Appeal dismissed; applicant failed to prove real and unavoidable risk of unfair trial due to delay in sexual offence prosecution.

THE SUPREME COURT

JUDICIAL REVIEW

Appeal No. 367/2004

McGuinness J.

Kearns J.

Macken J.

BETWEEN

J.K.

APPLICANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment delivered by Mrs. Justice McGuinness on the 27th day of October 2006

INTRODUCTION

1. This is an appeal from the judgment and order of the High Court (Smyth J.) delivered on the 15th July 2004 refusing the reliefs

sought by the applicant in his judicial review proceedings. The applicant has sought an injunction prohibiting the respondent from

further prosecuting him on a series of charges concerning a number of sexual offences alleged to have been committed by him against

three of his near relatives.

2. The present appeal was heard by this court on the 10th July 2006. Judgment was reserved and had not been delivered prior to the

31st day of July 2006. On that day the judgment of this court (Murray C.J., Denham J., Hardiman J., Geoghegan J, Fennelly J.) was

delivered by the Chief Justice in the case of H. v Director of Public Prosecutions [2006] I.E.S.C. 55. It was widely anticipated that the

judgment in H. v Director of Public Prosecutions would deal with and develop the law in regard to cases where persons were charged

with sexual offences which were committed many years previously. It is clear from the written submissions in the present case that

the parties were aware of the imminence of the delivery of the judgment in H. v Director of Public Prosecutions and of its probable

significance.

3. In the written legal submissions provided to this court in the present case by the respondent Director it is stated:

“These submissions are filed in the knowledge that the Supreme Court has reserved judgment in H. v D.P.P. The respondent

may seek permission from this honourable court to make supplemental submissions in the event that the decision in H. v

D.P.P. is relevant to the issue in the instant appeal and is delivered prior to its determination.”

4. In his judgment in H. v Director of Public Prosecutions the Chief Justice, speaking for the court, analysed the jurisprudence which

had developed over the last decade in cases such as the present case, where there has been an accusation of child sexual abuse

and a significant delay between the alleged actions, the complaint and the prosecution. The Chief Justice went on to set out a new

approach to the court’s consideration of this type of case, a jurisprudence based on the core issue of the constitutional right to a fair

trial, and a new test to be applied in such cases. I will refer in greater detail to the decision in H. v Director of Public Prosecutions

later in this judgment.

5. In the light of the decision in H. v D.P.P. and thus of the development of the relevant law, including the new test set out in that

judgment, the parties in the present case were invited to make further submissions to this court. Further written submissions were

provided on behalf of the applicant. The Director of Public Prosecutions indicated that all necessary matters were included in his

earlier written submissions. Counsel for the applicant and counsel for the Director made oral submissions to the court on 11th October

2006.

THE FACTS

6. The applicant is an eighty-four year old man. On the 13th May 2002 he was granted leave by the High Court (McKechnie J.) to

apply by way of judicial review for an injunction restraining the respondent from further prosecuting him on nineteen charges in

respect of which he had been sent forward for trial to the Dublin Circuit Criminal Court by order of the District Court on 8th November

2001. These charges related to alleged sexual offences against three complainants – his nephew D. McG., now aged 47, his niece Mrs

F.P. now aged 43 and his grand-niece E.O’C. now aged 25. The charges comprised:

(I) Three charges of indecent assault upon E. O’C. at various addresses in the Dublin Metropolitan District on dates unknown

between January 1st 1987 and December 31st 1988 and on September 8th 1990;

(II) one charge of the rape of E. O’C. committed at an address in Walkinstown, Dublin, between February 28th 1991 and

February 27th 1993;

(III) one charge of the attempted rape of E.O’C. committed at an address in Walkinstown, Dublin, between February 28th 1991

and February 27th 1993;

(IV) two charges of the sexual assault of E.O’C. committed at an address in Walkinstown, Dublin, between February 28th 1991

and February 27th 1993;

(V) nine charges of indecent assault upon D. McG. committed at various locations in the Dublin Metropolitan District on dates

unknown between 1970 and 1973;

(VI) one charge of gross indecency with D. McG., contrary to section 11 of the Criminal Law (Amendment) Act 1885, committed

at Walkinstown, Dublin, on a date unknown in 1970;

(VII) two charges of indecent assault upon F.P. (née McG.) committed at an address at Walkinstown, Dublin, on dates unknown

between January 1st 1972 and December 31st 1975.

7. The factual background and the relationships within the family circle of the applicant are set out in detail in the judgment of the

learned trial judge and need only be summarised here. The applicant is the uncle by marriage of two of the complainants, D. McG. and

F. P., and the grand-uncle of the third complainant E. O’C. The applicant and the complainants are members of a large extended

family circle of which a number of closely related families live in separate houses within a short distance of each other in a particular

area of Dublin. The various family members visited each others houses informally on a regular basis. It was, and apparently still is, a

close knit family.

8. D. McG’s evidence as set out in his affidavit was that he was subjected to regular sexual abuse by the applicant when he was

aged between ten and fourteen years. He did not disclose the abuse to anyone until August 1996. In that month he disclosed the

abuse to his sister, F. P., in a conversation during a return to Ireland from Australia on holidays. It appears that Mr McG. did not

disclose the abuse to any individual other than his sister until it came to both their attention that their niece, E. O’C., had been

abused by the applicant. Thereafter he decided to report the abuse to An Garda Siochana. However he found it very difficult to speak

about it. In September 1999 he was contacted by Detective Garda Doggett and asked to make a complaint, which he made by

statement on February 19th 2000.

9. F. P. (née McG.), the sister of D. McG., states in her affidavit that she was sexually assaulted by the applicant when she was aged

between eight and twelve years of age. It appears that she disclosed the abuse to various individuals at different times during her

life. In July 1992 she finally disclosed the abuse to her mother. In August 1996 she discussed the matter with her brother, D. McG., at

which point it appears that they decided not to say any more about the matter, basically for reasons of family solidarity. In the spring

of 1999 she was informed that her niece, E. O’C., had disclosed to a doctor the fact that she had been abused by the applicant.

Having spoken with her brother, she agreed with him that they should disclose the fact they had also been abused by the applicant.

In spite of that decision she too found it difficult to make a complaint to the Gárda Siochána but ultimately did so in February 2000.

10. In her affidavit and statements E. O’C., who was born on February 28th 1981, alleges that she was the victim of sexual assault

and rape by the applicant when she was between six and twelve years old, that is between 1987 and 1993. She attempted to

disclose the abuse to her mother but unfortunately her mother was suffering from lasting disability resulting from a previous road

traffic accident and she was unable to deal with such a disclosure or to offer protection to her daughter. It appears that Ms O’C. had

a troubled childhood and adolescence. It seems that she disclosed the abuse to certain individuals but she felt unable to make a

complaint to any official source. When she finally told her parents and her grandmother about the abuse she was approximately

eighteen years old. She made a statement of complaint to An Garda Siochana on 7th February 2000 just before her nineteenth

birthday.

11. The allegations against the applicant first came to the attention of An Garda Siochana in September 1999 but the complainants,

as stated earlier, only came forward to make statements in February 2000. An investigation was carried out by the Gardai. Detective

Garda Doggett was in charge of this investigation. The applicant was arrested for the purpose of questioning in respect of the

allegations in May 2000. He denied all the allegations which had been made against him. There was some correspondence between

the Gardai and the respondent in regard to the charges to be brought against the applicant. The applicant was arrested by Detective

Garda Doggett and charged on 17th April 2001. He was returned for trial by the District Court on the 8th November 2001.

12. The applicant obtained leave to institute judicial review proceedings on 13th May 2002. In his statement grounding his judicial

review application the main grounds which he puts forward for seeking relief are that the delay in the institution of the proceedings

against him is oppressive, unjust and unfair to him and violates his right to a fair trial with due expedition in accordance with law and

with Article 38 of the Constitution. He also claims that the delay in the institution of the proceedings has prejudiced him in the

preparation and conduct of his defence and in particular has prejudiced his defence in that he is unable to call a man by the name of

D. McG. (not the complainant) as a witness. He also claims that there has been unwarranted delay in the preparation of the

prosecution case by An Garda Siochana and the respondent and that this violates the applicant’s right to a trial with reasonable

expedition. The applicant’s statement of grounds is grounded on an affidavit by his solicitor, Mr Jim Eustace, who sets out the facts

and refers to the applicant’s difficulty in preparing his defence. The applicant did not himself swear an affidavit.

13. A statement of opposition was filed by the respondent on the 30th October 2002. This was grounded on affidavits sworn by the

three complainants setting out the abuse they complained of and giving reasons for their delay in making complaint to the Garda

authorities. Affidavits were also sworn by Ronan O’Neill, solicitor, of the respondent’s office, by Detective Garda John Doggett, who

had been in charge of investigating the allegations, and by Melissa Darmody, a registered psychologist, who had interviewed the three

complainants and in her reports proffered explanations as to the complainants’ delay in reporting the abuse. During the hearing before

the High Court D. McG. and F. P. were cross-examined on their affidavits, as was Detective Garda Doggett. The other deponents

were not cross-examined. A transcript of the oral evidence given in the High Court was provided to this court. In his judgment the

learned trial judge refers in detail to the nature of the abuse complained of and the history of the periods of delay. There is no need

to repeat this detail here.

14. Since the applicant has specifically raised the issue of prosecutorial delay, it is necessary to outline the history both of the

prosecution and of the applicant’s judicial review proceedings. As has already been stated the applicant was returned for trial on

November 8th 2001 and on 13th May 2002 he obtained leave to institute judicial review proceedings from the High Court. The motion

seeking the relief of an injunction restraining the respondent from further prosecuting him was returnable in the High Court for June

19th 2002. On that date, on the respondent’s application, the time for filing opposition papers was extended to 31st October 2002

with the matter listed for mention on 14th November 2002. As has been stated the respondent’s statement of opposition was filed on

the 30th October 2002.

15. On the 29th July 2002 the applicant’s return for trial was quashed on consent by order of the High Court due to procedural errors

on the part of the respondent and the matter was remitted to the District Court. All judicial review opposition papers were ultimately

filed and served by the 14th November 2002 and on that date the matter was put back for three weeks to enable the applicant to

consider their contents. On 5th December 2002 the applicant sought an extension of time to file affidavits in response to the

opposition papers. The respondent consented to those papers being filed on or by 23rd January 2003 and the matter was listed for

mention seven days later. On the morning of 30th January 2003 it was intimated to counsel for the respondent that because the

original charges were coming back before the District Court the applicant was now seeking, for the first time, to have depositions

taken. On this account the applicant sought a lengthy adjournment of the judicial review. By agreement this application was moved

by the respondent and acceded to by the High Court. A further adjournment by consent was agreed between the parties on 17th July

2003 to facilitate the taking of the depositions sought by the applicant.

16. On 17th July 2003 the applicant’s judicial review application was ultimately transferred into the List to Fix Dates. It was not

reached in the list for either the Michaelas Term 2003 or the Hilary Term 2004 but finally received a date for hearing in July 2004.

17. The applicant’s judicial review proceedings came on before the High Court (Smyth J.) in early July 2004. The learned trial judge

delivered judgment on 15th July 2004 and refused the relief sought by the applicant.

18. The applicant’s notice of appeal, dated 30th July 2004, sets out nine grounds of appeal. In his submissions to this court senior

counsel for the applicant, Mr Gageby, relied in particular on five of these grounds as follows:

(i) That the learned High Court judge failed to apply the correct test in determining whether complainant delay arose or not,

and in particular, failed to give due regard to the oral evidence of D. McG. and F.P. and the clear reasons given by them for the

delay in reporting;

(ii) the entire judgment of the learned trial judge was governed by an assumption of the guilt of the applicant and failed to give

due regard to the applicant’s right to litigate having been granted the appropriate leave;

(iii) the learned trial judge erred in law and in fact in finding that there was no prosecutorial delay or that any consequence

flowed from the erroneous return for trial which had been made at the instance of the prosecution;

(iv) insofar as the learned trial judge ruled on the issue of prejudice, he did so in the manner inconsistent with the application of

the presumption of innocence and in particular, by making a finding adverse to the applicant that his denial of the charges was

insufficiently fulsome;

(v) the learned trial judge erred in relying upon the affidavit of the psychologist where unambiguous evidence was offered to

the court by two of the complainants.

NOTICE OF MOTION

19. Prior to the opening of the actual appeal in the judicial review proceedings before this court in July 2006 a motion was brought on

behalf of the applicant seeking leave to adduce fresh evidence of a medical nature and evidence attaching on his current, physical

and mental condition, pursuant to order 58 rule 8 of the Rules of the Superior Courts. This proposed evidence was set out in an

affidavit of Jim Eustace, solicitor for the applicant, together with an exhibited report of Doctor Michael Hutchinson, consultant

neurologist, who had examined the applicant, and an exhibited note by the applicant’s general practitioner. In his affidavit Mr Eustace

deposed to the fact that this medical evidence had not been available at the time of the hearing before the High Court. Mr Eustace

set out in his affidavit his belief, which he based on the available medical evidence and on his own observation of the applicant, that

the applicant due to his increasing age and physical and mental disability would be unable to understand the nature of the charges

brought against him, would be unable to deal with cross examination, and was in general unfit to stand trial. Evidence with regard to

the age and medical condition of the applicant had been given before the learned trial judge but this proposed new evidence claimed

that the condition of the applicant had considerably deteriorated since the hearing before Smyth J. in 2004.

20. Having considered the proposed new evidence and having heard the submissions of senior counsel for the applicant and senior

counsel for the director, the court held that the question of the applicant’s fitness to stand trial was a matter to be decided by the

presiding trial judge at his trial. The court then proceeded to hear the appeal in the judicial review proceedings.

THE LAW

21. It would be customary at this point to summarise the submissions made to this court by counsel on behalf of the applicant and of

the respondent. However, the effect of the recent judgment of this court in H v D.P.P. is to render some aspects of these

submissions, which rely on the law as it stood prior to H. v D.P.P., either irrelevant or ineffective. I feel, therefore, that it would be

more effective to refer at this point to the relevant law, including in particular an analysis of the judgment in H. v D.P.P. I will then go

on to refer to the submissions of counsel both at the original hearing and subsequently in October 2006.

22. In the opening words of the judgment in H. v D.P.P. Murray C.J. on behalf of the court indicated the intention of the court to

survey the relevant law as it had developed in recent years:-

“In the context of the applicant’s appeal the court has considered the jurisprudence which has developed over the last decade

in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the

complaint, and the preferment of charges against the accused.”

23. Having dealt in detail with the evidence before the High Court in that case, the court went on to consider the development in

case law of the jurisprudence to which the court had referred. In pages 16 to 21 of the judgment the court analysed the

developments of the law in cases ranging from G. v D.P.P. [1994] I.R. 374, Hogan v President of the Circuit Court [1994] 2 I.R. 513,

and B. v Director of Public Prosecutions [1997] 3 I.R. 140 to the more recent case of D.D. v D.P.P. [2004] 3 I.R. 172. The court drew

particular attention to the judgment of Keane J. (as he then was) in P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25. This

case, which was subsequently widely relied upon, set out the approach which should be taken by the court – an approach which

included the somewhat unusual step of a temporary suspension of the presumption of innocence. In a much quoted passage Keane J.

(as he then was) said:-

“Manifestly, in cases where the court is asked to prohibit the continuous of a prosecution on the ground of unreasonable delay,

the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair

trial; that after all is what is meant by the guarantee of a trial ‘in due course of law’. The delay may be such that, depending

on the nature of the charges, a trial shall not be allowed to proceed, even though it has not been demonstrated that the

capacity of an accused to defend himself or herself will be impaired. In other cases, the first enquiry must be as to what

other reasons for the delay, and, in a case such as the present where no blame can be attached to the prosecuting

authorities, whether the court is satisfied as a matter or probability that, assuming the complaint to be truthful, the delay in

making it was referable to the accused’s own actions.

If that stage has been reached the final issue to be determined will be whether the degree to which the accused’s ability to

defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary enquiry, in my

view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is

necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of

innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such

as to give rise to a real and serious risk of an unfair trial.”

24. In this line of case law an established principle was that the complainant’s delay in complaining to the authorities must

demonstrably have been due to dominance of the complainant by the applicant or at least by an inhibition of the complainant brought

about through the fault of the applicant. This was clearly expressed by Geoghegan J. in D.D. v D.P.P. [2004] 3 I.R. 172 at pages 181

to 182. Geoghegan J. held:-

“Assuming the pre-complaint lapse of time is relevant and that as a corollary to that it becomes relevant as to whether the

applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be

held responsible if there has been the element of dominance. The authorities certainly show that that is a main ground but it

is not the only ground. By the same token, however, I am equally satisfied that the authorities do not in any way go so far as

to excuse lapse of time or delay merely because the complainant had a good reason for not complaining earlier. For the

reason to be relevant it must arise from an inhibition of some sort on the part of the complainant preventing him or her from

complaining where such inhibition arises directly from the offence.”

25. Shortly after D.D. v D.P.P., in my judgment in D.O’R v D.P.P. (Supreme Court, unreported, 30th July 2004) I expressed a similar

view. I stated:-

“In my view, counsel for the appellant is correct in his submissions that it is not sufficient to show that the complainant’s

delay was ‘reasonable’; what must be shown is that she was inhibited from complaining, or incapable of complaining, by reason

of behaviour which can be attributed to the appellant.”

26. These judgments were submitted by counsel to be of particular relevance in the present case in view of the fact that Mr McG.

and Mrs P. in their evidence accepted that they had taken a reasoned decision not to complain when they met in August 1996.

27. In its judgment in H. v D.P.P. the court considered in particular the evidence of Professor Harry Ferguson, an expert in the social

history of child welfare. Professor Ferguson referred to the general position of a child who sought to reveal sexual abuse in the middle

decades of the last century. In his affidavit he stated:-

“…it is my opinion that it cannot be said that child sexual abuse had a sufficient public or a official reality of that time such as

would have made it possible for a victim to successfully initiate a complaint and/or bring a case against an alleged

perpetrator. Any “disclosure” of sexual abuse that occurred in decades prior to the late 1980s and 1990s cannot reasonably be

defined or treated as a disclosure in the sense that that term is understood today, given the massive social pressure that

existed which rendered the child’s statement illegitimate and the protective response unthinkable.” (At page 22 of judgment)

28. Murray C.J. (at page 23) commented on this evidence:-

“The views of Professor Fergus on above correlate with the experience of the court. Moreover the court’s experience extends

to a broader set of issues and it has found that there is a range of circumstances extending beyond dominion or psychological

consequences flowing directly from the abuse which militate or inhibit victims from bringing complaints of sexual abuse to the

notice of other persons, in particular those outside their family and even more particularly the Gardai with a view to a possible

trial.

Over the last decade the courts have had extensive experience of cases where complaints are made of alleged sexual abuse

which is stated to have taken place many years ago. It is an unfortunate truth that such cases are routinely part of the list in

criminal courts today.

At issue in each case is the constitutional right to a fair trial. The court has found that in reality the core enquiry is not so

much the reason for a delay in making a complaint by a complainant but rather whether the accused will receive a fair trial or

whether there is a real or serious risk of an unfair trial. In practice this has invariably been the essential and ultimate question

for the court. In other words it is the consequences of delay rather than delay itself which has concerned the court.

The court approaches such cases with knowledge incrementally assimilated over the last decade in some of which different

views were expressed as to how these issues should be approached. In such cases when information was presented

concerning the reasons for the delay it was invariably a preliminary point to the ultimate and critical issue as to whether the

accused could obtain a fair trial. In all events, having regard to the court’s knowledge and insight into these cases it considers

that there is no longer a necessity to enquire into the reason for a delay in making a complaint. In all the circumstances now

prevailing such a preliminary issue is no longer necessary.”

29. The court went to consider the role of the Director of Public Prosecutions (at page 24) as follows:

“These cases have come before the court after a decision to prosecute has been made by the Director of Public

Prosecutions. The Director is independent in the performance of his functions. The decision to prosecute may be a

complex decision involving the balancing of many factors.

Article 30 of the Constitution specifies that prosecutions for serious crimes ‘shall be prosecuted in the name of the

People…’ This provision reflects the fact that the prosecution of serious crimes is vital to the public interest. The State

can only initiate a prosecution when it is aware that a crime has been committed and there is sufficient evidence

available to charge somebody with it. Once that happens, the State has, in principle a duty to prosecute. Although the

bringing of a prosecution may undoubtedly be central to vindicating the rights or interests of a victim of a crime the

interests of the people in bringing a prosecution is, in the interest of society as a whole, of wider importance. The fact

that a person who is the victim of a serious crime had delayed in bringing the commission of that crime to the notice of

the State authorities is not of itself a ground upon which the State should refuse to bring a prosecution or the courts to

entertain one. In particular circumstances delay in reporting such a crime, because of its extent or in combination with

other factual matters, may be considered to affect the credibility of a complainant. That could not in general be a

ground for prohibiting a trial proceeding. It is a matter in the first instance for the prosecuting authorities in deciding

whether there is evidence of sufficient weight to warrant a charge being preferred. It is also the duty of the Director of

Public Prosecutions, in exercising his independent functions with regard to the bringing of a prosecution, to consider

whether in all circumstances a fair trial can be afforded to an accused. This is an onerous and strict duty since, as some

of the decisions of this court demonstrate, there are circumstances in which the bringing of a prosecution in respect of

offences that are alleged to have happened very many years ago would be a serious injustice on the person accused of

them. Where a prosecution is in fact brought following a complaint made after a long lapse of time since the alleged

offence any issue concerning the credibility of a complainant by reason of a lengthy delay is a matter to be considered

at the trial should the defence raise such an issue. There is no reason why the prosecution of serious offences involving

sexual abuse of minors should be treated differently from other serious offences in this regard.”

30. I have quoted these passages extensively because they clearly illustrate the rationale for the establishment by this court of a

new test to be applied in cases such as the present case. Under the heading “Test” the court went on to set out the test now to be

applied:-

“The test to be applied by a court in such an application has been an evolving one. In B. v Director of Public Prosecutions

[1997] 3 I.R. 140 the test was described as:

‘The test is whether there is a real risk that the applicant, by reason of the delay, would not obtain a fair trial, that the trial

would be unfair as a consequence of the delay. The test must be applied in light of the circumstances of the case and the law.

The extant case law on the constitutional right to reasonable expedition, as developed, applies to this case. However, in

addition there must be analysis of new factors.’

The ‘new factors’ referred to became issues such as dominion, inhibition, disparity between the ages of the accused and the

complainant, etc in view of the knowledge and experience gained over the past decade these ‘new factors’ are now well

recognised. A very considerable volume of evidence has been given and case law made explaining circumstances and reasons

for delay in making complaints by victims of child sexual abuse.

As Murray J. (as he then was) stated in P.O’C v D.P.P. [2000] 3 I.R. 87 at page 105:

‘Expert evidence in a succession of cases which have come before this court and the High Court has demonstrated that young

or very young victims of sexual abuse are often very reluctant or find it impossible to come forward and disclose the abuse to

others or in particular to complain to Gardai until many years later (if at all). In fact this has been so clearly demonstrated in

a succession of cases that the court would probably be entitled to take judicial notice of the fact that this is an inherent

element in the nature of such offences.’

The court’s judicial knowledge of these issues has been further expanded in the period since that particular case. Consequently

there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer ‘new

factors’.

Therefore, the court is satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the court

is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The

court would thus re-state the test as:

‘The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial,

or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of

the case.’

Thus, the first inquiry as to the reasons for the delay in making a complaint need no longer be made. As a consequence any

question of an assumption, which arose solely for the purpose of applications of this nature, of the truth of the complainants’

complaints against an applicant no longer arises. The inquiry which should be made is whether the degree of prejudice is such

as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon the circumstances of

the case.”

31. It must be emphasised, of course, that the main thrust of the discussion by the court in H. v D.P.P. applies to complainant delay

rather than prosecutorial delay. The applicant in the present case relies on a combination of both types of delay. The central issue,

and the stated test of a real or serious risk of a fair trial, applies to prosecutorial delay as it does to complainant delay.

32. In his submissions the applicant in this case refers to the concept of the “omnibus principle” as set out by McCracken J. in J.M. v

D.P.P. (reported Supreme Court 28th July 2004). In his judgment in that case McCracken J., under the heading “prejudice”, stated (at

page 13):

“The word ‘prejudice’ is commonly used in cases of this nature to determine whether a prosecution should be prohibited due to

delay. In some ways this is a misnomer. The real question which must be at the heart of all decisions of this nature is whether

there is a serious possibility that the accused person will not be able to get a fair trial. In some cases that can be

demonstrated very simply, for example, where a vital witness who would have been available had there been a speedy trial,

has died or is no longer available for some other reason. There are other cases, such as the present one, which do not depend

on a specific prejudice, but rather on a general overview of all the circumstances of the case which could affect a fair trial.”

33. The general issue of prosecutorial delay and the specific right to a trial with reasonable expedition was also dealt with in some

detail in the recent case of P.M. v D.P.P. [2006] 2 I.L.R.M. 361. In that case Kearns J. held, as set out in the head note, that a

balancing exercise is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay

should result in an order of prohibition. 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. Where blameworthy prosecutorial delay of

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

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

to relief. It is important to note that a clear distinction is made in this as in other cases between the core issue of a right to a fair

trial and the separate and more nuanced right to an expeditious trial.

SUBMISSIONS OF COUNSEL

34. Counsel for both parties made full written and oral submissions to this court at the hearing of the appeal in July. As must be

expected considerable reference was made in those submissions to the law as it then stood in regard to delay on the part of the

complainants D. McG. and F. P. There is now no need to consider those particular submissions. I propose to deal with both the

relevant original submissions and the later supplementary submissions together. It should also be noted that no submissions on

complainant delay were made on behalf of the applicant at the hearing in July in regard to the charges relating to E.O’C. These

charges related to matters alleged to have occurred between 1987 and 1993.

35. Senior counsel for the applicant, Mr Gageby, referred to the prejudicial effect of the fact that in this case there were multiple

complainants. He referred to the judgment of Kearns J. In D.P.P. v C.C. (Court of Criminal Appeal unreported Kearns J. 2nd February

2006) where the learned judge summarised the position as follows:

“It seems to us that whatever prejudice arises by virtue of delay in the case of a single complainant can only be seen as

exponentially magnified where there are multiple complainants and a single accused. His difficulties of recollection, his

difficulties in finding witnesses, or of even remembering the identity of individual complainants are all magnified in direct

relation to the number of complainants who come forward. So, while the difficulties of delay may in such circumstances

recede to some degree from the prosecution’s point of view, they are multiplied and exaggerated from a defendant’s point of

view.” (page 11)

36. Mr Gageby went on to stress that in the light of the judgment in H. v D.P.P. the applicant must benefit fully from the presumption

of innocence throughout his judicial review proceedings. This fact enabled him to rely on presumptive prejudice arising purely from

delay. It was, he said, obvious on reading the judgment of the High Court in this case that the applicant was not given the benefit of

the presumption of innocence by the learned trial judge.

37. Counsel stated that the applicant relied both on specific and presumptive prejudice. The applicant submitted that he had been

deprived of several avenues of defence due to the passage of time, for example, the death of witnesses, the loss of

contemporaneous evidence including medical evidence, and evidence of the demeanour of the complainants. As a consequence he is

at risk of an unfair trial. Mr Gageby highlighted the specific aspects of prejudice pleaded in the grounding affidavit of Jim Eustace,

solicitor, namely that it was not possible to ascertain details regarding the applicant’s attendance at work and the death of a witness

who was a good friend of the applicant and who was present at a family occasion when one of the alleged incidence of abuse took

place. These prejudicial matters, submitted by Mr Gageby, had not been considered by the learned trial judge in his judgment. Counsel

also referred to presumptive prejudice arising from the pure fact of lengthy delay. He referred to the statement of Powell J. in the well

known United States case of Barker v Wingo 402 U.S. 514 (1972):

“If witnesses die or disappear during a delay the prejudice is obvious. There is also prejudice if the defence witnesses are

unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record

because what has been forgotten can rarely be shown.”

38. Finally counsel drew attention to the age and ill health of the applicant. He referred to the concluding paragraphs of the judgment

in H. v D.P.P. where Murray C.J. stated:

“The issue for a court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk

of an unfair trial. The court does not exclude wholly exceptional circumstances where it would be unfair or unjust to put an

accused on trial.” (page 28)

39. Mr Gageby submitted that the applicant’s advanced age and acute health problems amounted to such wholly exceptional

circumstances.

40. In regard to prosecutorial delay Mr Gageby pointed to delay in carrying out the original investigation and in producing the Book of

Evidence; he also highlighted delay caused by the procedural error in the first return for trial. Counsel agreed that there was not an

egregious amount of blameworthy delay on the part of the prosecution but referred to the “omnibus principle” as set out by

McCracken J. in J.M. v D.P.P. (referred to earlier).

41. Senior counsel for the Director, Mr Collins, accepted that the applicant benefited from the normal presumption of innocence. He

submitted that under the test in H. v D.P.P. the applicant carried the onus of establishing that there was a real or serious risk that by

reason of the delay the applicant would not obtain a fair trial – in other words that his trial would be unfair as a consequence of the

delay. Mr Collins referred to the dictum of Finlay C.J. in Z. v D.P.P. [1994] 2 I.R. 476 at 507, where the learned Chief Justice described

that onus as:

“…to establish a real risk of an unfair trial…necessarily and inevitably means an unfair trial which cannot be avoided by

appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an

unavoidable unfairness of trial.”

42. Counsel submitted that the matters of specific prejudice put forward by the applicant were not sufficient to create an

unavoidable risk of an unfair trial. These matters could be dealt with by directions and rulings by the trial judge. The applicant was a

member of a numerous and extended family circle, so that the death of one possible witness did not leave him without other possible

witnesses who would have a memory of the period in question.

43. In regard to prosecutorial delay Mr Collins submitted that for the applicant to succeed in prohibiting his trial by reason of

prosecutorial delay he must show, first, unjustified prosecutorial delay and secondly that such delay impaired an interest protected by

the speedy trial right to such an extent as to entitle him to that relief. Mr Collins submitted that the learned High Court judge had

applied the correct test in law in this regard and did not err in relation to the facts found by him. In fact the learned High Court judge

had accurately foreshadowed the approach adopted by this court in P.M. v D.P.P. (quoted above). The learned High Court judge had

observed that the case had become entangled in the mires of the law but was satisfied and found as a fact that while this had the

effect of deferring the trial of the applicant there was no prosecutorial delay. Mr Collins submitted that the learned High Court judge

was also correct in holding that the admitted error on the respondent’s part in seeking a return for trial under the Criminal Procedure

Act 1967 (as amended by the Criminal Justice Act 1999) had not led to any delay in the appellant’s prosecution given the existence of

the judicial review proceedings. Counsel stated that that finding was demonstrably correct as a matter of fact. The applicant had

himself caused considerable delay in his trial both through his judicial review proceedings and by his application for depositions in the

District Court. Neither of these matters could be attributed by way of blame to the prosecution.

CONCLUSION

44. As was stated by Denham J. in D. v Director of Public Prosecutions [1994] 2 I.R. 465 at page 442:-

“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of

constitutional rights it is a superior right.”

45. The core issue in this case is whether there is a real or serious risk that the applicant will not receive a fair trial. In considering

this issue the court must apply the test set out in H. v Director of Public Prosecutions:-

“The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or

that a trial would be unfair as a consequence of the delay. The test is to be applied in the light of the circumstances of the

case.”

46. In addition, as submitted by counsel for the applicant and accepted by counsel for the Director, the applicant in these

proceedings must benefit from the presumption of innocence as he normally would if tried on the charges he now faces. The question

of a temporary reversal or removal of that benefit no longer arises.

47. In this context, I would agree with the submissions made on behalf of the applicant that in the judgment of the learned High Court

judge insufficient emphasis is placed on the applicant’s right to the presumption of innocence in meeting the criminal charges brought

against him. It must, however, be remembered that the learned trial judge was speaking in the context of previous established law.

That aspect of his judgment can no longer influence the decision of this court on the appeal.

48. The applicant pleads both specific prejudice and presumptive prejudice arising from the lengthy period which has elapsed since the

alleged offences. He emphasises the long delay by D. McG and F.P. in making any complaint to the authorities. This difficulty,

however, cannot apply in the case of E.O’C. The alleged offences against her relate to a much more recent time and in addition she

made complaints, albeit ineffectively, to her mother at an early stage.

49. The specific prejudice set out on behalf of the applicant by his solicitor, Mr Eustace, in his affidavit is firstly that it is now

impossible to trace the applicant’s work records in his employment and secondly that a person who could have been a material

witness is now deceased. As far as the work records are concerned these might have been relevant in a general way, but the position

of the applicant in this regard is in no way different from that of the many persons who have faced criminal charges arising from

events in the past and who have received a fair trial. Such difficulties will be taken into account by the trial judge in giving directions

to the jury.

50. As regards the potential witness, Mr McG. who is now deceased, the applicant’s solicitor deposes as follows:-

“Two charges are date specific, 177/2001 and 178/2001 being charges of sexual assault, in identical terms, on September 8th,

1990 upon E.O’C at (address). Pages 19 and 22 of the Book of Evidence relate to when the assaults are alleged to have

occurred - at the complainant’s brother’s christening. On my instructions a Mr D.McG. was there present, and the likelihood, it

is suggested by my instructions, is that the accused and Mr D.McG., who were good friends, would have sat and chatted

together throughout the evening. Mr McG. would but for his death in or about February 1998 have been in a position to vouch

the whereabouts of the accused during the course of the evening. Obviously therefore his evidence is not now available to the

prejudice of the applicant.”

51. In the first place any possible evidence which might have been given by this witness concerns one of the alleged offences against

E.O’C., which took place in much more recent years than the alleged offences against the other two complainants. Secondly this

potential witness’s evidence concerns what took place at a family christening. Clearly many other family members must have been

present at this occasion. The applicant’s family circle is large and close-knit, as set out in detail in the judgment of the learned trial

judge. It seems unlikely that other witnesses as to the applicant’s behaviour on that occasion would not be available.

52. In my view the applicant has not made out a sufficient case to establish that these items of specific prejudice would prevent him

from receiving a fair trial.

53. The applicant also submits that in any possible trial he will suffer the general prejudice arising from the length of both complainant

and prosecutorial delay. It is obvious that a lengthy lapse of time between alleged offences and the trial of the accused person

creates considerable difficulty. The effect of such delay has been fully discussed in many previous judgments of this court and the

reality of the difficulties caused is accepted. However, the proper approach of the court in cases where such general prejudice is

pleaded has been set out by this court (Denham J.) in the recent case of D.C. v D.P.P. [2006] 1 I.L.R.M. 348 at 350-351 as follows:-

“The applicant in this case seeks to prohibit a trial in which he is the defendant. Such an application may only succeed in

exceptional circumstances. The Constitution and the State through legislation have given to the Director of Public Prosecutions

an independent role in determining whether or not a prosecution should be brought on behalf of the People of Ireland. The

Director having taken such a decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers

of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the

constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial.

In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial.

The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge.

However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant

may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will

be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.

It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where

the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or

complexity. The test for this court is whether there is a real risk that by reason of the particular circumstances that the

applicant could not obtain a fair trial.”

54. This passage in the judgment of Denham J. is entirely consonant with the later judgment of this court in H. v D.P.P.

55. In addition the risk of an unfair trial must not only be real or serious, but also unavoidable. In Z. v D.P.P. [1994] 2 I.R. 476 at 507,

Finlay C.J. stressed this important aspect:-

“With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact

to be implied from the decision of this court in the case of D. v Director of Public Prosecutions that where one speaks of an

onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by

appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an

unavoidable unfairness of trial.”

56. While I accept that, as in all trials of this kind, the length of time which will have elapsed between the date of the alleged

offences and the date of trial will cause difficulties to the applicant in his defence, I consider that these difficulties can be mitigated

by rulings and directions on the part of the trial judge. In my view there is not a real or serious risk of an unfair trial; the test set out

in H. v D.P.P. has not been met by the applicant.

57. The applicant also submits that his right to an expeditious trial has been denied by delay on the part of the prosecution. Through

his solicitor he complains in particular of delay between the arrest of the applicant for questioning on 16th May 2000 and the bringing

of charges against him on17th April 2001. He also complains of delays in the carrying out of the investigation and in the preparation of

the Book of Evidence and in the making of full disclosure. While I accept that the delay between interview and charge is somewhat

prolonged, I do not accept that there were other excessive or blameworthy periods of delay on the part of the prosecution. As

submitted by counsel for the Director, and accepted by the learned trial judge, long periods of delay were caused by adjournments of

the present judicial review proceedings arising from the applicant’s own requirement for the taking of depositions in the District Court

– a requirement which, of course, he was perfectly entitled to invoke.

58. Counsel for the applicant submitted that the delay on the part of the prosecution was not so much a factor in itself but an

additional factor to be added to the earlier periods of delay – what he describes as “the omnibus factor”. Nevertheless in my view

such delays as there have been in the process of prosecution do not amount to a denial of the applicant’s right to both a fair and to

an expeditious trial.

59. Finally I do not accept that the applicant’s present age and health problems amount to “wholly exceptional circumstances” as

referred to in H. v D.P.P. Unfortunately in very many cases of this kind the accused person is in the older age group and may be

suffering from ill health. As this court has already held in regard to the applicant’s notice of motion, this is a matter for the trial judge.

60. I would dismiss the appeal.