Court stays sexual assault prosecution until complainant discloses identities of prior alleged perpetrators to ensure fair trial.

THE COURT OF APPEAL

2015 No. 413

Clarke J.

Finlay Geoghegan J.

Hogan J.

BETWEEN/

ANTONY BABU VATTEKADEN

APPLICANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of July 2016

1. Where an accused is charged with sexual assault and the evidence discloses that the complainant previously made similar

allegations against unnamed third parties in the past but has never made a formal complaint to the Gardaí in respect of those matters,

is he entitled to be informed of the identity of the alleged perpetrators of these offences in advance of trial and, in default, is he

entitled to have the trial prohibited? This is, in essence, the issue presented on this difficult appeal by the applicant from the decision

of the High Court delivered on 24th July 2015 which ruled adversely to this claim: see Vattekaden v. Director of Public Prosecutions

[2015] IEHC 494.

2. The issue arises in the following way: in August 2011 a female complainant alleged that in the course of receiving a massage from

the applicant, Mr. Vattekaden, he indecently touched her vagina. A few days later she made a complaint to An Garda Siochána who

investigated that complaint. The applicant was subsequently charged with a single count of sexual assault, contrary to s. 2 of the

Criminal Law (Rape) (Amendment) Act 1990 (as amended by s. 37 of the Sex Offenders Act 2001).

3. The book of evidence was subsequently served on the applicant on the 18th December 2012. The matter was first listed before the

Circuit Court on 11th January 2013. At that point the proceedings were adjourned to allow the defence to raise matters relating to

disclosure. Some three days later the applicant’s solicitors wrote to the Chief Prosecution Solicitor requesting disclosure of a number

of specific matters. One of those requests was the details “of any complaints of an indecent or sexual nature made against any other

person by the complainant.”

4. The trial date was fixed on 11th March 2013 for the following 14th November 2013. Various reminders regarding the disclosure

requests were sent in advance of the trial by the applicant’s solicitors. As it happens, however, on the morning of the trial, the 14th

November 2013, the prosecution indicated to the court that certain new matters had come to light which required a short

adjournment and the matter was put back to the 18th November 2013. When the matter came before the court again on the 18th

November, 2013, the defence were served with a letter from the respondent enclosing new material including statements from the

complainant and from the investigating Garda.

5. This new material disclosed that the complainant alleged two prior incidents of sexual assault when she was a child. The first was

alleged to have occurred in 1993 when the complainant was 11 years of age and a man who was a member of her extended family

was said to have rubbed her genital area and tried to pull down her pyjama bottoms and underwear while she was asleep. The

complainant said that she did not tell anybody at the time.

6. The second instance alleged was that in 1999, when the complainant was 16, she was raped in the stairwell of a particular building

by a young male whom she knew having consumed a large amount of vodka and some cannabis. She said that she reported this

incident to the Rape Crisis Centre within a week of it allegedly occurring.

7. In a supplementary statement of the 14th November 2013, the complainant said that she did not tell the investigating Gardaí about

these incidents previously because she did not feel they were relevant to the case, but that she now realised that these matters

were important. Neither of the two prior alleged incidents had been the subject of any complaint to the Gardaí. When questioned

further by the Gardaí about these matters, the complainant indicated that she did not wish to identify the men concerned nor did she

wish to make any formal complaint in that regard.

8. In addition to enclosing the statements from the complainant and the investigating Garda, the Director’s letter of the 18th

November, 2013 also enclosed notes in respect of counselling received in 2005 by the complainant relating to these two prior

incidents.

9. The applicant’s solicitor then sought details of the names and contact details of the two men involved so that they could be

interviewed. Further disclosure was also sought in respect of any other counselling notes that might exist including from the Rape

Crisis Centre. The Director’s office replied on the 15th January 2014 stating that the Gardaí were not pursuing efforts to identify the

persons allegedly involved in the prior incidents. The letter also stated that the Director had been advised by An Garda Síochána that

as the complainant was making no formal complaint about these prior incidents, the Gardaí had no grounds to institute a criminal

investigation.

10. The applicant’s solicitors responded to this correspondence on the 27th February, 2014 complaining that in the circumstances

that had now arisen, the applicant could not get a fair trial and called upon the respondent to abandon the prosecution. No reply to

this letter was forthcoming until the 27th May, 2014 when the respondent confirmed that the prosecution would be proceeding. An

application for leave to apply for judicial review was made to the High Court on 21st July 2014 where leave was duly granted by

Hedigan J.

The judgment of the High Court: undue delay

11. In his judgment Noonan J. rejected the argument that the applicant had delayed unduly in pursuing this application for judicial

review. For my part, I entirely agree with the reasons given by the trial judge. I would, accordingly, dismiss the Director’s cross-

appeal against this aspect of the High Court judgment.

The judgment of the High Court: the merits of the application

12. So far as the underlying merits of the application were concerned, Noonan J. saw no unfairness by reason of the non-disclosure of

the identity of the persons who had allegedly abused the complainant on two occasions in the past which was not capable of being

addressed either in the cross-examination of the complainant or, as the case might be, by way of appropriate rulings and directions

from the trial judge:

“It is clear therefore that for the applicant to succeed in this case, he must establish that the refusal of the complainant

to identify those who abused her as a child is an exceptional circumstance that gives rise to a real risk of an unfair trial.

In dealing with this, the applicant says that if the names were made available to him, his solicitors would be able to

interview the individuals concerned and this in turn might result in information coming to light which could potentially

undermine the complainant’s credibility. Underlying this assertion is the assumption that the individuals in question would

agree to be interviewed at all by the applicant’s solicitors in the first instance. Having regard to the fact that the

complainant never made any formal complaint to the Gardaí about these instances which occurred many years ago, it

must be open to considerable doubt as to whether consent would be forthcoming to such interviews. Even if it were, one

must assume that the interviewees are likely to deny any involvement in the matters in issue. If they admitted

involvement, that could clearly not benefit the applicant. Assuming however a denial, it is not immediately obvious to

what extent that will facilitate cross-examination of the complainant as to credit any more than, for example, suggesting

that if the allegations were true, the applicant would be likely to have reported them to the Gardaí, a suggestion the

applicant is perfectly free to make as matters stand.

The applicant submits that were it to transpire from interviewing these individuals that, say for the sake of argument, one

or other or both were in a position to prove conclusively that they could not have abused the complainant, this would be

powerful evidence to put before a jury. It seems to me however that this is moving the case into the realms of total

speculation and into the area of remote, theoretical or fanciful possibility of the kind that the Supreme Court expressly

found in both Dunne and Savage could not give rise to a right to prohibition.

Further, in my view the applicant has not sought to engage with the facts of the prosecution case as they arise here.

There is considerable evidence in the case beyond a mere or bare assertion by the complainant of an assault having

taking place. I have alluded to this already. Nor is this a case in which there has been a failure to make disclosure by the

prosecution. This is not alleged and, accordingly, the line of authority on failures to make disclosure is of limited

relevance. There is a clear public right in pursuing a prosecution and I am not entitled to ignore the potentially significant

evidence in this case beyond that of the complainant alone.

Conclusion

Accordingly, I am satisfied that the applicant has not discharged the onus of establishing that there is a real risk of an

unfair trial or less still that there is anything particularly exceptional about the facts of this case that would warrant the

intervention of this court. It seems to me that the applicant has ample material available to him with which to conduct a

meaningful cross-examination which is unlikely to be inhibited to any significant degree by the non-availability of the

names of the alleged perpetrators of the abuse. Even if that could be said to give rise to any unfairness, I can see no

reason why that could not be adequately dealt with in an appropriate fashion by the trial judge.”

13. Although Noonan J. thought that there was “considerable evidence” beyond simply an assertion from the complainant that she

was indecently assaulted, I cannot, with respect, entirely share that view. The three items of evidence to which the judge alluded in

that passage were, as he put it at earlier stage in his judgment:

“…. she telephoned the applicant to advise him that she was going to report the matter to the Gardaí and he offered her

money not to do so. When asked about this, the applicant appears to have confirmed the complainant’s version of

events. Further, the applicant appears to have admitted that when he sat beside the [complainant] outside the Centra

shop, he was crying. It is also alleged by the prosecution that the applicant furnished no satisfactory explanation for the

apparent attempt to conceal the complainant’s telephone number from his wife by saving it under ‘Jason’.”

14. So far as the allegation of payment is concerned, this evidence is that the applicant was asked by members of An Garda Síochána

about this on four separate occasions in the course of his period of detention following arrest. According to the interview notes which

were put in evidence on each occasion the applicant gave the same response of which the following may be regarded as

representative:

“…she said she’s not paying. She said if you want me to pay, I’ll go to the Garda. I said please don’t do this because of

my business.”

15. It is clear from the interview notes that the applicant freely admitted asking the complainant not to go to the Gardaí because this

would affect his business. The suggestion was later put to him that he had offered to pay her not to make a complaint and he

responded:

“Q. [The complainant] also states that you said to her ‘I will do anything, name your price, just don’t tell the Gardaí.

A. She said I’m not going to pay. I said why you not paying. I ask then she said you want me to pay then, I’ll go to the

Gardaí.

Q. [The complainant] states you rang her crying and begging not to go to the police and you stated what can you

possibly do to make things any better, name your price, what say you?

A. She rang me and left a voice mail so I rang her back and I asked her I’m really sorry madam and she said I don’t want

to hear you are sorry. I am going to the Gardaí, then I said please don’t make any problems, I can make anything you

want, this will affect my business if you go to the Gardaí.

Q. Did you mention anything about money, name your price etc.

A. I asked this, what do you want me to do?

Q. What did she say?

A. She cut the phone.”

16. For my part, I regard this evidence as equivocal. If the last exchange as recorded in the interview notes is viewed as a tacit

admission that he offered to make a payment to the complainant not to report the matter to the Gardaí, this is certainly consistent

with guilt. But it is not clear that from these exchanges that the applicant actually made such an admission and, even if he did, it

could equally be said to represent the panicked and ill-judged response of a foreign national who might have felt that any explanation

offered by him in respect of a serious allegation of this kind was unlikely to be believed.

17. Nor is the fact that the applicant is said to have cried anything other than equivocal. As it happens, the applicant denied that he

had cried when confronted by the allegation:

“I didn’t cry. I feel emotional. I’m so sorry like, because a client makes an allegation against you, that really hurted.”

18. If the applicant’s case is to be believed, he was facing a false allegation which had the potential to ruin his life. Few things in life

are more unpleasant than having to face the false allegation. If the applicant did indeed cry when he realised that he was facing an

allegation which he maintained was false, then that was a perfectly natural human response and one which is not the preserve of one

gender.

19. Finally, the fact that the applicant apparently disguised the name of the complaint when inserting her telephone number in his

mobile telephone may suggest some furtiveness on his part, but it would be hard to say that it takes the matter any further.

20. Nor can I, with respect, share the conclusion of Noonan J. to the effect that the applicant had failed to engage with the

evidence. The applicant had, after all, given four very full interviews with Gardaí following his arrest and gave a full account of what

he contended had transpired. He is a professional masseuse and there is no doubt but that he administered a massage to the

complainant. The complainant maintains that he indecently touched her vaginal area during the course of the massage and the

applicant denies this ever occurred.

21. Viewed as a whole, therefore, it would be hard to say that the other evidence (as to alleged payment, crying etc.) was anything

other then equivocal. In these circumstances, it is clear that the prosecution turns on the respective credibility of the complainant

and the applicant. This is an essential and decisive consideration from which the rest of this judgment proceeds. It is unnecessary to

examine what the situation might have been had there been other evidence relevant to the guilt of the accused.

Whether the applicant is entitled to details of the earlier allegations

22. There is no doubt but that the right to cross-examine a witness in a criminal trial is at heart of the constitutional guarantee in

Article 38.1 of the Constitution to a trial in due course of law. This is well illustrated by the classic case of Re Haughey [1971] I.R.

217, a case where an Oireachtas Committee which was investigating serious allegations against the plaintiff purported to deny him

the right to cross-examine witnesses. In his judgment Ó Dálaigh C.J. stressed that without this right “no accused…could hope to make

any adequate defence of his good name”, adding ([1971] I.R. 217, 264):

“Article 40.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees

such fairness, and it is the duty of the Court to underline that the words of Article 40.3 are not political shibboleths but

provide a positive protection for the citizen and his good name.”

23. The Supreme Court has repeatedly stressed in subsequent cases the critical importance of the right to cross-examine: essentially

no greater truth-eliciting process has ever been devised. In particular, the judgments of Hardiman J. in cases such as Maguire v.

Ardagh [2002] 1 I.R. 385, 705-707 and O’Callaghan v. Mahon [2005] IESC 9, [2006] 2 I.R. 32 lay emphasis on the fact that cross-

examination by reference to prior conduct and prior inconsistent statements is often the only means of undermining the credibility of

the otherwise plausible witness.

24. Given that, in the words of McGrath, Evidence (2nd. Ed.) at 144 “effective cross-examination depends on the availability of

materials to challenge a witness’s account and credibility”, other Supreme Court decisions have explored other ancillary dimensions of

the right to cross-examine, often in contexts where complainants in sexual cases have refused to make disclosure or otherwise co-

operate with inquiries made by the legal team for the defence.

25. Thus, in JF v. Director of Public Prosecutions [2005] IESC 24, [2005] 2 I.R. 174 the Director had retained the services of an

expert psychologist in order to provide supporting evidence to justify the complainant’s delay in making two complaints of indecent

assault against the accused. The psychologist retained by the Director had conducted six clinical interviews with the complainant

over a six month period, but the complainant had declined to allow himself to be interviewed by the psychologist nominated by the

accused.

26. The Supreme Court ruled that the complainant’s approach effectively negated the accused’s right to cross-examination. Hardiman

J. described as “absurd” the argument that the accused’s expert could give contrary evidence by reference to a paper review only.

The judge emphasised how the Director’s expert would have an inestimable advantage over the accused’s expert in that situation,

precisely because the former had extensive clinical engagement with the complainant, something denied to the latter’s expert.

27. In PG v. Director of Public Prosecutions [2006] IESC 19, [2007] 3 I.R. 39 the applicant accused faced charges of rape and sexual

abuse in respect of his niece and nephew some twenty five years earlier when they were very young children. In the case of the

nephew it appears that the evidence was that he had “clear memories” of the abuse when he attended a counsellor and therapist, a

Mr. Hopper. It was only after about a year’s sessions with Mr. Hopper that he felt in a position to make a complaint.

28. One of the issues which arose in the judicial review proceedings was whether the applicant was entitled to have access to Mr.

Hopper’s notes. Although the nephew had not sanctioned their release, it was also accepted that the applicant had never sought this

consent prior to the commencement of the judicial review proceedings. This was among the factors which led the Supreme Court to

hold that the applicant was not entitled to an injunction to retain the prosecution on the grounds of prejudicial non-disclosure.

29. It is nonetheless clear from the judgment of Fennelly J. that the applicant was in principle entitled to such notes and that it was

the duty of the trial judge to ensure that they were so disclosed ([2007] 3 I.R. 39, 55):

“I accept, nonetheless, that, in the ordinary way, the applicant would normally, as a matter of fairness, be entitled to

disclosure of Mr Hopper’s clinical notes for the purpose of cross-examination, if they were in the possession of the

prosecution. However, the respondent is not in possession of these notes and has made reasonable efforts to obtain

them.

That need not be the end of the matter. This Court cannot direct the respondent as to how to perform his functions. Still

less can it direct the complainant. Nor can it direct Mr Hopper, who, in any event, is outside the jurisdiction. It can,

however, draw attention to the fact that it is the fundamental obligation of a trial judge to ensure that a trial is fair.

There is no reason whatever to assume that the trial judge, in either case, will not address the issues raised and rule

upon them appropriately. It is obviously desirable that the apparent blockage to the disclosure of Mr Hopper’s notes would

be removed, if that is possible. Mr Hopper’s duty of confidentiality is owed to his client, in this case, the nephew. If the

nephew agrees to the disclosure of Mr Hopper’s notes for the purposes of the prosecution, it is difficult to envisage any

responsible professional person continuing to detain them. I am sure that this problem can be resolved through the good

offices of the respondent. If the matter is not resolved in this way, it will be a matter for the trial judge to deal with it.

Presumably the complainant can be asked about it in his evidence. The trial judge must be and is in law bound to arrange

the progress of the trial so as to render justice and to guarantee fair procedures to all parties, especially the accused. I

agree with the submission of the respondent that 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.”

30. It is clear from this passage that the matters of disclosure are normally matters for the trial judge. Before any court could

consider prohibiting the trial by way of judicial review, it would be necessary for the applicant to show, first, that he had taken all

reasonable steps to obtain disclosure; second, that necessary material is being withheld from him and, third, that the failure to

provide such material in advance of the trial would give rise to a real risk of an unfair trial.

31. In the present case there can be no question but that the applicant has taken all reasonable steps to obtain disclosure, so that

the first of these three conditions has been satisfied. I propose next to examine whether the second and third conditions of the test

articulated by Fennelly J. in PG.

The implications of JF and PG

32. It seems to me that one cannot meaningfully distinguish the present case from cases such as JF and PG. If an accused facing

allegations of a sexual nature is, for example, entitled to the clinical notes of a psychologist who examined the complainant or to have

the complainant submit to an clinical examination by a psychologist, then it is hard to see why appropriate disclosure of the details of

previous complaints of sexual abuse which were not proceeded with should not also be provided to the accused.

33. It is, of course, true that the question of whether the complainant had previously made allegations of a sexual nature is

essentially collateral to the question at issue in the present case, namely, whether the applicant indecently touched the complainant.

The general rule, of course, was that (subject to certain exceptions) the cross-examiner was bound by the witness’s answer to the

collateral question and that rebuttal evidence to contradict such an answer was not in general admissible The traditional rationale for

the collateral questions rule is an eminently practical one, namely, that the pursuit of collateral questions tends to distract from the

essence of the trial process and to consume considerable amounts of court time, often for negligible advantages.

34. There is, however, considerable evidence to suggest that the collateral questions rule has been relaxed in sexual cases where the

only issue is either consent or fabrication, precisely because in such cases issues of credibility are critical. It is, moreover, in practice

often the case that it is only through cross-examination as to credit in relation to previous statements that the credibility of the

witness can be effectively impeached.

35. Two authorities were relied on by the applicant for this general purpose. In the first of them, Director of Public Prosecutions v.

Wall [2005] IECCA 140, it emerged for the first time following the conviction of the accused for rape that two key witnesses for the

prosecution had made a series of allegations of rape and sexual assault against a variety of other men. In some instances no

complaint was made to the Gardaí and in other cases formal complaints were made but were later withdrawn. It had also become

clear that the Director of Public Prosecutions had previously directed that one of these witnesses should not have been called

because of prior experience on the part of the investigating Gardaí that she was a “most unreliable” witness.

36. The Court of Criminal Appeal granted a certificate that what had occurred was a miscarriage of justice for the purposes of s. 9 of

the Criminal Procedure Act 1993. It is, perhaps, noteworthy that Kearns J. accepted – and, indeed, not disputed by the Director –

that there “had been significant non disclosure”, including the fact that one of the two witnesses in question “had made, but not

pursued, an allegation of being raped in England.” While Wall is admittedly a case with striking and exceptional facts, it was cited by

counsel for the applicant, Mr. Hartnett S.C., as an example of the dangers of non-disclosure of the details of earlier allegations

(including the identity of the alleged perpetrator and the possibility of earlier unfounded allegations) in cases of this kind where

credibility is critical. He also submitted that cases such as Wall showed that the risks posed by the non-disclosure of material

information in relation to earlier complaints of this kind were not as fanciful or remote as Noonan J. seemed to suggest.

37. The other authority relied on by the applicant provides a good example of the modern approach to the collateral questions rule in

the context of sexual offences. In R. v. Funderburk [1990] 1 W.L.R. 587 the accused was convicted of unlawful sexual intercourse

with a 13 year old girl. The prosecution case was that the complainant had had no prior sexual experience and she herself gave

evidence of painful penetration followed by bleeding. The defence case was that the accused had had prior sexual experience with

other men, the details of which she had deployed to make allegations in the present case. The trial judge refused to allow the

accused put these questions in cross-examination.

38. The English Court of Appeal held that the trial judge had been wrong to disallow these questions. Henry J. first acknowledged the

difficulties with the traditional collateral questions rule, especially in sexual cases where credibility is at the heart of the case ([1990]

1 W.L.R. 587, 591):

“When one comes to cross-examination, questions in cross-examination equally have to be relevant to the issues before

the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a

practical distinction must be drawn between questions going to an issue before the court and questions merely going

either to the credibility of the witness or to facts that are merely collateral. Where questions go solely to the credibility of

the witness or to collateral facts the general rule is that answers given to such questions are final and cannot be

contradicted by rebutting evidence. This is because of the requirement to avoid multiplicity of issues in the overall

interests of justice.”

39. Henry J. later added ([1990] 1 W.L.R. 587, 598|):

“If a fact is not collateral then clearly you can (adduce) evidence to contradict it, but the so-called test is silent on how

you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one

based on the prosecutor’s and the court’s sense of fair play rather than any philosophic or analytic process.”

40. Applying that test the Court concluded that questions as to (alleged) previous loss of virginity on the part of the complainant

should have been allowed because, as Henry J. put it ([1990] 1 W.L.R. 587, 598):

“Otherwise, there would be the danger that the jury would make their decision as to credit on an account of the original

incident in which the most emotive, memorable and potentially persuasive fact was, to the knowledge of all in the case

save the jury, potentially false.”

41. As Cross and Tapper on Evidence (8th Ed) observe (at p.341):

“It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private and

leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely

to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is

capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point.

If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of

credit must be decisive of the issue.”

42. In the light of these authorities it must be acknowledged that evidence in relation to previous complaints would not necessarily be

admissible at the trial, even by reference to the modern understanding of the application of the collateral questions rule in sexual

offence cases. It would generally be necessary for this purpose for the applicant to demonstrate that there was some evidential basis

for the suggestion that the earlier complaints had been fabricated or invented.

43. It would, of course, be inappropriate for this Court to determine at this juncture whether, in all the circumstances, any such

evidence as to previous complaints would be permitted. This would ultimately be a matter for the trial judge to determine in the event

that a trial were to go ahead. It is sufficient to say that, in the light of the authorities to which I have just referred, it is certainly

possible that the criteria for the admission of such evidence might be met.

44. None of this means, however, that the failure on the part of the complainant to disclose the identity of the persons against whom

the previous complaints were directed does not have implications for the applicant’s right of effective cross-examination. Without this

information in advance the applicant cannot hope to have any effective opportunity of contradicting the complainant’s account of

these earlier alleged incidents from 1993 and 1999 or which might otherwise impeach her credibility as a witness, even if the

admissibility of such evidence concerning third parties will ultimately be a matter for the trial judge.

45. As the authorities make clear, it seems likely that it would be necessary for the applicant to establish some evidential basis for

the suggestion that the earlier complaints (i.e., the complaints dating from 1993 and 1999) had been fabricated or invented. Without,

however, knowing the identity of the persons who were the subject matter of the complaints, it is difficult to see how the applicant

can otherwise effectively ascertain material upon which to cross-examine the complainant in respect of these matters.

Conclusions

46. Summing up, therefore, it seems to me that a key aspect of the applicant’s constitutional right to trial in due course of law –

namely, the right to an effective cross-examination – will be compromised in the circumstances unless the identity of the persons who

are alleged to have sexually abused or raped the complainant by reference to the two earlier allegations dating respectively from 1993

and 1999 is disclosed by her in advance of the trial. The potential relevance of information of this kind in the context of a sexual case

which turns almost entirely on credibility, is, of course, graphically illustrated by cases such as Wall, even if the facts of that case

were striking and most unusual.

47. It is true that, as Fennelly J. indicated in PG, issues of this kind are normally best left to the court of trial. This present case is,

nevertheless, an exceptional case where, applying the PG test, advance disclosure is necessary. This is because, first, the applicant

has made all reasonable efforts to secure disclosure of this information. Second, the material is necessary if the applicant is to have

any effective prospect of challenging the credibility of the complainant on the grounds that the present complaint has been imagined

or invented. Third, the failure to provide such material in advance would give rise to the risk of an unfair trial because otherwise the

applicant would be denied an effective opportunity of making the necessary inquiries of these third parties in advance.

48. If, indeed, the present case were to proceed to trial without such disclosure in advance, then the applicant would necessarily be

disadvantaged, even if disclosure were later to come in the course of the trial process. If that occurred, then the defence would be

entitled to an adjournment to enable appropriate inquiries to be made. In that event, it is quite likely that the original trial would have

to be aborted and a fresh trial directed. It is hard to see what advantage would accrue to any party in those circumstances when the

answer (one way or the other) can be obtained in advance, thus obviating these unnecessary complications.

49. If, on the other hand, the complainant were to refuse to reveal the identity of the persons who are the subject matter of the

earlier 1993 and 1999 complaints, it is difficult to see how, judged by the comments of Fennelly J. in PG to which I have just referred,

the trial judge would have any option but to bring the trial to an end.

50. Accordingly, for the reasons just stated, I find myself obliged to conclude that in the circumstances of the present case the

applicant’s constitutional rights to a trial in due course of law cannot be adequately or satisfactorily protected by leaving the matter

to the trial judge. For all the reasons stated in this judgment I fear that I cannot agree with the views of Noonan J. that in the

particular circumstances of this case this matter can best be left to the court of trial. I stress again that this is a case which turns

almost entirely on the credibility of the complainant and the applicant.

51. I do not, however, agree that it would it be appropriate at this stage to grant a final order of prohibition: I consider that this

would be too prescriptive a remedy and one which may ultimately prove to be unnecessary. In my view, the complainant should first

be given a fair opportunity of considering her position in the light of this judgment. Her position is, of course, perfectly understandable

at a human and personal level. This Court must, however, look beyond these understandable human concerns on the part of the

complainant in the greater interest of ensuring that the trial of the applicant on this very serious charge meets appropriate

constitutional standards of fairness.

52. I would, accordingly, grant an order staying the prosecution of the sexual offence charge against the applicant unless the

complainant discloses the identity of the person or persons who allegedly (i) sexually assaulted her in 1993 and (ii) raped her in 1999.

In the event that such information is disclosed to the applicant’s solicitors within three months of the date of this judgment, then in

those circumstances this stay will be lifted and the prosecution can proceed. In the event, however, that this information is not so

disclosed, then the stay on the prosecution will become permanent.