N.C. (applicant/appellant) v The Director of Public Prosecutions (respondent)

Judicial Review - Criminal law - Indecent assault - Delay - Prohibition - Whether prejudice due to unavailability of witnesses - Recovered memory - Whether applicant contributed to delay - Criminal Law Amendment Act 1935.

The Supreme Court (Mr Justice Murphy, Mr Justice Hardiman and Mr Justice Geoghegan); judgment delivered 5 July 2001.

Ina case where the delay in prosecuting indecent assault was partly explained by the fact that memory was lost or repressed and recovered during a consultation, the person conducting therapy in the course of which memory was recovered was an extremely important witness. A person charged with very old offences on the basis of alleged recovered memory was entitled to seek to inform himself about every aspect of the therapy. If this cannot be done then there was no effective test or control of the mechanism of alleged recovered memory and the situation would be fraught with risk of unfairness. The death of a witness which left the complainants' account incapable of contradiction, or even exploration, demonstrated a severe risk of prejudice in a trial on indictment.

The Supreme Court so held in allowing the appeal, setting aside the order of the High Court and granting the appellant the relief sought.

Patrick Gageby SC and Bernard Conden BL for the appellant; Maurice Gaffney SC and Adrienne Egan BL for the respondent.

Mr Justice Hardiman said that the appellant was seeking to set aside the order of the High Court dismissing his application for orders of prohibition restraining the respondent from continuing a prosecution against him.

The appellant was charged with 63 counts of indecent assault contrary to common law and as provided for in section 6 of the Criminal Law Amendment Act, 1935. Counts 1 to 20 related to the appellant's sister K, and the balance of the counts related to another sister, M. Each of the counts relating to K alleged that the assaults took place at the family home of all parties. Each of the counts in relation to M alleged that the assaults took place at an unknown place in Dublin. The counts in relation to K alleged assaults between 1 January 1961 and 31 December 1965. The counts in relation to M related to the period between 1 April 1964 and 31 December 1974. There was a separate charge in respect of each three month period within those dates.

Mr Justice Hardiman said that assuming that, if the respondent succeeded in defeating this appeal, it would be possible to arrange for a trial in the Michaelmas term, such trial would take place about 40 years and 10 months after the first alleged assault and about 27 years after the most recent.

Mr Justice Hardiman said that the case presented a considerable number of unusual features. Firstly, the lapse of time itself, though not unprecedented, was in the higher range. Secondly, allegations of sexual abuse against the appellant were in fact made within the family and to certain social service personnel in the middle 1980s but were not pursued to the point of a criminal complaint at that time. Thirdly, as far as K was concerned, she claimed to have forgotten the assaults which had been perpetrated on her until she remembered them in the course of hypnosis. The making of allegations by the second alleged injured party, M, appeared to have been triggered by the allegations made by her sister. Another significant feature of the case was the role played by the mother of the appellant and the alleged injured parties. She was alleged by the injured parties to have known what was going on but to have done nothing about it and to have punished them in various ways for what they allegedly said to her. The unavailability of the hypnotist and the mother was relied on heavily by the appellant.

Mr Justice Hardiman stated that there had now been a considerable number of cases in which the courts had dealt with attempts to restrain the continuance of prosecutions in cases of alleged sexual abuse, on the grounds of a lapse of time. The approach to these cases mandated in the case of PC v DPP 2 IR 25 was authoritative and had to be followed. Most of the relevant authorities were surveyed in that case. Subsequently, relevant cases included JOC v DPP 3 IR 480, POC v DPP 3 IR 87 and JL v DPP 3 IR 122. He said that in his judgments in these last three cases he had made a number of observations as to how these cases should be approached, which he did not intend to repeat here.

Mr Justice Hardiman said he intended to approach this case along the lines of the judgment of Mr Justice Keane in PC v DPP at pages 68 and 69:

". . . the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case because, given that the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that in light of the presumption of innocence to which he is entitled the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

Mr Justice Hardiman said he would reiterate what he said in POC v DPP at page 111: "The court should approach the application of the third test in light of all the evidence and bearing in mind that one is inquiring as to whether there is 'a real risk' that the Applicant will not receive a fair trial (as Denham J put it in B v DPP 3 IR 140) as opposed to a demonstrated certainty."

Mr Justice Hardiman said that it appeared that, on K's evidence, this was a case of recovered memory, which might be regarded as a memory which had been lost due to repression and subsequently recovered, often in the course of some form of therapy. He said that in his judgment in JL v DPP he had discussed the legal problems posed by cases of alleged recovered memory at some length and he did not propose to repeat that discussion here.

Mr Justice Hardiman said that the case was expressly put forward as one in which the delay was partly explained by the fact that memory was lost or repressed and recovered during a consultation with the hypnotist. This form of actually or allegedly recovered memory was a common feature of these cases.

Mr Justice Hardiman said that it seemed to him that the hypnotist or other person conducting therapy in the course of which memory was recovered was an extremely important witness. This was particularly so in the present case where the memory was admitted to have been, in very important particulars, false or distorted. He said that it was clear from the sources cited in his judgment in JL that a person charged with very old offences on the basis of alleged recovered memory was both well advised, and entitled, to seek to inform himself about every aspect of the therapy. If this cannot be done then there was not effective test or control of the mechanism of alleged recovered memory. This was a situation fraught with risk of unfairness.

In many cases of a very long lapse of time it was found that witnesses or potential witnesses had died. He said that it was apparent from the statements of the complainants themselves that their deceased mother would have, on their account, highly relevant evidence to give. Moreover her attitude to the allegations was quite clearly one favourable to the appellant. Mr Justice Hardiman repeated what he said in JOC:

"The proposition that a witness might, of course, have died even if a complaint had been made within a month does not logically allow a court to disregard such a death if in fact it has occurred only after many years. The risk of death or unavailability of witnesses has long been recognised as one of the risks of unfairness attaching to long lapse of time. In my view, in such cases it is for those wishing to proceed to establish that a trial can fairly be had and not for a defendant to negative the proposition that the witness might have been useless or unavailable at a much earlier time."

Mr Justice Hardiman said that it appeared to him that the following could be said about the mother's evidence, as presented by the prosecution. The particular arrangements in the household of which she was the effective head, and in particular sleeping arrangements for her large family in a small house, were central to the allegations in relation to K in the form in which they now stood. Similarly, her alleged, continuing and sometimes violent demeanour towards M, in particular by way of insisting that she present herself for babysitting in the appellant's house at a much later date were central to the account given of those alleged assaults. Thirdly, her disbelief and total lack of receptivity to these two ladies complaints, both an early age and more recently were relied on by them and in the psychological evidence as explaining and excusing the delay in complaining. Fourthly, by reason of the mother's death the only realistic prospect of finding the hypnotist whose role is so central is gone. Fifthly, by reason of her absence it was now impossible to contradict the prosecution's speculation that the person to whom she brought the child may not have a hypnotist at all but that she simply decided to use that word. Sixthly, allegations about much more recent years such as the extraordinary allegations that she locked one of these complainants in a cupboard and subsequently threatened to commit suicide were both significant in the complainant's accounts and quite beyond the reach of contradiction or investigation in the absence of the mother.

It appeared to him, therefore, that the mother and her alleged actions were indeed central both to the narrative of the alleged assaults and to the narrative advanced to explain why nothing was done about them. She was questionably the person responsible for the form of therapy which sparked the recovered memory and was actually present when it was allegedly recovered. Moreover, it seemed overwhelmingly probable that her evidence if available would favour the appellant. The death of the mother left the account of the complainants incapable of contradiction, or even exploration. Mr Justice Hardiman said that he was of the view that the appellant had demonstrated a severe risk of prejudice in a trial on this indictment.

Mr Justice Hardiman said that the case presented an exception to the general run of such cases in that the complainants here made, and disseminated quite widely, allegations of sexual abuse against the appellant about sixteen years ago. However, although these allegations were to made to a considerable number of people, including the staff of official agencies, no allegation was made to the Garda at the time. The relevance of these facts to the approach mandated in PC was considerable. Given that the lapse of time between the episodes of alleged abuse and the mid 1980s may be regarded (having regard to the assumption that must be made) as been due to the activities of the appellant himself, a question arose to whether the same could be said of the lapse of time between 1985 and the present. In this regard Mr Justice Hardiman said that the first test to be applied was that of Mr Justice Keane in PC at page 67:

"The issue in every such case is whether the court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution."

Mr Justice Hardiman said that it seemed to him most likely that the omission to approach the Garda in the mid 1980s was the result of widespread discussion within the family that took place. This discussion revealed that there were divisions among the family members as to what course of action should be followed and must have revealed the information that the parties' late mother did not believe the allegations.

It seemed likely, indeed, that a person seriously contemplating a prosecution in the mid 1980s would consider that the mother would be a likely, and powerful, defence witness.

In all the circumstances, Mr Justice Hardiman said he was of the view that it had not been established that any act of the appellant had inhibited complaint from 1985 onwards and he would allow the appeal on this ground also.

Mr Justice Hardiman said there were two other matters, firstly relating to threats allegedly made to the complainants by a third party, who had stated that he acted on his own initiative in doing so. Mr Justice Hardiman said that in his view, the facts of this aspect of the case were not sufficiently established one way or the other to render this line of evidence useful to either party.

Secondly, he said he would record his agreement with the decision of the trial judge to attribute no significance to alleged admissions of a limited extent made by the appellant, which were strongly disputed by him.

Accordingly, Mr Justice Hardiman allowed the appeal, set aside the order of the High Court and granted to the appellant the relief sought.

Mr Justice Murphy and Mr Justice Geoghegan concurred.

Solicitors; Garrett Sheehan & Co., (Dublin) for the applicant/appellant; The Chief States Solicitor for the respondent.