Supreme Court allows appeal to prohibit prosecution due to cumulative prejudice preventing a fair trial.

THE SUPREME COURT

Record No. 326/04

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

BETWEEN:

D.K.

APPLICANT/APPELLANT

and

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr Justice McCracken delivered the 3rd day of July 2006

THE FACTS

1. This is an appeal from a decision of the High Court (Murphy J.) in judicial review proceedings seeking an Order of Prohibition or, in

the alternative, an injunction restraining the respondent from proceeding with a prosecution against the appellant. The learned High

Court judge granted the order sought in relation to certain of the charges against the appellant but not in relation to other charges.

2. The facts of the case are set out in some detail in the judgment of the learned High Court judge and may be dealt with briefly in

this judgment. The appellant faces thirty eight charges of rape and indecent assault in relation to his daughter (hereinafter called

“the complainant”). It was alleged that these offences took place at various times when the complainant was aged between four and

thirteen years of age, between the years 1972 and 1981. She was the third eldest of seven children and alleges that it was an

unhappy household with a number of incidents of violence perpetrated by the appellant against both the children and against his wife,

the complainant’s mother. She alleges that these offences usually took place after a row between her parents, when the appellant

would sleep in her bed with her.

3. The first allegation by the complainant was made on 17th April 1991 when she was hospitalised in a psychiatric unit apparently

suffering from manic depression and was in a hyper-manic state. That complaint related only to her having been abused when she

was twelve or thirteen years of age. The complaint was made to her consultant psychiatrist, Dr. Lucey, and a short time later he

arranged a meeting with the complainant, the appellant and the appellant’s wife. The complainant has stated that when the complaint

was put to the appellant he responded by saying “I suppose that is possible” and that her mother said “of course it is possible, it

explains everything”. Dr. Lucey on the other hand said that the appellant denied that he had abused his daughter but said that the

appellant accepted “there may have been some basis for her allegations”. In a subsequent report by Dr. Lucey he states that the

appellant was “hesitant and initially made no response” before denying the allegations and he also recalls that the appellant’s wife

simply made the comment “this explains everything”. The appellant denies that he made anything in the nature of an admission on

this occasion.

4. In subsequent conversations with Dr. Lucey in February 1992 and February 1994 the complainant stated that she was abused from

the age of seven and when in 1997 the complainant made a formal complaint to the Gardai she alleged that she was abused from the

age of four.

5. At various times between 1991 and 1998 the complainant suffered from psychiatric illnesses and was treated in psychiatric units of

local hospitals. It appears that in February 1992, while a patient in a local hospital, she was interviewed by a female Garda about the

allegations of abuse, but that Garda has not been identified and no further information is available as to what was said on that

occasion.

6. The first formal and recorded complaint to the Gardai was made on 31st October 1997 but the appellant was not arrested and

interviewed until 12th February 1999. The complainant made three further statements in the year 1999 and the appellant was

charged on 9th December 1999.

7. In one of her statements she refers to an incident which she alleges took place in July 1973, when she was five years of age. She

visited Denmark with some members of her family and alleges that she wanted a rocking horse and she remembers that a Danish friend

of her father’s told her that she could not have it, and she had replied that she would go to bed with him if he would buy it for her.

REASONS FOR DELAY

8. The complainant states that she was very frightened of her father and that he was a violent man. There is no doubt that he was,

by the very nature of his being her father, in a dominant position in relation to her. She also clearly suffered from mental health

problems and grew up in an atmosphere of family tension. It is probably relevant that she was in a state of hypertension when she did

make her first complaint to Dr. Lucey.

9. There was no formal complaint made to the Gardai until some six years later in 1997. During this period the complainant gave birth

to a child and was still from suffering psychiatric illnesses. I am quite satisfied that, on the assumption which is to be made in such

circumstances that her complaint was correct, the delay in making the complaint is explicable and should not of itself justify the relief

sought.

PREJUDICE TO THE APPELLANT

10. This is not a case in which the appellant is claiming some form of general or presumptive prejudice due to the delay. He is claiming

to be specifically prejudiced for several reasons.

11. The plaintiff’s wife died in 1995. An important element of the prosecution’s case against the plaintiff relates to the conversation

which took place with Dr. Lucey on 8th May 1991. On the complainant’s case this could certainly be taken as being at least an implicit

admission of the acts complained of. The appellant denies making anything of the nature of an admission and Dr. Lucey’s evidence is

far from clear, and would seem to rely on impressions which he got rather than on his actual memory of what was said. The appellant

maintains that his wife would have been a vital witness in this regard. It has to be said that the appellant and his wife separated

several years before she died, but that does not necessarily mean that she would have been a witness upon whom he could not rely.

12. In addition to the meeting with Dr. Lucey, the appellant also asserts that his wife could have given other important evidence. She

was a trained nurse and certainly when the complainant was young, she used to regularly bath the complainant. It does seem that if

there had been regular sexual assaults on the complainant in her pre-teen years that it is likely that this would have been evident to

her mother in those circumstances.

13. The only other witness who would appear to be of real relevance who is also deceased is Mr Simonsen, the appellant’s Danish

friend, who was the gentleman that she alleges that she offered to go to bed with if he would give her a rocking horse. The learned

trial judge accepted that there would be prejudice in the absence of Mr Simonsen and accordingly made an order prohibiting any

prosecution in relation to the earliest offences alleged when the complainant was four or five years old. However, the appellant makes

the case that Mr Simonsen’s evidence would have been relevant to the entire prosecution case against him in that, while directly it

might only relate to what occurred at a very early age, nevertheless if Mr Simonsen gave evidence that the conversation alleged

never happened, and was believed, it would very much strengthen the appellant’s case that the complainant’s entire evidence was

unreliable.

MEDICAL RECORDS

14. This is a case which may well centre around the medical condition of the complainant because of features special to this case.

There is evidence from Dr. Lucey that she had what he called “fleeting paranoid ideas of both a persecutory and grandiose nature.”

This is clearly a case in which the defence will allege that the complaints were a complete fabrication, possibly made due to the

mental condition of the complainant. While there are witness statements from some medical experts, including the complainant’s

general practitioner, Dr. Crushell, who was in fact a sister-in-law of her mother, a Dr. Kinch, who treated her between 1991 and 1993,

a Mr Downing who was a Clinical Psychologist and a Dr. Murray who also treated her who is now deceased, the medical or clinical

notes of these persons have not been disclosed and would appear not to have been sought by the prosecution. In addition, the

appellant has sought the clinical notes from the hospitals in which the complainant was hospitalised, but the complainant has refused

to consent to the release of these notes, and he also alleges that no serious attempt has been made by the prosecution to obtain

them.

THE LEGAL SITUATION

15. I have already expressed my view that the delay in making a complaint in this case was understandable and excusable due in part

to the psychiatric condition of the complainant but also due to the dominant position of the appellant as the complainant’s father.

This view is, of course, expressed on the somewhat artificial assumption that the complaint is true. However, having made that

finding, it is necessary to consider other matters. In P.O’C v Director of Public Prosecutions [2000] 3 I.R. 87 Keane C.J. said at page

94:-

“If, such an assumption having been made, the court invited to halt the trial is satisfied that, as a matter of probability, the

failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without

more, will not be a reason for halting the trial. There remains, however, a further inquiry which must be conducted by the

court in every case, i.e. as to whether the degree to which the applicant’s ability to defend himself or herself has been

impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier

stage of the inquiry that the delay is the result of the applicant’s own conduct ceases to have effect once that stage of the

inquiry has been concluded. In the final stages of the inquiry, the applicant is presumed to be innocent of the offence with

which he has been charged and, if he or she can demonstrate to the court that it is probable that a specific defence which

might otherwise have been open to him or her is now no longer available because of the passage of time, the court may then

halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of

necessary directions or rulings by the trial judge.”

16. I have no doubt that the conduct of the defence has been affected by the unavailability through death of the appellant’s wife

and of Mr Simonsen. To some extent the absence of these witnesses could be dealt with by a direction to be given by the trial judge

but I think it is questionable in the circumstances of this case whether that would be sufficient.

17. A central issue in this case is going to be the mental health of the complainant and the reliability by reason of her mental

condition of the complaints which she has made. Any investigation of her credibility is going to be strongly influenced by the jury’s

findings as to the conversation which took place in the presence of Dr. Lucey and also by the jury’s consideration of the truth or

otherwise of her allegation in relation to Mr Simonsen. For the same reason, the absence of the medical notes may seriously prejudice

the defence in the cross-examination of medical witnesses. The court heard considerable argument as to the duties of the

prosecution and of the investigating Gardai pursuant to the decisions in Braddish v Director of Public Prosecutions [2001] 3 I.R. 127

and Dunne v D.P.P. [2002] 2 I.L.R.M. 241, but in the present case I do not think it is necessary to apportion responsibility for the

missing medical notes. It is a fact that they are unavailable to the defence due in part to the refusal of the complainant herself to

authorise the release of Health Board records. In view of the exceptional importance of the psychiatric condition of the complainant,

the appellant will be clearly at a disadvantage in that regard.

18. In my judgment in this court in J.M. v Director of Public Prosecutions (unreported 28th July 2004) I said at page 13 of the

judgment:-

“The word ‘prejudice’ is commonly used in cases of this nature to determine whether a prosecution should be prohibited due to

delay. In some ways this is a misnomer. The real question which must be at the heart of all decisions of this nature is whether

there is a serious possibility that the accused person will not be able to get a fair trial. In some cases that can be

demonstrated very simply, for example, where a vital witness who would have been available had there been a speedy trial,

has died or is no longer available for some other reason. There are other cases, such as the present one, which do not depend

on a specific prejudice but rather on a general overview of all the circumstances of the case which could affect a fair trial.”

CONCLUSION

19. While it is possible that the absence of the witnesses could be dealt with by the judge in addressing the jury were that the only

impediment to the defence, in my view there is a combination of circumstances in the present case which would so inhibit the

defence that the appellant might not be able to receive a fair trial. These are:-

1. The death of the appellant’s wife.

2. The death of Mr Simonsen.

3. The absence of the medical notes.

4. The absence of and failure to identify the Garda who apparently interviewed the complainant in 1992.

5. The inconsistencies in the several complaints or statements of the complainant as to the age when the alleged abuse

commenced.

6. The general psychiatric history of the complainant, which adds to the seriousness of the other matters quoted above.

20. It may well be that none of these matters individually would justify prohibiting the trial, but the court must view the matter with

regard to the cumulative effect of these concerns.

21. Accordingly, in my view there is a real risk in the present case that the appellant would not obtain a fair trial and I would allow

this appeal.