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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K. (J.) v. D.P.P. [2004] IEHC 315 (10 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/315.html Cite as: [2004] IEHC 315 |
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[2004] IEHC 315
THE HIGH COURT
DUBLIN
[2004] IRLHC 315
2001 856JR
J.K.
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPODNENT
THE JUDGMENT WAS DELIVERED BY MR. JUSTICE O CAOIMH AS FOLLOWS, ON MONDAY, 10TH MAY 2004:
By order of this court of 17th December 2001 the Applicant was given leave to seek an injunction by way of an application for judicial review restraining the respondent from taking any further steps in the prosecution against him, on Bi1T of Indictment No. 896/2001 of the Dublin Circuit Criminal Court, on the grounds 1 to 7 in the Statement of Grounds, which are as follows:
1. The delay in the case is excessive and unconscionable. Proceeding further with the trial of the Applicant on these charges would breach the Applicant's constitutional right to a fair trial and due course of law.
2. The delay in the case is of itself so excessive as to be unconscionable, and violates the Applicant's right to a trial in due course of law.
3. The delay has prejudiced the Applicant in his defence of these proceedings.
4. The Applicant is further prejudiced, in that the ability to properly test the credibility of witnesses has been seriously impaired, and he has been impeded by this delay in his ability to gather evidence or locate witnesses to allow him fully prepare his defence.
5. The right of the Applicant to a trial without delay or with due expedition has been irreparably affected by the inexplicable failure of the complainants to proceed with their complaints with expedition.
6. The right to make a complaint is not an inalienable right, and in the circumstances of this case that right has been waived or lost by virtue of the delay, or ought for the reasons of staleness not be given the forum of a criminal trial.
7. The respondent is not entitled to proceed any further having regard to the staleness of the complaints.
It would be seen that all of these grounds relate to general issues of delay. The issue of prosecutorial delay is not raised in these grounds.
The application is grounded upon an affidavit of the Applicant, who indicates that at the time of swearing thereof he was 69 years of age. He indicates that he had seven children of his marriage, and that his wife and he had separated about six years prior to making the affidavit.
He indicates that he was charged on 28th July 2000 with 56 counts of indecent or sexual assault on three of his daughters the three complainants in these proceedings. At the time of bringing this application the Applicant was awaiting arraignment before the Circuit Criminal Court in Dublin, having been returned for trial by the District Court.
He indicates that on 3rd December 1998 he was arrested and detained under the provisions of Section 4 of the Criminal Justice Act 1984, and that he denied the allegations against him.
The Counts 1 to 16 relate to his daughter CD, and relate to conduct alleged between 4th December 1968 and 4th December 1972. The period of time from the date of the alleged offence to the time of swearing was 31 years from the earliest point in time to a period of 27 years for the last of the complaints pertaining to this complainant, and somewhat lesser periods in respected of the other two complainants. The least in time being a period of 17 years from the date of the alleged offence to the swearing of the affidavit.
He claims at Paragraph 11 of his affidavit that it is now almost impossible for him to ascertain with any degree of accuracy his whereabouts at the times when it is alleged he assaulted his daughters.
A statement of opposition has been filed on behalf of the respondent, in which the following grounds of opposition are pleaded:
The first matter raised is that the Applicant is not entitled to relief sought or any relief, and that strictly speaking is not a ground of opposition. It is further pleaded that there has not been the alleged or any delay by the complainants.
Secondly, that the delay in this case, if there had been any, is not excessive or unconscionable. It is denied that proceeding further with the trial of the Applicant on these charges would breach the applicant's constitutional right to a fair trial in due course of law.
Thirdly, if there has been any delay it is not of such duration that by reason of the unexplained delay alone the trial of the Applicant should not proceed.
Fourthly, if there has been any delay in the making of the complaints against the Applicant, the Applicant has been responsible for the said delay. The Applicant at the time of the offences was in a position of dominion over the complainants.
Fifthly, it is pleaded that the Applicant prevented the making of the complaints by threats and intimidation of the complainants.
Sixthly, that there is no time bar to prosecute such offences as are charged therein.
Seventhly, that the Applicant has not established that any alleged delay has caused or will cause him to suffer prejudice in the preparation or presentation of his defence to the charges laid against him.
Eighthly, it is denied that any of the particulars relied on in the Applicant's pleadings would constitute a violation of the Applicant's right to a trial in due course of law.
Ninthly, that the Applicant is not entitled to relief sought by reason of his delay in seeking judicial review.
Tenthly, it is denied that the right of the Applicant to a trial without delay or with due expedition has been irreparably affected by the inexplicable failure of the complainants to proceed with expedition.
Finally, in the statement of grounds of opposition it is stated that such further other grounds may be advanced at the hearing of this matter.
Well, that is something that is not provided for in the Rules, insofar as the opposition relates to the grounds of opposition that have been filed.
An affidavit has been sworn by Sergeant Mary Murphy, who indicates that in August 1998 the three complainants reported allegations of sexual and physical abuse alleged against their father, the Applicant herein. She subsequently took statements from each of the complainants. These were in the months of August, September and into October of 1998. This related to evidence given by her in this court at a time when she was cross-examined.
She indicates that the Applicant was initially arrested and questioned on 3rd December 1998, and ultimately the prosecution file was forwarded to the Respondent in late November 1999. The Respondent's directions were received at Ballyfermot Garda station in April 2000, after which Sergeant Murphy sought to locate the Applicant. She located him in July 2000. On 26th July 2000 she obtained an arrest warrant and on the same day the Applicant was arrested and charged.
The Book of Evidence was served on 15th November 2000, and on 5th January 2001 the defence requested the taking of depositions from the complainants and from Sergeant Murphy. These were taken on 24th May 2001. She indicates that the case was listed for submissions before the District Court on 13th September 2001, and on that date, having heard the submissions, the District Court returned the Applicant for trial to the Circuit Criminal Court.
Sergeant Murphy has indicated that she took further statements from each of the complainants on 14th March 2002 and 8th October 2002. Dealing with the issue of delay in making the complaints to the Gardai she indicates that one of the concerns of the complainants in not coming forward sooner was the state of their mother's health. She had a kidney operation in the mid 1980's and a triple heart bypass in 1992, and her recovery was very slow.
The complainant JP indicates that she first became aware of the alleged abuse of her sister, CD, after she got married in 1990. It appears that she confronted the Applicant after her mother had her kidney operation, at a time when she was about 16 years of age. She indicates in her deposition that she did not report the abuse earlier as she was dealing with it in her own way. When the alleged abuse came out she alleges that her mother fell to pieces. After this she left the Applicant, her husband, and came to live with JP for a while.
CD in her depositions indicates that she put the abuse to the back of her mind as long as she could. When she was approached by JP they decided to speak to their sister NK. She indicates that she had to try and deal with the matter herself first. At first she didn't want anyone else to know about it. She didn't want her mother to find out about it. This was her main concern, but her sister NK didn't feel that way. She felt they should tell their mother about it.
She attended counselling, but didn't feel comfortable enough with the counsellor to stay, so she gave it up after a few months. NK indicates that out of the three sisters she was the one always wanting to make a formal complaint because she was so upset. She indicates that she didn't want to upset their mother, who had a triple bypass.
Each of the complainants has made an affidavit confirming as true what they had reported to Sergeant Murphy in the way of statements made by them to her.
I should add at this point that Sergeant Murphy in her evidence indicates that at the time of the taking of the depositions of each of the complainants in the District Court they were very upset.
In further statements made by each of the complainants in March 2002 they addressed the issue of delay. In the case of the complainant, CD, she indicates in her statement that she made at that time that Jill approached her just before she got married in February of 1990. She indicates that it was a short time before that they talked. She then states as follows:
"From the time the abuse stopped until the time I got married in 1984 I buried it in my head, it was my way of surviving. I had a difficult time in the early years of my marriage, especially having a sexual relationship with my husband. After -- she refers to JP -- and I talked about it I wanted to know did it happen to any of my other sisters."
She refers to her sister T and NK. She says that she spoke with T first and she said nothing had happened to her, and together they confronted NK. She says that she can still remember that night. NK told them that she was abused by their father and broke down crying. She states:
"I tried to come to terms with all this, the fact that our father had abused three of us. I had difficulty talking with my sisters about this. I told my husband about the abuse, but it was some time later before I was able to discuss it with him. I was still trying to bottle it up. Nobody else apart from my sisters, JP, T and NK, were aware of what had happened to us. I had a young family at the time and that kept me going and kept me focused. It became clear to me as the years wenton that I needed to seek professional help. In 1994 I went to see a counsellor at Laragh."
She indicates that the centre provides counselling for adults who were abused as children. This date was later corrected to read 1997 in a further statement. She says that she cannot remember the name of the counsellor, and only attended six or seven sessions with her. She found the counselling difficult and upsetting, but it made her start to face up to the reality of what her father had done to her. She said that prior to that all that she had done was bury it.
She says that she was always reluctant to discuss it openly with her whole family, as she was afraid of the consequences that this would have on her mother. During this time her mother had a triple bypass and other medical conditions. She thought that telling her mother about what had happened to her would kill her. She says that she was so afraid of losing her during that time. She then says that eventually, with the help and support of her sisters, the other two complainants in these proceedings, she reported it to the Gardai.
At the same time the complainant, JP, made a further statement to the Gardai. In her statement she says that she found it very difficult during her teenage years to come to terms with the abuse by her father. She says that during this time she began to have nightmares and anxiety attacks. She developed a compulsive cleansing disorder.
Before she got married she spoke to her sister, CD, about the abuse. She says that it was a huge relief for her knowing that she could relate what she was feeling with someone who understood: When she got married to P she was trying to have a normal marital relationship, which was difficult for a time. She says that she concentrated on the relationship and began to feel safe and secure. She forced any thoughts of abuse to the back of her mind. She also indicated that in 1994 she went to a counselor at Laragh in Tallaght. Again, this date has been corrected in a subsequent statement to read 1997.
She says that she does not remember the name of the counsellor. It was a different counsellor to the one the girl, CD, attended. She says that her sister CD was going there and encouraged her to attend. She found it very upsetting to talk about the abuse and decided to stop attending when she became pregnant. She says that the nightmares always continued.
She indicates that when her daughter was born in 1995 she became over protective towards her, and became paranoid that what had happened to her could happen to her daughter. She says that a part of her felt frightened of the consequences of making a complaint, and how it would effect her mother. Finally she realised that making the statement was the right thing to do for her.
The third complainant, NK, has made a statement also at the same time, on 14th March 2002, in which she indicates that she first talked about the abuse with her two sisters, the other two complainants in these proceedings, shortly before the wedding of JP. She indicates that she recalled getting very upset and had no idea that her father had abused her sisters as well as her.
She was living at home at the time. She remembered moving out for a while, but because she could not afford the rent she had to move home. She stayed at home for a short while and then moved out for good. She says that for the following few years after she moved out she was working and tried to lead a normal life. She it found difficult and was feeling very vulnerable.
She then became involved in a destructive, abusive relationship. This relationship began in 1992. She says she was being physically and mentally abused. She just took it, she says. She says:
"I felt worthless and unable to stand up for myself. As the years went on I was feeling suicidal and was very close to a break down. I had no self-esteem and hated myself. I had very little contact with my family from 1992 to 1995. Deep down I always wanted to make a complaint about the abuse, but I was unable to do it without the support of my family. I needed my sisters with me on this."
She refers to the two other complainants.
"All the time my sisters were anxious about my mother's health and were reluctant to go ahead and make a complaint. I had the support of my family, which was important to me, when I made the complaint to the Gardai."
Further statements were made by each of these complainants on 8th October 2002. JP indicates that she discussed with her two sisters the abuse that she suffered from her father. She was not then in a position to make a complaint. She said that was before she got married in 1990. One of the reasons affecting her was her mother's health. She says that she was always sick with kidney related problems. Her father mentally dominated her mother, and she felt that there was no way that she would have been mentally able to cope with telling her about the abuse.
Later on she underwent a triple bypass. She took about two years to recover from this operation due to other health complications. She did tell a neighbour of hers of the abuse. She indicates that this neighbour was two years older than her. She was always asking her why she was so controlled by her father. Eventually she told her that her father sexually abused her. She wanted to tell her mother in order to help her -- that is her friend. She said that she was afraid for her mother and wouldn't let her. She says
:
"I was not able to talk about it or cope with it myself."
Her sister CD, in her further statement of the same, date indicates that when she spoke with her sisters of the abuse it was very difficult for her. She says she was not coping well with it herself and she was concerned for her mother's health. She indicates that her mother had a major kidney operation back in the mid 1980's, and she continued to suffer kidney related problems. In 1992 she underwent a triple bypass. She had a very slow recovery from this, mainly due to her kidney related problems.
With her mother's health and her own difficulty in coping with the abuse it wasn't the time to make a complaint, she states. She says it was many years later, and with the encouragement of her sister, NK, that she was able to make a complaint to the Gardai. Further, the complainant NK has made a statement on the same date, in which she confirms having spoken to her two other sisters before JP got married. She said that she was upset to learn that they were also abused by her father. She was still living at home and she said though she wanted to make a complaint:
"I could not do so without the support of my family in particular."
She refers to her two sisters.
"My sisters were more worried about the effect it would have on my mother's health if it was reported. Initially this issue did not concern me, but it did as time went on. I could not forgive myself if anything happened to my Mam, and I reported it then to the Gardai."
These statements of each of the complainants, which have been confirmed as true in their affidavits, indicate the particular difficulties that they had in making a complaint. It is quite clear that while NK on the face of things wanted to make a statement prior to her two sisters, she still needed the support of her two sisters in making such a complaint. Her two sisters had their own personal difficulties, and also concern for their mother's health. This seems to have been a very real concern in the particular circumstances of this case, which was a situation of abuse alleged against the father, in circumstances where the father was still living with his wife in the family home. In view of the mother's past health there seems to have been a real concern as to the effect that any disclosure would have on her health, or whether it could result in her death. It doesn't seem to have been a situation of mere concern of some upset on the mother.
An affidavit has been sworn by Mr. Michael Dempsey, who is a Senior Clinical Psychologist. He indicates in his affidavit his qualifications and experience. He is employed with by the Eastern Regional Health Authority. He has a very extensive list of qualifications, and is a lecturer part-time in Trinity College in Dublin, and in the Department of Psychiatry in the Royal College of Surgeons in Dublin.
He indicates having seen each of the complainants, having met them and assessed them, and having prepared reports on them. He indicates the terms of the reference of the matter to him. He exhibits each of the reports and confirms as true the records of his meetings. In his reports he indicates the situation of each of the complainants. He indicated that in the case of the complainant CD, that after she discussed the matter with her sister it was some time later before she was able to discuss the alleged abuse in detail with her husband. That she attended counselling, and that this helped her to begin to talk about the abuse more openly. Ultimately she and her sisters reported the abuse to the Gardai in 1998.
In his report he had referred to the fact that the counselling alleged to have taken place was in 1994. In a further affidavit he indicates that he learned that this date was wrong, that it should have read 1997. But he stands over the conclusions that he has reached in relation to each of these complainants. In the context of this complainant CD, he says that it is understandable, given her particular circumstances, that she did not report the abuse alleged until relatively recently. He says that she has tended to deal with the abuse in the past by avoiding it. On this basis he says that it is his opinion that it is quite possible that she would never have reported the alleged abuse if her sister, JP, had not posed the question that she did in 1990.
He says that it was also her opinion that her reporting the alleged abuse was related to her sister NK's wish to do so. Another factor that served to prevent her reporting the alleged abuse is that she did not want to distress her mother by reporting the alleged abuse to the Gardai. Additionally, she wanted to devote her attention to the upbringing of her children.
Another factor is that she feels dominated by her father, and this has served to prevent her reporting the alleged abuse until relatively recently. She reported that the brief counselling she received also helped her to gain strength to report the allege abuse.
In the case of the complainant NK, in his report
Mr. Dempsey indicates that the primary reason for her delay in complaining to the Gardai about the alleged abuse by her father was the effect that this would have on her mother's health. She indicates that her sisters did not want to complain to the Gardai on these grounds. From his interviews with the three sisters he indicates that it would appear that NK was keener to report the alleged abuse earlier than her two sisters were, but was persuaded by her sisters not to do so because of the effect it would have on their mother's health.
He concludes his opinion, that the reasons why she did not report the alleged abuse to the Gardai are understandable in terms of her life circumstances. She had told her sisters about the abuse some eight years before informing the Gardai. She had also informed her former partner about the alleged abuse some time before contacting the Gardai.
In the case of JP Mr. Dempsey has prepared a report in which he deals with the situation of this complainant, and refers to the fact that she reported that she was afraid to tell her mother about the alleged abuse as a child. He indicates that fear is often cited as a prime reason for not disclosing alleged abuse in childhood.
She felt ashamed during her childhood years that the alleged abuse occurred, and this shame prevented her from disclosing it. She indicates that shame is often cited in the literature as a reason for not disclosing abuse in childhood. She reported that she blocked the alleged abuse from her mind during her teenage years, and this suppression of unwanted thoughts from conscious awareness is a common defence mechanism against anxiety. This suppression of the alleged abuse helps account for some of the delay in report the alleged abuse.
He indicates that she reported that she told a friend about the alleged abuse when she was 15 years of age. She reported that she told her then boyfriend and present husband about the alleged abuse when she was 18 years. She reported that some months before her wedding, at her boyfriend's urging, she told her sister CD about the abuse. She stated that following this conversation with CD, and subsequently with her sister NK, that she did not contemplate going to the Gardai at that stage as she was so happy that it wasn't only her.
Mr. Dempsey indicates that this complainant reported that she now tends to avoid meeting other family members, as it only serves to remind her of the alleged abuse. She finds discussing the alleged abuse retraumatising. This is another factor that helps explain the delay in reporting the alleged abuse to the Gardai.
She refers to the counselling that she attended, and the fact that she discontinued attending this counselling. He indicates that another factor that resulted in the delay in her informing the Gardaí about the alleged abuse was a concern about the effects that the complaint would have on her mother, who had suffered from ill health for some years.
He concludes that the reason why she gives for not reporting the alleged abuse to the Gardai until relatively recently are understandable in the light of the alleged effects of the abuse on her.
Mr. Dempsey was cross-examined on his affidavit and. the contents of his reports were addressed to him in extenso. In the context of his evidence before this court he indicated the fact that disclosure is a gradual process, and that disclosure to members of the family or close friends is something quite different to making a formal complaint to the Gardaí.
I accept his evidence in its entirety, and I don't propose to rehearse the extent of his evidence at this stage. It has been recorded.
I take the view that he has carried out his exercise in an appropriate manner, and that while the Courts have addressed the issues of how the matters should be addressed by persons in the position of Mr. Dempsey I find no failure on his part to comply with the appropriate standards in that regard.
In the context of this particular case counsel for the Applicant has made detailed submissions to this Court and referred in extenso to a large number of authorities on this area coming before this Court. The authorities, including a number of authorities in the cases of JOC, POC, PC, decisions of the Supreme Court, stress the approach that should be taken by psychologist, the difficulty with regard to psychological evidence and how that should be approached. The authorities also indicate in detail the difficulties that may be faced by persons in the position of the complainant dealing with allegations of abuse related to a long period of time previously.
It is clear, however, that each of these authorities indicate that each case must be assessed on its own facts. I am fully conscious of the difficulties that are outlined in the authorities, and especially where significant periods of time have elapsed. I think in the instant case it is clear that there have been significant periods of time that have elapsed from the time when the offences are alleged to have been committed. This undoubtedly will present some difficulty for the Applicant.
I do however conclude, not only on the evidence of Mr. Dempsey but also on the evidence of each of the complainants themselves, that they have explained the circumstances of their delay in coming forward, and this relates to the effect of the abuse upon them. Clearly their mother s health was a factor, but it was by no means the sole factor in their delay in coming forward and making their complaints.
On that basis I believe that this case should be contrasted with any case in which the sole basis for failing to make a complaint would relate to concern for upset in a family by making a disclosure.I think the particular circumstances of this case, where the abuse is alleged to have taken place within the family unit, is a factor that the Court must bear in mind.
In all of the circumstances I believe that applying the test outlined in the Judgment of Mr. Justice Keane in PC -V- the Director of Public Prosecutions, that the respondent has discharged the onus placed upon him to explain the delay on the part of the complainants in coming forward, in circumstances where this court must approach the matter on the basis of the assumption that what the complainants have stated is true. While the complainants were cross-examined, or in the context of depositions being taken in the District Court, they have not been cross-examined on their affidavits in this Court. That relates to a situation where apparently an application was made very late in the day and was refused by this Court.
I am quite satisfied that, in any event, having regard to the appropriate test laid down in the PC case, that I would have to conclude on the basis of what is stated by them that the delay has been adequately explained. In the circumstances I conclude that the delay in question is delay for which the Applicant must bear responsibility.
Proceeding then to the further question as to whether in all the circumstances this Court should restrain the further prosecution of the Applicant. I am conscious of his age. I am also conscious of the period of time that has elapsed, and the difficulty that this inevitably must give rise to. I am, however, of the view that the Applicant has failed to satisfy this court in circumstances where the onus rests upon him to show that a fair trial cannot be obtained at this stage. I believe that he has failed to discharge the onus of establishing a real and serious risk that he cannot obtain a fair trial.
With regard to the issue of prosecutorial delay. While counsel sought to address this to the Court it is quite clear that the Sergeant had incomplete material, insofar as she could only deal with her own involvement in the case rather than the position of the office of the Director of Public Prosecutions. I conclude that there has not been any culpable delay on the part of the prosecuting authorities in this case.
In all of the circumstances I believe that I must refuse the Applicant the relief which he seeks.
Approved: Ó Caoimh J.
