High Court dismisses judicial review application regarding alleged delay and failure to preserve telephone records in sexual assault trial.

Neutral Citation Number: [2007] IEHC 483

THE HIGH COURT

JUDICIAL REVIEW

2006 No. 650 J.R.

BETWEEN

R.C.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice MacMenamin delivered 31st July, 2007

1. The applicant, now aged thirty-seven years, seeks prohibition of a criminal trial pending before the Circuit Court on five charges of

sexual assault of a twelve year old girl. The grounds upon which the applicant seeks prohibition are delay and alleged failure on the

part of the prosecution to seek out and preserve certain telephone records which, it is contended, would have been material to the

applicant in his defence.

Chronology

2. The alleged sexual assaults are stated to have taken place in the applicant’s apartment in a provincial town six years ago between

May and September, 2001. A complaint was made by the complainant on 5th September, 2001. Further statements were taken from

the complainant, and her mother, on 3rd October, 2001. The applicant was arrested and questioned on 25th October, 2001. At this

point, he denied the allegations made against him.

3. Statements were taken from other witnesses on 20th November, 2001, and 12th December, 2001. A further statement was taken

from the complainant on 15th January, 2002, and from her mother on 5th February, 2002. Another witness statement was taken on

13th February, 2002.

4. The file was sent to the Director of Public Prosecutions on 6th June, 2002. Issues were raised by the State Solicitor on the

following week, that was 13th June, 2002, resulting in additional statements being taken on 18th and 19th August of that year.

Further issues were raised by the State Solicitor in February, 2003. Further statements were taken on 25th and 28th April, 2003. The

Director of Public Prosecutions gave directions to charge the applicant on 14th August, 2003, nearly two years after the initial

complaint.

5. The applicant was not actually charged until January, 2004. One of the investigating gardaí, Garda Noelle Curran, states that the

applicant was not contactable up to January, 2004. However, affidavits sworn on the part of the applicant and his mother would

appear to indicate that at certain relevant times he was living in the general area (although he had moved house) and that no

attempt had been made to contact him or his parents, by the gardaí. The applicant’s mother indicates that during this period she was

in contact with members of the Gardaí and that no inquiry was made of her as to her son’s whereabouts. It is suggested that the

applicant may have been attempting to evade the proceedings. However, the applicant says that he was the director of a firm not far

distant from the place where he originally resided and that he was in ongoing contact with his parents and visited them regularly in

the town where it is alleged these offences took place. He moved out of this town because of gossip from the events alleged.

The alleged offences

6. The alleged offences in question are those of sexual assault. It is alleged that each of the assaults took place in the applicant’s

apartment in the town in question. There is no eye witness evidence in the book of evidence. At the time, the complainant was a

minor aged twelve years. Consequently, no issue as to whether the complainant consented or not arises as a defence.

7. However, the applicant asserts that there is a critical area where he has suffered prejudice and been deprived of the opportunity

of pursuing what is suggested to be a reasonable line of defence, because of unavailable telephone records of the complainant. This

line of defence is in testing of the credibility of the complainant, and, in particular, whether she initiated one or a number of mobile

phone calls to the applicant.

8. There are two fundamental issues for the court to consider. The first of these relates to the question of prejudice, the second to

the elapse of time between the original complaint and the date of charge.

Alleged prejudice

9. In statements made by the complainant in the book of evidence, she alleges that the applicant regularly telephoned her during the

period in question in order to invite her to his apartment where assaults occurred.

10. In the book of evidence there are to be found the following statements made by the complainant referring to the management

and end dates of the charges, that is, from May to September, 2001:-

“Over the following few weeks, he rang me a couple of times a week on my mobile. He would ask me where I was, and if I

would call down to him for while. …”

“After that, for several weeks during July and August, he rang me a couple of times a week, maybe two or three, and

would ask me to meet him, or he’d leave a text message. …”

“He started sending me text messages at this time as well. He’s send me a few a week. Usually, the messages were that

he loved me, and he wanted to see me. Sometimes, if he was talking to me on the phone, he’d say over the phone that

he loved me, that he was crazy about me, that he never felt like this before, that he wanted me. …”

11. In the course of interviews with the gardaí, the applicant has stated that any telephone calls made by him to the complainant

were in response to a telephone call or a text message from the complainant. The general issue of telephone calls and text messages

was clearly raised and discussed.

12. In an interview of 25th October, 2001, it is recorded he was asked:

Q: Did you every [sic] ring her?

A: She used to ring me.

In a further interview, the following exchange allegedly took place:

Q: How much phone contact would you have had with N – (the complainant)?

A: Not that much. I would have returned her calls.

Q: What would she be calling for?

A Not much. I was convinced she had a crush on me. She never made any advances.

Q: What would you think of that?

A: A passing phase.

Q: Did you encourage it?

A: No.

Q: Did you ever send or phone her unprompted by a call from her?

A: No, I didn’t.

In a further interview:

Q: How much contact by test [sic] message would you have with N – (the complainant)?

A: I wouldn’t have a lot. I can’t remember how much but it wouldn’t be a lot.

Q: Did you usually sent [sic] her a message yourself or would it be in reply to hers?

A: It would be in reply to her, if you are talking about over a three-month or so period, there probably could be a time I

sent her one, just a general one, how are you, that type of thing.

13. In the book of evidence provided on 1st March, 2004, the applicant’s telephone records were provided for the period 20th August

to 31st August, 2001 only. But only outgoing calls were detailed. These would appear to indicate that on 26th August, the applicant

sent the complainant ten text messages, and on 27th August, a further two text messages. No telephone records were provided in

the book of evidence for any of the remainder of the period between May and September. Nor were any telephone records provided in

relation to the complainant’s mobile telephone.

14. According to a statement of Patricia Ryan of O2 Ireland, dated 12th October, 2004, in the book of evidence, (served as additional

evidence on 9th November, 2004):

“I received Garda reference No. 157/04/02 requesting details of outgoing calls for the following Speakeasy number 086

351 9603 from 1st August, 2001, to 31st August, 2001, on 19th April, 2002.” (This refers to one of the applicant’s two

mobile phone accounts).

Records not obtained

15. In her affidavit sworn on 9th October, 2006, Garda Noelle Curran states that in November, 2001, she requested telephone records

as part of the investigation. At that time, N.D. (the complainant) was a customer of Vodafone. The applicant had two phone

numbers, one serviced by Meteor and the other by O2. Garda Curran made this request via the Crime and Security Division of the

gardaí based in Garda Headquarters. She originally had sought records relating to all three numbers from March, 2001, to September,

2001. However, she states that the Crime and Security Division of the Gardaí said a shorter timeframe would be easier to trace. Garda

Curran concluded that it was unnecessary to request details pertaining to the complainant’s phone as well as the applicant’s phones.

She thought that if she were in possession of the applicant’s phone records, these would detail incoming and outgoing calls made to

those numbers, including any made by the complainant. She erroneously concluded that it would be mere duplication to obtain the

complainant’s phone records as well as the applicants.

16. However, in a supplemental affidavit more recently sworn in these proceedings, Garda Curran accepts that the details provided in

the book of evidence identify only the outgoing calls of the applicant. She states that “the Crime and Security Division of the Gardaí

determined that such records would be sufficient for the purposes of the investigation”.

17. The prosecution focus, ultimately, was therefore only upon the period of the applicant’s phone records serviced by Meteor and by

O2.

18. However, no request was made in 2002 for any records relating to the complainant’s telephone number which had an 087 prefix

and was held on a Vodafone account. It is the applicant’s case that the authorities had, at that stage of the investigation, a duty to

procure that evidence, following the authority of the Supreme Court decision in Dunne v. The Director of Public Prosecutions [2002] 2

I.L.R.M. 241. However, the fact no such request was made by the defence at that time for any category of phone records, is a

relevant consideration.

19. Subsequent to the return for trial, the matter appeared in the Circuit Court Lists in 2005, when two counsel were assigned.

Thereafter, the matter appeared in the Circuit Court on 28th June, 2005.

20. It was only on that date that counsel for the applicant then sought that the complainant’s telephone records be made available

by way of disclosure. This was on the advice of senior counsel who had been retained. The Circuit Judge adjourned the matter to the

subsequent sessions, by which time disclosure was to be complete.

21. No disclosure was made prior to the November, 2005 sessions. At those sessions, the State Solicitor, Mr. Alan Millard,

representing the respondent, agreed that the records between 1st May, 2001, and 31st August, 2001, would be made available.

22. The matter was again adjourned to the January, 2006 sessions and subsequently to the March, 2006 sessions, in order that the

State might comply with the agreement to make disclosure.

23. On 30th March, 2006, a letter was sent by Mr. Millard to Mr. Lanigan, the applicant’s solicitor.

24. In the course of that letter Mr. Millard stated:

“We record that at --- Circuit Court on 1st November, 2005, it was agreed that telephone records would be disclosed in

respect of the period 1st May – 31st August, 2001 (only), and upon which we confirm to have written and are currently

awaiting instructions of the Gardaí.

You will be aware from our letter of 8th August, 2005, that the records requested by you were not originally taken up,

hence necessity of further enquiry, and where it may not be reasonable to expect that records as may be available would

take slightly longer to access given date requested.”

25. On 25th April, 2006, when the matter was listed before the Circuit Court, almost a year from the date of the original application,

(and in circumstances where the additional evidence had not been procured), counsel for the State indicated to the court that a

letter would be obtained from the telephone company in question, indicating that the records were no longer available. On 2nd May,

2006, when the matter was listed before the Circuit Court, counsel indicated that the letter from the telephone company would be

provided to the solicitor for the defendant by the end of the week. No such letter was provided within that timescale.

26. However, on 9th May, 2006, the State Solicitor provided a letter dated 8th May, 2006, from Meteor Mobile Telephone Company,

stating that they were unable to provide telephone records dating back to 2001. He also provided a letter from O2 Mobile Telephone

Company, stating that they also were unable to provide telephone records dating back to 2001. But this was not what the accused

was seeking.

27. As outlined earlier, the complainant’s telephone number had an 087 prefix, indicating that she was a customer of Vodafone. No

letter was provided then from Vodafone stating whether records were available from 2001, nor was a letter provided from any of the

three companies stating whether they had records relating to the complainant’s actual telephone. It is not suggested that what

occurred was as a result of any mala fides on the part of the prosecution.

28. Ultimately, on 20th November, 2006, a letter emanated from Vodafone addressed to a member of the Security and Intelligence

Division at Garda Headquarters. This was headed:

“Various Queries

Reference: 79/11/06

Your query regarding records for 2001, these records are not available. These records would not have been available in

June, 2005. In relation to the request by defence for records for [numbers provided], if the request was for 2001 records,

they would not have been available. Vodafone only keep records for a maximum of three years.”

29. This letter from Vodafone was written only after these judicial review proceedings were initiated. It does not state whether

Vodafone had kept records dating back to 2001, nor whether they had records relating to the complainant’s telephone. As may be

seen, the letter also states that “Vodafone only keep records for a maximum of three years”. (Emphasis added)

30. In the course of her affidavit, Garda Curran states that, “if the request from the defence had been made in a timely fashion,

following the service of the book of evidence on 1st March, 2004, it may well be that the applicant would have been able to obtain

these records”. This proposition is not borne out evidentially, and would appear to be speculation. In fact, it would appear that there

was a possibility only that the records in question might have been available in March, 2004. There was a further delay of seventeen

months between the request for the records in June, 2005, to Vodafone’s reply of November, 2006. Even if records had been

requested in March, 2004, it is suggested by the applicant that the likelihood of a similar delay would have removed the possibility of

the records still being in existence. These questions are considered below in the context of the legal authorities.

31. First, other allegations of prejudice are considered.

Other prejudice

Business Records disposed of

32. At the time of the alleged incidents, the applicant was running a public house where the complainant’s mother and aunt were

employed. The applicant states that certain difficulties arose concerning the accounts of this public house which led to the dismissal

and resignation of the complainant’s mother and aunt. It is stated that these records have now been disposed of and were already

long gone in 2004. The public house was closed in August, 2001.

E.W. and Deuces Wild

33. It was said the defence was prejudiced by the absence of an essential witness, E.W., and also the unknown whereabouts of

members of a band named “Deuces Wild” who, it is contended, might have been of assistance to the defence.

The business records

34. It is stated in general terms, that “certain difficulties arose concerning the accounts of the said public house and this led to

dismissal and resignation”. The grounding affidavit sworn by the applicant’s solicitor adds, “records of these matters are no longer in

existence and were no longer in existence when the charges were brought against the applicant in 2004. The public house was closed

in August, 2001”. No information is provided as to the nature of the records, when these records ceased to exist, or in what

circumstances. No evidence is adduced as to how these might have been of assistance to the defendant. It is not possible for the

court, in the face of these rather generalised allegations, to make any detailed finding or assessment as to the evidential value of this

material, if any. Still less should the court speculate or theorise. Prejudice has not been established under this heading.

Absence of E.W.

35. The nature of this witness’ essential testimony was not disclosed in the grounding affidavit. At the time of the swearing of that

affidavit, Mr. W. was said to be residing in New Zealand. Whatever may have been the evidential deficit arising from the absence of

this witness has now been removed because, the court has been informed, Mr. W. has now returned to this jurisdiction and is

available to the applicant. No prejudice therefore arises.

Deuces Wild

36. The next element of prejudice alleged is that the members of the rock band named “Deuces Wild” might have provided alibi

evidence. They are no longer in existence. They are not identified by name. Furthermore, it is not specified precisely in what

circumstance such alibi evidence would have been available, or in relation to which of the charges, although the band is said to have

been in the applicant’s apartment at a time prior to one of the allegations. It is unclear that the band members would have had any

value as witnesses to the alleged events in question to which there were no witnesses.

37. It is deposed on behalf of the applicant, that neither he nor his solicitor was aware of the whereabouts of the band. No evidence

has been adduced as to any steps taken by the applicant to trace these potential witnesses or to identify where they may be. An

accused person is not a passive bystander in the preparation of his own defence in this or any other aspect of the case. The

applicant’s case has not been made out under this heading.

38. It is now necessary to revert to the absent telephone records and the question of prejudice.

Context and potential defences

39. It has been observed that in the law, context is all. In the context of this case, one must focus upon the nature of the charges

and the defences actually available to the accused. To reiterate, consent is not such a defence. In the allegations of assault relating

to the applicant, then aged thirty-one years, and the complainant, then aged twelve years, it would be no defence for an applicant

to contend that a complainant initiated a series of events which may have led to a sexual assault. There is no suggestion on the

facts of the instant case that the applicant was in any way unaware of the complainant’s age at the time the events in question are

alleged to have occurred. It has not been submitted that the precise timing of any particular telephone call forms an integral part of

any res gestae, or a core defence available to the applicant, whether by way of alibi or otherwise. The applicant has not suggested

that the fact of any particular phone call forms an integral part of the ingredients of any other defence, whether relating to time or

circumstance. The complainant, in the book of evidence, says that she made, on her own initiative, at least one phone call to the

applicant. It is unclear whether she may accept having made more than one, or even a series of such calls. Whether being deprived

of material which might (but not would) be the basis of a cross-examination as to credit constitutes specific prejudice must be

assessed having regard to the duty of the prosecution and the time sequence and materiality.

40. During the conduct of this case, the following criticisms were made of the evidential-gathering process. First, only outgoing calls

were detailed. Second, they are confined to the period 20th August to 31st August, 2001. Third, there is the absence of any

telephone records in relation to the complainant’s telephone. Particular emphasis was laid on the third issue as it was contended that

the presence of such records would indicate the initiative had been taken by the complainant in making calls on a number of

occasions. But to what extent would this assist the accused, especially where consent cannot be a defence? I have already made

observations as to the potential value of such material even were it available. While the absence of these records may be a

disadvantage, I am unable to hold that such detriment contributes specific prejudice. They are insufficiently central to a reasonable

line of defence which would be lawfully available to the applicant – even if they established the proposition contended for – a

hypothesis not otherwise supported by evidence.

One turns then to the duty of the prosecution

Legal authorities

Finding, seeking and preserving evidence – Braddish and Dunne

41. In Braddish v. The Director of Public Prosecutions [2001] 3 I.R. 127 and Dunne v. The Director of Public Prosecutions [2002] 2 I.R.

305, the issue of unavailable videotapes was considered by the Supreme Court in the context of the dates of the gardaí.

42. In the first, the gardaí viewed a videotape and identified a suspect from it. They interviewed the suspect and claimed to have got

an admission from him: they then disposed of the videotape. In Dunne, the premises robbed were a filling station which was equipped

with video surveillance focused on the area where the robbery took place, but the gardaí apparently did not attend to this aspect of

the case and did not take the tape into their possession. Judicial review was granted prohibiting the trial because of the close link of

the lost material to the offence itself and the reasons for its unavailability.

Mere theoretical possibility insufficient

43. In Scully v. The D.P.P. [2005] 1 I.R. 242, relief was refused as the application had been brought on the basis of a mere possibility

that video evidence might have contained material either inculpatory or exculpatory of the accused.

44. In the course of Hardiman J.’s judgment there is the following passage:

“The fact is that the rationale of this application vanished after the undisputed facts in relation to the video surveillance

on the filling station at the time of the crime, were revealed. This did not happen until quite close to the trial because the

applicant did not investigate the position any earlier. This, in turn, appears to me to indicate that the applicant was more

interested in tripping the investigators than in discovery of evidence: certainly, he was constrained to continue his

application on the basis of a theoretical possibility only. … Applications on this basis must be discountenanced in the

interest of the right to prosecute, but also in the interests of the integrity of the jurisdiction, in a proper case, to restrain

a prosecution on the basis that significant evidence has been ignored or destroyed.”

(See also the judgments of Kearns J. in Scully in the High Court; and Dunne v. D.P.P. (Unreported, High Court, 23rd March, 2001); and

O’Callaghan v. Judges of Dublin Metropolitan District Court (Unreported, High Court, 20th May, 2004).

45. All that has been established with regard to the telephone records is a mere theoretical possibility lately evolved, that is, they

might show that the complainant made more than one, or a number of phone calls. This is unsupported by evidence. Its consequence

is not established. It is difficult to avoid the conclusion that the applicant was more interested here in ‘tripping’ the investigation than

in discovering evidence only very latterly a consideration near the eve of the trial.

Common sense parameters

46. It has been observed that:-

“Common sense parameters of reasonable practicality must govern any determination of the scope of the duty on the

Gardaí when seeking out or preserving evidence and remote possibilities arising from the loss of evidence should not be

allowed to trip up the prosecution or justify stopping a trial from taking place.” (c.f. judgment of Kearns J. in McFarlane v

D.P.P., Supreme Court, 7th March, 2006, unreported.)

47. I do not consider that it has been established that the records now sought came within any such commonsense parameters.

Parting with or disposing of relevant evidence

48. In Bowes & McGrath v. D.P.P. [2003] 2 I.R. 25, the Supreme Court prohibited a trial in the latter, McGrath, in circumstances where

the applicant had established that the Gardaí had parted with a motorcycle which had actually been involved in an accident, and had

thereby deprived the applicant of the possibility of an examination which might have offered the accused “the reasonable possibility”

of rebutting the evidence proffered against her. The court, in so deciding, followed the decision of Lynch J. in Murphy v. D.P.P. [1989]

I.L.R.M. 71, where relief was also granted on the applicant’s assertion that the disposal of a motorcar had deprived his fingerprint

expert of an opportunity of adducing possible scientific evidence which might have served a useful purpose. In that case, the gardaí

had disposed of the vehicle without conducting a forensic examination although they knew the applicant wished to inspect the vehicle

for that purpose. Lynch J. decided the case in favour of the applicant on fair procedure grounds but noted:

“The authorities establish that evidence relevant to guilt or innocence must, so far as is necessary and practicable, be

kept until the conclusion of the trial. These authorities also apply to the preservation of articles which may give rise to

the reasonable possibility of securing relevant evidence.”

49. But here the gardaí never had the evidence in question. Its materiality has not been demonstrated to the requisite standard.

Application of legal principles to facts

Nature of duty asserted – a positive one

50. Materiality, close linkage to the events, deprivation of opportunity and timely request by the defence, are all ingredients in the

successful claims for judicial review. The following important features must be emphasised in the instant case. Here, the gardaí were

only made aware in June 2005, that the applicant required these particular records. They had not engaged in any forensic examination

of these records themselves, nor did they negligently lose or part with primary evidence.

51. The point made by the applicant in this case, comes into a different category. It is that the applicant should have obtained a

particular category of evidence, that is, the complainant’s telephone records for the period in question. In the course of his judgment

in Scully v. D.P.P. [2005] 1 I.R. 242, Hardiman J. specifically approved the following statement of Kearns J., then of the High Court and

trial judge in Scully:

“Some sort of commonsense parameters of reasonable practicality must govern any determination of the scope of the

duty on the gardaí when seeking out or preserving evidence. This must, of necessity, imply that some margin of

appreciation be extended to gardaí when investigating crime to determine what they may reasonably consider to have

some possible relevance in establishing guilt or innocence. What is the alternative? Is it for the accused person or his

legal advisers to dictate the parameters? Alternatively, must the gardaí go on seeking out and preserving any and every

possible piece of evidence which might, by the remotest chance, admit of being relevant in some fashion at a subsequent

trial? I think not. To set the bar too high for the gardaí in seeking out and/or preserving evidence is more likely, in my

opinion, to frustrate the administration of justice and due process than to uphold it.”

52. It hardly requires reiteration that the facts of this case do not give rise to a consideration of whether the gardaí wrongly

exercised a judgment in disposing of evidence. It is true, however, that they have made a choice as to what evidence to obtain so

far as relates to the period of the telephone records.

53. The fact that Garda Curran may have made an error (as is accepted implicitly in this case) in her belief that the records would

show both incoming and outgoing calls, does not detract from the fact that the applicant, on the facts of the present case, is now

seeking to impose a duty on the gardaí of obtaining additional evidence which had not been obtained or sought previously. I do not

consider such duty exists on the facts and circumstances of this case. It is not shown evidentially that the choice or selection of the

records is a matter of specific, identified prejudice.

Function of the Director

54. In Blood v. The Director of Public Prosecutions (the Supreme Court, 7th March, 2005, Unreported) McGuinness J. observed:

“The learned trial judge in this case held that it was a matter for the Director to decide upon what evidence he would

prosecute any particular charge, and that it was not the function of the court to substitute its view for that of the

Director who was charged at law with the decision who, when, with what charge and on what evidence to prosecute in

any case. In my view, the learned trial judge was correct in so holding.”

Subject to the parameters bound by fairness, these are matters for the prosecution. But there is a further element here.

Timing of request

55. The book of evidence was provided on 1st March, 2004. At that point, no criticism was made regarding the nature and quality of

the material provided, regarding telephone records. This issue was raised only on 28th June, 2005, in the Circuit Court soon after

senior counsel was retained. One would have thought that any examination of the book of evidence prior to that time would have

demonstrated that what had been provided was a record of the applicant’s own telephone calls. No evidence has been furnished as to

what steps, if any, were taken by the defence between the time the book of evidence was provided (1st March, 2004) and the time

in which the issue of the complainant’s phone records was raised. Nor, indeed, as to why the issue of these records emerged only at

that time and not before, and when a trial was reasonably imminent. It does not show either that the issue was seen as a main plank

or any part of the defence prior to June, 2005.

No timely requirement for material

56. In at least one of the interviews – the content of which was not disputed – with the applicant on 25th October, 2001, the

existence and content of telephone calls, and particularly, the content of text messages, was dealt with in detail at a time when the

applicant had already received legal advice. No request was made at that time that the complainant’s telephone records be obtained,

either by the applicant or by his solicitor. No suggestion was made that then they were of high relevance to the defence of the case.

57. In Scully v. D.P.P. the Supreme Court, 16th March, 2005, Hardiman J. stated with regard to the applicant therein:

“He took no steps to ascertain the position about video surveillance for some seven months. This period of time is wholly

unexplained and appears to contravene the duty (identified in the cases) which lies on an accused or his advisers with

their special knowledge of the case from the defendant’s point of view to seek the evidence they require to sustain the

defence.”

These observations are apposite here. The elapse of time is unexplained. The specific records did not arise as an issue on 28th June,

2005, after two counsel were assigned.

58. Furthermore, the applicant was served with the book of evidence on 1st March, 2004. At that point, he was aware of the

prosecution’s evidence against him. While he may not have had access to the complainant’s telephone records, the absence of the

alleged missing evidence could then have been gleaned from his own telephone records in relation to incoming phone calls – if

relevant.

59. Garda Curran, in the course of her evidence, states that O2 hold records for a three-year rolling period. Had the applicant,

therefore, himself sought details of his own incoming phone records in a timely fashion, as enjoined to do by the principles applicable

to missing evidence cases, such evidence would have been available to him as that three-year ruling period would not have expired

until September, 2004.

60. More fundamentally, if the evidence of the complainant’s records was critical, it is remarkable that the issue was not raised in any

way in a time when the issue was clearly discussed in garda interviews when the applicant was legally advised. Similar observations

apply in relation to the applicant’s state of knowledge after the service of the book of evidence. As observed in Scully by Hardiman J.:

“Delay is significant not so much for its bare length (in this case, for instance, it was considerably less than the

unexplained delay in commencing the prosecution) but for the indication that it provides that the case is based on a

‘remote fanciful or theoretical’ possibility, rather than a real desire to obtain evidence believed to be potentially

exculpatory.” (At p. 16)

61. Applying the principles and tests outlined in these authorities and as summarised as to materiality, proximity, deprivation of

opportunity and timely request, I do not consider the applicant’s case has been established.

Prosecutorial delay

62. The applicant also alleges that there has been inordinate delay in the prosecution of these offences. The general chronology of

events has been outlined earlier.

63. A summarised chronology of events, as seen from the standpoint of Garda Curran (as opposed to the applicant), is as follows:

5th September, 2001 - complaint made by the complainant

3rd October, 2001 - more detailed statement taken from the complainant and her mother

25th October, 2001 - applicant arrested and interviewed

20th November, 2001 - statements taken from witnesses J.O’N. and M.O’N.

November, 2001 - Telephone records requested

12th December, 2001 - statement obtained from witness E.W.

15th January, 2002 - further statement taken from the complainant

5th February, 2002 - statement taken from the complainant’s mother

13th February, 2002 - statement taken from E.W. arising out of an allegation made by the complainant’s mother made on

5th February, 2002. Other statements from the gardaí set out in the book of evidence were also taken during this period

6th June, 2002 - initial file completed and forwarded to the Director

13th June, 2002 - further queries raised by State Solicitor regarding file

18th August, 2002 - additional statements taken from family members and others of the complainant.

Between August, 2002 and February, 2003 – further matters are stated to have acquired clarification.

25th April, 2003 - additional statements taken from the complainant and her mother

14th August, 2003 - Gardaí received directions from the respondent to charge the applicant.

64. I have already commented on the claim by the gardaí that the applicant was no longer residing at his original address; that he had

not notified the gardaí of any change; on the further claim that he was not at his family home. I do not consider he was evading

arrest. He may have been keeping a ‘low profile’, another matter altogether.

65. Ultimately, later in 2003, the gardaí apparently became aware that the applicant had another address in another neighbouring

town. The gardaí called to this house which was stated to have been rented by the applicant, but did not find him there. During the

time, the gardaí in three separate towns in the county were seeking to locate the applicant as they all had documents which they

required to serve upon him. Garda Curran also circulated a report via local stations for members to contact her if the applicant was

encountered at his current address. She also received information at that time that the applicant might have travelled to England. In

late September, 2003, the gardaí became aware where the applicant was living and he was subsequently charged on 5th January,

2004, the book of evidence being served on 1st March of that year. This must be seen in the context of the applicant’s mother’s

affidavit previously referred to.

66. No application was made to cross-examine Garda Curran, the only State deponent. Consequently, on the basis of the chronology

now outlined, a determination must be made whether there has been delay on the part of the respondent or on the part of the gardaí.

67. There is no doubt that there was a significant elapse of time between the initial complaint in September, 2001, and the date of

the applicant’s arrest in January, 2004. However, on the basis of the respondent’s evidence as now adduced, which went

unchallenged, I am unable to conclude that there was unconscionable or blameworthy delay on the part of the prosecuting

authorities. Clearly, there was a significant elapse of time between the date of the original complaint and the ultimate arrest of the

applicant. The book of evidence contains twenty-two witnesses. It appears that the telephone records did not become available until

September, 2002. Matters might well have proceeded faster. However, I do not consider it can be said on the facts, as they stand

before the court, that the delay has been inordinate.

68. While the applicant complains as to an elapse of time from 5th September, 2001 (date of complaint), to the sending of the file to

the respondent, a period of five months, this time has been accounted for in Garda Curran’s affidavit evidence. The further six-month

period between August 2002 and February 2003, has also been dealt with as outlined earlier. While it is contended that there was a

delay amounting to twenty-three months prior to the decision to charge the applicant, I consider that sufficient uncontested

evidence has been adduced to justify this delay.

69. It is now necessary to deal with other aspects which arise in prosecutorial delay, stress, or anxiety, and potential prejudice.

Stress or anxiety

70. It is noteworthy that nowhere in his affidavit does the applicant himself complain of stress or anxiety.

71. In P.M. v. The D.P.P. (Supreme Court, Unreported, 5th April, 2006), the court considered whether prosecutorial delay was

sufficient in itself in order to justify an order of prohibition.

72. Three crucial interests are identified as protected by the right to trial with reasonable expedition in Barker v. Wingo 407 U.S. 514

(1972) being:

“I. The right to prevent oppressive pre-trial incarceration;

II. the right to minimise anxiety and concern for the accused; and

III. the right to limit the possibility that the defence will be impaired.

73. In the course of his judgment in P.M. Kearns J. stated with regard to the third:-

“I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a

court in determining whether blameworthy prosecutorial delay should relate to an order of prohibition. It means that an applicant for

such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having

serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as the applicant will probably have

obtained bail, pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay,

any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than

one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”

74. Later in the same judgment that judge stated:

“In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been

established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests

protected by the right to expeditious trial must also be shown to have been so interfered with such as would entitle the

applicant to relief.”

75. I do not consider that the applicant in the instant case has discharged the onus of proof in establishing that he has suffered

stress and anxiety. This has not been specifically established on the basis of any averment in the affidavit of his solicitor or in any

evidence adduced by the applicant himself. It should not be inferred on vague assertion. Moreover, it is doubtful whether this

particular case is open to the applicant in the light of his ascribed belief that he had put the matter behind him and that it had only

re-emerged three years later. It can hardly be said in those circumstances that he had suffered continuing stress and anxiety.

Further conclusions

76. I have found that the applicant has not established prejudice such as would place his right to a fair trial at risk. The prejudice

issue raised is collateral to the central feature of the case. It is speculative. The establishment of the truth of the assertion made by

the applicant would not go to the issue of guilt or innocence but rather might, potentially, affect the issue of the creditworthiness of

the complainant. But even this has not been established to a sufficient degree of probability. Even if it were demonstrated that the

complainant had initiated a series of phone calls to the applicant, this would not necessarily be probative in value on any essential

issue.

77. I do not consider that the effect of these observations is diminished by the fact that what is alleged is a series of sexual offences

which are said to have occurred in private. On the facts, the point of alleged prejudice is not an island of fact, but an evidential cul-

de-sac. The applicant is confined to asserting that he has belatedly lost the opportunity of cross-examining as to credit on a

collateral issue on the basis of material of theoretical value. This is not a case where a very substantial elapse of years has occurred

between date of alleged offence and complaint or, indeed, between complaint and charge.

The role of the trial judge

78. One further factor requires to be addressed. On the history of events, the telephone records was an issue which had been raised,

albeit at a late stage, during the course of procedural hearings and where disclosure became an issue. As pointed out by Fennelly J. in

his judgment in P.G. v. Director of Public Prosecutions the Supreme Court, 29th March, 2006, matters of disclosure are within the

province of the trial judge. They are not matters for judicial review except to the extent that an accused person can show that,

having taken all reasonable steps to obtain disclosure, necessary material is being withheld from him to such an extent as to give rise

to a real risk of an unfair trial. The particular issue which is addressed in this, as in many other judicial reviews, is that the question of

prejudice and its extent are raised in a manner divorced from the body of evidence in the trial itself. On the particular facts of this

case, I consider that judicial review was the appropriate remedy in that the trial had not commenced. Obviously, had the applicant

been put in charge of a jury, it would not have been appropriate for this Court to seek to address the issue in such circumstances. In

D.C. v. The Director of Prosecutions [2006] 1 I.E.S.C. 54, Denham J. stated:

“Whether an application for judicial review is made or not, the trial court retains at all times its inherent and constitutional

duty to ensure that there is due process in a fair trial. Thus, in the course of the trial, matters may arise, evidence may

be given, which renders the trial unfair or the process unfair. In these circumstances, the trial judge retains the

jurisdiction of preventing the trial from proceeding.”

But this jurisdiction is exercised in the course of a trial and does not permit a preliminary hearing in the Circuit Court on the issue of

delay. Accordingly, if the trial judge considers that any of the issues raised in the course of this judgment requires directions within

the range identified by Denham J., such jurisdiction could, and should, be exercised.

79. For the reasons outlined, the court will decline this application for judicial review.