H (T) v His Honour Judge Anthony Kennedy and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 22 October 2004
• Neutral Citation: [2004] IEHC 347
• Docket Number: [2001 No. 628 JR]
• Court: High Court
• Date: 22 October 2004

[2004] IEHC 347

THE HIGH COURT

[2001 No. 628 JR]

[2004] IEHC 347

H (T) v JUDGE KENNEDY & DPP

JUDICIAL REVIEW

BETWEEN

T.H.

APPLICANT

AND

HIS HONOUR JUDGE ANTHONY KENNEDY AND THE DPP

RESPONDENTS

DPP v FOX UNREP SCC 23.1.2002

O'C (J) v DPP 2000 3 IR 478

O'C (P) v DPP 2000 3 IR 87

L (J) v DPP 2000 3 IR 122B v DPP 1997 3 IR 140

BARKER v WINGO 1972 407 US 514

DALY v EDINBURGH CORPORATION 1953 SLT 54

W (A) v DPP UNREP KEARNS 23.11.2001 2001/24/6472

C (F) v DPP UNREP ABBOTT 7.3.2003

M (T) v DPP UNREP KELLY 20.6.2001 2003/34/8151

F (M) v DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

L (P) v DPP UNREP HERBERT 16/4/2002 2002/15/3585

Abstract:

Judicial review - Prohibition - Delay - Whether or not the abuse may have caused or created a disability of such a degree as to prevent the complainant from bringing forward a complaint - Whether the delay in complaining created a real risk of an unfair trial for the applicant.

The applicant sought by way of judicial review an injunction or and order of prohibition preventing the respondent from further prosecuting the applicant in respect of eight counts of indecent assault on a male complainant which were alleged to have occurred some 31 or 32 years previous. The applicant contended that he suffered such a degree of prejudice in consequence of the delay that there existed an unavoidable risk of an unfair trial and an infringement of his constitutional right to a fair trial.

Held by Kearns J. in granting the relief sought:

1. That the complainant failed to explain the delay in complaining. There was no psychological evaluation or assessment of the complainant in this case. Obvious leads were not followed up by the Clinical Psychologist, and only a very brief period of time was allocated to the task of explaining the complainant’s delay in complaining. The complainant’s own account of his reasons for not coming forward was not in any way adequate to discharge the onus of proof to explain delay.

2. That the applicant suffered a degree of prejudice as a result of the delay. Specifically, there were inconsistencies of recollection. Some of the potential witnesses had died in the meantime or were untraceable or unidentifiable.

Reporter: L.O’S.

JUDGMENT of

Mr. Justice Kearns

1 delivered 22nd October, 2004.

2 By order of the High Court (O'Donovan J.) made on 24^thSeptember, 2001 leave was given to the applicant to seek by way of judicial review certain reliefs, including an injunction or order of prohibition to prevent the respondent from further prosecuting the applicant in respect of eight counts of indecent assault on a male complainant which are alleged to have occurred between January, 1967 and December, 1968 at a time when the applicant was a teacher in a national school in the midlands in which the complainant was a pupil.

3 The complainant is one of three former pupils of the same school who made complaints of indecent assault against the applicant between 1997and 1999. However, all of the charges in respect of one of the complainants were withdrawn on 27^th June, 2001, on which date the applicant was returned for trial in respect of the alleged offences involving this complainant. During the course of these judicial review proceedings, the Director of Public Prosecutions elected not to show cause in respect of the third complainant. Thus, the only charges which remain against the applicant are those in respect of T.H.

4 The grounds relied upon in bringing the present application are those of delay in bringing forward any complaint, the same having been first made only on 13^th May, 1999, some 31 or 32 years after the alleged events. The applicant further contends that he has suffered such a degree of prejudice in consequence of this delay that there is now an unavoidable risk of an unfair trial and an infringement of his constitutional right to a fair trial. No issue of prosecutorial delay arises on the facts of the present case.

5 The complainant was born on 9^th June, 1960 and was aged between 6 and 8 years at the time of the alleged offences. The applicant is a married man with three children who has been a teacher all his life. He commenced teaching in 1964 and is still teaching at the present time, although he is currently on leave of absence as a result of the bringing forward of these charges in February, 2000. The applicant has at all times strenuously denied the allegations of the complainant.

6 In his affidavit, the complainant deposes that when he was a pupil in a class taught by the applicant, the applicant would ask a boy to come to the top of the class. He would then seat the boy on his knee while the boy looked at, or read from, a book. The applicant states that on occasions when he was asked to sit on the applicant's knee the applicant would put his hand down the complainant's trousers and fondle his penis and private parts. He would also rub his face off the complainant's face and had what the complainant now knows to be an erection. These incidents occurred on a regular basis, according to the complainant, perhaps twice a week, for the first school term when the complainant was in second class. After Christmas, however, the complainant states that the applicant turned his attention to others in the class and eased up on him. Thereafter, the incidents occurred perhaps twice a month until the complainant ceased to be a pupil of the applicant in the summer of 1968. The complainant further asserts that on one occasion, when the complainant was asked to clean the tea room, the applicant followed him into that room and felt his private parts until interrupted when someone came into the room whereupon the complainant was let go.

7 By way of explanation for his failure to bring forward any complaint at an earlier stage, the complainant accepts that he did not inform anyone about these incidents, other than on one occasion when an incident occurred in the school yard in which the school principal saw the complainant make a pulling gesture with his hand and asked the complainant where he had seen that gesture before. The complainant alleges that he told the principal that the applicant had done that to him and to other boys, whereupon the complainant alleges he got a sharp box on the head from the principal which sent him flying to the ground. He further alleges that the principal then told him never again to mention to anyone that one of the brothers would do such a thing.

8 Because of this, the complainant says he did not mention the assaults to his parents or siblings, or even his wife following his marriage. He continued in school until July, 1972 and had no contact with the applicant following that time. In his young adult life, the applicant began to drink heavily and lost a number of jobs. He also became divorced from his wife. He attended counselling for five years, initially due to his addiction problems, but after he made allegations against the applicant he has attended the same counsellor for help and support in relation to the alleged assaults that occurred while he was in primary school. His brother had also reported abuse in 1997 against another teacher in the school, but the complainant did not then follow suit, his explanation being that he felt too ashamed to come forward at that point since he felt that if he had reported his own sexual abuse at an earlier stage, the abuse of others, including his own brother, might have been avoided. However, when he saw the R.T.E. programme "States of Fear", he then felt able to come forward and made a written complaint to the Gardaí on 13^th May, 1999, together with further statements on 16^th September, 1999 and 18^thNovember, 2001.

9 In his statement, the complainant says that the incidents in the classroom took place in full view of all the pupils. He also says he was taught by the applicant in second class in 1967–68.

10 In his affidavit, the applicant states that due to lapse of time he cannot be certain if he ever taught the complainant in second class. His solicitor had spoken to another pupil who believed he was in second class with the complainant and that they had had a different teacher from the applicant. Enquiries into the school records for the relevant years do not indicate the name of the particular teacher for second class in 1967-68. The applicant further deposes that only seven statements were taken from pupils in the particular class, whereas, 39 other pupils were approached all of whom declined to make statements. He further states the classroom in which he taught was closest to the staff room and that every teacher had to pass his room en route to the staff room. There was a glass window in the door of the classroom so that anyone passing outside could look in and see what was going on. His desk was opposite this window in plain view of any person who might look through the pane of glass in the door of the classroom.

11 The applicant further deposes that the principal mentioned by the complainant has no recollection of any complaint made to him by the complainant. The former principal is now 84-85 years of age. Other members of the teaching staff are now either dead, have emigrated, or are unidentifiable or untraceable.

12 The applicant further deposes that there were at that time unannounced visits from school inspectors to whom complaints of any sexual abuse could easily have been made. Furthermore, any experienced school inspector would have very quickly noticed a dysfunctional class if activities of the type alleged by the complainant were taking place. However, all attempts to obtain reports from the school inspectors from that time had failed and the Department of Education had not been able to turn up any records.

13 The applicant further deposes that as such a great...