T.F. v DPP and His Honour Judge Harvey Kenny

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 18 January 2005
• Neutral Citation: [2005] IEHC 31
• Court: High Court
• Docket Number: [No. 153 JR/2003]
• Date: 18 January 2005

[2005] IEHC 31

THE HIGH COURT

[No. 153 JR/2003]

T.F. -v- DPP and His Honour Judge Harvey Kenny

JUDICIAL REVIEW

BETWEEN

T. F.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE HARVEY KENNY

RESPONDENT

Abstract:

Judicial review - Delay - Prohibition - Whether the delay by the complainant was such as to warrant the prohibition of the applicant’s trial.

The applicant sought by way of an application for judicial review an order of prohibition restraining the respondents from proceeding further with the prosecution of the applicant in respect of charges of indecent assault on the grounds that there was a delay of fourteen years between the alleged commission of the first offence and the date a formal complaint was made. Furthermore there was a delay of three and half years between the date when the complaint was made and the date the applicant was returned for trial.

Held by Quirke J. in granting the relief sought: That no explanation was provided to account for the delay on the part of the complainant in reporting the offences. In the circumstances the applicant’s constitutionally protected right to a trial with reasonable expedition was breached by the delay of the complainant in reporting the offences. That breach of the applicant’s right was not vitiated by conduct attributable to the applicant. Accordingly the applicant would suffer presumptive prejudice in his capacity to defend himself.

Reporter: L.O’S.

Mr. Justice Quirke

1 By order of the High Court (O'Neill J.) dated the 24th March, 2003, the applicant was granted leave to apply by way of Judicial Review for an order of prohibition restraining the respondents from proceeding further with the prosecution of the applicant in respect of certain criminal charges which have been preferred against him.

2 The applicant was also granted leave to seek additional declaratory and other ancillary reliefs against the respondents including an order pursuant to the provisions of O. 84 r. 21 of the Rules of the Superior Courts extending the time within which the application for the reliefs sought by the applicant may be made.

FACTUAL BACKGROUND

3 1. The applicant who is a retired health care worker has been charged with indecently assaulting one M.H. on five unidentified dates between the 13th May, 1984, and the 14th December, 1988.

4 The offences are alleged to have been committed at four different locations in the county of Galway, namely Spiddal, Aran Islands, Moycullen, and A. House, B.

5 2. M.H., due to family circumstances was placed in the care of the Western Health Board in 1981 and was transferred to a Residential Care Home in Galway City in 1983 when he was approximately 12 years old. The applicant was then a member of the staff of the care home which was run by the Sisters of Mercy.

6 It is alleged that the applicant was a"key worker" responsible for a group of children of whom M.H. was one.

7 The offences with which the applicant has been charged were allegedly committed during camping trips to Spiddal and to the Aran Islands and thereafter in Moycullen and in a Care Home (which was separated into two buildings called respectively A. House and L. House).

8 3. On 21st April, 1998, M.H. who was then 27 years old made a statement of complaint to the Gardaí in respect of the alleged offences.

9 4. Just over twelve months later on 7th May, 1999, the applicant was arrested and was questioned by the Gardaí in relation to the facts which have given rise to the charges.

10 5. Just over two years later on 11th June, 2001, the applicant was charged with the commission of the offences concerned. He appeared before the District Court in Galway on 4th July, 2001, and was remanded on one or two occasions before being returned for trial in the Circuit Court in Galway on 8th October, 2001.

11 6. The case came before the Circuit Court in Galway on 4th December, 2001 and on a number of subsequent occasions but was adjourned from time to time before it was finally listed for trial on 28th January, 2003.

12 On that date the case was adjournedinter alia because M.H. was not in court. Evidence was adduced during the course of these proceedings indicating that due to a failure in communications M.H. had been unaware that the trial was to proceed on that day.

13 7. On 24th March, 2003, the applicant was granted leave to seek the reliefs which have been sought herein.

14 8. The statement of complaint made by M.H. to the Gardaí indicated inter alia that one or more of the offences occurred at the applicant's home in Shantalla. It was alleged that on those specific occasions the applicant had prepared lunch for M.H.. Thereafter the applicant invited him upstairs. The offences were allegedly committed within the applicant's bedroom.

15 M.H. 's statement indicated that at the time of the commission of the offences the applicant's grandmother was confined (by reason of her health) to the ground floor of her house.

16 9. The applicant's grandmother M.E.L. died on 28th November, 1993. The applicant, in evidence, averred that she was not confined to the ground floor of her house at the material times. He said that she was healthy and fit until approximately four or five months before she died in 1993 (the offences are alleged to have occurred between 1984 and 1988). He claims that had the complaints been made by M.H. within a reasonable time after their alleged commission his grandmother would have been available to testify at his trial and could have confirmed her state of health and physical capacity at material times.

17 10. In his statement of complaint M.H. also indicated that one or more of the offences occurred whilst he occupied a double sleeping bag with the applicant. It is alleged that the sleeping-bag had been joined together at the applicant's suggestion by fastening the zips of the two bags. The applicant, in evidence averred that the sleeping bag which he used on the camping trips was larger than the sleeping bags used by the children within his care. He said that the bags could not have been joined by fastening zips in the manner alleged by M.H..

18 The applicant stated in evidence that the larger sleeping bag which he used is no longer available to him and he cannot now corroborate this fact.

19 11. In his statement of complaint M.H. further alleged that on one occasion whilst he was bathing in A. House he saw the applicant looking through a window at him. He said that on another occasion the applicant offered to pay a substantial sum towards the cost of the purchase of a motorcycle.

20 The applicant claims that enquiries directed towards establishing that it would have been impossible for him to see anyone bathing in A. House have been frustrated. The applicant has changed his account and now says that the incident occurred at a location (in L. House) other than was first alleged.

21 The applicant says that he is further prejudiced by the fact that he is not in a position to establish where the motorcycles used by both men were purchased.

22 12. Mr. Eamonn Murphy who is a senior clinical psychologist in the Galway Family Services Institute consulted with M.H. (at the request of the first named respondent), on three occasions, namely 14th March, 2004, 17th March, 2004 and 20th March, 2004. Arising out of those consultations he prepared a psychological report which was adduced in evidence in these proceedings. Mr. Murphy was not cross-examined on behalf of the applicant.

23 13. In his report Mr. Murphy outlined M.H. 's history from the time when he first went into care. The report dealt principally and in particular with the allegations made against the applicant.

24 Under the heading"Delay in Reporting Abuse" Mr. Murphy described in general the reasons why children may be abused but powerless to report the abuse. He concluded:

"Victims of abuse will also often delay reporting the matter because of difficulty in trusting anyone. Victims generally want to “forget” what happened to them and frequently disclose the abuse almost accidentally when, for instance, they go for professional help or for some other reason. In this case Mr. F. was suspended from work only when management at B., almost accidentally and indirectly got information about his alleged sexual abuse of children in his care."

25 This information, whilst helpful and informative in a general sense, was of no assistance to the court by way of explanation as to why M.H. between 1988 and 1998 appears to have taken no steps to complain of the abuse now complained of.

26 Under the heading"Psychological Profile of Mr. H" Mr. Murphy indicated that he could:

"find no evidence of mental instability in this man. He has to date received no treatment for the effects of sexual abuse but has now asked me to deal with this matter…he seemed a hard working practical man well organised in this daily life and there is no history of delusions or psychiatric illness…"

27 He went on to deal with the question of M.H. 's credibility and of his insecurity and vulnerability during childhood. However it was not suggested by Mr. Murphy that the applicant had influenced or exercised dominion over M.H. at any time between the end of 1988 and the date of complaint in 1998. Accordingly, no explanation was offered which would account for the delay on the part of M.H. in reporting the offences between 1988 and 1998.

28 Under the heading"Opportunity" Mr. Murphy expressed his opinion on what was contained in the book of evidence. He observed that:

"It is, in my opinion, only in recent times that victims had the means to report sexual abuse while it was taking place. Especially for those committed to care in past decades there does not seem to be any evidence of procedures being in place to report the abuse. This would certainly be true in the case of Mr. H. In that sense he would be typical of most...