O'H (M) v DPP
| Jurisdiction | Ireland |
| Judge | O'Sullivan J. |
| Judgment Date | 25 March 1999 |
| Neutral Citation | [1999] IEHC 143 |
| Court | High Court |
| Date | 25 March 1999 |
[1999] IEHC 143
THE HIGH COURT
BETWEEN
AND
Citations:
OFFENCES AGAINST THE PERSON ACT 1861 S62
D V DPP 1994 2 IR 465
Z V DPP 1994 2 IR 496
B V DPP 1997 2 ILRM 118
HOGAN V PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513
G V DPP 1994 1 IR 374
C V DPP UNREP DENHAM 28.5.1998
ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE PARA 12–47 (1997)
WARD V SPECIAL CRIMINAL COURT 1998 2 ILRM 493
DALLISON V CAFFREY 1964 2 AER 610
Synopsis
Criminal Law
Judicial review; allegations of sexual abuse; delay; sexual abuse allegedly occurred from 1981–1987; complainant informed boyfriend of abuse in 1989; formal complaint to gardaí in 1995; certain evidence not verified by affidavit; applicant seeking order of prohibition or injunction preventing continuance of criminal proceedings and order of mandamus directing respondent to furnish reports and records of complainant's psychiatrist; whether court can have regard to material in Book of Evidence where the statement containing the material is not verified by affidavit; whether applicant was in a dominant position over complainant; whether dominion and its after-effects explained delay in reporting alleged abuse to Gardaí; whether applicant has established a real and unavoidable risk of an unfair trial; whether order should be made directing respondent to procure complainant's psychiatrist's reports and to furnish copies thereof to applicant Held: Order of prohibition and injunction refused; order of mandamus granted directing respondent to procure psychiatrist's reports and to furnish copies thereof to applicant O'H v. DPP - High Court: O'Sullivan J. - 25/03/1999
The applicant has failed to establish that the passage of time in this case since the dates of the alleged abuse has resulted in a real and unavoidable risk of an unfair trial. However, the applicant was entitled as a matter of fairness to have access to the psychiatric reports compiled in relation to the complainant and which a member of the Gardai has been authorised to procure. The High Court so held in refusing to make an order of prohibition.
O'Sullivan J. delivered the 25th day of March 1999
The Applicant is seeking an Order of Prohibition, or alternatively an injunction, restraining the Respondent from taking any further steps in criminal proceedings against him: secondly, he seeks an Order of Mandamus directing the Respondent to furnish reports and records of the complainant's psychiatrist.
The first relief is sought on the grounds of delay and the second on the grounds of fair procedures.
| Count One: | Indecent assault on a date unknown; Between 31st July. 1981 and 3rd August, 1982 at a confessional box in the Franciscan Church Lawrence Street, Drogheda, Co. Louth; |
| Count Two: | Between 31st July, 1981 and 3rd, August 1982 in a room at the Franciscan Church as aforesaid; |
| Count Three: | Indecent assault between 31st July, 1981 and 3rd August, 1982 in the room aforesaid after the occasion specified in Count 2; |
| Count Four: | Indecent assault contrary to section 62 of the Offences Against the Persons Act, 1861 on a date unknown between 1st January, 1982 and 31st December, 1982 at Ballypark, Drogheda, Co. Louth; |
| Count Five: | Indecent assault contrary to section 62 as aforesaid on a date unknown between 31st December, 1982 and 31st December, 1983 at Ballypark aforesaid; |
| Count Six: | Indecent assault contrary to section 62 as aforesaid on a date unknown between 30th April, 1982 and 31st October, 1982 at Termonfeckin, Drogheda, Co. Louth; |
| Count Seven: | Indecent assault contrary to section 62 as aforesaid between 30th April, 1982 and 31st October, 1982 at Termonfeckin, being other than the date specified in Count 6; |
| Count Eight: | Indecent assault contrary to section 62 as aforesaid on a date unknown between 30th April, 1987 and 31st December, 1987 at Gormanstown College, Drogheda, Co. Louth; |
| Count Nine: | Indecent assault contrary to section 2 of the Offences Against the Persons Act, 1861 between 30th April, 1987 and 31st December, 1987 at Gormanstown College, Drogheda, Co. Louth. |
As will be seen from the above, the first seven counts relate to a period ending in 1982 and the last two relate to a period between April 1987 and December 1987. Counts two and three relate to a room at the Franciscan Church, Lawrence Street, Drogheda.
This case was heard on Affidavit only there being no original oral evidence or cross-examination.
The Complainant has supported her statement with an Affidavit. She is a woman who has now turned her 31st birthday having been born on 3rd August, 1967. The Applicant is a Franciscan priest now aged some 62 years having been born on 29th January, 1937.
The Complainant is one of four children, two sisters and two brothers, who lived with her parents and siblings at 6, Ballypark, Drogheda until she was 21 years of age when she went to live with her then boyfriend Francis Condra. She is the eldest of the family. She had a reasonably happy young childhood and attended school until the age of 15 but at that point she had to leave because of bad concentration and disruptive behaviour. This was related to alcohol abuse. She had developed the alcohol problem from around the age of 13 soon after the first alleged sexual abuse by the Applicant.
The Complainant says that when she was 13 years old she was attending at Saint Oliver's School and had joined the choir at the Franciscan Church in Laurence Street. She used to sing at the 12 o'clock mass each Sunday and the Applicant used to say the mass. They met after mass on one occasion and the following week she went to confession to the Applicant. He recognised her and asked her how things were. She talked about her father's drinking, got upset, and he took her around the screen, put her sitting on his knee and started to embrace and kiss her. He then locked the door and abused her sexually. She told him it was wrong but he said "it's o.k. but don't tell anybody". She was about a half an hour in the room. He told her to say ten Hail Mary's as her penance.
After this incident she started drinking and drank continuously every weekend thereafter. Further alleged sexual abuses occurred in a room situated at the front of the Friary. She was terrified of the Applicant. She never told anybody about these incidents. This abuse continued periodically until she left the choir when she was fifteen years old. She left because of what the Applicant was doing to her. Her drinking became worse. He always took her to the front room and locked the door. Other priests often knocked on the door if they needed something from the room: the Applicant always had the door locked.
The Applicant, according to the Complainant, started calling around to the family home and her parents thought he was great: so jolly and outgoing. They thought he was keeping her on the "straight and narrow" and became friendly with him. She was having serious problems at school. The Applicant started calling around to the house on Saturday evenings when her parents would be out. Here again he abused her and this went on in the house until she was seventeen years old. She did not tell her parents who thought a lot of the Applicant. During this period the Applicant would take her swimming to Termonfeckin during the summertime and there again he abused her at a quiet part of the beach. There was never anybody around the dunes.
The abuse stopped for a while when the Applicant had to go to hospital for open-heart surgery and the Complainant did not see him for some months. Later she got a phone call from the Applicant who was recuperating in Gormanstown College and asked her to visit him. She went with her father who left for work. He asked her to go swimming with him and explained he had to swim as part of his recuperation. He showed her around the College and then took her to the swimming pool where they both went for a swim. He tried to have intercourse with her in the swimming pool but she pushed him away and left the pool. In 1989 when she was approximately 21 she had a nervous breakdown. She had a drink problem and a skin disorder. She also suffered from anorexia. In July 1994 she was treated for cylomatic disorder.
She told her boyfriend, Francis Condra in 1989 when he questioned her that she had been abused but did not mention the Applicant's name at this stage. He suggested she report the matter but she was unwilling to do so but eventually she reported it to the Franciscan Friars in April 1995 but only after her boyfriend had first reported it to them. A week later there was a meeting with the Applicant and she says that Father Troy told her the Applicant had admitted abusing her. Later he said the same thing to her in the presence of her counsellor. Fr. Loman, another Franciscan offered to pay for her counselling and other treatment that was necessary. Subsequently, she decided to take legal advice from Solicitors in Dublin who advised her to report the abuse to the Garda Siochana. She did so in 1995.
As a result of a television programme on child abuse she recalled a specific incident of abuse by the Applicant while she was kneeling at a mass being said by the Applicant at which she had read the readings. The Complainant says that on the day after she first divulged to her then boyfriend, Francis Condra that she had been abused, she had a nervous breakdown as a result of disclosing this to him. She was given Valium to calm her down and was later treated for depression. Between 1989 when she first divulged her abuse to Francis Condra and 1994, she discussed it with him and he was pressurising her to report the abuse to the Guards. She was not...
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