John Moloney v Michael Kelleher
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] IEHC 358 |
| Court | High Court |
| Date | 17 July 2014 |
[2014] IEHC 358
THE HIGH COURT
BETWEEN
AND
I (I) v J (J) UNREP HOGAN 5.7.2012 2012/18/5024 2012 IEHC 327
TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248
TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140 1990/8/2334
MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004 29 6876 2004 IEHC 316
R (J) v MIN FOR JUSTICE & ORS 2007 2 IR 748 2006/49/10426 2007 IESC 7
MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27
O'DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593
RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121
PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287
MCH (J) v M (J) & ORS 2004 3 IR 385 2004/35/8084 2004 IEHC 112
O'C (J) v DPP 2000 3 IR 478 2000/13/5164
K (P) v DEIGNAN & ORS 2009 4 IR 39 2008/31/6814 2008 IEHC 407
Criminal Law – Sexual Abuse – Delay – Interests of Justice – Prejudice
Facts: The respondent sought an order to strike out the plaintiff”s claim pursuant to the inherent jurisdiction of the Court for two reasons; firstly, inordinate delay and/ or inexcusable delay and secondly, in the interests of justice. This case involved historical allegations of sexual abuse. The plaintiff alleged that he was sexually abused between 1965 and 1970 when he was 7 to 11 years old and serving as an altar boy. The plaintiff alleges that his abuser was a member of the Order. In 1993 the plaintiff complained to a priest in the Redemptorist Monastery about the sexual abuse he had experienced as a child. The plaintiff was contacted some time later to attend two meetings to discuss the incidents with three other priests. On the last meeting the plaintiff alleges he was informed that his alleged abuser had been found innocent of all of the allegations. The plaintiff said the way his complaint had been handled by the Order left him feeling humiliated and rejected. In 2010 the plaintiff made a formal complaint to the Gardaí. Both parties agreed that there had been significant delay from the time the abuse occurred in 1965 until a formal complaint had been made in 2010. It was for the court to decide whether the delay was excusable in the circumstances.
Held by Kearns P: The court acknowledged that survivors of sexual abuse experience extreme psychological trauma and are often fearful when deciding whether or not to make a complaint. The court considered the impact of the alleged sexual abuse on the plaintiff as set out in his personal injuries summons in addition to the report of a consultant psychiatrist. In these circumstances courts afforded considerable leeway to complainants who initiated proceedings years after the alleged incidents occurred. As a result, the court was satisfied that the first period of delay in this case was excusable. The court also excused the second period of delay from 1993 to 2010. The court accepted that the plaintiff was fearful of rejection and the humiliation of not being believed because of the way the defendant handled the complaint in 1993. The alleged abuser passed away in 1997 meaning there was no witness to directly challenge the plaintiff”s version of events. Also, there was a lack of relevant documentary evidence and it was unlikely that an indirect witness would be identified, and even if they were, their recollection of events would be unreliable. The court decided that the delay resulted in substantial prejudice to the defendant. For these reasons the court dismissed the case in the interests of justice.
JUDGMENT of Kearns P. delivered on the 17th day of July, 2014
By notice of motion dated 25 th November 2013 the respondent seeks an order striking out the plaintiff's claim pursuant to the inherent jurisdiction of the Court on grounds of inordinate delay and/or inordinate and inexcusable delay in the commencement or prosecution of these proceedings. Further, or in the alternative, an order is sough striking out the plaintiff's claim pursuant to the inherent jurisdiction of the Court in the interests of justice.
Between the years of 1965 and 1970, when the plaintiff was 7 to 11 years old, he served as an alter boy with the Redemptorist Order at Sexton Street, Limerick. The plaintiff alleges that during the course of his service as an alter boy, a member of the Order, Brother Martin Carey (known also as Brother Majella) sexually assaulted and sexually abused him regularly and continuously. Particulars of the alleged assaults are set out in the plaintiff's personal injuries summons. The plaintiff also alleges that he was sexually abused by two teachers at the Christian Brothers School, Limerick between 1965 and 1968 and this complaint is the subject of separate proceedings. The plaintiff submits that as a result of the repeated and continuous sexual abuse which he allegedly endured he had a very troubled childhood and adolescence and a markedly abnormal personal development, the consequences of which are ongoing. The personal injuries summons outlines how the plaintiff lived in constant fear and in dread of the abuse; how his education and learning ability suffered; and that he developed a habit of self harm and became depressed. When the plaintiff was 21 years old he took an overdose of medication and cut his own wrists in an attempted suicide. The plaintiff developed a problem with alcohol abuse for a period of about two years. He developed conflicts about being physically touched and the personal injuries summons outlines the damaging effect these issues had on the plaintiff's marriage, which broke up in 1999, and another subsequent long term relationship. To this day the plaintiff contends that he suffers from extremely low self-esteem and has severe difficulty with relationships.
In 1993/1994 the plaintiff attended a therapist named Ms. Anne O'Neill. Shortly after commencing these therapy sessions the applicant, apparently without any planning or discussion, walked into the Redemptorist Monastery in Limerick in November or December 1993 and told the priest at reception that he wished to make a complaint of sexual abuse against a brother in the Order. His contact details were taken and some days later he was contacted by a Father Tony Flannery and a meeting was arranged. This meeting took place shortly thereafter and was attended by the plaintiff, Fr. Flannery and two other priests. The plaintiff outlined the allegations of abuse in detail and answered all questions which were put to him. A record of this meeting states that the plaintiff alleged that there were four instances of abuse, two of which took place while on an excursion to a nearby beach led by Brother Majella, and another which occurred in the parlour of the monastery. It is noted that the fourth incident is alleged to have taken place in the sacristy but the plaintiff did not go into detail in relation to this incident.
Some weeks later another meeting was arranged, this time in Jury's Hotel, Limerick, and was attended by the plaintiff and the same three priests. This meeting lasted approximately ten minutes. The applicant states that he was informed that Brother Majella had been confronted with the allegations and had firmly denied them. Brother Majella had been sent for assessment at the Our Lady of Victory 'Stroud Institute', a residential treatment centre for priests with certain addictions, and the plaintiff states that the three priests informed him that this assessment found that Brother Majella was innocent of all of the allegations against him. According to the plaintiff the priests offered to provide two therapy sessions but stressed that this was out of a pastoral concern rather than an acceptance of any form of liability.
The plaintiff states that following this meeting and in light of the manner in which his complaint had been handled by the Order, he was left feeling humiliated and rejected. He says that he felt let down and was profoundly shocked and upset that he had been disbelieved. His suicidal thoughts and feelings of depression were exacerbated and he began drinking heavily. His therapy sessions with Ms. O'Neill ceased abruptly as he was no longer able to abide by a 'non-self harm undertaking' he had given her. In the summer of 1994 he attended an Alcoholics Anonymous meeting and continued to do so for a period of two years. While the plaintiff says that this allowed him to get some aspects of normality back into his life, he states that he continues to experience the same feelings of despair and depression and that, owing to a fear of rejection, he was completely incapable of making another complaint until 2010. In 2008 the plaintiff informed his then solicitor of the abuse but did not feel capable of making a formal complaint at that time. According to the replies to particulars, the plaintiff attended a psychotherapist for approximately one year commencing in 2002 and again for one year in 2007. He attended a psychotherapist for three years between 2008 and 2011 and attended Dr. Tessa Neville and Dr. Patricia Noone, both consultant psychiatrists, in September and December 2011 respectively.
In January 2010 the plaintiff made a formal complaint to the Gardaí and, following authorisation by the Personal Injuries Assessment Board on 2 nd December 2011, the personal injuries summons in these proceedings issued on 26 th April 2012
The plaintiff accepts that the delay in issuing proceedings is undoubtedly inordinate. The alleged offences occurred more than 40 years ago while a complaint was not made to An Garda Síochána until 2010 and the plenary summons in these proceedings issued in 2012. However, it is submitted that...
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