R.B. v DPP

• Jurisdiction: Ireland
• Judge: Mrs. Justice Macken
• Judgment Date: 21 December 2004
• Neutral Citation: [2004] IEHC 424
• Court: High Court
• Date: 21 December 2004

[2004] IEHC 424

THE HIGH COURT

[Record No. 185 JR/2002]

R.B. v. D.P.P.

JUDICIAL REVIEW

BETWEEN

R. B.

APPLICANT

-AND-

DIRECTOR OF PUBLIC PROSECUTIONS DISTRICT JUSTICE WILLIAM HAMILL

RESPONDENT

Abstract:

Judicial review - Indecent assault - Delay - Whether as a result of the abuse of the complainants, its consequences and effects on them were such as to prevent them from being able to make complaints to the authorities earlier than they did.

The applicant was charged in 2001 with several counts of indecent assault arising out of incidents, which allegedly occurred as far back as 1973. The applicant sought by way of an application for judicial review an injunction restraining the first named respondent from pursing the prosecution of the applicant on foot of an indictment and further an order of certiorari quashing the order of the second named respondent returning the applicant, as accused, for trial on all of the charges contained in the book of evidence regarding the aforementioned prosecution by reason of the delay by the complainants in reporting the matter and prosecutorial delay. The applicant relied on two specific examples of prejudice, specifically it was alleged that a witness to whom an allegation of abuse was made by one of the complainants was deceased and further that he was unable to gather evidence as to specific day to day activities carried on in the school and as to whether those activities would have placed him or the complainants in the place where the offences are alleged to have occurred.

Held by Macken J. in refusing the relief sought:

1. That the applicant failed to make out a case of specific prejudice arising from the absence of the witness or the evidence of the day to day activities carried on in the school, due to the delay in complaining.

2. That the applicant did exercise dominion over the complainants. However this was not a case of continuing dominion. The delays in complaining were explicable as being due to the traumatic consequences of the sexual abuse, which the complainants suffered and therefore may properly and correctly be attributable to the conduct of the applicant.

3. That it was not demonstrated that the capacity of the accused to defend himself at trial would or was likely to be impaired by reason of the delay of the complainants and the prosecution. The delay in this case was lengthy but it was not so long as to prohibit the trial on the basis of presumed prejudice.

Reporter: L.O'S.

1 Mrs. Justice Macken delivered on the 21st day of December, 2004

2 This is a case in which the applicant seeks, in judicial review proceedings, certain Orders against the respondents, arising out of allegations of sexual abuse which are the subject of criminal proceedings commenced by the first named respondent and at present before the second named respondent.

3 On 15 ^th April, 2003, McKechnie, J. gave leave to the applicant to apply by way of judicial review for (i) an injunction restraining the first named respondent from pursuing the prosecution of the applicant on foot of an indictment namely "The People (at the suit of the Director of Public Prosecutions) against R. B.rdquo; and (ii) for an Order of Certiorari quashing the Order of the second named respondent made on 9 ^th November, 2001 returning the applicant, as accused, for trial on all of the charges contained in the Book of Evidence arising from the aforesaid prosecution.

4 The factual background to the case is reasonably straightforward. The applicant is a man of 69 years who, in the relevant period, was a priest at a school for boys in Leinster run by the Order of which he was member, in Leinster.

5 He was charged in 2001, on indictment, with several counts of indecent assault against four complainants, all of whom were at the time students of the school, contrary to S. 62 of the Offences Against the Persons Act, 1861.

6 The complaints made to the Gardai by the four complainants were made in the late 1990s and concern allegations of sexual abuse on several dates in the period from early 1973 to mid 1981. The several charges are all in identical terms, six in respect of one complainant, four in respect of another, and one in respect of each of the two others. By the date of this judgment the events are between 23 and 31 years old.

7 The circumstances surrounding the alleged commission of the offences against each of the complainants are very similar. All were students at a school at which the applicant was, among other things, their spiritual counsellor and sex education advisor. The alleged abuses occurred, for the most part, in the applicant's room when no one else was present, and in the school sports complex, and commenced at a time when the complainants were about 12 or 13, continuing in the case of some of them until they were about 16 and 17, depending on the particularities of each complainant's case.

8 It will be helpful if I set out a short synopsis of what each of the complainants say. According to the statements made by the first complainant, he went as a boarder to the school in question at aged 12 in the month of September, 1974. He was part of a class of about 30 boys and very shortly thereafter the applicant introduced himself saying that any of the boys could talk to him about anything at any time, that he was very keen on sport and that he ran the sports shop. The captains of teams, who would be chosen to serve his Masses, would be called to his rooms in the evenings to discuss how they got on.

9 This complainant says that the applicant touched him in a sexual way on the very first occasion on which he was called to his rooms, and that this continued over a lengthy period of time as the relationship between him and the applicant became more intense. This complainant says he looked up to the applicant as his spiritual and moral advisor and although confused initially, he came to trust him, but later invented ways to avoid being called by the applicant, including giving up sports and pretending to have illnesses, even illnesses requiring hospital treatment. The intensity of the sexual abuse became more marked over time with the applicant insisting on a mutual relationship of a sexual nature which the complainant said he could not avoid and which continued for several years. He estimated that between 1977 and the end of 1978 there were approximately 40 occasions on which these incidents occurred, and overall about 100 such events.

10 The other complainants gave accounts of a similar nature. In the case of the second complainant, the events are alleged to have occurred between September, 1980 when this complainant first attended the school, and mid 1981. He was a day boy, but there was a study period after formal schooling finished and day boys did not leave the school until 7.15 p.m.. He said that all first year students attended the applicant for sex education classes. He says he too was called to the applicant's rooms from study period, and that all the abuse, save on a few occasions, took place there, the other occasions being in the sports complex. This complainant stated that initially the applicant touched him sexually, but this changed at some time to a forced mutually sexual relationship between them. He believed he had more than twenty such encounters between September, 1980 and mid 1981.

11 The third complainant was also a border at the school, arriving in September, 1972, and he repeats a story similar to those above, namely being called to the rooms of the applicant, the applicant touching him sexually and an increase in the intensity of the sexual contact, which lasted until the end of his first school year.

12 In the case of the fourth complainant, he went to the school in 1974 when he was about twelve. He spoke of similar experiences to those of the others, of the sexual abuse commencing very early and continuing over a period of time, of it finishing at a particular point, and of being ill and in the school infirmary as a result.

13 All complainants say they were in thrall of the applicant and/or felt unable to do anything about his behaviour, for reasons which are considered further in this judgment, save the third complainant who did tell his mother, who in turn complained to the school and shortly thereafter the abuse did cease against that complainant.

14 The applicant seeks to restrain further steps being taken in the criminal proceedings on the basis of the delay involved in the matter. His complaint relates to three specific periods of time, namely (a) the period between the dates of the alleged offences and the dates on the which the complaints were made to the Gardai, (b) in so far as concerns the first complainant the period between 1995 and 1998 when the complaints were in fact made, and (c) prosecutorial delay between 1998 and 2001 when he was actually charged. In all three periods he says that the time which elapsed was unreasonable and was in breach of his legal and constitutional right to a speedy trial. In the case of the first period, he alleges that the lapse of time between the date of commission of the alleged offences and the date of trial is now so segregated as to give rise to an unavoidable presumption of prejudice against the applicant.

15 There was a further complaint raised originally in the proceedings on behalf of the applicant which concerned the question of a preliminary investigation, pursuant to Section 2 of the Criminal Justice Act 1999, and on the consequences flowing from Section 23 of the said Act. Counsel on behalf of the applicant indicated during the course of his opening of the case before me that this aspect of the judicial review proceedings would not trouble the Court as it was now accepted by the Respondents that such preliminary investigation would, if the trial...