W -v- DPP, [2004] IESC 48 (2004)

Docket Number:106/02
Party Name:W, DPP
Judge:Murray C.J.

THE SUPREME COURTMurray C.J.Fennelly J.McCracken J.106/02T.W.Appellant / Applicant-v-The Director of Public Prosecutions RespondentJudgment of Murray C.J. delivered on the 28th day of July, 2004The appellant in these proceedings is the subject of two separate prosecutions brought against him for the alleged commission in the 1970's of sexual offences against two brothers when they were young boys. Each of them was unaware that the other had been the subject of sexual abuse by the appellant until matters came to light in recent times. In the first prosecution the appellant is charged with one offence of buggery and a series of offences of indecent assault alleged to have been committed against the complainant (hereafter the first complainant) between the 1st January, 1970 and the 9th January, 1972. The second prosecution concerns a series of indecent assaults alleged to have been committed by the appellant against the complainant, (hereafter the second complainant), between the years 1970 and 1975. In separate judicial review proceedings the appellant sought an order restraining the respondent from proceeding with each of these prosecutions, inter alia, on the grounds of an inordinate delay between the alleged occurrence of the offences and the initiation of the prosecutions against him. Both of the sets of judicial review proceedings were heard together in the High Court and the reliefs sought by the appellant refused. The appeals in each case were head together.The appellant has appealed against the orders of the High Court essentially on the grounds that (a) the learned trial judge erred in finding that the delay in making of the complaint by the complainants was attributable to the conduct of the appellant; (b) the learned trial judge erred in finding that there was evidence of a psychological nature to support the contention of the respondent that the delay in making the complaints by the complainants was excusable and in particular he failed to take into account the admissions of the psychologist that she had been in error in omitting from her consideration matters of significance and relevance and in relying on psychological evidence that was unduly theoretical; (c) the learned trial judge erred in holding that the appellant had not established, on the balance of probabilities, that there was a real and serious risk of an unfair trial.Background facts The alleged circumstances surrounding the alleged commission of the offences against each of the complainants are very similar. Both were born and grew up in the town in which the appellant lives and where, when the complainants were young, he was involved in organising activities of a local cub scouts organisation and judo club. When each of the complainants were very young they became involved in the activities of both the cub scouts and the judo club. The first complainant joined the cub scouts when he was eight or nine years of age and subsequently became involved in the judo club. The second complainant, who was a year younger than the first complainant, also joined the scouts club at nine or ten years of age and subsequently the judo club. In each case the complainants say that the appellant befriended them as young boys and they looked up to him as an adult figure with a lead role in the activities in which they became involved.On the 5th May, 1998 the appellant was arrested in connection with the allegations made by the first complainant and subsequently questioned concerning same. This was the first intimation that he had that any complaint had been made against him by that complainant. On the 19th June, 1998 he was questioned by gardaí at his home in connection with the allegations made by the second complainant. That was the occasion on which he first became aware of any complaint being made against him by that complainant. On the 23rd September, 1998 the appellant was arrested and charged for the offences arising from the complaints of the second complainant and on the 27th January, 1999 he was arrested and charged with the offences arising from the complaints of the first complainant.In these proceedings affidavits sworn by each of the complainants were filed by the respondent. These are of particular relevance concerning the reasons why no complaint was made to the gardaí concerning the alleged offences until very many years had elapsed from the dates of their commission.As regards the first complainant, he was born on 9th April, 1959 and joined the cub scouts when he was approximately eight or nine years old. He became acquainted with the appellant because of the latter's involvement with the scouts. In his affidavit filed in these proceedings he says that the appellant came across as a kind caring man and he also looked to him as somebody who would give him attention particularly because of difficulties in the home due to his father's heavy drinking. He says that the appellant first sexually abused him in the appellant's own house and this continued regularly over a period of three years. When he was about eleven or twelve years old he became a member of the judo club run by the appellant, at the appellant's instigation. He further states in his affidavit that as a result of the abuse perpetrated by the appellant he developed such a massive guilt and great personal shame that he did not think to stop this behaviour. He came to believe that the sexual depravity was his fault and he suffered from lack of confidence, depression and low self-esteem. Throughout that period he believed that he was the only person being abused by the applicant. Having worked at various jobs after leaving school he eventually joined the gardaí. In the early 90's he sustained a serious head injury in the course of his duties, as a result of which he attended a counselling course in England. It was during this counselling course that he first disclosed to a counsellor and other participants in the course that he had been sexually abused as a child. He says he was able to make this disclosure at that time because he was in a foreign country and felt more free to talk to people there. During the counselling course he had been required to reflect on his whole life from childhood and he came to realise that in order to allow himself to live a normal life he had to confront his past. It was in these circumstances that he later came to make a complaint about the appellant. He says he had not made a complaint at an earlier time because he had great feelings of shame about the matter and still does. He had blamed himself for the acts of sexual abuse, he felt dirty and unclean. It was this and the consequential depression and low self esteem which prevented him from making a complaint at an earlier time. This complainant also avers in his affidavit to have had consultations with Ms. Rosaline McElvaney, Clinical Psychologist and to have read a copy of the report which she compiled following those consultations. He further avers that to the extent that her reports deal with matters of facts relating to his personal circumstances, that those facts are true.In his affidavit the second complainant explains how he joined the cub scouts when he was approximately eight or nine years of age and became acquainted with the applicant who was involved in running the cubs and who was also chief organiser of the judo club which he joined at a later stage. At that time there were difficulties in the complainant home due to his father's heavy drinking and erratic behaviour. On the other hand the appellant came across to him as a friendly and kind man who gave him sweets or a small amount of pocket money from time to time. The first serious indecent act took place when he was about nine or ten years of age. The indecent assaults persisted over the ensuing years during which he continued to receive money quite regularly from the appellant with a warning not to tell anyone where he had got the money from. In his affidavit he said he did not report the abuse when he was a child because he did not know any better or understand what was happening. The appellant had told him that he had done similar things with other children and stated that they had no problem with what he was doing with them. The first complainant also states he was made to feel it was he who had allowed the applicant to perform indecent acts upon him rather than being effectively coerced into doing so against his will. He felt an enormous sense of shame, disgust, guilt and self-blame. His guilt was increased particularly because of the fact that due to the money he had received from the appellant he had sometimes more money available to him than his mother had at the time. He felt that he had effectively prostituted himself and was dirty and unclean. Because of his feelings of guilt and self-blame he attempted to avoid the whole issue of responsibility at great cost to his personal life but he gradually attempted to come to terms with what had happened to him at the time. After leaving school he worked in various hotels in this country except for a period of about four years when he lived in England. He married in 1985, there were two children of the marriage but he finally separated from his wife in 1997.In his affidavit he also explains that the first occasion on which he disclosed the fact that he had been subjected to sexual abuse as a boy was in or about 1995 to a close friend in the hope and expectation that he would get a supportive response. He did so and felt an enormous burden had been lifted from his shoulders. Some time later he made the same disclosure to his father and to his wife in a discussion as to why their marriage was ending. In the context of discussing the breakdown of his marriage with his brother he disclosed the fact of his abuse to his brother only to discover, for the first time, that he had also been the subject of abuse by the appellant. It has only been in the relatively recent past that he has felt...

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