complaint in respect of the offences alleged against the applicant or to pursue the complaint which she made and then retracted in March and May of 1995.
In particular I accept the evidence of Dr. Byrne-Lynch which indicated that J.G. was likely to have suffered "a severe psychological reaction…" which disrupted J.G.'s psychological stability.
I accept also the evidence adduced by Dr. Byrne-Lynch indicating that she was not surprised that J.G. had withdrawn in May of 1995, the complaint which she had made in March of the same year. She indicated that this formal complaint activated painful memories which intruded into the consciousness of the complainant.
This diagnosis by Dr. Byrne-Lynch is quite consistent with the finding of Dr. Eamonn Butler. I think it is of considerable significance that Dr. Butler's relationship with J.G. was that of treating psycho-therapist and it is in that capacity that he assessed her and treated her on some 27 occasions.
I accept his evidence that J.G. suffered from "approach/avoidance dynamic" and that J.G. is still "very much embroiled in..." this condition.
I also am satisfied on the evidence of Dr. Byrne-Lynch and Dr. Butler that the domestic violence endured by J.G. at the hands of her father was not a significant factor in the delay by J.G. in reporting the abuse between 1994 and 1999.
On the evidence J.G. had been subjected to this domestic violence by her father at all material times before during and after the offences complained of.
I accept the evidence of Dr. Byrne-Lynch that she was therefore a person who was "doubly vulnerable" in respect of the conduct alleged on the part of the applicant.
I also accept the evidence of Dr. Butler that the domestic violence "…never presented as a salient presenting issue…" in the treatment which J.G. required.
The sexual abuse was the presenting issue which required to be treated by Dr. Butler.
It follows from what I have found that I am satisfied that a valid reasonable and convincing explanation has been provided by way of evidence which justified the delay between March 1994 and March 1999, on the part of J.G. in reporting the offences to the prosecuting authorities.
It has been established on the evidence and on the balance of probabilities that the primary cause of that delay was the psychological condition of J.G. during the period in question.
That condition, in turn, was referable to the earlier conduct alleged on the part of the applicant.
Accordingly there was no pre-complaint on the part of J.G. in reporting the offences and no breach, on that ground, of the applicant's constitutionally protected right to an expeditious trial. That is so because the breach complained of was caused by the applicant's alleged conduct.
PROSECUTORIAL DELAY
As I have indicated earlier I am satisfied
(a) that the period of five months which elapsed between the 17th December, 1999, and 30th May, 2000, when the file was sent to the respondent by Garda Tierney was not excessive in the circumstances and certainly was not delay of the type identified by Geoghegan J. in P.P. v. Director of Public Prosecutions as argued by Mr. Christle S.C. and
(b) that there was no excessive delay on the part of the respondent in prosecuting the applicant between the date of his arrest and charge on 14th December, 2000 and the date of his return for trial on 13th November, 2001.
Mr Christle has not argued for any prosecutorial delay other than these two periods of time.
I am satisfied on the evidence that the nature of the investigation and the need for care and precision warranted the steps which, on the evidence were taken.
It follows that I do not accept that there was prosecutorial delay on the part of the respondent and there certainly was not delay of the kind to which I have earlier referred which has been identified by Geoghegan J. in P.P.
ORDER 84 RULE 21
Order 84 rule 21 of the Rules of the Superior Courts provides as follows:
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose, or six months, where the relief sought is certiorari, unless the Court considers that there is a good reason to extend the period within which the application shall be made."
In this case the applicant was returned for trial to Clonmel Circuit Court on 13th November, 2001.
Accordingly the "grounds for the application" within the meaning ascribed to that term within O. 84 r. 21 first arose on 13th November, 2001.
The applicant did not seek liberty to seek the relief which has been sought herein until 21st October, 2002 which is almost twelve months after the date upon which the grounds first arose.
Accordingly, Mr. O'Malley on behalf of the respondent contends that the applicant is barred by the provisions of O. 84 r. 21 from seeking the relief which he seeks and he further contends that no "good and sufficient reason" has been advanced on behalf of the applicant which would warrant or, indeed, empower this court to exercise the discretion vested in it by the order to extend the period within which the application may be made.
Mr. Christle, on behalf of the applicant points to the averments of the applicant's solicitor Mr. Thomas J. Kelly to the effect that in November of 2001 he felt that a psychiatric assessment of the applicant was required in the latter's interest. Accordingly the applicant was examined by Mr. Patrick Ryan clinical psychologist and by Mr. Don Lydon who apparently is a psychiatrist.
However at paragraph 7 of his affidavit sworn on the 17th October, 2002, Mr. Kelly continued that:
"…I received a report from Mr. Patrick Ryan clinical psychologist by letter dated 24th March, 2002. From the content of the aforesaid report, I say and believe that I was satisfied that the applicant was fit to stand trial and that he fully understood the offences with which he was charged. I say that I have not yet received a report form Mr. Lyndon, this being due to the fact that Mr. Lydon has been out of work due to illness for a considerable period of time."
No evidence was adduced indicating that a report from Mr. Lydon ever became available to the applicant or if his solicitor sought such a report from Mr. Lydon or, if so, when such a report became available.
Furthermore neither the applicant nor his solicitor has adduced evidence indicating an intention on the part of the applicant to seek the relief which has been sought in these proceedings at any particular point in time. In particular neither the applicant nor his solicitor has averred in evidence that the psychiatric or psychological assessment of the applicant at the end of 2001 and the beginning of 2002 was a factor which influenced any decision on the part of the applicant to seek (or fail to seek), the relief which has been sought in these proceedings or that it inhibited in any way the application which has now been made in these proceedings on behalf of the applicant.
It follows from what I have just found that I am not satisfied that the applicant has provided a good and sufficient reason to this court which would warrant or justify this court exercising its discretion to extend the time limited by O. 84 r. 21 within which the applicant is obliged to seek the relief which has been sought in these proceedings.
I am satisfied on the authorities that before reaching a final decision on the exercise of its discretion to grant or refuse an extension of the time limited by O. 84
r. 21 in applications such as this it is necessary for the court to consider whether an extension of time should be granted "in the interests of justice" if there is a bona fide risk that the applicant, on the evidence, will not receive a fair trial "…in due course of law" as guaranteed by Bunreacht na hÉireann.
However, since it is not contended on behalf of the applicant that he has suffered specific identifiable prejudice by reason of a delay complained of and since I have also found that there has been neither pre-complaint delay on the part of J.G. nor prosecutorial delay on the part of the State I am satisfied that an extension of the time limited by O. 84 r. 21 is not required "…in the interests of justice" for the reasons which I have just set out.
Accordingly, whilst no formal application was made to this court on behalf of the applicant to extend the time limited by O. 84 in which the application may be made I am inferring such an application but declining to grant any extension of time on the grounds that no good or sufficient reason has been provided by or on behalf of the applicant which would warrant an extension of time.
It follows that the relief sought on behalf of the applicant must be declined.
Approved: Quirke J.
