Thursday, October 18, 2007
JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2007.
This is the appellant’s appeal against the judgment and order of the High Court (O’Neill J.) of the 26th July, 2005, whereby the appellant was refused relief. The appellant is the defendant in a criminal case in which he is accused of multiple offences of a sexual nature allegedly perpetrated while he was a Christian Brother working in the former Artane Industrial School. These offences as originally framed related to seven victims, six males and a female, and extending back to 1955. However, shortly before the appellant was returned for trial the oldest allegations, relating to a Mr. W. were dropped. There are now extant eight allegations of buggery, 63 of indecent assault and one charge of attempted buggery. The oldest extant charge relates to the year 1961, forty-six years ago and the latest relates to the year 1969, thirty-eight years ago. Evidently, these are very long periods of time. Moreover, the appellant has the benefit of a finding of the learned trial judge that the delay in this case “could not rationally be considered to be anything other than inordinate”. The learned trial judge also held:
This is the appellant’s appeal against the judgment and order of the High Court (O’Neill J.) of the 26th July, 2005, whereby the appellant was refused relief. The appellant is the defendant in a criminal case in which he is accused of multiple offences of a sexual nature allegedly perpetrated while he was a Christian Brother working in the former Artane Industrial School. These offences as originally framed related to seven victims, six males and a female, and extending back to 1955. However, shortly before the appellant was returned for trial the oldest allegations, relating to a Mr. W. were dropped. There are now extant eight allegations of buggery, 63 of indecent assault and one charge of attempted buggery. The oldest extant charge relates to the year 1961, forty-six years ago and the latest relates to the year 1969, thirty-eight years ago. Evidently, these are very long periods of time. Moreover, the appellant has the benefit of a finding of the learned trial judge that the delay in this case “could not rationally be considered to be anything other than inordinate”. The learned trial judge also held:
- “I am also satisfied that between January 1996 when a statement was taken from K.K. there was unreasonable delay on the part of An Garda Síochána in progressing the investigation into the allegation made by K.K. However I am satisfied that the applicant has not pointed to any particular prejudice be it presumptive or actual relative to the delay for that particular period and that being so I have come to the conclusion that that particular delay did not contribute in any kind of significant way to the risk of an unfair trial of the applicant in respect of the charges relative to K.K.”.
In a number of previous cases I have outlined the acute prejudice which lapse of time can cause to a person accused of a serious criminal offence. The jurisprudence on this topic grew up in relation to civil cases: I have discussed it in the first part of my judgment in J.O’C v. DPP [2000] 3 IR 478. In O’Domhnaill v. Merrick [1984] IR 151Henchy J. held:
- “While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant who has not in any material or substantial way contributed to the delay should be freed from the palpable unfairness of such a trial.”
Henchy J. also said:
- “I consider that it would be contrary to natural justice and an abuse of the process of the Court if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial and a claim for damages of which she first learnt sixteen years after the accident.”
The aspect of this jurisprudence which I wish to emphasise here is that the Courts were prepared to infer such unfairness simply from the periods of delay. In another case cited in J.O’C, O’Keeffe v. The Commissioner of Public Works, the Supreme Court regarded as “a parody of justice” the hearing which would take place twenty-three years after an industrial accident which was the subject of the action.
At pages 499-500 of the report in JO’C, I have endeavoured to summarise the jurisprudence to which I refer. I continue to be of the view that these matters are of the greatest relevance in considering an application to prohibit a trial on the ground of lapse of time.
There is, of course, another line of authority, much developed in the cases, relating to the specific area of alleged child sexual abuse. Arising from this line of authority, it is no longer necessary for the prosecution to establish a specific reason for delay by a complainant in reporting such allegations and that, no doubt, is as it should be. There nevertheless remains the difficulty of providing a fair trial, as opposed to “a parody of justice” after very long periods of delay. In other words, the potential for delay to cause unfairness is quite unaffected by the reasonableness or otherwise of the delay, considered from the point of view of the complainant.
I mention these points because of a particular submission made on behalf of the Director of Public Prosecutions in this case, to the effect that “Decisions of the Superior Courts to restrain trials on the basis of delay are governed by a principle of parsimony…”.
In this connection, I wish to express my agreement with what Ms. Justice Denham had to say in B. v. DPP [1997] 3 IR 140 at 195:
- “It is not the applicant’s interests only which have to be considered. It is necessary to balance the applicant’s right to reasonable expedition in the prosecution of the offences with the community’s right to have criminal offences prosecuted. The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the applicant would not receive a fair trial, then on the balance of these constitutional rights the applicant’s right would prevail.”
Similarly, in D. v. DPP [1994] 2 IR 465 at 473 Mrs. Justice Denham held:
- “The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right. A Court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute. If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”
I wish to reject this “principle of parsimony” as strongly as I can. The right to a fair trial is a superior right and cannot be clogged by any “principle of parsimony”. Equally, it must be borne in mind that what an applicant must establish is the real risk (as opposed to the demonstrated certainty or probability) of an unfair trial. It would be unrealistic to require a defendant to prove what a dead or missing witness would have said when, by reason of the delay in making the allegation, the defendant would have had no reason whatever to discuss this question with the witness.
Although the periods of delay in this case are very long, there are certain features which tend to mitigate their effect. The appellant gave extensive interviews to members of An Garda Síochána and, as the learned trial judge has found, these appear to demonstrate that his memory is functioning and accurate and that he shows quite a marked instinct for precision. There is another aspect to these interviews as well.
In the course of interviews with the gardaí the applicant is alleged to have made certain admissions. These are admissions to actions which would amount to indecent assault (now described as sexual assault) but do not extend to the crime of buggery, which he stoutly and consistently denied. The conduct to which he admitted, which was in the nature of inappropriate touching, occurred, he said, “in moments of human weakness”. He also said, speaking of the allegations made against him, that “if the boys have said this, he must accept it, but he has no recollection of it. He must accept what they have said on trust. His memory is not as good as it used to be… something must have taken place”.
He said that he remembered one of the boys, Mr. K. because of his unusual name. He also remembered another boy, Mr. M. He made specific admissions of conduct which would amount to indecent assault in relation to this boy. His admissions are at least open to the interpretation that he also concedes conduct of this sort with other, unnamed, boys. He could not say how often he experienced “moments of weakness”. Asked whether he had behaved in the way indicated with anyone subsequent to his contact with Mr. M. he said “I might have, I don’t know. I could have.”
There are a number of things to be said about these admissions. Firstly, as indicated above, they do not extend to buggery which was always denied apparently (insofar as one can judge from a typed transcript) with considerable vehemence. Secondly, all statements in the nature of admissions related to boys. Indeed, the questions which elicited the admissions were couched in terms of boys exclusively. There is no admission in relation to the female complainant. Her case is also different in the sense that it was not alleged to have taken place in the school or the kitchen of the school but elsewhere. Thirdly, there are undoubtedly admissions of a more general variety, in relation to boys other than Mr. K. or Mr. M. but the applicant could not name them because he had a poor memory for names due to lapse of time.
It appears to me that these admissions are a significant factor in the present case. Admissions, depending on their context, may vary greatly in their significance on an application like this. An unrecorded and disputed allegation may be of little or no significance unless its terms or context make it very compelling. A disputed allegation of admissions to Gardaí will normally be verified by recording: an omission to record will call for explanation. However, in the present case the admissions do not appear to have been denied or glossed in any way so that it seems reasonable to take them at face value.
On that basis, there are admissions to misbehaviour with two specified boys and with others unnamed. There are also admissions to a propensity to behave in a particular way “in moments of weakness”.
In that context, I would not regard the inability to recall specific children by name as gravely prejudicial to the applicant’s prospects of a fair trial. It is perfectly clear from the undisputed verbal admissions that the applicant has positive memories of behaving in the manner indicated, to the point at which he indicated that he was prepared to accept the truth of the allegations made. Equally, of course, he may be in a position to rely on the admissions made by him to support the credibility of his denial of buggery. The very vehemence of these denials is indicative of a strong subjective memory for what did and did not occur.
To look at these admissions from another point of view, it would in my opinion be extraordinary to prohibit a trial in circumstances where the defendant admits a significant amount of behaviour of a criminal nature. Without doubt his ability to be more precise as to the individuals involved, and perhaps about other features, is due to lapse of time, but, having regard to the admissions, that lapse of time would itself appear to be caused or contributed to by the defendant’s activities. In those circumstances I do not consider that the demands of justice or the requirement of a fair trial require that the respondent be prohibited from prosecuting any of the charges against the applicant. There is, of course, still a need for great care to be taken, after so long a lapse of time, to ensure that the defendant is not unreasonably prejudiced by it. This is a matter primarily for the trial judge on the hearing of the criminal case.
In the circumstances of this case there is no need to consider what the position would be in the absence of the admissions referred to, and I expressly refrain from doing so. I hope it is clear from what is said above that long lapse of time has the potential to cause great injustice and that this is a matter calling for the serious attention of the Courts when the judicial review jurisdiction is invoked. I also wish to make it clear that this is a case of undisputed admissions and cannot be regarded as a useful precedent in circumstances where alleged admissions are hotly disputed and not independently verified.
