Trial of man for indecent assault of sisters blocked

 

U -v- DPP Neutral Citation (2010) IEHC 156 High Court  Judgment was delivered on April 28th, 2010, by Mr Justice John MacMenamin

Judgment

An order of prohibition was granted restraining the DPP from pursuing a prosecution of the applicant of charges of indecent assault against his sisters, on the grounds that both the prosecution and the defence would have to rely on inadmissible evidence to pursue their cases.

Background

The applicant is a businessman, charged with a number of indecent assaults against his three sisters, starting when he was 11 years old, between January 1965 and August 1974. Complaints were made to gardaí in May 2007.

The applicant voluntarily met gardaí in June 2007 and denied the allegations. He was charged with the offences and sent forward for trial to the Dublin Circuit Court.

The father of the applicant is now aged 78, and he is also charged with a range of indecent assaults against the three complainants. The mother, who suffered from mental illness, died in December 1995. There are similar charges pending against the second oldest brother in the family.

There were three other sons in the family, one of whom died in 1967 aged four and a half. Another died in 1997. The third brother has neither made any allegations nor had any made against him, and indicated to gardaí he wished to remain impartial. There is also another sister, who has made allegations but is not a complainant.

It is claimed that the father was extremely domineering towards his wife and children.

Leave to seek judicial review was granted to the applicant on the ground of specific prejudice to the defence because of the loss of evidence due to the elapse of time; and on a specific ground of alleged blackmail of the second complainant of the applicant.

Mr Justice MacMenamin said it had been frequently pointed out that a trial after a long period without corroborating or contradicting evidence is in fact a trial of the credibility of the witnesses.

The applicant contends that he is suffering significant prejudice because certain evidence which might have been available to him for his defence at an earlier stage is now missing or no longer available. He also contends he was out of the family home by 1970.

One of the complainants was placed in a home run by the Sisters of Charity in Sean McDermott Street in 1971. A diary was discovered which related to this girl, apparently written by a responsible person in the home, and referred to her being beaten and interfered with by a brother, but the brother referred to was not the applicant.

There was no way of proving the veracity of this document or its contents, and it was not possible to envisage how it could be introduced to a jury.

The absence of any way of proving this document or its content or of identifying its author constituted specific prejudice, Mr Justice MacMenamin said.

The applicant had stated he did not doubt that acts of sexual violence were committed against his sisters, but denies that such acts were committed by him. He asserted that his mother would have corroborated his denials, and would have been able to provide evidence of the unlikelihood of the allegations being correct. The onus lay on the applicant to establish that a prejudice arose from her death and consequent unavailability, and he had not done so.

The applicant claimed in his interview in 2007 that when his sister was living in the home in Sean McDermott Street, she had revealed the abuse by his father, and he had complained to gardaí at the time about this, naming a Garda Bob Green. Nothing happened as a result, he said.

A garda with that name was stationed in this specific Garda station at the time, but no statement of complaint could be found. This garda is now deceased.

The applicant did not know the nature of the allegations being made against him when he voluntarily visited the Garda station, yet he volunteered the name of Garda Green and the nature of the complaint he said he had previously made.

Were it to be demonstrated that the applicant had made complaints to members of An Garda Síochána on behalf of his sisters, it would have the effect of buttressing his credibility. The absence of this witness and record constitutes specific prejudice.

The applicant also said that in 1966 he made a complaint to a Garda Tom King about the physical abuse he was subjected to by his father.

Mr King is now a retired Assistant Commissioner who confirmed he was stationed at this Garda station between 1965 and 1970.

He has no recollection of this complaint, which is hardly surprising since it was said to have happened 43 years ago, when the applicant was 12.

Taken in isolation it would not have constituted specific prejudice, but taken in conjunction with the evidence regarding Garda Bob Green and the very substantial lapse of time, it did constitute specific prejudice.

The applicant also stated he left the family home when he was 16, in 1970. Over half the allegations by the third complainant relate to a period after 1970.

There had been considerable efforts by the applicant and his solicitors to produce evidence that he lived elsewhere after 1970. No documentary records could be found. He stated in an affidavit he was given a job on the recommendation of his cycling coach, Mick Byrne, who would have known where he lived at the time. Mr Byrne is also now deceased. The absence of his testimony also constitutes specific prejudice.

A garden shed where the assaults were alleged to have occurred had been demolished and was not available for examination. There are issues concerning the shed that go to the credibility of at least two complainants, and its absence gives rise to specific prejudice.

In this case the applicant said the second named complainant had repeatedly demanded money from him to pay off her debts over the last 35 years. This was supported by other evidence, and not totally denied by her. He said that in 2004 he refused to pay her debts any more, and she threatened to make allegations of a sexual nature against him.

Mr Justice MacMenamin said this constitutes evidence of blackmail or at minimum extreme financial pressure, and it came within the category of an exceptional circumstance identified by Mr Justice Fennelly in MG -v- DPP (Supreme Court, January 2007), and would be grounds to prohibit the second complainant’s complaints.

Decision

Mr Justice MacMenamin said that in the case of the second complainant the exceptional circumstance of financial pressure would be sufficient to order prohibition.

With regard to all three complainants, the items identified in the judgment are sufficient to warrant an order of prohibition, and in addition the prosecution’s case was interlinked in such a way as to bring the case within the category identified in JD -v- DPP (2009) where each of the circumstances taken together, and then cumulatively, are such as to warrant a grant of prohibition.

The full judgment is on www.courts.ie

Pat Marrinan SC and Lorcan Staines BL, instructed by Michael Staines Co, for the applicant; Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP