Irish Times
March 16, 2009
http://www.irishtimes.com/newspaper/ireland/2009/0316/1224242904476.html
High Court
Judgment was delivered by Mr Justice John MacMenamin on March 2nd, 2009.
Judgment
In a case alleging child sex abuse, which had many troubling features, the issue facing a jury would be essentially one of simple assertion and denial, where credibility would be central. The gathering and manner of presentation of material whereby credibility might be tested was prejudiced by prosecutorial delay. Taken in conjunction with all the other relevant factors, an order of prohibition of the trial going ahead was justified.
Background
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| Anne McGarry, who received a parchment for newly conferred solicitors at the Law Society of Ireland, Blackhall Place, Dublin. Photo by Jason Clarke |
This was a case involving an allegation of abuse by a former priest in a rural parish, who is now laicised. He was charged with indecent assault on a minor, MS, in the South Eastern Circuit Court.
The assault was alleged to have taken place between September 1981 and September 1982. Proceedings were initiated in the Circuit Court in October 2007.
The applicant claimed that the delay between the initiation of the investigation and the laying of the indictment gives rise to prejudice, and that the prosecution had been guilty of inordinate delay.
He also argued that, in the unusual circumstances of the case, there was a real risk of an unfair trial against a background of unwillingness on the part of the investigating gardaí to ensure a complete investigation, and that there were issues of prejudice.
The complainant, MS was born in September 1970 and was 11 or 12 at the time of the alleged assaults. His younger brother, JS, also complained of multiple sexual assaults by the applicant, D.
As a result of these allegations, a trial took place on November 2nd and 3rd, 2007, where the applicant was acquitted on all counts on the indictment.
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| Collete Cassidy, with her daughter Aoife (6), from Maynooth who received a parchment for newly conferred solicitors at the Law Society of Ireland, Blackhall Place, Dublin. Photo by Jason Clarke |
Both complaints were made in February 2003. The older brother, MS, complained that when he was 11 or 12 he was sexually assaulted by the applicant in the sacristy of the local church. There was no witness, and there is little corroborative detail, so the circumstances of the allegation are very much "bare assertion and denial".
MS did not make any complaint to anyone at the time and there is little additional description of the sacristy, its furniture or anything else that might identify time or circumstance.
At the same time as this complaint, JS made allegations of a number of assaults against the priest. Both brothers were altar boys at the local parish church. Thirty-five charges were ultimately laid against D arising from these allegations, covering a period from 1981 to 1986.
The applicant had a criminal record of having assaulted a minor in 1990, for which he received a suspended sentence.
"There are suggestions of other doubtful conduct, incompatible with clerical status, which, though not of a criminal nature, apparently gave rise to public notice, concern and notoriety in the same locality," Mr Justice McMenamin commented, adding that he left the parish in disgrace and went to England.
He also said that none of this affected his right to a fair trial.
While in England he received some treatment and did some work as a priest. He returned to Ireland in 1993, worked in a rehabilitation centre for alcoholics in Dublin and was returned to lay status.
By 2003 he fell under investigation by Mr Justice Frank Murphy as part of the Ferns inquiry into clerical sex abuse in the diocese.
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| Claire Anne Phelan, Dublin who received a parchment for newly conferred solicitors at the Law Society of Ireland, Blackhall Place, Dublin. Photo by Jason Clarke |
Mr Justice MacMenamin commented that it was surprising that, given the serious information furnished by JS and MS to gardaí in 2003, that no serious steps were taken to ascertain the applicant's whereabouts. Fifteen months later they visited the rehabilitation centre and spoke to the applicant.
Subsequently, in June 2004, he went to a Garda station in the locality where the events were alleged to have occurred. He denied having interfered with either complainant when they were under age. However, D admitted to being a homosexual and an alcoholic, although he had not been drinking since 1991.
While he denied any impropriety with MS, the complainant in this case, he admitted to a homosexual affair with JS when the latter was an adult, between 1993 and 1994, after he had returned from England, more than 10 years after the alleged assaults. This had not been disclosed to gardaí by JS when he made his complaint. Four months later, JS was questioned and admitted to the relationship with D when he was an adult.
The Garda file was forwarded to the DPP in April 2005 and queries were sent back by the DPP. JS was further questioned. Some, but not all, of the queries were answered on May 31st and a further reply sent to the DPP in October 18th, 2005.
A week later, on October 25th, the Ferns report was published, which referred extensively to the applicant. The report was furnished to the office of the DPP.
Nine months later a direction was given to the Garda that a prosecution should take place and on August 14th the applicant was charged. On September 4th, a book of evidence was furnished, but the disclosure was by no means complete.
The defence sought medical and psychiatric reports. It also sought a transfer of the trial in the light of the publicity. The State Solicitor said he was "unaware" of any publicity, although it had been extensive between 2004 and 2007.
At a pre-trial hearing, Judge Doyle ordered a change of venue to Nenagh, and a date was set for October 2007.
At the laying of the indictment on October 2nd, 2007, Judge McDonagh ordered that JS's psychiatric records be released to the prosecution and the defence. These revealed that he had informed an eminent child psychiatrist that his elder brother, MS, had sexually abused him in his youth. This disclosure occurred after the trial had begun.
"This late disclosure should not have occurred," Mr Justice MacMenamin said. "It should not have occurred if the investigation had been as thorough as it should have been in the time available since 2003.
"It is strongly submitted that an issue arises as to whether there was some form of agreement between MS and JS and whether it led the brothers to act in the way they did, and if so what was the nature and motivation for such agreement if it existed."
On the second day of the trial on JS's allegations the judge withdrew the case from the jury on the basis of the unsafe nature of JS's testimony and directed an acquittal.
Solicitors for the applicant wrote to the DPP saying it would be unfair to proceed with the prosecution on MS's allegation in the light of what had happened. In December, an officer of the DPP replied stating that the prosecution was to go ahead. Leave for judicial review proceedings was then sought and obtained.
In May, two further psychiatric reports were disclosed. The delay in furnishing them is not explained. Counselling notes from the One in Four group were obtained in July 2008, referring to counselling received by MS in 2003. Again, the delay in disclosure is not explained.
There was considerable, detailed and accurate media coverage of the progress of the investigation from 2004 onwards.
"Clearly, the progress of the investigation was not known to the accused," Mr Justice MacMenamin said. "It was not known to any court authority in the locality. Regrettably, I can only find there was one potential source, that is, members of the Garda Síochána."
Decision
Mr Justice MacMenamin said there had been four unexplained and substantial periods of delay in the investigation and in deciding on a prosecution, combined with late disclosure.
"The slow progress and the failures in investigation and disclosure are, it might be thought, in rather strong contrast with the leaked media coverage," he said. "I find that I have no alternative but to conclude that there has been culpable investigation and prosecution delay."
Considering the issue of prejudice, Mr Justice MacMenamin asked on whom the onus would lie of adducing the evidence from the psychiatrist concerning JS's allegations against his brother, which related to the credibility of MS. Credibility would be central to the case and the manner in which it could be established would give rise to a risk of confusion in the eyes of the jury.
He concluded that a real risk of unfairness had been established. There was also culpable investigatory and prosecutorial delay.
He ordered a prohibition of the trial on the grounds of delay and added that, even if the prejudice was not sufficient to order prohibition, the circumstances demonstrate a real risk of an unfair trial.
The full judgment is on www.courts.ie
Patrick Gageby SC and Mark Tottenham BL, instructed by Garret Sheehan and Co, for the applicant; Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP
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