Court of Criminal Appeal dismisses appeal against rape conviction, upholding fair trial despite delay and juror discharge.

THE COURT OF CRIMINAL APPEAL

Murray, J. [39/11]

deValera, J.

McGovern, J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

PATRICK HEGARTY

APPLICANT

JUDGMENT of the Court delivered on the 31st day of July, 2013 by Murray J.

1. This is an application for leave to appeal by the above named applicant against his conviction on 9 counts of rape and 8 counts of

sexual assault committed in 1991. There is another appeal in this case brought by the Director of Public Prosecutions in respect of the

sentences imposed by the trial court on the grounds of undue leniency. That appeal is dealt with separately.

2. On the 10th day of January, 2011 the applicant was convicted, after an 8 day trial, of 8 offences of rape contrary to s.48 of the

Offences Against the Person Act, 1861, as amended by s.2 of the Criminal Law (Rape) Act, 1981 and s.21 of the Criminal Law (Rape)

Amendment Act, 1990, one offence of rape contrary to s.4 of the Criminal Law (Rape) Amendment Act, 1990 and 8 offences of sexual

assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990.

3. All of the offences were committed over a 5 week period in the summer of 1991 when the victim, who was then 15 years old and

resident with her parents in England, was spending her summer holidays in the southwest in the home of the applicant and the

applicant’s wife who was an aunt of the victim. Her aunt ran a bed and breakfast business at the time. At the time of the offences

the applicant was 47 years of age. Over the years there had been a close relationship between the complainant’s and the applicant’s

family. There were regular visits between the two during the victim’s childhood. The applicant was sentenced to a period of 7 years

imprisonment, with 5 of those years suspended, in relation to the counts of rape, a sentence of 5 years imprisonment with 3 years

suspended on one count of sexual assault and a sentence of 6 months imprisonment on the remaining counts of sexual assault, all

sentences to run concurrently.

Grounds of Appeal

4. At the hearing of his application for leave to appeal three grounds of appeal were advanced on behalf of the applicant, which were

as follows:

(i) The learned trial judge erred in failing to discharge the jury consequent upon one of them being found to possess

information obtained from the internet related to particular and exculpatory evidence adduced by the defence;

(ii) The learned trial judge erred in failing to adequately instruct the jury on the issue of the effect of delay in this

prosecution having regard to the particular circumstances of this case;

(iii) The learned trial judge failed to ensure that the applicant had a fair trial having regard to the two issues referred to

above.

Failure to Discharge the Jury

5. On the 6th day of the trial it was discovered that a member of the jury had researched on the internet one aspect of evidence

which had been previously given and tendered on behalf of the defence. It was the jury member herself who, conscientiously as the

learned trial judge was to observe, brought the fact of her research to the attention of the jury minder who duly informed the judge.

6. The research related to evidence which had been given during the trial on behalf of the defence by the former managing director of

a firm who had employed the applicant over a period which included the year 1991 when the offences were committed. In the course

of his employment the applicant drove a company van. The witness’s evidence was that all the vans were the same and they all had

the same colour. He gave evidence describing the van including the configuration inside the van referring to the number of doors, the

number of seats, the division between the back and front of the van, the manoeuvrability of the passenger seat and so forth. The

evidence was relevant to the accuracy or credibility of the complainant’s evidence concerning certain matters which had occurred

when she was in a van with the applicant. It is not relevant for present purposes, and therefore not necessary, to recite in detail the

evidence of the witness concerned. Suffice it to say that the internet search carried out by the member of the jury on the internet,

as appears from the extract of the transcript below, related to the configuration of the particular kind of van referred to by the

witness in the course of his evidence.

7. On the 6th day of the trial the proceedings commenced, in the absence of the jury, with a statement addressed to counsel for

both sides by the trial judge in the following terms:

“Before we start, a matter has been brought to my attention that one member of the jury apparently approached the

jury minder and told the jury minder that they had been on the internet. The jury minder said to say nothing further,

and nothing further was said, but I want to bring that to your attention and ask you if you have any view as to how I

should deal with that …”.

8. There was then a discussion between the trial judge and counsel for the defence and counsel for the prosecution as to how this

matter might be best approached. The outcome of that exchange was that the trial judge would recall the jury and ask the juror

concerned to identify herself. The trial judge would then ask the other members of the jury to return to the room and in their absence

question the juror concerned as to what had occurred in relation to her access to and use of the internet. It was also agreed that

only the trial judge would pose questions to the juror for this purpose but that counsel for the defence or the prosecution would have

an opportunity subsequently, in her absence, to make submissions to the trial judge as to any other enquiries or questions which

should be made.

9. Having identified the juror in question the following exchanges took place between the trial judge and the juror in question in the

absence of the jury (Day 6, page 15 of the trial transcript):

“JUDGE: Just the first matter that I have to ask you is did you search the internet in relation to any aspect of this

case?

JUROR: The information --

JUDGE: No. No, sorry, if you wouldn't mind just listening to my question --

JUROR: Not an aspect of this case, no.

JUDGE: You didn't search the internet in relation -- just bear with me.

JUROR: Yes.

JUDGE: Did you search the internet in relation to any aspect of this particular case.

JUROR: I checked something on the internet. So --

JUDGE: In relation to this case?

JUROR: In relation to a piece of evidence.

JUDGE: In this case?

JUROR: Yes.

JUDGE: And I wonder would you mind telling me secondly then, having done that did you discuss your findings --

JUROR: With nobody.

JUDGE: -- with any member -- any other member of the jury?

JUROR: No.

JUDGE: Did you tell any other member of the jury what you done?

JUROR: No.

JUDGE: Thank you. Very well. I'm sorry I just want you to just stay there for a moment.

JUROR: Yes.

JUDGE: Have the jury gone back to their room?

GARDA OFFICER: Yes, judge.

JUDGE: Is there any way in which this member of the jury can be kept separated but just simply remain outside?

GARDA OFFICER: Yes, Judge.

JUDGE: Without going back to the other jurors?

GARDA OFFICER: I can do that ….

JUDGE: Very well. Would you mind just rising just for one moment. I'll call you back in here --

JUROR: Sure, no problem.

JUDGE: -- in a moment. It seems to me that the next obvious question is what did you check.

MS FARRELLY: Yes, my lord, I think you should ask that.

JUDGE: That's what I -- very well. And arising out of that then, does he feel in the light of what he has done that

he can --

MS FARRELLY: She.

JUDGE: She. Sorry, does she believe that she can properly honour the oath that she's taken.

MS FARRELLY: Yes, and your lordship -- depending on what she tells you, your lordship may take a view in any

event --

JUDGE: Yes, very well.

MR MacENTEE: Yes, that is the point, my lord, irrespective of the view of the juror, the last analysis, the decision

has to be --

JUDGE: No, I follow that.

MS FARRELLY: Yes.

MR MacENTEE: -- the Court's.

JUDGE: Thank you. Just listen, would you mind then indicating what was the aspect of the case that you looked at.

JUROR: It was basically -- it was a piece of information that was given by the gentleman that the defence put on

the stand and it was purely just -- can I actually tell you what I --

JUDGE: Yes, you can of course.

JUROR: Yes, basically when he talked about the red van and the set-up within it. I just wanted to call up a

technical spec online in order to have a look at what he was saying just to confirm that the kind of distances and

things like that, only to discover that basically that that make and model and van don't match up with the

description he gave.

MR MacENTEE: Sorry, I didn't hear the end of.

JUDGE: That make and model of the van doesn't match up with the description that he gave. In other words, that

make and model of the van doesn't match up with the description that the witness called by the defence gave.

JUROR: Yes. That a van of that description wasn't available at the time, that year.

JUDGE: Very well.

JUROR: By the company he says. So there's a discrepancy.

JUDGE: I follow. I'm going to ask you this question anyway though it would seem to me that it may well be a

matter for the Court. You realise that you can only try the case on the evidence that you hear in court.

JUROR: Yes. But --

JUDGE: Do you have any view about your own ability to continue?

JUROR: No, I don't. I mean, the reason I asked the question was because if I was in a different profession or if I

had a different interest this is common public knowledge --

JUDGE: Very well.

JUROR: I would be -- just as jurors, we all bring something advised to the jury room.

JUDGE: Yes.

JUROR: We have people working in the medical profession, we have a mixed bag of people in there who are all

contributing --

JUDGE: Very well.

JUROR: -- from their own personality. My profession means that I research everything, so it was purely -- it was

purely just to draw -- get a picture in my own mind of the interior layout of the vehicle that we were told was --

and it just didn't match. And my question was can I bring that up as --

JUDGE: Very well.

JUROR: -- amongst --

JUDGE: As part of your contribution?

JUROR: Yes.

JUDGE: Very well. Thank you very much indeed.

JUROR: Thank you.”

10. At this point the juror left the courtroom and was kept separate from the other jurors. The trial judge then indicated to counsel

for the prosecution and the defence that he considered he should discharge that juror from the jury and continue the trial with a jury

of eleven. Counsel on behalf of the applicant stated that he did not wish the juror to continue serving on the jury even though “I

would, of course, to have liked to have a full jury.” The juror was then discharged.

11. At this point the trial had reached a stage that all that remained was for the trial judge to give his summing up and directions to

the jury.

12. Before the remaining eleven members of the jury were recalled for that purpose certain issues concerning the trial judge’s

directions to the jury in the course of the proposed summing up were discussed with counsel for the prosecution and for the defence.

None of them concerned any issue relating to the discharged juror’s access to the internet.

13. Neither at this stage, nor any other stage, was an application made by counsel for the defence to have the jury discharged by

reason of the conduct of the discharged member of the jury, nor that any direction be given to the jury concerning that matter.

14. On being recalled the remaining members of the jury were informed that they now constituted a jury of eleven members only and

that the law permitted the trial to continue with eleven jurors. The trial judge then proceeded with the summing up and directions to

the jury.

15. In the course of submissions to this Court on behalf of the applicant it was pointed out that counsel for the defence had drawn

the attention of the trial judge to the risk of prejudice (Day 6, page 2, line 31) and to the possibility of transmitting prejudice to the

balance of the jury (Day 6, page 3, lines 15 – 19).

16. In his submissions on behalf of the applicant counsel complained that no enquiry was made by the trial judge as to when precisely

the juror had obtained the information from the internet, whether it had altered her view of the case, or whether her altered view

could have been conveyed to the balance of the jury, consciously or unconsciously. It was submitted that the steps taken by the

learned trial judge to ascertain the implication of the juror’s researches on the internet were inadequate and he ought to have

ascertained whether or not the juror might by her attitude or demeanour in the jury room have conveyed to the other members of the

jury her view that the evidence of the witness concerned was incorrect, namely, “that the make and model and van don’t match up

with the description” which she had given. Accordingly, the trial judge failed to take adequate steps “to ensure the integrity” of the

jury remained intact. This gave rise to a real risk of an unfair trial.

17. On behalf of the DPP it was submitted that the learned trial judge had conducted an appropriate enquiry concerning the conduct

of the juror and having been satisfied that there were proper grounds for discharging the juror did so in the proper exercise of his

discretion. Counsel for the DPP also pointed out that no objection was raised by counsel for the defence concerning the manner in

which the trial judge dealt with the matter.

Decision on the First Ground of Appeal

18. The fundamental matter which a trial judge has to address when a situation arises concerning the conduct of a juror, as in this

case, is to ensure that a fair trial of an accused is not prejudiced or subjected to a real risk of prejudice. When the trial judge

mentioned this matter in court on the morning of the 6th day of the trial it is clear that this was the very issue which he sought to

address and engaged in a discussion with counsel for both the prosecution and the defence for that purpose. During the course of

these exchanges counsel for the defence expressly stated that he was not applying to discharge the jury at that stage (Transcript

Day 6, line 32). In fact, the outcome of the exchange between the trial judge and counsel was that all agreed that the juror should

be identified and questioned by the trial judge as to the nature and import of what she had learned from accessing the internet. It

was also accepted by counsel for the defence and for the prosecution that only the trial judge should make enquiries of the juror

concerning this matter, but that both parties would have an opportunity of suggesting or proposing to the judge further questions or

enquiries from the juror should the need arise.

19. As previously stated, and as appears from the extract of the transcript above, the judge made enquiries of the juror who

disclosed that she had obtained information from the internet which was in contradiction of some aspects of the evidence given by

the witness called by the defence and referred to above.

20. Having made these enquiries of the juror she was then asked to leave the courtroom and a further exchange took place between

the judge and counsel for both parties. In the absence of the jury the trial judge expressed the view that the trial could not, in the

circumstances, continue with that juror. This is a view agreed with by both counsel for the defence and for the prosecution. Counsel

for the defence stated “needless to say … I don’t want this juror on – in those circumstances.” (Transcript Day 6, lines 24 – 26).

21. Counsel for defence did say that he would have liked to have had a full jury but agreed with the trial continuing as a jury of

eleven. Where for good and sufficient reason the member of a jury cannot continue, or be permitted to continue, to try the case the

law permits the trial to continue with eleven jurors and no point has been raised concerning this.

22. There is a myriad of reasons or situations in which it may be necessary to continue a trial with less than the optimum number of

twelve jurors. One obvious incident is where a juror is taken ill or a situation may arise, such as in this case, where something has

occurred or prejudicial material has been brought to a juror’s attention, which undermines his or her capacity to act fairly and properly

as a juror or which raises a real risk that this may be the case. Obviously this can occur in relation to more than one juror, or indeed

the jury as a whole, such as where prejudicial material has been given widespread publicity in some part of the media during the

course of a trial. Depending on the circumstances of the case it may be possible for a trial to continue where an appropriate direction

or instruction from the trial judge was considered sufficient to meet the situation. In other situations the prejudice may be such that

it could not properly or safety be dealt with in this manner and that the only alternative is to discharge the jury as a whole or just

one juror as the case may be.

23. It is undoubtedly trite law to state that before discharging a jury or a particular juror for whatever reason the trial judge must be

satisfied that the circumstances exist to justify such a step.

24. It is manifestly clear that in the circumstances of this case the trial judge had no option but to discharge the juror in question. In

the circumstances of this case the enquiries which he made of the juror herself were entirely appropriate and proper. The real issue

raised by the applicant is whether the trial judge should have gone further and discharged the jury as a whole or at least gone further

and made additional enquiries as to whether the juror may in some way have conveyed, even subconsciously, something untoward to

other members of the jury.

25. The Court is satisfied that there is no basis whatsoever for this submission on the facts of this case. As appears from the extract

to the transcript above, the juror made it quite clear that she had not discussed her findings on the internet with anybody and not

with any other member of the jury. Although the juror erred in what she did it is also clear that she was quite conscious of the fact

that nothing should be done which would prejudice the trial as evidenced by the fact that she brought the fact of her internet

research to the attention of the jury minder and did not discuss it with anybody else.

26. Moreover, if counsel for the defence at the trial considered that some other matter ought, in the interests of justice, to have

been explored with the juror, or indeed the jury itself, he could have requested the trial judge to do so. No such request was made or

even any suggestion made in that regard. Similarly, counsel for the defence had a full opportunity to apply to have the jury

discharged if he considered that there were some grounds for doing so. He did not do so – which is quite understandable since it is

not possible to discern any good grounds for doing so. In short there is no factual or evidential basis for considering that the

remainder of the jury could have been prejudiced in any way. In fact, the evidence is to the contrary. Accordingly, the Court

dismisses this ground of appeal.

Second Ground of Appeal

27. This ground of appeal relates to the passage of time which occurred between the commission of the offences over a five or six

week period in 1991 and the complaints to the gardai by the complainant in September, 2008, the arrest of the applicant in January,

2009 and the trial in January, 2011, coupled with the fact that evidence given by the complainant at the trial concerning the various

offences were often lacking in specific detail of circumstances surrounding the commission of the offences. Reference is made in

submissions, for example, to the location at which the offences were committed making it impossible, in one instance, to verify

whether a particular flat at which an offence was committed actually existed at the time. It was submitted that due to her poor

recollection of detail and consequently the absence of ordinary details in her evidence, such as domestic arrangements within the

family home of the applicant where she was staying, made it difficult to cross-examine her as to the credibility of the allegations. It

was submitted that although the trial judge gave directions concerning difficulties which can arise for the defence in cases where

there has been a long delay since the commission of offences he should have referred in summing up to the jury to a range of specific

examples of such difficulties as they arose in the course of the trial. It was submitted that as a result of the failure of the trial judge

to instruct the jury with regard to the specific matters and by reason of the delay generally that the applicant’s conviction should be

treated as unsafe.

28. It was submitted that it is well established that a trial judge is obliged to issue appropriate directions and rulings to avoid the

possible prejudicial effect of delay in sexual abuse cases. (J.L. v. DPP [2000] 3 I.R. 122). Counsel referred to the statement of

McGuinness J. in The People (DPP) v. P.J. [2003] 3 I.R. 550 at 568 where McGuinness J. stated “The dangers inherent in a trial which

takes place many years after the offences alleged and the difficulties which such a trial creates for the defence, has repeatedly

been stressed both by this court, by the High Court and by the Supreme Court …”.

29. Counsel also relied on The People (DPP) v. G.D. [2011] 1 ECCA 35.1, where, on the question of a trial judge addressing the issue

of delay, it was stated: “It is important that the warning in each case should be given in the context of the case. We will refer to

the C.C. case where the Court of Criminal Appeal referred to the exponential difficulties caused by an accused facing a number of

complainants. That of course is true but it … only illustrates the importance of tailoring the charge to the particular facts of the

case to identify what is in issue and to assist the jury in coming to the conclusion in the light of all the facts of the case and the

experience which the courts have built up in dealing with allegations of sexual abuse made by persons who give evidence about

incidents which occurred in their childhood.” It was submitted that in the circumstances of this case the learned trial judge failed to

put forward a balanced or adequate account of the issues arising from delay and accordingly the conviction should be treated as

unsafe.

30. Counsel on behalf of the DPP pointed out that the case of The People (DPP) v. C.C. [2006] 4 I.R. 287 at 294 was one which

concerned a conviction on 180 counts of indecent assaults involving six complainants alleged to have occurred over a 9 year period.

It was a case in which the trial judge had confined himself to stating to the jury that the offences were alleged to have taken place

“over a nine year period, which is from 37 to 28 years ago". While the judgment in that case must be read in the context of its

particular facts the court did discuss the nature and detail of a warning that could be given to a jury in a trial where there has been a

lengthy lapse of time since the offences were committed, and that the nature of the warning would depend very much on the

circumstances and facts of the particular case. Counsel pointed out that the Court in that case went on to note:

“… A good example of an appropriate warning being that given by Haugh J. in The People (Director of Public Prosecutions)

v. R.B. (Unreported, Court of Criminal Appeal, 12th February, 2003), was approved on appeal in that case and was

further approved in The People (Director of Public Prosecutions) v. P.J. [2003] 3 I.R. 550 by this court and was in the

following terms:- …”

The Court then went on to recite the warning which had been given by Haugh J. in that case and which, it is not disputed, the trial

judge gave to the jury in this particular case.

Decision on Second Ground of Appeal

31. Counsel for the applicant is correct in pointing out that the evidence of the complainant at the trial focused primarily on the

specific occasions on which the various offences were alleged to have taken place, and that she was vague or apparently forgetful as

to many aspects of general background, circumstances and details of day to day matters during the period of her stay in the

applicant’s home in the summer of 1991. On the other hand there are parts of the evidence in which she could give considerable

background detail. As is almost invariably the case where sexual offences are concerned they were alleged to have taken place when

the applicant and the complainant were alone. The prosecution case rested primarily on the evidence of the complainant. The

applicant did not give evidence but in several statements made to the investigating gardai he denied committing any of the offences.

However, to place the matter in context the case was not exclusively based on the evidence of the complainant. There were, for

example, two other particular elements. One was evidence from a former husband of the complainant who gave an account of an

overheard portion of a telephone call from the applicant to the complainant in 1974 when both he, the witness and the complainant

were 17 years old, and he was then her boyfriend. He described the portion of a phone call which he overheard the applicant making

as one in which the applicant had expressed himself to the complainant in terms that he would have expected a boyfriend to express

himself by saying things such as ‘I can’t wait to see you again’ and ‘looking forward to seeing you again’. The applicant while

admitting that he had made the phone call to the complainant denied he had said what the witness claimed to have heard.

32. In addition, there was put in evidence a letter written by the applicant to the complainant dated July, 1995. That letter was in

the following terms:

“…16th July, 1995. Dear […] I am writing to apologise for my part in our actions which have caused so much sufferings.

I am middle-aged, you a teenager. Being the adult, I should have known better. I should have put a stop to it and blame

myself and would do so for the rest of my life. I was advised to see a counsellor, which I did. He was highly

recommended. He has been a great help to me. He strongly urges that you take similar advice. I cannot find the right

words to say how deeply sorry I am and for the terrible suffering caused to so many others. I say again, I am the adult.

I should have known better. Paddy.”

33. The prosecution case was that this letter, written by the applicant, referred to his sexual misconduct with the complainant and

for which he was, inter alia, apologising. The defence on the other hand referred to the evidence that the complainant had developed

a drink problem in the months and years following her stay with the applicant’s family. She had been bought or proffered drink by the

applicant during that period (indeed the evidence of the complainant was that she had been given drink prior to the commission of

some of the sexual offences). In this context the defence contended that the letter in question was an apology from the applicant

for, as it was put, “the contribution that [he] may have made to the alcoholism of [the complainant].” Of course, it was a matter for

the jury to ultimately decide on the evidential import of the letter.

34. In any event, it is clear, and not in issue, that given the lapse of time between 1991, when the offences were alleged to have

been committed and the trial in 2011 that the jury should be given a special direction concerning this delay which has occurred since

the alleged commission of the offences.

35. The direction given by the learned trial judge on the question of delay was as follows:

“The late Judge Haugh addressed some remarks to a jury in a criminal trial in or about 2001 which have been found to

be helpful, and I propose to adopt what he said. What he said in that particular case was: "You have heard in this case,

and it is undoubtedly a further difficulty for the case, that this is a case of an old complaint. The events that you have

to decide here are alleged to have occurred more than 15 years ago. It obviously makes the task for a jury and the task

for a court in trying these cases a lot more difficult. As Mr McKeown says …" -- and he must have been one of the

barristers in the case -- "… says, they normally degenerate into one man's word against another because when you

were dealing with old complaints you are dealing with events from a long time ago, and for the very reason they are so

old they generally lack precision, they generally lack detail. And it is in precision and in detail that cross-examination

generally takes place." He went on to say that witnesses seldom change their stories and admit that what they have

said was a fabrication or a lie. "You probe looking for the truth by questioning people in relation to detail. If there are

contests and there are contests in this case, or any case where there is a plea of not guilty, again it is much easier to

defend an allegation where there is detail alleged against you. If somebody alleged that any of you assaulted me in the

mid-80s …" -- and that was about 15 years ago and you must remember that this judgment was being given in 2001 --

"… And left it no more than that, it's very hard for you to defend it. I think that would be accepted by all of you and it is

no doubt so. But if I complain that one of you had assaulted me on a particular date two months ago, for example, the

chances are that you would be able to work out your whereabouts at that time and who can vouch for you at that time

and be able to grapple with issues on the basis of detail. You would be able to look up your diaries maybe, if you keep

them, or check with your employers, if you have them, and you may have been on holidays. But how can a person be

expected to attack the allegation and contest the allegation with any subtlety, with any detail, with any forensic form of

attack if all you are told about it is that you did it about 15 years ago on some date unknown over a period of 18

months. That, I suggest to you, makes it far harder to defend it than to prosecute. In fact, to prosecute it is easier if

you do not nail your colours to the mast because there is less you can be cross-examined on. But the law does not say

that stale cases or old cases cannot be tried. What I must tell you is that an accused person cannot in your minds or in

your consideration be disadvantaged because the case is old, because the case is related to offences from a long time

ago. You have to be all the more careful, and it should be much harder to satisfy you in relation to an event that is

phrased in a vague and general way rather than an event which carries details or particulars. You cannot let the fact

that the accused is handicapped by reason of the lack of precision in the charge to cause you come easier to a decision

adverse to them." He went on then to finish his charge in this respect by saying that the state should not benefit or the

prosecution should not benefit from old cases. "Their lives should not be made easier by bringing old cases. Juries with

their hand on their heart recognise the huge difficulty that accused persons have of dealing with old cases and be all the

more careful on taking that into account when arriving at a decision."

In this case, of course, as you've heard, the events in this particular case are alleged to have happened over a five to

six week period within a five month timeframe on a specific year.

As you know, the accused in this case, Patrick Hegarty, faces 23 charges. You have to consider each of these offences

separately and you must carefully consider all the evidence in respect of each of the offences separately. That means

that the evidence in respect of each of the charges must be reviewed by you and considered by you independently. And

you must be independently satisfied in respect of each individual charge that the prosecution has adduced evidence in

respect of that charge which is sufficient to satisfy you beyond a reasonable doubt. It's only then that you can convict

the accused. Otherwise you must acquit. Obviously -- and it goes without saying -- that if having considered the

evidence you are left with a reasonable doubt in respect of any charge, that's the end of the matter, and you must

acquit the accused.”

36. It is not unusual for the Criminal Courts to try persons on serious criminal charges in respect of offences committed a long time

before the trial. This can arise, for example, in the case of murder where a body or some other evidence comes to light many years

after the offence has been committed. The contemporary experience of the courts is, of course, that it often arises in the case of

serious sexual offences where the victims were very young when the offences were committed. The long passage of time between

the commission of an offence and the charge and trial of an accused may give rise, as the courts have observed in the cases cited

earlier in this judgment, to difficulties for the prosecution but particularly for the defence which would not necessarily arise in trials

which take place within a relatively short time span of the commission of an offence. In the case of H v. DPP [2006] IESC 55 (31st

July, 2006) the Supreme Court acknowledged that there are inherent difficulties for vulnerable young victims of serious sexual

offences in coming forward and making complaints of sexual abuse by adults, particularly against those who are in a position of trust

such as a teacher or family members including uncles and cousins. The existence of a prolonged delay in the making of a complaint to

the gardai and a consequential delay in initiating a prosecution does not, as the trial judge noted and as the Supreme Court decided

in H v. DPP, of itself mean that a trial may not take place. The onus, of course, remains on the prosecution to establish its case

before the jury beyond reasonable doubt. Absent some specific reason why, in the circumstances of a particular case, there was a

real or substantial risk of an unfair trial such a trial must proceed and the jury given appropriate guidance as to how they should take

into account the difficulties, as best can be done, which a defence may face as a consequence of long delay. The Court cannot of

course turn the clock back and can only give appropriate guidance and directions to the jury as to the matters which they should

take into account when evaluating the evidence as a whole in such a case.

37. In DPP v. CC [2006] 4 I.R. 287 this Court cited with approval the dictum of Denham, J. in DPP v. RB (Unreported, Court of Criminal

Appeal, 12th February, 2003) in which it was stated at page 20 of the judgment of the Court:

“No formula has been established by any institution nor have any guidelines been given as to the charge to be given in a

case such as this. Arising out of all the circumstances of a case a charge is a matter for the trial judge in which to

exercise judicial discretion in accordance with the law and the facts of a case. In this case, in a lucid and clear charge,

the trial judge drew the jury's attention to the difficulties of delayed cases. He charged also on the issue of

corroboration. There were no requisitions after his charge....the court is satisfied that in a case such as this where a

long interval exists between the date of the offences alleged and the trial itself, the charge of the trial judge to the jury

in this particular case was adequate and appropriate insofar as it dealt with the problems which flow from such delay,

and insofar as a warning should be given as to how such cases should be approached by a jury in the course of its

deliberation."

The Court in CC then went on to state “Quite obviously the nature and detail of the warning to be given to the jury in an old case

will turn very much on the facts and circumstances peculiar to the case in question.”

38. The difficulties encountered in the CC case arising from delay were, as the Court put it, “exponentially magnified” because of

multiple charges, one hundred and eighty in all, arising from offences against multiple complainants. The offences were alleged to

have occurred over a period of nine years. In this case the factual context was significantly different involving as it did a single

complainant and a series of offences over a five week time span when the complainant was staying in the accused’s house. In this

case the trial judge did not have the task of guiding the jury through the myriad of circumstances relating to 180 offences over nearly

a decade.

39. Again in CC the Court specifically referred to the warning given by Haugh J. in DPP v. RB (Unreported, Court of Criminal Appeal,

12th February, 2003), and then went on to quote verbatim from Haugh J.’s statement to the jury.

40. That is the statement which the trial judge in this case cited and referred to extensively in his charge to the jury.

41. The primary task of a trial judge in a case such as this is to give an appropriate warning to the jury “as to how such cases should

be approached” by it “in the course of its deliberation”. (Denham, J. above) The Court is satisfied that in this case the learned trial

judge gave a complete guidance to the jury as to how they should approach the evidence having regard to the kind of difficulties

which arise in cases of long delay.

42. Counsel for the applicant has complained that the trial judge did not sufficiently identify particular aspects of the evidence to

which this guidance should be applied. Counsel for the defence did, properly, acknowledge that it is not necessary that every aspect

of the defence should be put to the jury, but nonetheless should, in the words of Lowry, LCH in McGreevy v. Director of Public

Prosecutions [1972] N.I. 125 at 133 be a charge with “correct directions in point of law, an accurate review of the main facts and

alleged facts, and a general impression of fairness.”

43. The fact is that the learned trial judge reviewed the evidence given by the various witnesses including the case made by the

defence in cross-examination. He expressly drew attention to the fact that the investigating gardai could not identify or locate a flat

in which the complainant said one of the offences was committed (even though she had given considerable detail concerning the

interior of the flat) and had declined to return to the area to assist in a search for the flat because she felt she just could not return

to the area where she had been assaulted.

44. The learned trial judge also brought fully to the attention of the jury the conflict between the testimony of complainant

concerning what happened in the back of the applicant’s vehicle as she described it and the impossibility of that description being

accurate if they accepted the evidence of the witness, who had been the applicant’s employer at the time and who gave evidence of

the actual internal configuration of the company vehicle being used by the applicant during the relevant period. There was a

submission that the learned trial judge failed to tell the jury that the State had failed to put forward evidence rebutting that witness’s

evidence concerning the vehicle. The State had applied to call such rebuttal evidence but the trial judge ruled it inadmissible and it

was not permitted to do so. This is more a complaint about failure to put a matter to the jury than to give a direction concerning the

consequences of delay. In any event the trial judge properly directed the jury on the evidence as it was given before the jury. In the

circumstances the Court does not consider there was any prejudice to the fairness of the trial by virtue of the fact that no reference

was made to evidence which was not called because it had been excluded by a ruling of the Court. It was, as the trial judge pointed

out, for the jury to decide the issues of fact on the evidence before them.

45. Apart from the fact that all the matters concerning lack of background detail in the complainant’s evidence (as well as matters of

significant detail which she did address) were fully explored in cross-examination, they were highlighted and emphasised in the

address of both counsel to the jury. In his concluding remarks the trial judge reminded the jury of those speeches to be taken into

account in determining the facts of the case which were entirely a matter for them, and that there was no need for him to repeat

them.

46. The primary and fundamental conclusion of the Court on this issue is that having regards to the facts and context of the case,

the extensive warning which the trial judge gave to the jury concerning the difficulties faced by the accused in this case arising from

delay was sufficient and appropriate as to how the case should be approached by the jury in the course of its deliberation. In the

light of the directions of the trial judge there is no reason to consider that the jury would have any difficulty in exercising the

appropriate cautionary approach in the circumstances of this case to the evidence which it had to evaluate. Accordingly this ground

of appeal cannot be sustained.

Third Ground of Appeal

47. In the third ground of appeal the applicant submitted that the learned trial judge failed to consider whether the applicant was

afforded a fair trial.

48. The basis for this ground of appeal is stated to be the failure of the trial judge to charge the jury adequately, or at all, on the

applicant’s defence where the applicant’s defence was precluded from effectively cross-examining the complainant, the circumstances

whereby the learned trial judge excluded a juror and the fact that the trial took place with eleven jurors. It was submitted that

cumulatively and separately these factors rendered it unfair to allow the jury to proceed to a verdict.

49. In all these circumstances it was submitted that there was an unfair trial, and that it was the duty of the trial judge at all times

to ensure that such was avoided.

50. Insofar as this ground of appeal suggests that the trial judge failed to consider whether the applicant was afforded a fair trial it

must be said that it is quite evident from the conduct of the trial judge throughout the trial and his various rulings on the issues which

arose that he was at all times acutely conscious of the need to ensure that the accused received a fair trial.

51. In particular it should be noted that on the day before the jury trial actually commenced extensive submissions were made by the

then counsel for the defence as to why the trial should not proceed by reason of a risk that he could not receive a fair trial as

mandated by the Constitution. Various grounds were advanced in support of that submission by counsel including the nature of the

charges, the nature and extent of the delay in the prosecution and the difficulties that arise for the defence as a result. The learned

trial judge ruled against the application for the defence at that stage and no issue was subsequently taken with that particular ruling.

Very little could be said to have emerged during the trial that added to the basis on which it could have been claimed that the

applicant was at risk of not getting a fair trial other than the incident with the juror which led to that juror being discharged and the

trial proceeding with eleven jurors. The Court has already ruled that the trial judge dealt properly with that occurrence and does not

consider that any element of unfairness, in the context of this case or otherwise, could be said to have arisen as a result of the trial

lawfully proceeding with eleven jurors.

52. Moreover, towards the conclusion of the trial and after the trial judge had ruled and refused applications from counsel for the

defence as regards certain requisitions to be made of the jury there was, what could only be described as rather laconic a question,

posed by counsel to the trial judge. He asked if the trial judge would consider whether the effects of the two factors which he had

mentioned (in relation to his requisitions) still permitted a fair trial or not. Counsel did not elaborate further. The two factors referred

to was the time delay and the reasons for it, taken together with “the refusal to answer questions” which was a reference to the

failure of the complainant to answer questions when she couldn’t remember any details. At that stage the jury had been deliberating

for a period of three hours and the learned trial judge decided that he would allow the trial to proceed and would release the jury until

the following day (and give them the appropriate warning requested by counsel for the defence as regards speaking to any other

person about the case).

53. In substance these submissions of the applicant are based on the criticisms of the trial judge as regards the manner in which he

gave directions to the jury regarding delay, and the fact that he discharged one of the jurors for the reasons outlined earlier in this

judgment. For the reasons already explained the Court is satisfied that the trial judge properly addressed these matters and does not

consider that the applicant has in any sense established any grounds for concluding that the trial was in any sense unfair in this case

or that it should for that reason have been halted by the trial judge.

54. Accordingly, the application of the applicant for leave to appeal against his conviction is refused.