C.D v DPP

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 09 March 2005
• Neutral Citation: [2005] IEHC 112
• Docket Number: [Record No. 762JR/2003]
• Court: High Court
• Date: 09 March 2005

[2005] IEHC 112

THE HIGH COURT

[Record No. 762JR/2003]

C.D v DPP

JUDICIAL REVIEW

BETWEEN

C. D.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Abstract:

Criminal law - Delay - Sexual offences - Lapse of time of 20 and 34 years - Presumption that ability to defend compromised - Whether presumption displaced - Whether applicant unable to obtain fair trial

The applicant sought an order restraining prosecution by the respondent of offences of rape and indecent assault made against him on foot of complaints by his niece and indecent assault and attempted buggery by his nephew. The complaints of the niece were made some twenty years after the latest of the offences alleged and those of the nephew some thirty four years afterwards.

Held by O’Sullivan J. in making an order prohibiting the respondent from proceeding further with the prosecution of the charges that referred to the nephew and refusing the application in respect of the allegations made by the niece that the lapse of time in both cases was sufficiently lengthy to raise a presumption that the applicant’s ability to defend himself had been compromised. However, in the case of the niece, by a statement of admission, the applicant had demonstrated a capacity to recall and deal with the events as alleged by the niece and so the presumption was displaced.

Reporter: R.W.

O'Sullivan J.

1 The applicant seeks an order restraining prosecution by the respondent of offences of rape and indecent assault made against him on foot of complaints by his niece and indecent assault and attempted buggary by his nephew. A third complainant, now living in Australia, made similar allegations but does not wish to proceed with the charges and anolle prosequi will be entered in respect of those.

2 The complaints of his niece P.D. are alleged to have occurred between June 1971 and December 1981, when she was aged between four and fourteen, while those made by J.D. are alleged to have occurred between January 1963 and December 1967, when he was aged between six and a half and ten and a half. The applicant was aged between twenty nine and thirty nine when P.D.'s complaints allegedly occurred and between twenty one and twenty five when those of J.D. allegedly occurred. All these ages are approximate.

3 P.D. complained to the Gardaí on 21st March, 2001, that is some twenty years after the latest of the offences she alleges. J.D. complained on 13th July, 2001, that is some thirty four years after of the later of the two offences alleged by him.

4 The applicant was charged on 16th September, 2002 and again on 18th November, 2002, having been interviewed in respect of P.D.'s complaint on 28th March, 2001, and J.D.'s complaint on 19th July, 2001.

5 The main ground of complaint now made by the applicant is that his trial will be prejudiced by reason of the elapse of time between the dates of the alleged offences and the dates on which formal complaint was made. No specific prejudice is alleged. He also relies on prosecutorial delay.

6 The applicant has made a cautioned statement on 28th March, 2001, admitting a long sequence of sexual misbehaviour against P.D. generally speaking such as she herself describes in her complaint. The same is true in a further cautioned statement made by him on 19th July, 2001, in relation to the complaint made against him by J.D. with the qualification that whereas there is only one complaint, namely indecent assault, the statement appears to refer to many more. On the basis of this statement there is a charge of attempted buggery of J.D..

7 The applicant has sworn two affidavits in these proceedings but neither suggests that he is or will be contesting these statements in any way.

8 In his principal affidavit the applicants says:

"I say that the delay in the commencement of these proceedings is inordinate. I have not contributed to the delay. I say that my defence of these charges will be prejudiced as a result of the excessive delay that has arisen."

9 There is no reliance on any specific prejudice.

10 The respondent, however, alleges that the applicant "contributed" to the delay insofar as an affidavit has been sworn on its behalf by a clinical psychologist, Paul Gilligan, who has examined both complainants and offered an opinion in the case of P.D. that her delay in reporting the alleged offences was due to the fact that the alleged abuse had a lasting psychological impact on her and has contributed significantly to her reluctance to report the abuse. On the contrary, in the case of J.D. his delay in reporting the alleged assault was due to the fact that it had no lasting effect upon him and that in this context his delay in reporting was reasonable and understandable.

11 I will return in a little more detail to this topic shortly.

12 Unquestionably the delay in making a complaint to the Gardaí in this case of some twenty years in the case of P.D. and in excess of thirty four years in the case of J.D. are such that the courts will look very carefully at any suggestion that the applicant is unlikely to get a fair trial.

13 During the hearing, I asked counsel whether they could point to any one case where a court had stopped a trial merely on the grounds of a long delay and without any suggestion of prejudice other than delay. No such case was turned up.

14 I will, however, return to this topic in more detail at the end of this judgment.

15 Whilst there aredicta to the effect that the court has jurisdiction to stop a trial merely on the grounds of a long delay it does appear that the paramount question always is whether it can be shown as a matter of probability that an applicant is unlikely to get a fair trial. Accordingly, at this point in my enquiry, I do not think it correct to state that the applicant will be automatically entitled to an order stopping the trial unless the delay or part of the period of delay can be "laid at his door" to use the phrase of his own counsel.

16 Paul Gilligan, psychologist, interviewed P.D. on 11th and 12th of May, 2004, at the request of the respondent. He gave the opinion already referred to. In a report exhibited to his affidavit he points out that the key factors influencing the impact on P.D. of the alleged abuse were the type and duration (over a twelve year period), her age at the time (between four and sixteen), the age difference between her and the applicant (some twenty five years), his relationship as her uncle in a position of authority and trust, and the ongoing contact with her family (he frequently slept in her home and was part of the extended family circle).

17 He gave his opinion that the immediate impact on P.D. was to make her a quiet, confused and frightened child who first did not realise this was wrong and accepted it as normal, and later began to realise it was wrong but was too afraid to stop the accused and was worried she would be blamed and punished if she told anybody, and later still she became more frightened because of his threats that if she told anybody she would be "put into care where worse things would happen to her".

18 The delayed and current impact included depression, anger, insecurity, feelings of shame and an inability to trust, she becomes tearful, melancholy and sad with negative thoughts, her depression being made worse because many members of the extended family did not believe her allegations and felt she had brought shame on the family. This made her angry and she takes it out on her husband who however understands how to deal with her: he is one of the few people whom she trusts and she is "very lucky to have such a supportive husband" and "does not deserve him". He is the only person she really trusts in her life but constantly needs reassurance from him. She has been hospitalised three or four times for depression.

19 Both she and her husband are the prime carers of her son who has been diagnosed with Asperger's Syndrome Attention Deficit and Hyperactive Disorder. This presents her husband and herself with many challenges.

20 With regard to her delay in reporting, Mr. Gilligan says she did not disclose the abuse to anybody at first because she did not realise it was wrong and later because she was afraid she would be blamed, punished or put into care. Also, she felt she was to blame. Later she felt disclosure would bring shame on her family and "destroy" her parents and given the applicant's close relationship to her father, she felt she would not be believed. She did promise herself, however, that she would disclose the abuse "if ever a female grandchild was born into the family".

21 She did in fact disclose the alleged abuse first to her husband shortly after she met him and then to a cousin in 1991 who came back from Australia and revealed that he did not like the applicant. Seven years later, in 1998, she disclosed it to her brother-in-law because she believed the applicant was spending a lot of time around his house where he had contact with children. Some three years later, in 2001, she disclosed it to her parents in an angry outburst. Although they were "devastated", they were extremely supportive and then she decided to report the matter to the Gardaí which she did some days later. This has alienated her from many of her extended family.

22 Mr. Gilligan in his report endorses these reasons as the reasons which in his opinion explains why P.D. did not disclose the alleged abuse. He also says that the applicant was in a position of dominance in regard to P.D. and gave his conclusion that in his opinion "the assessment indicates that the alleged incidents of abuse have had a lasting psychological impact on Ms. D. and have contributed significantly to her reluctance to report the alleged abuse. It is my opinion that Ms. D.'s delay in reporting the alleged incidents of abuse is reasonable and understandable."

23 Mr. Aylmer S.C. for the applicant...