L (J) v DPP
|Mrs. Justice Catherine McGuinness,Keane C.J.
|06 July 2000
|2000 WJSC-SC 4389
|[S.C. No. 191 of 1999]
|06 July 2000
2000 WJSC-SC 4389
THE SUPREME COURT
L (J) V DPP UNREP GEOGHEGAN 8.6.1999 1999/15/4469
O'C (P) V DPP UNREP SUPREME 6.7.2000
CONSTITUTION ART 38.1
CONSTITUTION ART 40.3
D V DPP
HEALY, STATE V DONOGHUE
O'CONNELL, STATE V FAWSITT
C (P) V DPP
KLOPFER V NORTH CAROLINA 1967 386 US 213
SINGER, IN RE
BARKER V WINGO 1972 407 US 514
O'C (J) V DPP UNREP SUPREME 19.5.2000
HOGAN V PRESIDENT OF CIRCUIT COURT
B V DPP
M (K) (A MINOR) V DPP UNREP MORRIS 21.6.1993
DPP V DONNELLY UNREP CCA 22.2.1999 1999/7/1606
MITCHELL V DPP UNREP MCGUINNESS 20.12.1999 1999/16/4903
G V DPP
LEWIS & MULLIS "DELAYED CRIMINAL PROSECUTIONS IN CHILDHOOD SEXUAL ABUSE: ENSURING A FAIR TRIAL" 1999 115 LQR 265
BRANDON BOAKES GLASER & GREEN "RECOVERED MEMORIES OF CHILDHOOD SEXUAL ABUSE: IMPLICATIONS FOR CLINICAL PRACTICE" 172 BRITISH JOURNAL OF PSYCHIATRY' 296
CASEY & CRAVEN PSYCHIATRY & THE LAW (1999)
R V H (EF) 1994 ONT CJ LEXIS 140
FITZPATRICK V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057
NEW HAMPSHIRE V HUNGERFORD 1995 142 NH 110
Criminal law; judicial review; sexual abuse; delay; application to restrain applicant's trial because of delay which has ensued since time of alleged offences had been refused; whether real and serious risk of unfair trial.
Held: appeal allowed.
J.L. v. The D.P.P. - Supreme Court; Keane C.J., McGuinness J., Hardiman J. - 06/07/2000 -
The applicant had been charged with sexual offences which allegedly occurred in one incident committed on some date between 1979 and 1980. The applicant initiated judicial review procedures seeking to have the impending prosecution prohibited on the grounds of delay. In the High Court Geoghegan J refused the relief sought by order dated 8 June 1999 and the applicant appealed. The Supreme Court, all three judges delivering separate judgments, held that the applicant had established as a matter of probability that there was a serious danger of an unfair trial, allowed the appeal and granted the order of prohibition sought. McGuinness J was satisfied that no element of dominance could be said to have arisen between the complainant and applicant which would have inhibited the making of the complaint. Hardiman J, referring to the academic controversies surrounding the topic of "suppression of memory", was not satisfied that the case exhibited any signs of dominion and in the circumstances the applicant was entitled to the benefit of the presumption of innocence.
6th day of July 2000byKeane C.J.
The applicant is charged on three counts of rape, indecent assault and buggery of one J. O'R., a female on a date unknown between 1st June 1979 and 30th September 1980. On the 8th June 1999, the High Court (Geoghegan J.) dismissed an application on behalf of the applicant to restrain his trial because of the delay which has ensued since the time at which he is alleged to have committed the offences in question. From that decision, an appeal has now been brought to this court.
The factual background to the case is fully set out in the judgment of McGuinness J.
In an affidavit filed on behalf of the respondent, a clinical psychologist and psychotherapist, Rosaleen McElvaney, exhibited a report of an assessment carried outby her of the complainant. The report contained details of an interview between her and the complainant and psychological tests carried out by her. In her conclusions, she said:-
"Both research and clinical experience indicates that the significant majority of adults who have experienced sexual assault in childhood do not at any time make a formal complaint of the said assault. I have therefore outlined in the section "delay inreporting" both those factors which I believe inhibited J. from making a formal complaint and also those which facilitated her in doing so. The key long term effects which contributed to the delay are J.'s self-blame/guilt, her terror of the alleged perpetrator, her lack of awareness of the impact which the assault had on her psychological health and finally her psychological coping strategy of avoiding thinking/feeling about the experience."
The learned High Court judge, having referred to the applicable legal principles, said that he was satisfied on this evidence that, if the complainant's allegations were true, there were sound psychological reasons why she did not make an earlier complaint and that this would have been a result of the applicant's own alleged misconduct. He then went on to consider whether the degree to which the applicant's ability to defend himself had been impaired was such that the trial should not be allowed to proceed. He summed up his conclusion as follows:-
"I am quite satisfied however that in this case the alleged alibi is not a ground on which I should take the view that there is a serious risk of an unfair trial. First of all, although there is a persumption of innocence in relation to the applicant, he nevertheless has to discharge a certain onus ofproof in the judicial review application in order to satisfy a court that as a matter of probability there would be a serious danger of an unfair trial. It is very easy to invent a dead or lost alibi. I am not impressed by the bald statement in the affidavit that he has been unable to trace "Paddy and Evelyn""to fully substantiate hisdefence". No details whatsoever are given of any attempt to locate these people and I have no reason to believe that any attempt was in fact made. I think that I must balance against this bald allegation the evidence that the applicant moved into a particular house with a particular given address on or about 7th March, 1979. That should be very easily corroborated at least, if not absolutely provable, by title documents and possibly other documentary evidence. I must also take into account that the applicant admits that he lived in a caravan in the site alleged and that the only dispute about this is whether he had moved out at the time of the offence. I should also take into account that the address he allegedly moved into was very close to the site where the caravan allegedly was. I think a jury will be well capable of sorting all this out and I cannot see that there is any risk of an unfairtrial."
"It is true that even by the standard to some of these recent cases, the alleged offences in this case have been committed a very long time ago. Nevertheless, I think that on the principles enunciated by the Supreme Court and for the reasons which I have indicated, I should not prevent the trial going ahead and I accordingly refuse judicialreview."
The principles of law applicable to cases of this nature have been set out so often and in such detail that it is unnecessary for me to set them out again. In a judgmentwhich I have delivered this morning in a case of P.O'C. .v. The Director of Public Prosecutions & Anor., I have also set out the considerations which, in my view, should be taken into account by a court which is asked to restrain a trial, not merely on the ground that there has been a significant delay between the alleged offence and the time of the complaint, but on the ground that prejudice of a specific nature has arisen giving rise to a real and serious risk of an unfairtrial.
Applying those principles to the present case, I am satisfied that the learned High Court judge was correct in treating this as a case in which what would otherwise be an inordinate and inexcusable delay was explicable having regard to the uncontradicted evidence of the psychologist. However, it is also a case presenting two special features which are not typically present in cases of alleged child sexual abuse where the court is asked to restrain a prosecution initiated long after the offences are alleged to have been committed. In the first place, the complaint relates to one incident only. In the second place, as in P.O'C., the applicant has placed before the court material which he says demonstrates that he would have been in a position to put before the court of trial a defence - i.e. that he was no longer living in the caravan at the time of the alleged offence - which is not now available to him because of the passage of time. I would agree with the view of the learned High Court judge that a mere bald assertion is not enough to satisfy the onus which undoubtedly rests on the applicant of establishing as a matter of probability that there is a real and serious risk of an unfair trial. I would, with respect, however, differ from his view that the applicant has failed to discharge the onus in this case. The applicant has stated on oath that he moved from the mobile home to a specified address at least three months prior to the date of the alleged rape. The respondent has not sought to challenge that evidence by either serving notice tocross-examine the applicant on his averment or by instituting inquires of their own and making the results available to the court. Nor is it particularly surprising that, some 25 years later, the applicant cannot give any further details of the persons to whom he says he delivered the mobile home. Given the presumption of innocence to which, at this stage of the enquiry, the applicant is entitled, I am satisfied that he has discharged the onus which rested on him of establishing as a matter of probability that there is a real and serious risk of an unfair trial which cannot be avoided by the giving of directions or rulings by the trial judge.
As I have said in the judgment which I delivered in P.O'C., it is profoundly unfortunate, from the point of view both of the complainant and the applicant, that the veracity...
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