High Court dismisses sexual abuse claim against grandfather due to inexcusable delay preventing fair trial.

Neutral Citation Number [2009] IEHC 542

THE HIGH COURT

2008 7644 P

BETWEEN

F. W.

PLAINTIFF

AND

J. W.

DEFENDANT

JUDGMENT of Mr. Justice Charleton delivered on 18th day of December, 2009

1. The defendant is a 91 year old Dublin man. The plaintiff is his granddaughter. She is now aged twenty-four. In these civil

proceedings she claims that her childhood was ruined, and her adult life diverted in alcoholism, depression and chaos because the

defendant sexually abused her when she was small girl of between four and seven years of age. He denies it. This all happened, she

claims, between twenty and seventeen years ago. The defendant has brought this motion for the proceedings to be dismissed on the

grounds of inordinate and inexcusable delay, or on the grounds that there cannot now be a fair procedure by reason of the elapse of

time. In referring to the allegations and counter allegations of the parties, I have had only affidavit evidence. Nothing in this judgment

decides any of those facts or is to be interpreted as favouring one side or the other.

2. There are a multitude of decisions on this issue. Some of these speak of a discretion inherent in the court to control its own

procedure. While there is undoubtedly a duty on the court to ensure that the trial process is fair, the decision in this type of case

depends upon an evaluation of the facts, what is known about the respective conduct of the plaintiff and the defendant and, most

importantly, where the court now adjudges the parties to be from the point of view of a fair disposal of the allegations.

Chronology

3. In order to attempt to come terms with position of the parties, I now propose to set out in concise form a chronology of the

relevant events:-

· 2 July 1985: the plaintiff is born. The defendant was then aged 67 years.

· 1989-1992: the plaintiff alleges that she was continually touched in a grossly inappropriate sexual manner by her grandfather while

visiting them and their handicapped son at their home in Dublin.

· 1993: members of the extended family go on a trip to New Zealand. On their return it has emerged that a young man has been

exposing himself to the plaintiff. She reported that to her mother, who then asked her about any other matter that might be on her

mind. The alleged abuse by her grandfather is reported. Her mother rings him up and warns him off. He denies that. She is not again

allowed to be alone with him. This is likely to be contested by him. In consequence of the allegations, and possibly for other reasons

as well, a severe family rift opens up. She and her mother moved back to the West of Ireland but her father goes to live with his

father, the defendant, in Dublin.

· 2000: the plaintiff entered into a relationship with a man in his mid-twenties, became pregnant and came to the attention of the

probation service. They referred her to Ruth MacNeeley, a counsellor in sexual abuse matters. To the probation officer and to Ms.

MacNeeley the plaintiff discloses that she was sexually abused by her grandfather. This arose she says on affidavit, because on being

arrested by the Gardaí, she endured a flashback to the abuse by her grandfather and she felt that, again, she was under abusive

male authority.

· 2003: a formal complaint was made by the plaintiff about the sexual abuse she endured at the hands of the defendant to the Gardaí

in Mayo. They dealt properly with it. Disgracefully, the matter is not followed up when the file is transferred to the appropriate station

in Dublin.

· May 2004: the plaintiff, having had a second child, was provided with a house in a town in the West of Ireland.

· February 2008: the plaintiff goes to a firm of solicitors in relation to this case. A complaint made to the Garda Ombudsman

Commission about the handling by Dublin gardaí of criminal conduct against her grandfather and is adjudged to have been negligently

handled. The relevant Garda officer is fined the very small sum of €150.

· 15th April 2008: a warning letter is sent by the plaintiff’s solicitors to the defendant making the allegations later contained in these

proceedings and seeking damages.

· June 2008: the wife of the defendant, and therefore the plaintiff’s grandmother, dies in the West of Ireland.

· 7th September 2008: the plenary summons is issued.

· 25th September 2008: a statement of claim is delivered.

· 7th October 2008: a notice for particular is issued by the defendant seeking details on the statement of claim already delivered.

· December 2008: the defendant has a small stroke, but no medical report was exhibited in the affidavits on behalf of the defendant.

· 21st April 2009: the plaintiff replies to the notice for particulars.

· 8th July 2009: the defendant files a defence to the claim.

· 24th August 2009: this notice of motion is issued seeking to dismiss the plaintiff’s action on the grounds already set out.

· 30th October 2009: notice of trial is served.

· 14/15th December 2009: this motion is heard.

4. To that I might add that the trial of this matter can be expected to take place, barring unforeseen circumstances, some time

before July 2010. On the basic facts alluded to above, some expansion is necessary.

Some details

5. The Garda officer in the West of Ireland to whom the plaintiff first made a complaint of a criminal offence treated her with respect

and handled the case efficiently. The nature of the claim that she can make against the defendant is perhaps best stated by quoting

that statement in full, less certain appropriate redactions:-

“I reside at [redacted] with [redacted]. I was born in Dublin and lived at [redacted]. I moved with my family to

[redacted]. My grandfather J. W. lived at [redacted] and I visited him regularly with my family, nearly every Sunday and

at holiday time. Between the time I moved to [redacted] and when I was eight years old I can recall to my grandfather’s

house and he used to ask me out to the kitchen to get sweets for me and I remember he’d give me sweets and as I’d be

walking out of the kitchen he’d grab me from behind and he’d put his hands either inside my trousers or under my dress

and feel my vaginal area. I don’t think he ever inserted his finger into my vagina, not that I can remember and used to put

his other hand up under my top feeling my breasts and he used to also nibble on my ear all the time. Other times when I

was on his knees and he’d be teaching me time or how to read the newspaper, he’d put his hands down inside my trousers

or under my dress again feeling my vagina, there would have been other people in the sitting room at the time. I cannot

pinpoint times or dates when these things happened. I know these incidents as outlined by me happened on a regular

basis and only stopped when I told my mother about them. I was about eight years then. The assaults were always the

same. The one time I can recall J. W. assaulting me was when I cycled over to him and it was Halloween time, that was

my first bicycle but I can’t remember what year I got that. My grandmother also lived at that address and was always in

the house when these assaults took place. I have now decided to make a statement as these things have been on my

mind a lot over the last few weeks. I also attended the Rape Crisis Centre in [redacted] when I was fifteen years old.

Sometimes it happened while my mother was in the sitting room and my grandfather would bring me into the kitchen. I

cannot remember him saying anything to me about what he was doing or saying not to tell any one. I’ve heard this

statement read over and it is correct and I’ve made the necessary alterations and additions”.

6. In the notice for particulars a question was asked of the plaintiff as to the dates on which the plaintiff was allegedly sexually

assaulted and the frequency of same. She was asked to state the precise number of occasions on which she was allegedly abused

and assaulted. The answer was:

“This is a matter for evidence. Without prejudice to the foregoing, the plaintiff was abused and assaulted by her paternal

grandfather regularly on diverse date from 1989 to on or about 1993… the plaintiff’s grandfather, grandmother and cousin

[redacted] would have been present in the same room on some of the occasions when the abuse herein occurred.”

7. I am not in a position to make any judgment as to whether anything which the plaintiff complains occurred. Nor can I judge, as has

been said on his behalf, whether the defendant is a victim of a false allegation. In the field of human affairs, false relationships arising

out obsession occur, sometimes in the most extreme forms; Royal Dublin Society v. Yates, (Shanley J., High Court, Unreported 31

July, 1997). In addition, from time to time, false allegations of sexual misconduct are made against innocent people; The People

(D.P.P) v. Hannon, [2009] IECCA 43. It suffices to say that no matter what the court decides, that the parties must live with their

own conscience. No matter what decision a court comes to, nothing can ever change the facts that have truly happened. It is

upsetting if false allegations are made, or if a person does not have the courage to face himself and to admit the truth, but these are

merely attitudes in contrast to the truth which, because it is unalterable, has an eternal quality.

8. I have quoted the plaintiff’s statement to the gardaí and her replies to particulars in full to show that this seems to be close to the

full extent of what can be said by her in this case. In addition, it was argued that some surrounding facts and circumstances tend to

show the truth of her account. On 21st September 1992, for instance, having been referred as a small child by her general

practitioner, a hospital doctor at registrar level noted that she suffered severely from nocturnal enuresis, in other words bedwetting

for the previous four years. Her general practitioner noted that she had been totally dry, following ordinary toilet training, aged three

years. The doctors were then looking for a physical cause, which was entirely absent. Further evidence of distress is to be gleaned

from her interaction with medical, psychiatric and probation State services over the next fifteen and more years. The relevant records

show psychological problems, the necessity to foster out her children, alcohol abuse, feelings of hopelessness, severe depression and

panic attacks.

9. It has never been accepted, nor has it ever been argued as far as I know, in a criminal trial in this jurisdiction that psychiatric or

psychological evidence is admissible as to how those who have been sexually abused in childhood will behave. It is difficult to see how

the rule in the civil case could be different, though I express no view as the matter does not come for decision before me. Canadian

and American courts have a different view. A wealth of judicial experience indicates a clear pattern even in adults of reluctance to

disclose sexual violence. This kind of attack affects a person in the most intimate area of their lives. It is very different to being

subject to a cheque fraud, or a burglary. For whatever evolutionary reason those subject to sexual violence often feel a sense of

shame and sometimes, in a completely misplaced way, can even ascribe some blame in some way to themselves. With children the

process is even more pronounced. Ruth MacNeeley, in her report on the plaintiff makes these points, which I feel should be quoted

here:-

“If a child has no framework or place to put the experience of sexual abuse, it has no context and is frequently experienced as

traumatic. F. endured her grandfather’s repeated abuses of her, often in front of the family, but hidden in a very clever way…

Basically to survive F. had to put away mentally what happened to her- it was deeply confusing and constantly limiting live.

Everything she did was a normal protective response to trauma.

It is also clear, working with Ms. W. that her ability to hear and process information was very affected by what had happened to her.

Trauma prevents the person hearing, listening and processing information in a clear way. Ms. W.’s thought processes were affected

by her experiences. All information is filtered with her traumatic life experiences to the forefront. Though not consciously. F.’s

reactions, decisions, and thinking all had been influenced by her early life experiences. It supersedes everything.

I can confirm that it is not at all exceptional for a child or woman who has experienced any form of sexual violence to delay

disclosure. That in itself is not at all unusual – it is well documented that it takes people sometimes years and many never disclose

such experiences even to partners or family members… The intense overwhelming and deep feelings attached to such an experience

are not feelings that human ever wants to feel – shame, humiliation, guilty, disgust, fear, terror and usually intense self-doubt are not

easy emotions to move through. Disclosures also in almost every case are affected by an intense fear of not being believed…

The experience of sexual abuse is an experience of loss – loss of choice, safety, and control. No one ever wants to revisit such an

experience – they may need to, in order to fully recover but that will not make it easier. I cannot overestimate this response…

The inability to speak about the overwhelming event is a normal protective response to severe trauma. Some life events effectively

render the person speechless. Most people will find it very difficult, if not impossible to speak about an overwhelming experience. The

“self” protects its self by not allowing anything to precipitate a flashback which can cause the victim to feel that the event is

happening all over again in the present. This can re- traumatise the complete disconnection with the present. Speaking about such

events or thinking about them can cause flashbacks.”

10. From the point of view of judicial experience, it is as well to remind myself, as juries might also be warned in criminal trials of this

kind, that Murray C.J. in S.H. v. D.P.P., [2006] 3 I.R. 575 at 618 accepted that delay characterises the response of those who were

sexually abused but who, at the same time may wish for justice, while dreading the process:-

“… the court’s experience extends to a broader set of issues and it has been found that there is a range of circumstances

extending beyond dominion or psychological consequences flowing directly from the abuse which militate or inhibit victims

from bringing complaints of sexual abuse to the notice of other persons, in particular those outside their family and even

more particularly the Gardaí with a view to a possible trial.

Over the last decade the courts have had extensive experience of cases where complaints are made of alleged sexual

abuse which is stated to have taken place many, many years ago. It is an unfortunate truth that such cases are routinely

part of the list in criminal courts today”.

11. The issue before me is as to whether this case can fairly be brought against this defendant in the factual circumstances which I

have outlined. The assessment which I make of the facts, having read the relevant affidavits and exhibits, is that the plaintiff will

bring her case against the plaintiff in the context of confronting him in a general way with an accusation of multiple acts of sexual

abuse while she was a child several years ago. Reality alone can establish the connection between the unhappy aspects of her life

and her childhood problems with the abuse she now sues her grandfather for. There is nothing that I can find in the surrounding

circumstances which would provide unequivocal, or even probable, evidence that a tribunal of fact could take into account in order to

decide that the abuse took place. In saying this, I emphasise that I neither disbelieve nor believe the plaintiff. I am not capable of

making that assessment here. Families can be unhappy for multiple reasons. Children can respond to ordinary family difficulties through

bedwetting and adolescents, and young adults can resort to substance abuse and suffer from depression from very many reasons.

The fact most emphasized here by the defendant is that the wife of the defendant, who would have been present on many occasions

in the house where the abuse had taken place, is now dead. This changes, it is said, the entire perspective of the case from the

point of a view of the court’s duty to ensure a fair trial. In turning to the relevant case law, I observe that a fair result can, as a

matter of reality, result from an unfair trial. That, however, is not the way the law operates. Because the reality of what has

happened is often concealed by untruth or destroyed by lies, the courts must adjudicate not on the basis of what they feel but by

ensuring that the process is one which is able to give rise to a high probability of a fair result. To depart from this standard is to usher

in arbitrary decision making based upon feeling or conjecture in the place of proven fact. In making this decision the court is mindful

that there are often circumstances where a fact can be left incapable of being proved even though it remains a fact, and therefore

the unalterable reality of what has happened.

Delay

12. A criminal trial should be stopped where delay has resulted in real prejudice to the accused so that he can no longer be assured

of a fair trial. The test was put in this way by Murray C.J. in S.H. v. D.P.P. [2006] 3 I.R. 575 at 620:-

“… there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer

“new factors”.

Therefore, I am satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the court is

whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial.

Countervailing factors can exist, such as the existence of multiple complaints from several different alleged victims. There,

the case is stronger and the possibility of obtaining a fair trial is buttressed. The court would thus restate the test as:-

The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial,

or that a trial would be unfair as of the consequence of delay. The test is to be applied in the light of the circumstances

of the case”.

13. In order to injunct the Director of Public Prosecutions from proceeding with the trial, an accused in a criminal proceeding that has

to show that there has been a culpable delay, firstly, and that, secondly, a serious risk arises that the trial thus affected by the

delay would be unfair; Murphy v DPP [2009] I.E.S.C. 53.

14. Thus in The People v. (D.P.P.) v. Quilligan (No. 3.) [1993] 2 I.R. 305, the prejudice claimed successfully by the accused was that

had the trial taken place at an earlier date then his next door neighbour, who had given a statement indicating that he had returned

to his flat at a particular time, might have been called. By the time of the second trial in the Central Criminal Court she had died. Her

evidence could have raised a doubt in the mind of the jury as to whether he could return from the murder scene at that hour, and

thus as to whether he was there at all. To complain that because of delay an entirely peripheral witness has died, or to say the same

about a witness who evidence is entirely favourable to the prosecution, does not invoke the test.

15. In civil cases, the lines of authority are more complex but capable, nonetheless, of being distilled into discernable principles. This

case concerns delay in the issuing of proceedings. From the time of the last wrong perpetrated against the plaintiff to the issue of

the plenary summons there was a gap of sixteen years. From the time the plaintiff obtained her majority, in other words eighteen

years of age and was thereby able to institute proceedings herself, rather through a parent or next friend, there was a delay of about

five years. In pre-commencement delay, inordinate and inexcusable delay are elements of the test together with the state of fairness

of the proposed trial and whether blame can be ascribed for the delay to a proposed defendant. Once proceedings are instituted

other problems, however, can arise. People can delay for years in replying to a notice for particulars, they may delay in serving a

notice for trial or they may refuse, in a personal injuries case, to be medically examined or to furnish a schedule of witnesses and

expert reports proposed to be relied on at the trial. For delay after commencement inordinate and inexcusable delay is also looked for

in order for the court to be able to dismiss a claim without hearing evidence. If the delay after commencing proceedings is excused,

by reason for instance a serious illness, then the trial should still take place. Prejudice is not so much an element of the test, it

seems, as it is with pre-commencement delay. A circumstance could arise, for instance, whereby it is alleged that the defendant

caused a road traffic accident resulting in serious injuries to the plaintiff, but the defendant has died in consequence of his own

injuries within months of the accident. There the estate of the defendant, or more probably his insurance company, might allege that

no fair trial could take place. Such an argument would not succeed. These are matters which can happen. The courts simply

approach them, doing its best to discover the truth in all of the circumstances. In such cases the judge is looking to do justice

bearing in mind the regrettable absence of evidence. Where a plaintiff has been guilty after commencement of inordinate and

inexcusable delay, serious delay by a defendant, may disentitle them to relief; McBreary v. Northwestern Health Board and Others

[2007] IEHC 431. The difference in the approach to pre-commencement delay and post-commencement delay is that in pre-

commencement delay, the proposed defendant can rarely do anything to affect the running of the case beyond the harm the he may

originally have done. Where a case is commenced, however, both sides have access to the courts in adjudicating on the fairness of a

procedure and in using the rules of court to further fairness. In adjudicating on post commencement delay, the provisions of the Rules

of the Superior Courts entitling a defendant to set a case down for trial six months after the close of pleadings, to apply to strike out

a claim because a pleading is out of time or discovery has not been made in time, and his entitlement to bring a motion to dismiss a

claim for delay are procedures which can, and should, be used by defendants making out a case of unfairness due to delay. If they

are not used, the defendant may be disentitled to relief. So in O’S. v. O’S., the Commissioner of Garda Síochána and Others, [2009]

IEHC 161, Dunne J. laid particular stress on an analysis of where the interests of justice lay, emphasising that the defendant’s

conduct required to be scrutinised carefully. Notwithstanding a long delay after commencing proceedings she made this comment:-

“In considering the question of fairness and justice, I find it very difficult to understand how it could be fair or just to

allow somebody to embark on difficult, complicated and costly litigation and to continue that litigation for a period of some

seven years without regard to the effect on the plaintiff in terms of the stress and strain of running such litigation when

an application that could have been made at an early stage to dismiss the proceedings by reason of delay is not in fact

made for a period of some seven years. It is quite clear that the plaintiff has been put to considerable expense, time and

effort, which might have been avoided had such an application been brought promptly. It is very difficult to see the

fairness and justice in dismissing these proceedings on the grounds of delay when there has been such delay on the part

of the State defendants in seeking the first of the reliefs sought herein on the motion before this Court. That was an

application that could have been brought promptly following the delivery of the Statement of Claim or even, one might

say, following the receipt of the Plenary Summons. There was no need to wait for seven years. Accordingly, I am satisfied

that the State defendants are not entitled to the relief claimed by reason of the lapse of time between the events

complained of and the trial of the action.

The second limb of the State defendant’s application relates to dismissal for want of prosecution. Looking at the

chronology of events in this case, I accept that there has been delay on the part of the plaintiff in the prosecution of her

claim. I have already referred to her personal difficulties which are dealt with at length in Ms. Downey’s affidavit. The

delay could be described as inordinate but I would hesitate to describe it as inexcusable. Even if I am wrong in reaching

that conclusion, I am of the view that the balance of justice favours the plaintiff. This is a case where there has also

been delay on the part of the State defendants in relation to some of the procedural steps herein. Overall, given the

facts and circumstances of this case, I am satisfied that the prejudice to the plaintiff in these proceedings in the event of

a dismissal for want of prosecution outweighs the prejudice to the State defendants in allowing the case to proceed”.

16. The date on which the issue of unfairness in proceeding with a pre-commencement delay case is to be judged, and the date upon

which a post-commencement delay case is to be judged, is that of the notice of motion seeking a dismiss. I turn now to the relevant

authorities on pre-commencement delay in issuing proceedings. In ÓDomhnaill v. Merrick, the plaintiff brought an action in respect of

a personal injury suffered when she was three years old, some sixteen years prior to issuing proceedings. There was then a further

delay of five years in processing the claim by way of pleadings etc. One of the matters which the Supreme Court looked at was

whether the defendant had in any material or substantial way contributed to the delay. I am bound by the statement of Henchy J.,

which I now quote from p. 157 of the report:-

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular

circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is

not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the

part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In

all cases the problem of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her

claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not

reasonably be expected to defend.

As to the circumstances of the present case, there can be no doubt that no part of the blame for the first sixteen years

of delay can be laid at the defendant’s door, for it took that length of time before even a plenary summons was served on

her. The plaintiff was then twenty years of age. Technically she was still an infant but, having regard to the wide range

of legal capacity which the law attributes nowadays to persons of eighteen years and upwards, she would not be entitled

to separate herself from the delay as she might possibly have done if she had been a younger person. There was at least

an onus on her to show that she took steps to prosecute her claim as could reasonably be expected from a person of her

age or, failing such steps, to give an explanation for her inactivity. Unfortunately, no explanation has been given by or on

behalf of the plaintiff for the failure to prosecute her claim with reasonable expedition, either during the past six years

since the present proceedings were instituted or during the earlier period.

After due regard to all the relevant factors, I am driven to the conclusion that not only was the delay in this case

inordinate and inexcusable but there were no countervailing circumstances which would justify a disregard of that delay. I

consider that it would be contrary to natural justice and an abuse of the process of the courts 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 twenty years before the trial, and a claim for damages of which she first learned sixteen years after the

accident. Apart from personal unfairness that such a trial would thrust on the defendant, I consider that a trial after such

a remove in time from the cause of action would be essentially unfair as being incompatible with the contingencies which

insurers of motor vehicles could reasonably be expected to provide against.

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 or 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 for 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.”

17. I do not regard the decision of the Supreme Court in Toal v. Duignan & Others (No.1) [1991] ILRM 135, as changing that test.

However, the emphasis placed by Finlay C.J. on the concept of unfairness in asking a defendant to defend a case after a very long

lapse of time needs to be emphasised. At p. 139 he stated:-

“In the High Court it was held by Keane J. that the case was governed by the decision of this Court in ÓDomhnaill v.

Merrick [1984] I.R. 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the

principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as

being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of

time between the act complained of and the trial, then if that defendant has not himself contributed to the delay,

irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the

action.”

18. I turn to the issue as to whether the defendant could be regarded as contributing in any material way to the delay.

19. Prior to the Supreme Court decision in H. v. D.P.P. [2006] 3 I.R. 575, a series of decisions focused on the position of the alleged

victim in a criminal trial for sexual violence. Invariably, almost, those charged with a sexual violence offence after a delay of some

years, countered the charge by beginning a judicial review seeking to stop the trial. The practice in those judicial review cases was

for the applicant to allege both delay and prejudice and for this to be countered by the Director of Public Prosecutions with affidavit

evidence, and sometimes oral evidence, exhibiting reports from psychiatrists who had examined the alleged victims stating that they

were under the dominion of the applicant, as their former abuser, and, therefore, unable in any real way to commence a criminal

proceeding by way of a complaint to the Gardaí. The decision in the H. case moved away from that test acknowledging, instead, that

delay was an inherent part of the experience of those who had been subjected to sexual violence, particularly those who were

children. In effect, the sub-text of the argument before me is that because the plaintiff was abused that this, therefore, has caused

in her the situation of internalising her feelings and misery which has rendered her incapable of commencing proceedings prior to the

first warning letter in this case, some sixteen years after the last event. To make that assumption, however, would be for me to

conclude in the absence of evidence that the defendant is liable in respect of these allegations. I am not entitled to make that

assumption.

Statute

20. This case concerns pre-commencement delay. The normal period of limitation for an action based upon assault is six years; the

Statute of Limitations 1957 s. 48. That period does not apply to an infant because a person under the age of majority may not be

able to persuade a parent or other responsible adult to commence an action, sometimes as in this case against a close relation, as a

next friend. Hence, the period of limitation runs from the attainment of majority. That rule was regarded by the Oireachtas as being

potentially unfair in sexual abuse cases and, in consequence, s. 48(a) was introduced into the 1957 Act by the Statutes of

Limitations (Amendment) Act 2000. This provides:-

“48A(1) A person shall, for the purpose of bringing an action -

(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached

full age, or

(b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the

damages claimed consist of or include damages in respect of personal injuries caused by such act,

be under a disability while he or she is suffering from any psychological injury that -

(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and

(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially

impaired.”

21. The law as to delay was not changed, however, by the Act. An action for sexual abuse even commenced within the limit of the

statute or as extended by s. 48A of the Act of 2000 must still be dismissed by the court for unfairness if that ground is proven.

Section 3 of the Statutes of Limitations (Amendment) Act, 2000 provides:-

“(3) An action referred to in subsection (1), that but for this subsection could not, by virtue of this Act, be brought, may

be brought not later than one year after the passing of the Statute of Limitations (Amendment) Act, 2000, provided that,

after the expiration of the period within which such action could by virtue of this Act have been brought, but prior to 30

March, 2000—

(a) the person bringing the action obtained professional legal advice that caused him or her to believe that the action could not, by

virtue of this Act, be brought, or

(b) a complaint to the Garda Síochána was made by or on behalf of such person in respect of the act to which the action relates.

Nothing in s.48A of the Statutes of Limitations, 1957 (inserted by s. 2 of this Act), shall be construed as affecting any

power of a court to dismiss an action on the ground of their being such delay between the accrual of the cause of action

and the bringing of the action as, in the interests of justice, would warrant dismissal”.

22. There may be circumstances where it can be said that the delay in commencing proceedings was caused by the action of the

defendant. In some instances that can be a dangerous conclusion to reach. To so conclude in this case would be accept, without

ever having heard the plaintiff, that the cause of her troubles was what she alleges against her grandfather, the defendant, in this

case. Circumstances may be different where as a result of an accident if a person is left disabled. Even there the conclusion that the

defendant is responsible should be approached with caution since it may be apparent that a car accident or an incident at birth led to

a disability but the issue as to whether there was negligence may be the central point in the case.

Assessment of Witnesses

23. In any case the tribunal of fact, be that a judge or a jury, is required to fairly assess the accuracy and truthfulness of witnesses.

In the course of his dissenting judgment in J. O’C v. D.P.P., [2000] 3 I.R. 478 at 373, Hardiman J. emphasised that the absence of

facts independent of the assertion and denial of witnesses has the capacity to severely handicap a fair assessment of the issues.

There are perhaps three usual approaches which can, when used together, assist in attempting to discover whether a witness is

telling the truth about a vital issue. Firstly, a tribunal of fact will often look to the detail with which a narrative is presented. Bearing

in mind that lies can disguise the absence of truth in an account, the fact-finder may bear in mind that a narrative lacking in truth is

less likely to be discovered if detail is kept to a minimum. Where two or more witnesses are conspiring to tell lies, the closer they keep

to a simple narrative, the less likely they are to be discovered. Truthful witnesses often produce surrounding details that are

unrelated to the core events and which may constitute spontaneous observations on surrounding circumstances and events. To this,

a caution should be added. Those who have suffered and experienced the horrible trauma of sexual abuse may find themselves

overwhelmed by emotion and therefore unable to produce anything but a core account of the narrative: the court has observed that

many times in sexual violence criminal trials. Secondly, the fact-finders often look to see whether the witness appears to be reliving

events in answering questions, or merely consulting their memory. Psychologists tend to call this appropriate affect. This, however,

can be acted and it is dangerous to imagine that a mere view of the demeanour of a witness can always uncover the truth. In

Shakespeare’s play Macbeth, Duncan says about the deceitful main character: “There’s no art to find the mind’s construction in the

face: he was a gentlemen on whom I built an absolute trust”. Finally, as has been emphasised in previous caselaw, the relationship of

the contested facts to all the relevant circumstances otherwise proved in the case can be crucial. Having a witness available who

saw part of what occurred, or who is in a position to place two people together, or to put them apart, at a particular time, can be

very important while circumstances such as the layout of a room or the conduct of an accused or accusing party before or after an

event can be crucial. Again, as in all human circumstances, this test is subject to deceit. Sexual violence generally takes place in

private and is sustained by concealment, very often by threats to the victim which exploit the tendency of the child to comply with

adult authorities.

Decision

24. There is no doubt that there was inordinate delay in the commencement of these proceedings. The plaintiff had pursued the

possibility of at least talking about the abuse she alleges against her grandfather from the age of fifteen years. She made a complaint

of a criminal offence two and half years later. She was very badly let down by An Garda Síochána. From the time that the file,

together with her statement of February, 2003, was transferred from Mayo to Dublin, the Garda lack of action was a disgrace. But,

from the time of that statement to the first warning letter in April 2008, a further five years passed. It is powerfully argued that had

civil proceedings been commenced in or around the time of her making a complaint to the Gardaí that experience might indicate that a

jury, on hearing that the plaintiff was, as might be put, and often is put in these cases, by defence counsel, “interested in money”,

might be less inclined to convict. Any person wronged, however, is entitled to seek damages. Even allowing for the fact that the

plaintiff was put through the horrible experience of imagining that the Gardaí might deal with her claim efficiently, and to be

disappointed over some years in that regard, I cannot look at a delay of five years before the warning letter as being excusable.

There was no conduct akin to acquiescence on the part of the defendant and it seems improbable to find as a fact that the plaintiff

was unable to approach a solicitor’s firm. The test which the law obliges me to ask myself is where the balance which is now struck

between the plaintiff’s obvious need to be vindicated as to her allegations in the context of court proceedings and the defendant’s

right not to be subjected to a claim which he could not reasonably be expected to defend.

25. Here, apart from the issue of whether the delay can be excused, the picture that has emerged is that the important witnesses to

the series of allegations of the plaintiff against her grandfather, the defendant, are herself, him, an adult under a disability and the

plaintiff’s grandmother, the defendant’s wife. That last witness is now dead. She would have been important as to the surrounding

circumstances. An issue arose in the affidavit evidence as to whether the plaintiff’s mother telephoned the defendant in about 1993

and, having received a complaint from the plaintiff, warned him against any further abuse of her. It is claimed that, thereafter, the

plaintiff and the defendant were never left alone together. The dead witness could be able to provide testimony, not only as to the

disputed issue of the phone call , which the defendant denies, but whether after a specific year, the plaintiff and the defendant were

ever left unsupervised together. Most importantly, however, since the abuse has said to have taken place behind a newspaper in the

kitchen, in another room in the house and in an outside shed, experience has shown that defendants in these kind of criminal

proceedings generally choose to call the testimony of such persons as the deceased grandmother in this case and to rely heavily on

their testimony. It is very hard to see the defendant in this civil action as not having the entitlement to rely on the evidence of his

late wife. Had there not been delay of the dimensions mentioned, which I understand but cannot excuse, she would have been

available at the trial.

Result

26. Whereas most of the delay in this case can be excused, that does not apply to at least the last two to three years prior to the

commencement of proceedings. The Court notes that it can often occur in applications seeking to stop either a civil or a criminal

process by reason of delay that emphasis can be placed on a witness who has died and who is not really important. This, however, is

not such a case. Because of the death of the defendant’s wife, the plaintiff’s grandmother, a situation emerges whereby the court

process would take place in the absence of any proper ability for the defendant to meet the claim of sexual abuse which is denied by

him. In consequence, I must dismiss the proceedings.