High Court of Ireland Decisions

1. By Order of the High Court made the 29th November, 1999 the Applicant was given leave to apply by way of Judicial Review for:-

2. The Applicant was given leave to seek Judicial Review upon the following grounds:-

3. The relief sought is in the nature of an Order of Prohibition and it is provided by Order 84 Rule 21(1) of the Rules of the Superior Courts 1986 that in these circumstances the Application must be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

4. In my judgment the grounds for making this application first arose on the 13th May, 1999 when the Applicant was sent forward for Trial by the District Judge and not, as alleged by the Respondents, on the 2nd January, 1999 when the Applicant was charged with the particular offences.

5. In these circumstances the latest date for the making of this application was the 13th August, 1999. As the ex parte application for leave to apply by way of Application for Judicial Review was not moved until the 29th November, 1999 there was a delay on the part of the Applicant in seeking this relief of six months and sixteen days or four months and twelve days depending upon whether the period of the long vacation, - from the 31st July, 1999 to the 4th October, in that year, - is taken into account. By Order 122 Rule 5 of the Rules of the Superior Courts 1986 it is provided that the time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by the Rules for amending or delivering any pleading unless otherwise directed by the Court. In Order 125 Rule 1 of the

6. Rules of the Superior Courts 1986, “pleading” is defined as including an originating summons, statement of claim, defence, counterclaim, reply, petition or answer. A statement of grounds in support of an application for leave to seek Judicial Review is not a “pleading” and in my judgment the provisions of Order 122 Rule 5 have no relevance to the time limit imposed by Order 84 Rule 21(1) or to the calculation of the delay on the part of the Applicant in seeking relief [vide: Ahern -v- Minister for Industry & Commerce (No. 2) [1990] 1 IR 55 per Blayney J.]. The Court is given a discretion by Order 84 Rule 21(1) to extend the period within which the application may be made provided the Court considers that there is good reason for so doing. The onus is on the Applicant to explain and excuse why the application was not brought promptly and in any event within the period of three months allowed by Order 84 Rule 21(1) [see State (Furey) -v- Minister for Defence [1988] ILRM 89]. In the present case no explanation or excuse for the delay has been offered by the applicant on Affidavit. Leading Counsel for the Applicant in addressing the Court submitted that there had been a total change in Counsel representing the Applicant in September, 1999. He referred without objection to correspondence in September and October, 1999 between the Solicitors for the Applicant and the Prosecuting Authorities with respect to the evidence in the Criminal Trial. Counsel further contended, relying upon the authority of the case of Director of Public Prosecutions -v- Judge Windle and Anor [2000] 1 ILRM 75 p. 80), that the Court takes a more lenient view of delay when this occurs during a long vacation.

7. It was contended on behalf of the Respondents that as no Affidavit had been filed by or on behalf of the Applicant seeking to excuse and explain the delay these submissions by Counsel should not be entertained and accordingly no occasion had arisen for the Court to consider whether there was a good reason for extending the period in which the application might be made. This argument might have considerable merit if the facts upon which the submission was based were complex or extensive or matters of dispute or matters

8. I consider that there is good reason why the Court should extend the time in this case. The delay, as Counsel for the Respondents properly admitted, has not resulted in any prejudice to the Respondents. In such cases in my Judgment the Court should not lightly on procedural grounds alone decline to consider an application which discloses an arguable case that a citizen may be deprived of a right guaranteed by the Constitution; in this case the right to a trial in due course of law guaranteed by Article 38 subsection 1 of the Constitution. The overwhelming concern of the Court in determining in each individual case whether to exercise its jurisdiction under Order 84 Rule 21(1) must be to best advance the interests of justice. The overall delay in bringing the charges against the Applicant in these cases is between 30 and 34 years. In this context, in my judgment, justice would not be served by denying the Applicant an opportunity of challenging the fairness of the proposed trial because of a maximum delay of six and a half months in seeking leave to apply for Judicial Review

9. Before proceeding further it is essential to record that the principles of Law applicable in these cases has been comprehensively re-stated by the Supreme Court in the case of P O’C -v- Director of Public Prosecutions , [2000] 3 IR 89, particularly in the Judgment of Keane C. J. at pages 93-97 of the Report. This Court must accept and apply these principles.

10. In the case of B.L. the Applicant is charged with eight counts of indecent assault on dates unknown between the 1st July, 1966 and the 30th June, 1968. These are only what are known as “sample counts”. All the offences are charged as having occurred at the Christian Brother’s Primary School, Kilkenny. It is not disputed that at these dates the Applicant was a teacher and B.L. was a pupil at that school. In his initial statement of evidence to An Garda Siochana B.L. claims that while he was in 5th and perhaps also in 6th class he was sexually abused by the Applicant. He claims that the first time the Applicant had contact with him was when he entered 5th class. B.L. left the Christian Brothers Primary School at the end of June, 1968. He spent one year in the Christian Brothers Secondary School, Kilkenny. He then went to St. Kieran’s College Kilkenny which he left having sat his Leaving Certificate Examination.

11. His career thereafter is set out in a reply to a notice for particulars in a High Court action commenced by him on the 30th October, 1997 and are as follows:

12. In the information which he gave to Mr. A.C. a clinical psychologist, B.L. said that in 1986 - 1987 he had also taken a course in the Creative Counselling Centre and had received a Diploma in Psychotherapy.

13. It is stated in these replies to particulars in the Civil Action and he also informed Mr. C that he began attending therapy with Dr. C a Consultant Psychiatrist in 1987. He told Mr. C that he was in therapy for two years, (though Dr. C believes the period to have been 18 months), and he has attended Dr. C on and off since then and is currently attending Dr. C, twice or three times each year.

14. B.L. told Dr. C, that he met his wife in 1979 and that they were married in 1983. They have two children aged 7 and 4. They separated in May, 1995 and he is currently in a new relationship. He first complained of the alleged sexual abuse to a Brother M of the Irish Christian Brothers at a meeting on the 10th February, 1997. He made a formal complaint to the Domestic Violence and Sex Assault Unit of An Garda Siochana at Harcourt Terrace on the 13th August, 1997.

15. His father, a career army officer, was an ex-member of the Irish Christian Brothers and was a principal fund raiser for them. His father died in 1983 but his mother and four siblings are still alive.

16. In a statement made to An Garda Siochana on the 15th June, 2001 and exhibited in an Affidavit sworn by him on the 16th August, 2001 in these Judicial Review proceedings B.L. states as follows:-

17. In a medical report dated the 18th July, 1997 Dr. C states that B.L. first came to see him in March, 1987. He found him to be deeply depressed with suicidal ideation and a profound depth of self hate. He was confused and anxious about his sexual identity and was prey to obsessional compulsive thoughts and rituals.

18. He gave Dr. C full details of the alleged sexual abuse. He told Dr. C that he started to hate going to school, experienced high levels of fear, developed respiratory problems and insomnia. He would try to avoid the class conducted by Brother L. He felt “dirty” and was afraid he would become a figure of public ridicule if the activities of Brother L. became known. He said he lacked confidence and became secretive and suspicious and developed behavioural problems which led to conflicts with his siblings and with his parents. These continued during secondary school. His sexual development was extremely difficult and at 15 years of age he felt like drowning himself.

19. Having completed the Leaving Certificate Examination he decided to leave Ireland to “find himself” [ sic]. He was still having difficulty trying to work out his sexual identity. After a number of failed relationships with girls he met his future wife in 1979 and they married in 1983. He described their marriage as “fraught with difficulties” but no details of these difficulties are recorded. He and his wife separated in May, 1995. He is presently in a new relationship and has regular contact with his children. These inner conflicts disappeared or faded to the point where they were no longer troublesome between 1979 and March 1987.

20. In his report Dr. C states that the psychological [ sic] distress which evolved out of the internalisation of the activities of Brother L. brought B.L. on a number of occasions through feelings of self hate and loathing to the point of considering suicide. Dr. C does not say that this man’s crisis of sexual identity is a consequence of or was exacerbated by the alleged actions of the Applicant. Dr. C appears to accept the statement of B. L. that, during his adolescence he lived in an atmosphere of impending doom. Dr. C describes B.L. as a fragile individual who has tried at all times to transform himself with all the resources to hand but who is still deeply distressed by “unresolved conflicts (inexperienced experiences)” which he attempts to sublimate through his work.

21. Dr. C has not in his report expressed any opinion with respect to the making of a complaint by B.L. In cross-examination he said his report was not prepared for any Court and did not explore whether B.L. should or should not have complained. In cross-examination Dr. C said that he was aware that B.L. had begun a liaison with a woman in 1998 which he believed had come to an end in the last year or so. He said that B.L. had

22. Dr. C said that when B.L. met and married his wife he was able then at least to put aside his doubts as to his sexual identity and this was an enormous boost to his self esteem. Dr. C felt sure that the actions of Brother L had done severe psychological [ sic] harm to B.L. Dr. C said however that if he had to decide whether the delay in making a complaint was related to the alleged abuse, - and he had not been asked to and was not expressing any opinion on this, - he would draw upon as much material as he could in relation to B.L. before reaching a conclusion.

23. Dr. C said that as a psychiatrist he would not consider himself competent to offer an opinion on the methodology of any psychologist. In his opinion the bulk of a psychologist’s work was the rigorous research and testing necessary to give scientific validity to any conclusion.

24. By a letter dated the 4th April, 2000 the Chief State Solicitor wrote to Mr. A.C. a clinical psychologist, stating inter alia:-

25. In evidence Mr. C stated that he had interviewed each of the men separately at his, Mr. C, home on Saturday 19th April, 2000 at 10am, at 12.30pm and at 3.30pm. He said that each interview lasted about one hour. The men did not come together to his house and he was satisfied that there was no conspiracy amongst them. He said that he had taken their accounts of the alleged sexual abuse as true and conducted a clinical interview on that basis. He said that he may have kept some brief notes taken on the occasion but he doubted if he could locate these notes as it was his invariable practice to dictate from memory directly after each interview. He told the Court that the methodology which he adopted in each case was as follows:-

26. Mr. C fully accepted that he did not carry out, and indeed could not given the urgency expressed in his brief have carried out a detailed psychological assessment of each man. Though conceeding that this might be a valid criticism generally it did not in his opinion invalidate his assessments in these individual cases. He said that he considered the accounts he had been given were creditable and that the nature of the complaints were

27. In his Affidavit sworn on the 29th May, 2000 in these Judicial Review proceedings Mr. C refers to exhibited reports by him on each of the complainants. He deposes that in the case of each of the complainants, on the assumption that the offence described by them were true, that the absence of a complaint at the time of the abuse is adequately explained from a psychological perspective by the exercise of power by Brother L. Brother L. exploited a legitimate position of power in order to engage in sexual activity with the complainant which the complainant did not understand and to which he was unable to give consent. This was a feature of the known dynamics of sexual abuse. In each report this “exercise of power” and “the known dynamics of sexual abuse as outlined” are further offered as adequate explanations from a psychological perspective of the failure of each of the men to complain, “in the intervening years”.

28. There may well be a body of scientific data, but none was actually proved in evidence before me, and it is not something of which I believe may take Judicial Notice, which tends to demonstrate that a number of victims of sexual abuse occurring during minority become incapable for long periods of time of disclosing the abuse or of making a complaint in respect of it. This would not however establish that every individual who has had the misfortune to be the victim of sexual abuse during minority by an adult in a position of authority must be assumed to be so incapable.

29. In certain circumstances the Court is prepared to infer from evidence of a particular relationship between the victim and the perpetrator, in the absence of evidence to the contrary, an excusable inability on the part of the victim to disclose or complain of the sexual abuse. These are cases where, for example, a relationship of social or familial dominance however based is presumed as regards persons under the age of 15 years or as regards older persons is proven to have existed and to continue to exist.

30. Other than in these cases there must be evidence that the particular alleged victim of sexual abuse as a minor was inhibited from disclosing or complaining of this abuse by some psychiatric disease or some psychological defect or abnormality duly established by expert or non expert testimony.

31. In my judgment this necessarily requires a careful and proper degree of investigation of the circumstances of each individual case to see if there is present clinical evidence that the alleged victim is suffering from or has suffered from a mental illness or disorder or a recognised psychological condition the accepted symptoms of any of which are regarded, in the present sate of medical and scientific knowledge, as inhibiting such disclosure or complaint. Further, a causal connection must be established between this illness disorder or condition and the alleged sexual abuse. Such investigation does not require to be exhaustive or conducted to a forensic standard of proof. However, in my judgment it obviously requires a careful and reasonably comprehensive exploration of all significant aspects of the personal, family and medical history of the alleged victim.

32. In the same vein in the case of A.W. -v- Director of Public Prosecutions (the High Court: Unreported: 23/11/01) Kearns J. at page 30 of his judgment held as follows:-

33. I further adopt the comments of Mr. Justice Hardiman on this issue in his

34. Judgment in the case of J. L. -v- Director of Public Prosecutions (Supreme Court: 6/7/2000)

35. Undoubtedly Mr. C has sufficient professional qualifications, scientific skill and experience in direct personal diagnosis to express an expert opinion in this matter.

36. However, in none of the present cases did Mr. C carry out any psychological tests. His opinion is based solely upon a clinical judgment formed after a single short interview with each Complainant and his personal recall of unidentified published material specific to delay in the disclosure or reporting of sexual abuse. His opinion might possibly be correct but the Court cannot give any weight to it. Apart from the absence of these verifiable scientific tests, which form the only basis upon which psychological expert opinion is received by the Courts, in my judgment Mr. C would not have gained any sufficient understanding of the personality structure, emotional adjustment or levels of individual functioning of any of these Complainants during the course of an interview of one hour, so as to reach an objective and

37. In the case of B.L. and P.L. he did not explore the counselling and therapy which each of them stated he had received. He did not, for example, seek permission from B.L. to consult with Dr. C. He did not probe what B.L. or P.L. had learned relevant to their own alleged problems during their studies and practice of social work and psychotherapy. Mr. C did not, and perhaps had not sufficient time to carry out any proper case study of any of the complainants, even if his instructions permitted this. Expert evidence may be “opinion” evidence but the Court is not prepared to accept an opinion based upon unverified facts, broad assumptions and generalisations as evidence establishing any psychological basis for delay in reporting or complaining of sexual abuse. Similar statements have been made over and over again in other cases of this nature.

38. Dr. C never addressed or was asked to address the issue of delay and declined to express any opinion on the matter.

39. B.L. remained at Saint Kieran’s College from 1968 until 1974 when he became eighteen years of age. I would accept that during this period Brother L., though no longer having any actual authority over him, yet through the influence of his status as a member of a class of persons who continued to be authority figures in the life of B.L., he continued to have indirect power over B.L. sufficient to inhibit his complaining of the alleged sexual abuse. In the case of B.L. this inhibiting factor was compounded by his father’s close connection with the Irish Christian Brothers, as an ex-member of that Organisation and as a loyal and active supporter and fundraiser for the Irish Christian Brothers.

40. In the period 1974 - 1983, in which latter year his father died, B.L. despite the evidence of his having completed a Diploma Course in Childcare and having had six years experience as a childcare worker in this Country and in the United Kingdom and attaching such weight as I may to the unparticularised suggestion that he did not enjoy a close relationship with his father, was in my judgment justifiably inhibited by this very special connection between his father and the Irish Christian Brothers added to his own anxieties about his sexual orientation, from disclosing or complaining of the alleged abuse. Solely for the purpose of considering whether as a matter of probability the failure of Brian L. and the other complainants, to complain until 1997 was a result of the conduct of Brother L. itself, I must assume that these allegations of sexual abuse are true, [see P.O’C. -v- Director of Public Prosecutions (the Supreme Court) [2000] 3 IR 87].

41. After 1983 the question of the existence or not of a continuing causal connection between the failure to disclose or complain which continued up to February 1997 as regards disclosure, and to August 1997 as regards making a formal complaint, and the alleged sexual abuse is more difficult to determine. B.L. was now a man of more than twenty eight years of age, a manager in an advertising and public relations business, a husband and a father. The alleged extreme difficulties of his adolescent years and the anxieties with regard to his sexual identity were to a very considerable extent if not totally resolved. He had obtained a Diploma in Psychotherapy in 1986 or 1987.

42. His depression though severe in 1987-88 with suicidal ideation did not require in-patient hospital treatment or any form of drug therapy. For reasons I have already stated there is no expert evidence from a psychologist to which the Court may attach any weight that he was inhibited from reporting or complaining of the alleged sexual abuse by reason of some recognised psychological condition. There is no evidence that he was in this period suffering from any psychiatric illness. The description of Doctor C is of a fragile individual deeply disturbed by “unresolved conflicts, (unexperienced experiences)”. Because he had not been asked to consider the problem and had no opportunity of making a considered assessment and determination Doctor C was not prepared to express an opinion as to whether there was or was not a causal connection between the delay on the part of B.L. in complaining of the abuse and the offending conduct.

43. Dr. C described B.L. as a fragile individual, a man deeply distressed with a history of self denigration, depression and behavioural problems, originating at the time of the alleged sexual abuse by Brother L. (which allegation I must assume to be true for the purpose of this part of inquiry). In the opinion of Dr. C this psychological distress [ sic] evolved out of the internalisation by B.L. of the activities of Brother L. It is clear that these problems have not resolved, as evidence the attendances by B.L. or Dr. C from 1987 to date. His marriage and the birth of his 2 children appeared to have afforded B.L. a sort of temporary respite only from his difficulties. Dr. C expressed the view that Brother L. had done severe psychological [sic] harm to B.L.

44. The Court must ask itself, on this evidence and assuming the complaint of B.L. to be true, whether as a matter of probability the delay on the part of B.L. in complaining of the sexual abuse was a result of that offending conduct itself. In my judgment the answer must be in the affirmative. In my view this complainant’s statement in his affidavit, which I have already cited, but consider worthy of citing again,

45. P.L. was born in, 1954 and is therefore two years older than his brother B. The charges in his case relate to dates unknown from the 1st July, 1965 to the 30th June, 1967. In his first statement to An Garda Siochana he avers that he was taught by Brother L. between September, 1965 and June 1967, that is from the age of eleven to the age of thirteen.

46. P.L. said that the incidents, of which he claims there were not less than twenty, changed his attitude to school and adversely affected his academic performance. I find this somewhat difficult to understand because even though he says that he repeated sixth class at primary school he goes on to say that he succeeded in obtaining one of five means tested scholarships in sixth class for the whole of the County of Kilkenny.

47. He said that he was unable to tell his parents the reason why he performed poorly in the intermediate certificate examination and he said that he assumed [ sic] that the close connection between his father and the Irish Christian Brothers contributed to this inability. He does record that he told a fellow pupil during his first year at secondary school about these incidents. During this period in second level education, which he completed

48. In my judgment there is no evidence to rebut the presumption that Brother L. up to the 14th June, 1969 when P.L. attained the age of 15 years occupied a position of dominance in respect of P.L., which inhibited disclosure or complaint. I am satisfied on the evidence for the reasons I have already given when dealing with the case of B.L. that this position did not change while P.L. remained a pupil at the Irish Christian Brother’s Secondary School.

49. In 1978, now aged twenty four years, P.L., went to Scotland where he enrolled in a Course of Study in social work. He told Mr. C that during this Course, a lot of issues relating to sexual abuse came to the surface. He told Mr. C that at examinations he would get “flash backs” and become mentally completely frozen. He said that the Director of the Course noticed that something was amiss and spoke to the Head of Training. Following discussions P.L. said he was offered psychotherapy and counselling but reluctantly decided to leave the Course. He said that this was a major disappointment to him and he felt that it was also a disappointment to his family but he was unable to tell them what was going on.

50. He told Mr. C that he married in 1980 and that he told his wife about the alleged sexual abuse. He said that this was the beginning of his coming to terms with it. He attended some counselling sessions and started to recover. He told An Garda Siochana and

51. Mr. C that he would not have made a complaint but for the fact that his brother B told him, in 1998, of his alleged abuse by Brother L. and, “asked him to go as a witness”. After this he said he agreed to make a statement to a Solicitor and to An Garda Siochana.

52. I am satisfied on the evidence that from at latest 1980 onwards P.L. had made a deliberate and fully conscious decision to forget, if not to forgive, the alleged sexual abuse and not to complain to any appropriate authority in this State about it. It is clear from the evidence that in 1978 P.L. was aware of issues relating to sexual abuse and this knowledge and realisation was obtained in the context of formal training to become a Social Worker. I believe that the Court may safely infer that questions of complaints to the police and to other competent authorities by victims of sexual abuse were fully considered during this training and issues of reporting, support systems, criminal prosecutions and confidentiality were all discussed. There is no evidence that P.L. was at any time suffering from any mental illness or disorder nor is there evidence to which I may attach any weight that he was suffering from any recognised psychological condition which would have inhibited him from making disclosure or complaining of the alleged sexual abuse. In my judgment from 1980 at the very latest there is no explanation for his delay in making this complaint apart from his own deliberate and fully considered determination not to make it.

53. L.B., was born on the 14th December, 1954. In his case the offences charged relate to dates unknown from 1st July, 1967 to 30th June, 1968. In his initial statement to An Garda Siochana he alleges that the sexual assaults occurred when he was in fifth or sixth grade (he was not sure) at the Irish Christian Brother’s Primary School, during a stamp collecting class organised by Brother L. on Friday afternoons. L.B. completed his primary and secondary education in the schools conducted by the Irish Christian Brothers in

54. Kilkenny. He told Mr. C that he was unsure of the exact number of incidents but that it

55. He told An Garda Siochana that he did not think much of the incidents at the time and he and his school friends joked about it during their time at secondary school. He said that at the time he never realised that anything was wrong in Brother L. fondling him as he did. He said that he did not mention it to his father who because of the nature of his occupation was away from home a great deal. He told Mr. C that he did tell his mother at the time the incidents were taking place but she just laughed. He also told Mr. C that he told his grandmother, now deceased, and she just pushed it aside saying, “you are his pet, he is not doing anything wrong”.

56. L.B. married in 1978 and there are two children of the marriage. He said that he and his wife discussed the incidents on many occasions. He told Mr. C that he did not report the incidents because at the time they occurred he did not realise it was wrong and later he felt ashamed and was embarrassed to report it as he was afraid of what people might say and out of fear that it would result in public shame to his family. He said that most of the time he tried to forget it and convince himself that it had never happened.

57. He told An Garda Siochana and Mr. C that in 1997, some six weeks before he made his statement to An Garda Siochana, he saw an apology on behalf of the Irish Christian Brother printed in a national newspaper. This Apology gave a telephone number of a confidential help line. He said that he telephoned this service and after discussing the matter with a counsellor, and independently with a priest who was a friend of his he contacted Brother L. and arranged to meet him at a hotel. They met and had a rather strained discussion and though they shook hands on parting L.B. told An Garda Siochana that he informed Brother L. that he could not bring himself to forgive him. After this meeting L.B. spoke to the counsellor on a number of occasions and to his general medical practitioner. He also

58. For reasons I have already expressed when considering the case of each of the other complainants I am satisfied that up to the time L.B. left the Irish Christian Brother’s Secondary School he would have been inhibited, had he then considered that something very seriously inappropriate and even unlawful had taken place, from complaining to An Garda Siochana. It is clear from the evidence that no idea of this kind occurred to him and the evidence of the reaction of his school friends, his mother and his grandmother would have done nothing to cause him unease. There is no evidence to suggest that L.B. was

59. In the unique circumstances of these cases of P.L. and L.B. I am satisfied from the evidence that the first named Respondent has wholly failed to discharge the burden of proving on the balance of probability that the reason for the delay of between eighteen and twenty four years in making these complaints after all dominance by Brother L. had ceased, is attributable to the alleged actions of the Applicant. The burden of proving on the balance of probability that this significant, and in my judgment, unreasonable delay on the part of the Complainants will result in such a degree of prejudice to him as to give rise to a real and serious risk of an unfair trial, lies on the Applicant. It was conceded by Counsel for the Applicant that there has been no delay on the part of the Prosecuting Authorities in this case. In considering this aspect of the case the Court no longer assumes the allegations to be true and proceeds upon the normal basis that the Applicant is presumed innocent.

60. In cases where the evidence is largely documentary and any witnesses may refresh their memories by reference to such documents the length of the delay is likely to be far less prejudicial than in a case like the present where, on the facts before the Court, there is little or nothing by way of physical evidence to assist or indeed to test the recollections of witnesses.

61. In my judgment, that portion of the delay in the case of P.L. and L.B. which I find is not referable to the actions or position of power of the Applicant, that is in the case of P.L. from 1978 to 1996 or 1998 (20 to 18 years) and in the case of L.B. from 1973 to 1992 or 1997 (24 to 19 years), is excessive having regard to the nature of the charges. I am satisfied in the circumstances of this particular case from the length of this delay alone that the Court is entitled to presume and does so presume that the capacity of the Applicant to defend himself is thereby materially impaired and that accordingly the trial as respects these two complainants should not be allowed to proceed because of the risk of its being unfair even if no specific prejudice is in fact established.

62. However, as an alternative argument the Applicant asserts that he has in fact suffered such specific prejudice as regards his ability to defend himself against these charges which relate to events alleged to have occurred between 30 and 34 years ago.

63. It is clear from the Affidavit of B.L. sworn on the 26th November, 1999 and from the notes of interviews conducted by Detective Sergeant R on the 19th November, 1997 and the 1st August, 1998, which are part of the Book of Evidence and are exhibited in the Affidavit, that the response of the Applicant to the allegations has at all times been that they were entirely untrue and were strongly denied.

64. In the verifying Affidavit sworn by the Applicant on the 26th November, 1999 the specific prejudice pointed to is the alleged virtual impossibility of finding witnesses, either teachers or other persons associated with the Irish Christian Brother’s Primary School at the time, and who are aware of the daily routine, who could assist him in recollecting events at the time the alleged offences are claimed to have been committed. In particular he makes reference to witnesses who could, (a) assist him to establish that on Saturday mornings from July, 1967 onwards he played golf starting at about 8.45am and (b) that in the period 1964 to the end of June, 1967 he had given extra tuition to the scholarship class on Saturday mornings and did not have a “stamp class”. L.B., in his statements to An Garda Siochana contends that these stamp classes took place on Friday afternoon or evening outside normal class hours. B.L. told An Garda Siochana in his first statement that these stamp classes took place on Saturday mornings between 10 am and 12 noon. In his second statement to An Garda Siochana he said that on occasions [sic] these stamp classes were held on Saturday mornings but that on occasion they may [sic], have been held on Friday evenings. The

65. The Applicant in a second Affidavit sworn on the 4th October, 2001 in purported reply to Affidavits served by each of the Complainants on the 20th September, 2001, - the statement of Opposition having been filed on the 17th July, 2000 and the Order granting leave to apply for Judicial Review having been made on the 29th November, 1999, - raised a further ground of alleged specific prejudice.

66. L.B. told An Garda Siochana that, “Brother L. sat at his own desk at the top of the room. The desk seemed big to me at the time, there was an opening in the front with drawers on each side, it was a square table and he sat behind it. ... Brother L. would insist on me ( sic) going around the desk and having to stand beside him. ... with my hands to my side. ... He would pull me in towards him. ...”

67. P.L. told An Garda Siochana, “the normal pattern of behaviour was that he would set everyone a task to do and he would then get me to come up to his desk and bring my work with me. While I was reading to him he would pull me close to him.... This went on for some time i.e. until I had read several chapters of a book. ” (the emphasis is mine).

68. B.L. told An Garda Siochana, “Brother L. usually sat at his desk. He would call us up one at a time. The desk was tall, enclosed at the front and sides and as one looked towards it from the class the only portion of ones body visible was the chest upwards”. “Even with long pants he managed to get at my penis by pulling my trousers down”. He said that on a number of occasions he could see the Applicant’s penis even though he always wore a soutane.

69. The Applicant contends that to the best of his recollection, at this remove, the desk was the old style teachers desk consisting of a low table with drawers on one side placed on a raised platform facing the class and affording no concealment. He deposes that he

70. Counsel for the Respondent submitted that the Court should not have regard to either of these alleged grounds of specific prejudice because they are not set out in the Applicant’s Statement of Grounds.

71. Ground E(1) on which the Applicant was, amongst others, given leave to seek Judicial Reviews avers that the delay and lapse of time, “of itself and in all the circumstances , (the emphasis is mine), will as a matter of probability cause the Applicant irreparable prejudice in his defence of these proceedings”.

72. Order 84 Rule 20(2) of the Rules of the Superior Courts 1986 provides that an application for leave to seek Judicial Review should be made by a motion ex parte, grounded upon (a) a Notice in Form 13 appendix T containing a statement, (inter alia) of the relief sought and the ground on which it is sought, and (b) an Affidavit which verifies the facts relied on. In my judgment, in the words of the Supreme Court Practice, 1985, [United Kingdom] Volume 1 page 764, “The Statement contained in the Notice of application is not the equivalent of or analogous to a statement of claim, but rather only to the prayer of a statement of claim.” Having regard to the decision of the Supreme Court in P.O’C. -v- Director of Public Prosecutions [2000] 3 IR 87 the only circumstances which could be relevant in this case, apart from the lapse of time itself, are issues of specific prejudice. While the terminology employed in this particular Statement of Grounds is scarcely above

73. The Order of the High Court made on the 29th November, 1999 expressly provides that the Applicant is required to comply with Order 84 Rule 22 and 23 of the Rules of the Superior Courts. The Respondent’s Statement of Opposition is filed on the 17th July, 2000 and the verifying Affidavit of Detective Sergeant J.R. is sworn on the 12th June, 2000 and filed on the 17th July, 2000. On the 15th August, 2001 L.B., B.L., and P.L., swore Affidavits stated to be for the purpose of replying to the Affidavit of Brother L., that is, the verifying Affidavit sworn on the 26th November, 1999.

74. Counsel for the Respondents submitted that no Notice of Intention to apply for leave to use a further Affidavit was given by the Applicant to the Respondents. Counsel for the Respondents further submitted that the issue concerning the form and position of the desk is not a, “new” issue arising out of the Affidavits of the Complainants or any other party to the application. Counsel for the Respondents submitted that on both these grounds the alleged specific prejudice set out in the Affidavit of Brother L., sworn on 4th October 2001 cannot be regarded by the Court.

75. It is true that none of the Affidavits of the Complainants sworn on the 15/08/01 refer specifically to this issue of the form and position of the desk. These Affidavits exhibit additional statements made to An Garda Siochana in which, amongst other matters the Complainants refer to their previous Statements and aver that the contents of these previous statements are true. All three of these original statements refer to the desk but it is described only in the statements of L.B., and B.L. The Respondents’ Statement of Opposition only addresses the issue of specific prejudice asserted in the verifying Affidavit of Brother L.

76. While the Court might be prepared to overlook the want of a notice under Order 84 Rule 23(3) of the Rules of the Superior Courts having regard to the provisions of Order 124 Rule 1, I cannot see how a failure on the part of the Applicant to indicate a particular specific prejudice in his Statement of Grounds or in his verifying Affidavit could in any rational sense be termed a “non-compliance with the rules of the Superior Courts” so as to come within the ameliorating terms of Order 124 Rule 1 of the Rules of the Superior Courts.

77. It would be strange however, that the Court should have power under Order 84 Rule 23(2) to allow the Applicant to amend, on terms should the Court so decide, his

78. The Respondents have been on notice of this additional particular of alleged specific prejudice since in or about the 5th October, 2001. In addition the Prosecuting

79. Authorities must have been aware of this aspect of the evidence from a time prior to the 2nd January, 1999 when the Applicant was charged with these offences. I am satisfied that the Prosecuting Authorities have had an ample opportunity of investigating this aspect of the case.

80. It is open to the Applicant to give evidence himself or for others to give evidence as to his or their recollection of the form and placement of the desk. The probative value of this evidence will of course depend entirely on whatever credibility the particular testimony might command before a Jury. Physical evidence of the form and the placement of this desk would be an item of factual evidence by which a Jury could assess the accuracy and reliability of the recollections of two of the Complainants. As this evidence is no longer available and as it cannot be ascertained for how long it has not been available, the Applicant,

81. Brother L., when interviewed by Detective Sergeant R on the 19th November, 1997, in the presence of his Solicitor, and after caution, admitted that he had taught B.L., (number 12 on the school roll), in sixth class in the period September, 1967 to June, 1968. He told Detective Sergeant R that from 1964 to 1969 he taught only sixth class and after 1969 became the principal teacher of the primary school and did not teach a class. He further confirmed that he had a stamp collecting class which he had started in 1966 with the assistance of J.B. He said that he did not recall B.L. in this stamp class.

82. In his second Statement made to An Garda Siochana in 1998, B.L., identified himself in the school roll book in the Irish form of his name at number 12 in each of the scholastic years 1966 to 1967 and 1967 to 1968. This roll book will show that someone in authority in the school, - probably the form teacher, - recorded certain boys as being present in a particular class on a particular day, month and year at the time the roll was called.

83. In his initial Statement to An Garda Siochana B.L., said insofar as he could recall, that the stamp class was held in the school on Saturday mornings between 10.00 a.m. and noon. L.B., on the other hand thought that the stamp collecting class was held outside school hours on Friday evenings. In his third Statement to An Garda Siochana, B.L., agreed that on occasions the stamp class was held on Saturday mornings and on occasions may [sic] have been held on Friday evenings. In the Civil Action taken by B.L., it is pleaded in the Statement of Claim that the alleged offences occurred between September, 1967 and September, 1968 when he was eleven years of age. B.L., was born on the 7th May, 1956.

84. Brother L., in the interview to which I have already adverted, informed Detective Sergeant R that he remembered playing a lot of golf on Saturday mornings and having to be on the golf tee at 8.45 a.m. as the course was booked for 9.00 a.m. At Paragraph 4 of his Affidavit sworn in these proceedings on the 4th October, 2001 Brother L., deposes that once the scholarship system was abolished and free secondary education was introduced tuition was no longer given on Saturday mornings. In an unsworn Statement dated the 27th March, 1998 by Brother L.P. O’M., a fellow member of the Irish Christian Brothers, and exhibited at paragraph 10 of the Affidavit of the Applicant sworn on the 26th November, 1999, he records that when scholarships ceased in the summer of 1967 Brother L., was his constant companion for golf on Saturday mornings. They had the use of the first tee before 9.00 a.m. and would play until approximately 12.00 noon. In answer to an enquiry from the Court Counsel for the Applicant advised that Brother O’M., is alive.

85. There is no burden on Brother L., to prove this account of his movements on Saturday mornings post the summer of 1967. It is for the Prosecution to establish beyond reasonable doubt that this account is not reasonably capable of being credible. Apart from the Statements of B.L., no contrary evidence was produced by the Investigating Authorities at the hearing before this Court.

86. It is not suggested by Brother L., that but for the delay in taking these charges he would have some specific evidence in the nature of an alibi which would demonstrate that he did not hold stamp classes on Friday evenings at least in the period September, 1967 to September, 1968. In fact Brother L., does not deny that stamp classes were held on Friday evenings. It is of the essence of a true alibi that it is evidence which goes to demonstrate the presence of the accused at a particular place at a particular time so that he could not have committed the alleged offence. This presupposes that the alleged offence is charged as having been committed at a particular place and time as opposed to being committed at an unspecified place over a lengthy period of time. It is not an alibi for an accused to assert that he was not at a particular place at a particular time but cannot say, - for example due to the passage of time, - where he was at the particular time.

87. It is not stated by Brother O’M., or T O’B., unsworn Statements from whom are exhibited in the Affidavit of Brother L., sworn on the 26th November, 1999 in these proceedings, that as fellow teachers with him in the relevant school in the period September, 1966 to September, 1968 and who obviously as such would have been fully familiar with the circumstances of daily life in the school at the time, they cannot recall anything of these stamp classes, or if or when they were held by Brother L., or of classes generally and activities in the school on Fridays or Saturdays during this period. In the same Affidavit Brother L., refers to but does not give any particulars of records which he may (sic) have kept of his movements at this time.

88. It was held by the Supreme Court in the case of P. O’C -v- Director of Public Prosecutions [2000] 3 IR 89, that neither the non specificity of the charges or a general impairment of memory and recollection due to the passage of time is sufficient to establish

89. While for these reasons there may be some prejudice to Brother L., in answering these charges they do not amount in my Judgment to specific prejudice. I am far from convinced that any such prejudice cannot be sufficiently redressed by the charge of the trial Judge to the Jury and by directions and rulings during the Trial as necessary regarding the problems posed for an accused by a very stale prosecution.

90. One cannot but notice that the second alleged ground of specific prejudice appears to have occurred to the accused or to his legal advisors at a somewhat late stage in these proceedings. Nonetheless, if it is on the balance of probability a valid ground of specific prejudice it cannot be afforded any lesser merit because of any tardiness in its discovery or expression.

91. There is no apparent issue between Brother L., B.L., P.L., or L.B., with regard to the location of the desk. In his Affidavit sworn on the 4th October, 2001 Brother L., deposes at paragraph 5, that to the best of his recollection the desk was placed on a raised platform at the front of the classroom. None of the complainants have made statements to An Garda Siochana or have sworn Affidavits to the contrary. B.L., refers in his initial Statement to An Garda Siochana to being, “called up to the desk” and describing it, “as one looked up towards it from the class”. L.B., in his initial Statement to An Garda Siochana recalled that, “Brother L., sat at his own desk at the top of the room”. P.L., in his initial Statement to An Garda Siochana recalled that Brother L., would ask him to come up to his desk.

92. As to the structure of the desk, Brother L., at paragraph 5 of his Affidavit sworn in these proceedings on the 4th October, 2001, describes the desk, to the best of his recollection, as the old style teachers desk, - a low table with drawers on one side. In the

93. Brother L., claims that he is prejudiced in his Defence of the allegations by the Complainants because he cannot obtain independent evidence of the form or structure of this desk as a result of the delay, in particular physical evidence in the form of photographs or plans. In my Judgment, the Court must assess this alleged prejudice in the context of all the evidence of which the Court is cognisant and decide on the balance of probability whether the non availability of such independent evidence of the structure of the desk would be so prejudicial to the conduct of the Defence as to render the proposed trial so unsafe and unsatisfactory as to deprive Brother L., of his constitutional right to fair procedures.

94. Brother L., B.L., and L.B., are in agreement at least to the extent that there was some form of solid or closed area on one side of the desk. B.L., claims that the front of the desk was closed in while Brother L., recalls that it was open. L.B., in his initial Statement to An Garda Siochana recalled that the desk was a square table with an opening in front and drawers on each side. Brother L., to the best of his recollection states that there were drawers on one side only. All three Complainants allege that Brother L., pulled them in close to himself behind the desk while he perpetrated the assaults using one hand. Only B.L., alleges that Brother L., pulled down his trousers (B.L’s), after he had changed from short to long pants. Only B.L., alleges that on some occasions the penis of Brother L., was visible to him though he is unable to say how this was achieved because Brother L., always wore a soutane. B.L., is also unable to say if the penis was erect or not or if he was asked to touch it.

95. So far as the Complainants are concerned their impression of the desk would have been that of eleven to thirteen year old boys, as example the initial Statement of L.B., to An Garda Siochana where he says, “the desk seemed big to me at the time”. It is to be noted that the two fellow teachers of Brother L., in the relevant period and the five former pupils who were taught by Brother L., in sixth class in the period 1966 to 1968, all of whose unsworn Statements or letters are exhibited in his Affidavit sworn in these proceedings on the 26th November, 1999 do not say that they cannot recall the structure of the desk.

96. I ask myself if the proposed trial had taken place within a reasonable time, would the fact that the relevant desk had been changed in the meanwhile and no physical evidence of its structure was available, prevent the trial from proceeding. I think not, particularly having regard to the matters to which I have drawn attention and to the burden of proof at the trial of a criminal charge. It is not for Brother L., to establish by evidence that his recollection of the structure of the desk is true, it is for the Prosecution to satisfy a Jury beyond reasonable doubt that it could not reasonably be true. P.L., in his Statements to An Garda Siochana makes no reference to the structure of the desk. The description by L.B., in his initial Statement to An Garda Siochana is very materially different to that of B.L., and lends very considerable support to the recollection of Brother L.

97. While it would be preferable of course if physical evidence of the structure of the desk were available, I am not satisfied on the balance of probability in the context of all the evidence that the absence of such physical evidence or independent oral evidence of the structure of the desk would result in a real and serious risk of the proposed trial being unfair.

98. In the circumstances the Court will make the Declaration sought as regards the charges relating to the offences alleged to have been committed against P.L., and L.B., and will make the Order sought prohibiting the Respondents from taking any further steps in the criminal proceedings against the Applicant in respect of these charges, in particular the trial before the Circuit Criminal Court, South Eastern Circuit, County of Kilkenny. The Court refuses the relief sought as regards the charges, the criminal proceedings and the trial before the Circuit Criminal Court, South Eastern Circuit, County of Kilkenny in respect of the alleged offences against B.L.