Supreme Court dismisses appeal for injunction against prosecution due to delay and non-disclosure of expert notes.

THE SUPREME COURT

No 325/04

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

P.G.

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr Justice Fennelly delivered on the 29th day of March, 2006.

1. In these proceedings, the Appellant seeks an injunction restraining the Respondent from continuing with his prosecution for sexual

offences allegedly committed by him more than twenty years ago. There are two distinct prosecutions: the first, where the

complainant is his niece and where the proceedings are in the Central Criminal Court; the second, where the complainant is his

nephew, and where the proceedings are in the Circuit Criminal Court.

2. The Appellant’s niece was born on 25th June 1972. She has complained that the Appellant raped her on three occasions between

June 1981 and June1985 and that he sexually assaulted her on six occasions between June 1980 and June 1985.

3. The Appellant’s nephew was born on 16th July 1973. He has complained of two incidents of sexual assault on dates unknown

between December 1979 and July 1982.

4. In all cases, the offences are alleged to have occurred on unknown dates over specified periods of several months or up to two

years. The offences against the niece are alleged to have committed when she was from eight to thirteen years of age; the nephew

was aged from six to nine. The Appellant was born on 29th June 1950. Hence he was aged twenty nine at the date of the first

offence alleged against his nephew and thirty five at the date of the last offence against his niece.

5. A book of evidence was served in each case and returns for trial were made respectively to the Central Criminal Court and the

Circuit Criminal Court in each case on 11th September 2001.

6. On 11th February 2002, O’Caoimh J made an order granting the Appellant leave to apply by way of judicial review for an injunction

restraining the Respondent from prosecuting him in respect of each of these two sets of charges. The grounds for the application are

essentially twofold:

1. delay by the complainant in each case thus depriving the Appellant of his constitutional right to a trial in due course of law

and/or with reasonable expedition;

2. failure of the Respondent to disclose certain evidence, principally the notes of psychological or other experts attending the

complainants, thus depriving the Appellant of his right to fair procedures and natural justice and, hence, to a fair trial in due

course of law.

7. Murphy J refused the application for an injunction. His judgment is dated 11th June 2004. The Appellant appeals to this Court.

8. Each of these complaints needs to be considered separately in respect of each applicant. I propose, in the first instance to deal

with the issue of delay.

Delay

9. From even the brief account of ages dates set out above, it is clear that these cases fall to be considered as cases of complaints

of sexual offences alleged to have been committed, many years ago, by a close adult family member against children of tender years.

In such cases, the courts may infer from elements such as the youth of the complainant, family relationship and age difference that

the alleged perpetrator is in such a relationship of dominance or authority vis à vis the complainant that the delay in making the

complaint is attributable to the accused person. For that purpose, the facts alleged by the complainant are assumed to be true. The

history of the making of complaints and the explanations offered for the delay in making them must be considered against that

background.

10. The legal principles governing the approach which the court should adopt in a case such as the present are well settled. This

development can be traced from judgments of Finlay C.J. in G. v Director of Public Prosecutions [1994] I.R. 374 (see reference to “the

extent to which the applicant had contributed to the delay” at page 380); Hogan v President of the Circuit Court [1994] 2 I.R. 513 (

“...cases consisting of charges by young children……involve wholly different considerations…” at page 521). The entire problem was

considered comprehensively by Denham J, speaking for this Court in B. v Director of Public Prosecutions [1997] 3 I.R. 140. This last

judgment formed the basis of what has been definitively stated in two judgments of the former Chief Justice, Keane C.J. In P.C. v

Director of Public Prosecutions [1999] 2 I.R. 25, Keane J, as he then was, stated at page 68:

“Manifestly, in cases where the court is asked to prohibit the continuance 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 should not be allowed to proceed, even though it has not been demonstrated

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

what are the 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 of 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 inquiry, 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.”

11. He restated this analysis in slightly more extensive form two years later in P.O’C. v Director of Public Prosecutions [2000] 3 I.R.

87, stating at page 93:

“There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious

crimes. However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge "save

in due course of law" entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable

delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there

is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of

the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to

the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children

and particularly in cases where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent,

teacher or religious. In cases coming within the last named category, the inquiry conducted by the court which is asked to

halt the trial necessarily involves an assumption by the court that the allegation of the victim is true. Without such an

assumption, it would not be possible for the court to conduct any such inquiry and the court would be obliged automatically to

halt the trial of a person because of the expiry of a lengthy period of time, even though the failure to make a complaint was

due to domination exercised by the adult over the young child during the period of the abuse and even where - as has

happened in a number of cases - the abuse has been perpetrated over many years by a parent or step-parent of a child

actually living in the family home with the perpetrator. Since that patently cannot be the law, the presumption of innocence

which applies in its full rigour to a criminal trial cannot apply to inquiries of this nature.

If, such an assumption having been made, the court invited to halt the trial is satisfied that, as a matter of probability, the

failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without

more, will not be a reason for halting the trial. There remains, however, a further inquiry which must be conducted by the

court in every case, i.e. as to whether the degree to which the applicant's ability to defend himself or herself has been

impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier

stage of the inquiry that the delay is the result of the applicant's own conduct ceases to have effect once that stage of the

inquiry has been concluded. In the final stage of the inquiry, the applicant is presumed to be innocent of the offence with

which he has been charged and, if he or she can demonstrate to the court that it is probable that a specific defence which

might otherwise have been open to him or her is now no longer available because of the passage of time, the court may then

halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of

necessary directions or rulings by the trial judge.”

12. He reiterated the test to be adopted in cases of sexual offences allegedly committed by adults against children later in the same

year in J.O’C v Director of Public Prosecutions [2000] 3 I.R. 478, stating at page 484:

“In each case, the first inquiry must be as to whether the delay has been such that, depending on the nature of the charges,

a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to

defend himself or herself will be impaired. Special considerations apply to cases of alleged sexual offences against children

where, as here, no blame for the delay can be attached to the prosecuting authorities. In such cases, the court invited to

stay the prosecution must decide whether, as a matter of probability, assuming the complaint be truthful, the delay in making

it was referable to the accused's own actions.”

13. It does not follow that it is easy to apply these principles to the endlessly varying sets of factual circumstances which present

themselves to the Court in these cases. It has repeatedly been emphasised that regard has to be had to all the circumstances of the

individual case. Denham J, in her concurring judgment in P.C. v Director of Public Prosecutions, cited above, mentioned “dominance,

relative ages, place of offence, nature of offence,” but stressed that the list was not exhaustive. (See page 58). Keane J, at page

67, mentioned “the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced

by the child because of her participation, albeit unwillingly, in what she sees as wrongdoing.” It has also been accepted in a number

of cases that any admissions allegedly made by the applicant may be taken into account. Such admissions may tend to counter

suggestions that the applicant is disadvantaged by fading memory caused by lapse of time.

14. It is now necessary to refer to the facts alleged and the history of the complaints.

15. The Appellant is an uncle by marriage of the first complainant, whom I will call “the niece.” In addition, the niece was very close

to and spent a lot of time, as a child, with two of the Appellant’s children, who were close to her in age. Originally, the Appellant lived

at a town some distance away from the town where the niece lived with her parents. The niece’s grandparents lived next door to her

house. In about 1984, the Appellant and his wife built a house in the back garden of the grandparents’ house and thus moved to live

next door to the niece’s family.

16. Almost all the offences are alleged to have been committed either at or in the immediate vicinity of the niece’s home or next door

at her grandmother’s house, where the Appellant’s family regularly stayed. Some incidents are described as having been committed in

or beside a garden shed. One is alleged to have been committed when the niece was staying overnight at the Appellant’s original

house with his daughter, one in the Appellant’s car, when he was driving her home and one during a family picnic, when the other

adults were not near. The niece believes both these incidents occurred in the summer of 1981. As is apparent from the charges, the

niece describes three incidents of alleged sexual abuse, which if true, would amount to rape.

17. According to the niece, the Appellant would tell her she was a good girl, not to tell anyone about the sexual incidents, that it was

their secret. He told her not tell anyone or she could not play with his girls. The niece has said she did not tell anyone for this reason,

as the girls were her best friends. He promised her money and sweets. He also threatened to “take my Mam away from my Dad and

that he would hurt my Dad and that nobody would believe me.” On another occasion, he slapped her on the knee and told her that

she was not allowed to tell anyone “as it would be bold and that the Guards would come to take me away and that it was my fault

that it had happened.”

18. This complainant says that she realised that what had happened with the Appellant was wrong when, in about 1985, she had her

first period and her mother told her the facts of life. Thereafter, she resisted approaches from the Appellant and was able to get

away from him. She was afraid to tell her mother as she thought no one would believe her and that she would be taken away from her

friends. When she was fifteen another family member warned her mother who in turn warned the niece about the potential sexual

threat from the Appellant. She broke down and told her mother that he had been abusing her for several years, though she did not go

into all the details. She did not allege rape at that stage. Most importantly, fearing her father’s reaction, she begged her mother not

to tell her father and she agreed to keep the secret. Thus, no formal complaint was made.

19. The niece next complained of the sexual abuse in early 1999. She discussed it with her family. It is also suggested, though there

is no direct evidence of this, that she may have discussed the matter with Ms Annette Bagnall, an acupuncturist, who referred her to

Dr Rosemary Troy, a psychologist. The niece attended Dr Troy for therapy and counselling commencing in May 1999. At that time she

was planning her wedding and explained that she wished to deal with her psychological difficulties. Dr Troy reported that she had

suffered damage as a result of her childhood experiences and that she continued to suffer from psychological symptoms.

20. In late November the niece contacted the Domestic Violence and Sexual Assault unit of An Garda Síochána, to inquire as to how

to go about making a complaint of child sex abuse, but did not then make any formal complaint. On 19th February 2000 she called by

arrangement to a Garda station where she made a written complaint to An Garda Síochána. She made further statements on 5th June

and 29th November 2000.

21. The Appellant was arrested on 25th March 2000, detained pursuant to section 4 of the Criminal Justice Act, 1984 and questioned,

but released without charge on 26th March. In the course of a number of interviews, the Appellant made statements capable of

amounting to partial admissions of sexual assault, but he strenuously denied the allegations of rape. The Appellant was ultimately

arrested on 26th March 2001

22. In her affidavit sworn in these judicial-review proceedings, the niece has repeated that she had been afraid that her father would

be ashamed of her and very angry about what had occurred. She said that, through the therapy from Dr Troy, she had “gathered the

strength first to discuss the abuses with [her] father for the very first time and thereafter, to report the abuse to An Garda

Síochána.” The niece was examined, for the purpose of the judicial-review proceedings, on behalf of the State, by Dr Melissa

Carmody, a Registered and fully qualified Psychologist. Although counsel for the Appellant has criticised the basis of the report sought

from Dr Carmody as being whether the delay in reporting was “reasonable,” I believe that this is too literal a reading of what she did.

She conducted several in-depth interviews with the complainant. She reported on the family background. She also discussed the

niece’s history with Dr Troy. She reviewed the history, as set out above. She came to the conclusion that, at age fifteen, when the

niece decided not to report the abuse, principally because of fear of her father’s reaction, she was not “in an appropriate mental

state……to have made a report to the authorities…” She concluded:

“It was not until she received the support of her counsellor that she was in an appropriate mental state to be able to make

the difficult disclosure to her family, and then to the authorities.”

23. Dr Carmody was extensively cross-examined on behalf of the Appellant, but on the whole at a level of generality. Much of the

cross-examination was directed to the consistency of the complaints made and the possibility of recovered memory. These may well

be relevant matters at trial. The present issue concerns the explanation for the delay in complaining.

24. There can be no doubt whatever that the delay in complaining up to the age of fifteen is adequately explained. Mr Hartnett,

Senior Counsel, on behalf of the Appellant did not suggest otherwise. Making the assumption, relevant to this stage of the case, that

the niece’s statements are true, it is obvious that the extreme youth of the complainant, the adult status of the Appellant and the

very close family relationship that the essential elements are in place from which it is appropriate to conclude that there was a

relationship of dominance or authority. The evidence discloses that there was a very close extended family. It is particularly relevant

that the niece was so close to the Appellant’s own children and, in this context, highly significant that he is alleged to have

threatened to withdraw this friendship if he was exposed.

25. These matters are all important in reaching the conclusion, necessary for application of the first part of the test laid down by

Keane C.J. and Denham J for cases of this sort, that responsibility for the delay can be laid at the door of the Appellant. By the same

token, it is highly relevant that the niece explained her unwillingness to disclose at the age of fifteen by reference to concerns about

the possible reaction of her father. The effects of the family relationship did not cease upon the disclosure to the mother. The

Appellant must continue to shoulder that responsibility. I believe Dr Carmody’s evidence was cogent and unshaken by cross-

examination. I also believe it is appropriate to take account, when considering the effect of the delay, that the Appellant made

certain admissions when questioned by the Gardaí.

26. The case of the nephew is very much in parallel, so far as family circumstances are concerned. The nephew makes two

complaints of sexual assault. He fixes the dates as being, in the first case, “about” 1980” and in the second “close enough to the first

incident [when he] was 7 or 8 years old.” After each incident he says that the Appellant said “this would be our secret, don’t tell

anybody, I’ll buy you some sweets, and nobody will believe you anyway.”

27. He made no formal complaint until his sister told him about her experience as outlined above. He has said on affidavit that he

knew that what had happened was wrong but that he was brought up to respect authority and adults. He continued:

“I was quite shy and did not mix well with other boys of my own age. As a result I was close to my family and would not have

dared to report my uncle’s abuse to other family members. I felt that if I had done so there would have been a lot of strife

between our families. I felt ashamed as if I had done something wrong.”

28. The nephew left home at seventeen and “tried to deal with the effect of the abuse by putting it to the back of [his] mind.” He

moved to England about 1995 and got married about 1998. However, as he explained, this was not sufficient to overcome his

problems. He swore:

“Over time I found it increasingly difficult to deal with the effects of the abuse. I suffered from uncontrollable anger, which

affected my marital relationship. I found that memories of the abuse began to interfere with our sexual relationship. I became

anxious and began to develop irrational fears.”

29. From May 1998, some three weeks after his marriage, he began to attend Mr Christopher Hopper, a Psychosynthesis Therapist

and Counsellor based in Guildford, Surrey. He says that it took some time before he was able to speak with Mr Hopper about the

abuse he had suffered, but that this allowed him to come to terms with the abuse. He ceased attending Mr Hopper in August 1999.

30. In December 1999, his sister asked him to come home to discuss an important matter. She told him of her own allegations of

abuse at the hands of the Appellant. The nephew discussed the matter with his wife. It was only after the meeting with his sister

that he felt able to bring the abuse to the attention of the authorities. He decided to make a report to An Garda Síochána. He made

statements of complaint to members of the force on 25th March 2000 when on a visit home to his family.

31. Dr Carmody also attended the nephew, who travelled home from England. She conducted a detailed psychological examination

over two meetings, including a consultation with Mr Hopper. The latter reported to her that the nephew had thought that the abuse

had been his fault and that it was his opinion that he was not in the right frame of mind to report it until 1999. The nephew told Dr

Carmody that the closeness of his own and the Appellant’s family contributed to his decision not to disclose the abuse. Dr Carmody

reported that it was reasonable not to report the abuse while he was living in the family home. He felt it would disrupt the family

relationships. After disclosure to Mr Hopper, he decided not to take the story of abuse any further but to deal with it within the

counselling sessions and to get on with his life.

32. The case of the nephew is not identical with that of his sister. In his case, there is no element of possible admissions. However,

the unusually close family relationship is a common element. The families were not only closely related, but they lived beside each

other for many years. On the evidence the parents socialised with each other. The children of the two families grew up together and

became very close. If the evidence of the complainants is true, the Appellant threatened the nephew, as he had done in the case of

the niece. It was obvious and must have been obvious to him that such a close and cherished family relationship would inhibit a child

from disrupting it, as would be inevitable, with such serious allegations.

33. In all the circumstances of this case also, I find the delay adequately explained. The factual background is very similar to that of

the niece (with the exception of the threat to withdraw the society of the Appellant’s daughters). The nephew’s evidence on affidavit

is uncontradicted. The Court has been told that a notice to cross-examine was served, but not proceeded with. The nephew has

himself explained how he first came to seek the professional help of Mr Hopper and how that helped him. His attendance on Mr Hopper

went on to August 1999, a comparatively short time before his meeting with his sister in December 1999 and his decision to complain.

34. In conclusion, I would accept that there has been very significant delay in the reporting of the alleged sexual offences in each of

these cases. That delay called for explanation. In that respect the burden of providing adequate explanation rests on the

Respondent. However, I find that the burden has been discharged. The Appellant cannot, therefore, rely on general prejudice. He has

not alleged any specific prejudice. I would dismiss the appeal insofar as it is based on delay in making complaint.

Failure to Disclose Material Evidence

35. As already mentioned, the Appellant obtained leave to apply for an injunction by way Judicial Review on the distinct ground of the

failure of the Respondent to disclose relevant evidence to the defence.

36. Following the return for trial, solicitors for the Appellant conducted extensive correspondence with the Chief State Solicitor

seeking disclosure of specified material.

37. The first request, made in a letter of 31st October 2001, was for disclosure of details of the acupuncturist, mentioned above. Dr

Troy was recorded as saying in her statement in the Book of Evidence that the niece had been referred to her by her acupuncturist,

“whom she attends regularly and who became aware of her situation.” The Chief State Solicitor provided the name and address of

the acupuncturist on 26th November 2001 and stated in the same letter that the niece would be abroad until the end of November.

The Chief Prosecution Solicitor, who had then become involved, wrote again on 24th February stating that she had written to “the

Superintendent requesting him to contact Ms. Annette Bagnall with a view to disclosing the said documentation.” It was stated that

the latter had “written back to him stating that she is declining your request on the grounds of confidentiality to her client.”

38. A similar situation arose concerning Mr Hopper, the Psychosynthesis Therapist and Counsellor, who had attended the nephew. On

25th October 2001, the solicitors for the Appellant asked for full details of the therapy engaged in between the nephew and Mr C.A.

Hopper including all clinical notes and documentation. The Chief State Solicitor provided details of Dr Hopper on 26th November 201,

but said that Dr Hopper “was not prepared to make the disclosures mentioned ……..as this would not be ethical and would breach

client confidentiality.” The State Solicitor for Kildare supplied a copy of a letter from Mr Hopper on 27th November confirming this and

stating that this “confidentiality [was] required of [him] by any client.” He cited his professional code of ethics.

39. Mr Hartnett, in argument, justified the need for access to the notes, respectively, of Ms Bagnall and Mr Hopper. He made the

following points:

· the notes, particularly of Mr Hopper, should have been made available to the psychologist (Dr Carmody) for the purposes of

her examination;

· there is particular difficulty for the defence in cases of delayed complaints in sexual cases and a need for caution in examining

complaints, especially to see whether they have varied over time;

· in the case of the niece, no complaint of rape was made at the earlier stages;

· there is a need to examine the circumstances of disclosure of complaints of sexual abuse;

· there is evidence of repressed memory, particularly in the case of the nephew.

40. It may be said immediately that it is unsatisfactory that the notes of two experts are being withheld on the grounds of

confidentiality. Mr Anthony Collins, Senior Counsel, for the Respondent has informed the Court that the complainant (the niece) has

consented to the disclosure of Ms Bagnall’s notes. It is not clear, on the other hand, whether the nephew has similarly consented in

the case of Mr Hopper. In each case, the Respondent appears to have sought the notes only to be met with a refusal on the ground

of client confidentiality.

41. Before attempting to resolve this matter, I should advert to the fact that, while Mr Hartnett had argued equally strenuously for

the production of Dr Troy’s clinical notes, it emerged at the hearing, and Mr Hartnett accepted, that the Respondent had never been

asked for disclosure of these notes. This aspect of the case had not, therefore, been the subject of leave to apply for Judicial

Review. It should be added that there is nothing whatever to prevent the Appellant’s solicitors even now from making a request for Dr

Troy’s notes. In view of her attitude in the case of Ms Bagnall, there is no reason to believe that the complainant will object to their

disclosure.

42. It should also be observed that, in neither case are the notes in the possession of the Respondent, but that he has, nonetheless,

sought them from the respective experts.

43. The Respondent, in his written submissions, has argued that disclosure falls to be addressed exclusively within the trial process.

Mr Collins, on behalf of the Respondent, submitted that there was an air of artificiality in the position of the Appellant. He referred to

the procedures in the High Court. Each of the complainants had sworn affidavits. The Appellant’s solicitors gave written notice that

they did not wish to proceed with the cross-examination. The nephew would have had to travel from England, but the niece was in

Court. Mr Collins also stated that an offer had been made openly to the Appellant to have each of the complainants psychologically

examined but the offer had not been taken up.

44. The niece’s affidavit says that she attended Dr Troy in May 1999 “for the purpose of receiving psychological therapy…... because

[she] wanted to confront and deal with [her] experiences of sexual abuse.” This has not been challenged.

45. Mr Collins relied on a dictum of Keane C.J. in D.H. v Groarke [2002] I.R. 522. In that case, this Court unanimously held that the

Rules of the Superior Courts relating to discovery do not apply in the context of a criminal trial. Keane C.J. added, however:

“The fact that discovery in the form provided for in the rules for civil litigation is not available in criminal proceedings does not

have as a necessary consequence an erosion of the fair procedures to which defendants are entitled. Thus, in the present

case, it was open to the solicitor for the applicant to ensure at the deposition stage that any relevant records or notes in the

possession of the social workers were produced and, to at least a limited extent, that was done. Moreover, the social workers

can be required by the applicant to attend the trial and produce any relevant documents by the issue of a subpoena duces

decum.”

46. It was submitted that the Appellant’s arguments concerning non-disclosure of clinical notes were principally relevant to the delay

issue in these Judicial Review proceedings rather than to the trial. The Appellant could have sought third party discovery of those

notes in those proceedings, but did not do so.

47. Before expressing the conclusions I have come to, I would draw attention to the fact that the Appellant has not, either in written

or oral submissions, relied on the line of authority represented principally by Braddish v Director of Public Prosecutions [2001] 3 I.R.

127; Dunne v Director of Public Prosecutions [2002] I.R. 305; Bowes v Director of Public Prosecutions; McGrath v same [2003] 2 I.R.

25; McKeown v The Judges of the Dublin District Court And the Director of Public Prosecutions (Supreme Court, unreported,

McCracken J 9th April 2003). Those are cases where the gardai had been in possession of an item of alleged evidential value, but

parted with the possession of it before, it was claimed, the legal advisers had had an opportunity of examining it. That may or may

not have been the reason for the Appellant’s decision not to rely on these cases. At any rate, they should not be discussed when

they have not been argued.

48. I turn then to consider the decision of the Court separately in respect of each of the two pending trials.

49. Firstly, I consider the case in the Central Criminal Court. The niece does not mention Ms Bagnall either in her affidavit or her

statements. Both in her statement and in her affidavit, she mentions her discussion with her mother when she was fifteen and, next,

her attendance on Dr Troy in 1999. There is no evidence that she complained to Ms Bagnall about sexual abuse, except from

speculation arising from the statement that Ms Bagnall referred the complainant to Dr Troy. Clearly, in any event, the evidence of Dr

Troy is more likely to be relevant. Although she is a witness on the Book of Evidence, the Appellant has not to date sought disclosure

of her notes. In view of this and other procedural options followed by the Appellant, I do not think he has established that any real

risk of an unfair trial arises, at this stage, from the failure to disclose the notes of Ms Bagnall.

50. Secondly, I consider the case of the nephew. I can state at the outset that, having considered the cross-examination of Dr

Carmody, upon which Mr Hartnett placed especial reliance, I do not believe he has at all established that there is evidence of

repressed or recovered memory. As already stated much of the cross-examination was at a general level and not related specifically

to either complainant. Mr Hartnett did put to Dr Carmody statements from Mr Hopper’s report to the effect that “the events……have

for the most part been suppressed from his [the nephew’s] conscious mind but pop into his conscious mind from time to time.”

However, Dr Carmody insisted that she had spoken both to the complainant and to Mr Hopper and stated that her understanding was

that the former “had clear memories of the abuse when he started to attend Mr Hopper.”

51. I accept, nonetheless, that, in the ordinary way, the Appellant 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.

52. 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.

53. I might add that this type of practical problem might well be addressed through the mechanism of a preliminary hearing whose

adoption was recommended by the Working Group on the Jurisdiction of the Courts in its report of May 2003 on “The Criminal

Jurisdiction of the Courts.” The Working Group reported on systems and procedures employed in a number of other jurisdictions,

notably England and Wales, Scotland and Australia. At paragraph 775, the Group recommended that a “Preliminary Hearing be

introduced in all cases [of indictable offences] on arraignment.” Among the suggested matters listed for consideration on such a

hearing was “to identify and determine whether the prosecution has made full disclosure in conformity with its current obligations.”

So far as I am aware, these proposals have not been implemented.

54. In all the circumstances, I am satisfied that the Appellant has not made out a case for an injunction prohibiting his continued

prosecution on the ground of non-disclosure.

55. Since the Appellant has failed under all headings, I would dismiss the appeal and affirm the order of the High Court.