Supreme Court partially allows certiorari against prosecution delay, halting charges 1-30 while severance remains undecided.

THE SUPREME COURT

JUDICIAL REVIEW

Hardiman J. 29/05 and 85/05

Kearns J.

Macken J.

Between:

S.B.

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

DISTRICT JUDGE HARNETT

Respondents/Appellants

JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2006.

This is substantially the Director’s appeal against the judgment and order of the High Court, (Smyth J.), made the 21st day

of December, 2004. The effect of this order was to restrain the Director from further prosecuting the applicant in respect of

any of the 32 charges against him. It is a feature of the case that the judgment of the learned trial judge proceeded entirely

on the basis of an excessive delay and did not (except very incidentally) consider the question of prejudice. Moreover,

another of the applicant’s claims, for an order of certiorari quashing the order returning him for trial was refused in

circumstances where, because of the disposition of the other aspects of the case, it did not appear to be relevant.

The learned trial judge’s method of disposition of the case could not be faulted on the law as it then stood. However,

subsequent to the hearing of the appeal this Court gave its judgment in H. v. DPP (Supreme Court, unreported, 31st July,

2006). In that case this Court formulated the test to be applied in a case of this nature as follows:

“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 restate 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 the light of the circumstance of the case’ ”.

It is obvious, therefore, that, through no fault of the learned High Court judge, his approach to the case has been somewhat

superceded by the developing jurisprudence.

After the judgment in H., each of the parties here was afforded the opportunity to make further submissions to this Court

and each did so, both orally and in writing. In the changed circumstances, the appellant placed in the forefront of his case

certain submissions as to the risk (or, as he would say, the demonstrated fact) that any trial would now be unfair. This gave

rise to a difficulty in that the learned trial judge had not made any substantial findings in relation to the submissions on the

risk of prejudice, because it was unnecessary to do so having regard to his findings on delay. Both sides, however, requested

that this Court deal with the matter on the basis of the evidence available, as opposed to remitting the matter for further

hearing, and findings, in the High Court.

The charges.

Having regard to the submissions made, considerable importance attaches to the detail of the charges preferred against the

applicant, and in particular the times at which the offences are alleged to have occurred.

The applicant faces thirty charges of indecent assault on one J.R., and it is proposed to deal with these first. The applicant is

a nurse, both a registered general nurse and a psychiatric nurse, and the complainant was, at the material times, a patient in a

named hospital. This fact is important: there is no allegation in these charges of any assault outside the hospital. The

complainant says that during the nights there would only be one nurse on the Ward and that he was first abused when he

was awoken about 2am while sleeping on the Ward and was taken to the office of the Ward where he was assaulted. He

said that he made a complaint after the first occasion this occurred to two named nurses. He says that they gave him an

injection and put him to sleep, having told him they would talk to a named doctor. All three, the doctor and the two nurses,

are deceased. The complainant alleges that “Every night that [the applicant] was on duty he would take me into the office

and sexually abuse me.

The complainant said that he complained to one of the named nurses on a second occasion and was again given an injection

and put to sleep. In the fullness of time he left the hospital and alleges that he “had forgotten all about it [the applicant] until

a recent visit to [the hospital] brought it all back to me. I started going to a social club there a couple of weeks ago. When I

saw the stairs going up to the Ward I felt hurt, everything started coming back to me. I was very upset”.

The complaint was eventually made in 1999.

Originally, the applicant faced a total of 78 charges. In circumstances which are the subject of some controversy, this was

reduced to 30 charges. These are as follows:

(a) Charges 1 - 14 each allege the offence of indecent assault by the applicant against the complainant on dates between the

29th April, 1975, and the 4th June, 1976, a period of fourteen months.

(b) Charges 15 - 17 each allege an indecent assault in different time periods between the 7th October, 1977, and the 25th

October, 1977, a period of eighteen days.

(c) Charges 18 - 22 each alleges a separate indecent assault in different, short, time periods between the 25th June, 1978,

and the 31st July, 1978, a period of thirty-five days.

(d) Charges 23 and 24 each alleges separate indecent assault in different time periods between the 11th December, 1978,

and the 29th December, 1978, a period of eighteen days.

(e) Charges 25 - 30 each alleges a separate indecent assault at weekly intervals between the 1st June, 1979, and the 26th

July, 1979, a period of fifty-six days.

For this summary it will be seen that the charges in relation to the complainant J.R. relate to a period between 31 and 27

years ago.

Other features of the alleged offences.

The complainant J.R. also alleged two things of considerable potential significance. Firstly he claimed that at a time which

external evidence places in 1973 or 1974 he attempted suicide and was hospitalised, as a result of the sexual assaults he

alleged against the applicant. This is inconsistent with the charges laid, which, as has been seen, did not start until 1975.

Secondly, he alleged that he had never been abused by any other person. Some 2½ years later, however, he made and then

withdrew multiple complaints of the same nature against another nurse whose name it is unnecessary to mention here.

It would appear that part of the reason for the attribution of the suicide attempt and hospitalisation to the applicant’s actions

stems from a misapprehension amongst the Health Board staff who were assisting the gardaí with their inquiries to the effect

that the applicant would have been in the named hospital, and in a position to assault the complainant at nights during a

period earlier than those to which the present charges relate. It was known that, at the relevant time, he was doing some

form of post-graduate diploma in general, rather than in psychiatric, nursing. It was thought that he was doing this in the

named hospital but in fact he did it in a hospital in another county over a period of more than a year. This was a mistake of

a very serious character.

It should be added, indeed, that the applicant seemed a very enthusiastic nurse, keen to develop his skills: in addition to

qualifying in both general and psychiatric nursing, he appears from the papers to have studied for and received no fewer

than eight post-graduate certificates and diplomas, some of which involved of taking leave for study or exams.

Records and information.

I have set out at some, perhaps at excessive length, the time periods to which the charges relate. This is because those

periods are of great significance in any potential defence to the prosecution. The applicant has always denied that he is guilty

as charged. It was not suggested on the hearing of this appeal that any of the assaults took place otherwise than as described

above: waking up the alleged victim in the middle of the night and bringing him to a room off the Ward where he was

assaulted. It is the prosecution case that each Ward nurse would have up to thirty-five patients in his or her care and would,

during the night, be alone with the patients except for occasional visits by nursing supervisors. It also emerged (tortuously

and very much more later than it should have), in the third statement of a hospital employee, Mr. K., that:

(1) “The normal practice for nurses at that time was that they worked four months night duty per year which in effect

[meant] that they worked seven nights every fortnight for a period of four months. They worked days for the remainder of

the year apart from annual leave or sick periods”,

(2) “There are no precise records of the actual nights worked by [the applicant] or other nurses during that period. Those

records were destroyed as they were more than ten years old, as is normal practice. Computerised records are available

since 1988”.

(3) “I am aware that some nurses at that time switched night duty for day duty with other nurses of the same grade. Much

of the pre-1988 records are not available to give better details. The four months night duty worked by nurses were not

always consecutive, they may have worked two periods of two months.”

The foregoing is Mr. K.’s eventual, and as I say very belated, statement about the position in regard to records. He is a

prosecution witness on the Book of Evidence and he is there for the purpose of saying what he can to support the

proposition that the applicant was working on the Ward where the complainant spent most of his time during his periods of

hospitalisation. He cannot however put this further than:

(1) “I know that (the applicant) did perform night duty i.e. 8pm to 8am in [named Ward] on some occasions.”

(2) “The record of the actual dates worked by [the applicant] on night duty are not precise, however they do show that he

did work on night duty in [named Ward] while [the complainant] was a patient there. An example of one such night is the

night ending 22nd March, 1976, in which [the applicant] made entries in the files of other patients who shared [named

Ward] with [the complainant].”

(Emphasis added)

After the foregoing, the following appears:

“The records showing the actual nights worked on the named Ward by the applicant during the four

periods of the complainant’s hospitalisation are lost, having been destroyed as is usual after ten

years.”

Mr. K. cannot say more than that the applicant performed night duties in the relevant Ward “on some occasions”. He does

not say what these occasions were or (with one exception) whether or not those are occasions when the complainant was

hospitalised there.

Mr. K. has made a search of the records of other patients who shared the Ward with the complainant, with a view to seeing

if he could find notes made in those files by the applicant. He gives only the single example quoted above.

It appears to me, therefore, that the position is that records showing the precise days that which the applicant actually

worked night duty in the relevant Ward are missing because they are routinely destroyed after ten years. There are,

apparently, entries made in the records of patients other than the complainant which allow the applicant’s presence at night

in the Ward to be established “on some occasions” only one of which is actually specified. As will appear below, however,

the applicant’s advisers have been refused access to or even sight of the records from which, it is said, these conclusions can

be drawn.

Correspondence.

There was very extensive correspondence in this case between the solicitors, Ms. Eithne Hegarty then of the firm of

Kearney Roche and McGuinn for the applicant and Mr. Gerald Meaney, State Solicitor for the relevant county, for the

prosecution. This is exhibited over sixty odd pages in the Book of Appeal. Portions of it are of significance for the resolution

of the issues on this appeal. But before mentioning the correspondence in detail it is proper to say that it is perfectly obvious

from it that each solicitor was assiduous in representing the interests of his or her client and that the correspondence was

conducted throughout in a thoroughly professional fashion. There is no trace in the State Solicitor’s correspondence of the

allegations which, most unfortunately, the Director of Public Prosecutions saw fit to make about Ms. Hegarty’s conduct of

the case on the hearing of this appeal. I am satisfied that all of these allegations are entirely groundless.

Apart from a few incidental matters, the whole of the correspondence relates to Ms. Hegarty’s attempts to get

documentation relevant to the defence of her client’s case. She wrote a significant letter of the 21st November, 2000,

specifying the documents which were required. The State Solicitor did not consider that the obtaining of these documents

should delay the proceedings in the District Court pursuant to the Criminal Procedure Act, 1967: instead he on at least three

occasions called upon the applicant’s solicitor to take discovery proceedings to get sight of whatever documents they

required. Unknown to the State Solicitor, of course, it is not open to a defendant in criminal proceedings to seek discovery.

By letter of the 14th February, 2001, Mr. Meany told Ms. Hegarty that the hospital would not be producing medical records

in their possession, on legal advice. The gardaí, he said, had no other documents in their possession. He then referred her to

the Health Board’s solicitor, Mr. O’Sullivan saying:

“Hopefully, Mr. O’Sullivan’s good office may ensure that whatever records were consulted by Mr. K.

for the purpose of preparing his various statements can be made available though I am instructed that

the gardaí do not have any further papers themselves in that particular regard.”

It is quite clear from Mr. K.’s statement that any positive factual statement he made was made on the basis of records, and

not from his personal knowledge. This statement was served on the applicant as a statement of the prosecution’s proposed

evidence at his trial: it was therefore clear that the prosecution were going to contend that it was admissible evidence. In my

opinion, if this evidence was to be challenged, it was absolutely essential that Ms. Hegarty as the applicant’s solicitor should

seek the documentation upon which, manifestly, the evidence was based. Ms. Hegarty attempted herself to interview Mr. K.

but this was declined on the basis of legal advice. She then summoned him as a witness to the preliminary investigation of

the offence, intending to depose him pursuant s.7 of the Criminal Procedure Act, 1967. The question of depositions was

adjourned from time to time in the District Court and the learned District Judge gave directions for the production of some

documents. On the 14th November, 2001, the taking of Mr. K.’s deposition was adjourned on the basis that he had not in

fact brought the relevant documentation to court and the learned District Judge specifically directed that he was to bring

copies of the documentation on which he relied in the preparation of his statement. On the 12th December, 2001, however,

in circumstances discussed below, the learned District Judge declined to permit the deposition to be taken. That fact is the

subject of a separate claim for relief, by way of certiorari.

A surviving document.

As we have seen above, neither the roster for the nurses’ duty nor the record of the hours actually worked by the nurses

have survived. However, some documents have survived and one, the applicant’s “annual sick leave register” is amongst

them. It is a handwritten document and, even blown up to a size much greater than the original, parts of it are illegible. But it

records sixteen days of sick leave having been taken by the applicant ending on the 3rd July, 1979. The date in June on

which this sick leave started either was not written in or has since become illegible. Presumably only days when the

applicant was scheduled to work are recorded as sick days: it therefore appears that the sixteen days would take one back to

the 17th June, if every day between then and the 3rd July were a working day and back to the 12th or 13th if there were

respectively five or four non-working days in that period. It will be recalled that the nurses worked twelve hour shifts,

working nights seven days per fortnight for four months of the year. There is, accordingly the possibility, if nights were

being worked, that sixteen days of continuous sick leave would go back still further.

The significance of this material lies in its reference to charges 25 and 26. Charge 25 alleges an offence between the 12th

June, 1979, and the 19th June, 1979: all or most of this period may be included in the sick leave. Charge 26, however,

refers to the period between the 20th June, 1979, and the 26th June, 1979, the whole of which period is within the period of

sick leave shown in the records. If it had been possible to question Mr. K. on deposition, it might have transpired what

period of real time, so to speak, was required to amount to sixteen days of sick leave. Alternatively it might have transpired

that this could no longer be ascertained.

The significance of this single example is considerable. First of all it suggests that these two charges in any event were

drafted on the basis of the periods when the complainant was hospitalised, without any reference even to the surviving

documents to see if it appeared that the applicant was actually in a position to commit the offence at all on the relevant days.

This, plainly, suggests a line of inquiry of use to the defence and which cannot be pursued in the absence of records of

hours actually worked.

It will be recalled that, early in this judgment, I have set out under (a) to (e) the five continuous periods to which the charges

against the applicant relate. The first is a long period of fourteen months: the last four are very much shorter. This is dictated

by the fact that all of the complainant’s hospitalisations, subsequent to the first, were of very much shorter durations so that

much more precision is possible. Even the longer periods have to be viewed on the basis of the evidence, in the statement of

evidence of Mr. K., nurses generally worked two months of nights at a time which might or might not be consecutive.

The submissions.

Against that somewhat complicated factual background, I now turn to the submissions of counsel for the parties.

For the Director Mr. McDonagh S.C. submitted first that the deaths of the two nurses to whom the complainant said he

complained, and of the doctor to whom of one them referred, was of little significance:

“No significant point arose from the unavailability of any of these witnesses.”

Insofar as their absence had any effect, he said, it damaged the prosecution rather than the defence.

Turning to the records, Mr. McDonagh referred to the missing documents, work schedules and records of work done alike,

compendiously as “rosters”. He said one must look at the absent documents “in terms of what else is available”. He said

that the applicant could not say that he was absent from night work at the times to which each of the allegation relates. He

said that the reduction in the charges was accounted for by the substitution of charges at a rate of one per month for charges

at a rate of one per week in respect of the earlier hospitalisation of fourteen months duration. Mr. McDonagh submitted that

the applicant had not “engaged with” the documents as a whole, but had concentrated instead on the missing documents.

More generally, Mr. McDonagh that before the applicant could get relief on the grounds of missing documents he had to

make a case “that he couldn’t recall the position without the rosters”. Accordingly, the applicant had not shown that the

rosters were necessary. Counsel accepted that the evidence (in Mr. K.’s statement of evidence) showed that the nurses had

worked nights for up to four months a year, not necessarily four continuous months. He conceded that that fact “might

seem inconsistent with the timing of certain of the charges”. However, he said, this was insufficient to ground relief

“because there was no evidence from the applicant that he didn’t work nights right through the year”. This last submission

was based on Mr. K’s statements as follows:

“Staff at that time were rostered for seven twelve hour nights per fortnight commencing at 8pm and

ending at 8am. They worked Monday and Tuesday nights, were off Wednesday and Thursday nights,

worked Friday, Saturday and Sunday nights, off Monday and Tuesday and worked Wednesday and

Thursday nights. That is how the fourteen day roster worked. Occasionally they switched nights to

facilitate each other.” (Emphasis added)

Asked specifically whether it did not appear from the evidence, and the timing of the charges, that the records if available

would have exculpated the applicant on some at least of the charges Mr. McDonagh said:

“It can’t be said that the roster could exculpate the applicant from even some of the charges because

of the possibility that he might have switched duties with other nurses. The missing rosters were

merely a schedule of the hours people were supposed work in advance, not a record of the hours they

did work. They would only tell you who was supposed to be working at what particular times, in

reality there is no evidence of who actually worked what times.”

Mr. McDonagh’s attention was then drawn to Mr. K.’s statement, served by the prosecution as “proposed evidence”, that:

“There are no precise records of the actual nights worked by Mr. Brennan or other nurses for that

period. Those records were destroyed as they were more than ten years old as is normal practice”.

He replied that “To take that literally would be an inference that would be unfair”. This was an unsupported suggestion that

what a State witness is saying might be inaccurate or untrue. There is no question of an “inference”: the statement is one of

simple fact.

The balance of Mr. McDonagh’s submissions were directed at the learned District Judge’s refusal to allow Mr. K. to be

deposed: these are dealt with separately below.

Applicant’s submissions.

For the applicant Mr. Patrick Gageby S.C. submitted that there was ample evidence on which the learned trial judge could

have decided that there was a real risk of an unfair trial. He said it was the Director of Public Prosecutions, and not the

applicant, who had failed to engage with the facts. He pointed out that the only evidence in the Book directed at establishing

dates was that of Mr. K.: “The case is based on Mr. K.”. But Mr. K.’s evidence in turn was based on documents which he

had seen and of which the applicant was being denied sight.

Mr. Gageby submitted that the “relatively tight time periods” mentioned in the last sixteen charges emphasised the

importance of the missing records. He said there was plainly the potential positively to exonerate the applicant and it was this

which the solicitor had tried to elucidate.

Mr. Gageby said that Mr. K. “has plainly stated that he had culled everything he said from records which the Health Board

are not prepared to produce to the applicant”.

Furthermore, Mr. K., had given evidence that night duty was done on a particular basis. This had to be accepted for the

purposes of the present case and there was no evidence for the suggestion that night duty might, in a particular individual

case, have been done on some other basis. This was a theoretical possibility but there was no evidence for it. Accordingly, it

was clear that the documents, both those which Mr. K. had looked at but not produced and those which are destroyed or

missing “could be the end of some or all of the charges”. In the present state of the evidence no-one could possibly say that

for any of the periods [i.e., (b) to (e) as set out earlier in this judgment], that the applicant was on night duty. If the missing

records existed it might be possible to show that he was not. Mr. Gageby pointed out that the prosecution had invited the

learned District Judge to find that there was a case to answer on every charge, and that the latter had indeed made a

compendious return for trial on all charges, 1 - 32. He pointed out that the complainant had alleged that he had considered

suicide on the basis of his abuse at the hands of the applicant. But it is alleged the attempted suicide had happened in 1973

or 1974 which was before the time the abuse was even alleged to have occurred and before Mr. K. was alleging there was

any opportunity for it. It appeared, he submitted, that Mr. K. was at first disposed to say that the abuse could have occurred

in that time, but that this was because he did not know that the applicant’s general nursing training was taking place in

another county. This emphasised the need for precision as to dates and times.

Mr. Gageby said that the two deceased psychiatric nurses were of importance. He pointed out that they were alleged not

only to have received a complaint about the applicant but also about the other nurse. If these nurses denied what the

complainant said it would show a very dramatic failure of memory on the complainant’s part, quite as dramatic as that

found in the case of B.J. v. DPP.

Mr. Gageby referred to the apparent significance of the sick leave record and pointed out that this could be replicated in the

case of other records, now missing. He emphasised that no-one except the complainant who was present in the hospital at

the time of the alleged offences, nurse, doctor or patient, was in the Book of Evidence. He submitted that the DPP had

obviously brought charges in relation to the dates selected simply because the complainant was in the hospital on those

dates. But going through all the records might well establish that on some or all of those dates the applicant was elsewhere.

The balance of Mr. Gageby’s submissions related to other matters, discussed below.

Decision on injunction on the first thirty charges.

These charges are undoubtedly old ones, relating to a period 32 years to 28 years before any likely trial. I am satisfied that

they have, as Mr. Gageby submitted, been drafted simply on the basis of dividing periods when the complainant was in the

hospital into randomly selected periods from one month to two days in duration, and bringing a charge in respect of each

such period. This, indeed, was not disputed.

The special difficulties in ensuring that a trial of such very old allegations will be fair and acknowledged by the Courts in

numerous cases, civil and criminal, over a very long period of time. I have myself discussed them in cases ranging from

J.O’C. v. DPP [2000] 3 I.R. 478 to

J.B. v. DPP (Supreme Court, unreported, 29th November, 2006). There is no need to repeat here all that I said in these

cases. Instead I offer a brief summary of the Courts’ view of the dangers arising in the trial of old cases, based on quite a

lengthy survey of the relevant law in my judgment in J.O’C. The citations for all the words and phrases which are in

quotation marks in the following summary may be found in that judgment:

“(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: ‘the chances

of the courts being able to find out what really happened are progressively reduced as time goes on’;

(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his ‘capacity… to be

effectively heard”;

(c) that such lapse of time may be so great as it would be “contrary to natural justice and an abuse of the process of the

court if the defendant had to face a trial which (he or) she would have to try to defeat an allegation of negligence on her part

in an accident that would taken place 24 years before the trial…”;

(d) that, having regard to the above matters the court may dismiss a claim against a defendant by reason of the delay in

bringing it ‘whether culpable or not’, because a long lapse of time will “necessarily” create “inequity or injustice”, amount to

“an absolute obvious injustice” or even ‘a parody of justice’;

(e) that the foregoing principles apply with particular force in a case where ‘disputed facts will have to be ascertained from

oral testimony of witnesses recounting what they then recall of events which happened in the past …’, as opposed

presumably cases where there are legal issues only, or at least a high level of documentation or physical evidence, qualifying

the need to rely on oral testimony.”

Since the Courts have begun to permit a trial of such very old offences (on the basis that they are in a special category),

there have been a number of very disturbing convictions which proved impossible to stand over, or which were declared

miscarriages of justice: see F. v. DPP, (CCA, unreported, 2nd December, 1996) and N.W. and PMcC v. DPP (CCA,

unreported, 16th December, 2005), a case which featured both failures of memory and deliberately false allegations

supported by a purported eye witness. I have frequently said that, where a case comes down to bare assertion countered

only by unsupported denial, the position of an innocent defendant is indeed perilous.

The present case has unusual features, all based on the fact that the assaults are alleged to have taken place in the confined

and somewhat structured context of a hospital. A large organisation like a hospital will, and on the evidence this one actually

did, produce many records of different types: medical and nursing notes, admission and discharge notes, work schedules,

records of hours actually worked and pay records, sick leave records and signed or otherwise identifiable notes in patients’

charts. Though there are still great difficulties in defending so old a case, this context would normally (if the records are

available) at least permit it to be said categorically whether the complainant and the alleged perpetrator were actually

physically present in the same place on this appeal. Moreover, this case has proceeded on the basis that the assaults took

place in precisely the same immediate context: the complainant being allegedly removed from a ward in which there were 30

to 35 patients, at night, and assaulted in a room off the Ward. No submission that any other form of assault took place was

made.

This latter circumstance furthers limits the physical possibility of these assaults to times when the applicant was on night

duty.

I believe that any person, properly advised, who is charged with offences such as those in question here would investigate

the possibility of demonstrating that they could not have taken place because he was not present. Indeed, it is very difficult

to know what other step he could take, other than bare denial, by way of defence of these charges. Though the Director

referred to the existence of other records he did not suggest that any of them had any specific utility in defence.

As we have seen, two points were argued as to why it had not been shown that the absence of the record created a real risk

of an unfair trial. The first, summarised above, was that the applicant had not said that he could not remember his

movements in the absence of the records. I believe that this submission is simply unreal. Counsel was asked whether it lay

in the realm of reasonable possibility that a person without records would recall whether or not he had worked nights, on a

particular date, or short series of dates thirty odd years previously, and he said only that he might. I do not agree. I believe

that the solicitor, Ms. Hegarty, pursued not merely an obvious line of inquiry but the only conceivable line of inquiry open to

her and has succeeded only in establishing that the relevant records are no longer present, and might have been useful.

The second submission was that relief should not be granted because, even if the “rosters” were to hand, they would not

disclose who actually did work nights at any particular time but only who was supposed to do so. This is simply at variance

with the statement of Mr. K., the only witness with direct knowledge of the records. He firmly distinguished (at the second

last page of his statement) in evidence between the rosters, which indeed showed only who was supposed to work nights

and the “records of the actual nights worked” which “were destroyed as they were more than ten years old as is normal

practice”. The use of the term “rosters” to refer compendiously to all documents showing who was working nights evades

the fact that, according to the only witness who can speak to the matter, there were in existence, for ten years after any

particular date, records of “the actual nights worked by [the applicant] or other nurses for that period”. While, as stated

above in the section of this judgment dealing with the sick leave record, information of this sort is likely to be more useful in

the case of the last sixteen charges, relating to shorter time periods, it has obvious potential for the first fourteen charges,

relating to month long periods as well. This is because, again to quote Mr. K., “nurses worked four months night duty per

year, in effect they worked seven nights every fortnight for a period of four months”. The same source describes switching

of duties to facilitate each other as “occasional”.

In my view the utility of these records is so obvious that I would find a real risk of an unfair trial to arise from their absence

even if there were no further evidence. But there is, in this case, the evidence of the utility of a sick record which appears

wholly to exclude the presence of the accused in one instance and partly or wholly in another. The Director, however,

contended that even if this were so it should not avail the applicant “because of the possibility that he might have switched

duties with other nurses”. In part, this relies on the assimilation remarked on, above, between the rosters and the record of

actual hours worked, both of which (and not merely the rosters) are missing. But more fundamentally, this is a bare

possibility of which there is no evidence at all: there is no evidence, for that matter, that the applicant ever took on other

nurses night duties.

The evidence of Mr. K. is hearsay on the face of it, so one must presume that it is intended to support its admissibility on

the basis that it is supported by records made in the ordinary course of business or under Sections 5 or 6 of the Criminal

Evidence act, 1992. Two consequences follow from this. The first is that, if such records are admissible on that basis, they

would also be admissible for the defence, including the now destroyed records of actual hours worked. Secondly, if Mr.

K.’s hearsay statements are admissible on the basis indicated or any other, it was positively unjust to deny the defence sight

of the documents on which they are based. Indeed, the witness would have to have them to hand in giving his evidence and

the defence would be entitled to call for them. But it could be quite unfair to give only that much notice of what they

contain.

What must be demonstrated in this case, following H., is the real risk of an unfair trial, not the demonstrated certainty. This,

indeed, has been a central feature of these cases for at least six years. That makes it fatuous to erect a total improbability -

that the defendant might be able to recall unaided after thirty years which nights he worked; that the defendant might have

exchanged with other nurses so regularly as to work only nights - in answer to what seems to me to be an obvious risk.

I now turn to the two missing nurses, and the missing doctor, all unfortunately deceased. On the face of the complainant’s

statement the fact that he made a complaint to the nurse would be admissible, as a recent complaint in a sexual allegation,

and the evidence of the nurses, if they were available, would have been admissible on the same topic. Since they are

deceased, the defendant is deprived of any possibility of contradicting the making of the complaint, itself admissible to show

consistency on the part of the complainant. But the matter goes further than that. The nurses or one of them (it is not quite

clear from the wording of the statement) is alleged to have said that he would pass on the complaint to a named doctor and

that the complainant was then put to sleep by injection. The applicant says that this could not have occurred, at least

legitimately, because nurses were not permitted to give injections by the hospital procedures of the time. The doctor could

have confirmed this.

If the trial proceeds the prosecution will have the benefit of the allegation that a complaint was made to the nurses. The

nurses if available would either confirm this or deny it. If they confirmed it the prosecution will be little or no better off than

they are simply on the basis of the complainant’s own evidence. If they denied it, however, the credibility of the

complainant would have suffered a considerable blow. It appears to me that the applicant has lost the real possibility of an

obviously useful line of defence.

In the Director’s submission that the records would not have helped the defendant to establish that he was not present on

any of the charge periods, there is perhaps implicit the submission that the records are not of real significance since they are

unlikely to exclude every single one of the charge periods, and the whole of every such period. Here, I think, the

prosecution are probably right: it would be extraordinary good luck from the applicant’s point of view if they extended that

far, but equally, perhaps, it would be bad luck if they did not exclude any of the periods. But I do not accept that missing

evidence is insignificant because, in all probability, it would affect only some of the allegations. Once the prosecution and the

complainant have committed themselves firmly to a list of allegations, the demonstration of the impossibility of one, or

certainly of any significant number, is a blow to the credibility of the prosecution case as a whole. It suggests an over-

readiness to make allegations and a tendency to be definite about things in relation to which, perhaps, it is simply not

possible to be so definite. In the present case this would be linked to evidence, appearing in the prosecution statements, of a

desire on the part of the complainant to have the applicant fired from his job and jailed.

The two remaining charges.

The last two charges in the list of charges preferred against the applicant, Nos. 31 and 32, involve a different person, and

allege two acts of gross indecency alleged to have occurred with that person in the year 1988. They are wholly separate

from the charges so far discussed but are connected in the following rather unusual way.

In 1994 the applicant received a rather crude handwritten letter purporting to be signed by this complainant B. and his

brother. The applicant said that he did not know at the time that his brother had written the letter in question. However, the

letter alleges sexual misconduct against the applicant and states that the persons purported signing the letter will go to the

police if he doesn’t arrange to pay them £5,000 in a way which is described. The applicant took the letter to the gardaí and

had a discussion with a sergeant who, he said, advised him to confront the writers himself. He did not ask for any step to be

taken or any investigation to be put in train. Nothing whatever happened on foot of this letter until the year 1999 when the

first complainant J.R., made his complaint. At that point, the gardaí approached B. for a statement which he gave them.

There is no other connection.

These two charges related to a period between the 1st January, 1988, and the 31st May, 1988. On each of these dates the

applicant is alleged to have committed an act of gross indecency with B. in his (the applicant’s) home.

Although the name of the complainant appears at the end of the letter, there is uncontradicted evidence to the effect that he

did not write it or know about it for some time after it was written. If there were evidence that he had indeed written the

letter, or been complicit in its writing, a very different position might obtain. As it is, however, there is no ground for laying

the blackmail letter at his door in any way.

It is difficult to believe that there is anything in the circumstances of this case, aside from the lapse of time itself, which

creates a real risk of an unfair trial. There was some attempt in the course of submissions to argue that the absence of

records in early 1988 as to who precisely was on “community” (i.e. outdoor) duty, amongst the nurses in the relevant

hospital, had created a prejudice but I cannot see that this is so. The allegations are not specific to any particular time or

very short period of time as the others are. Their nature does not at all require that the applicant should have been on duty

on the relevant days. There is a certain amount of detail in one of the allegations (for example about the applicant’s wife

being away) which is reasonable to think he would have been in a better position to deal with if the allegation had been made

very shortly after the alleged event. But I think it probable that, even six or nine months later, he would have found it

difficult to place the night with certainty. Moreover the letter, even if the complainant had nothing to do with it, must

certainly have had the effect of drawing his attention, in the year 1994, to the possibility of an allegation from that quarter.

In all the circumstances I am unconvinced that the applicant has shown a real risk of unfairness in relation to these counts.

Decision on injunction proceedings.

For the reasons set out above I would grant an injunction restraining the Director from further prosecuting the applicant in

relation to the offences allegedly involving the complainant J.R. These are charges 1 - 30 on the Statement of Charges

served on the applicant pursuant to the 1967 Act. I would decline to grant an injunction restraining further prosecution of the

allegations in which B. is the complainant, charges 31 and 32 in the Statement of Charges.

The certiorari claim.

As appears from the papers in this case, the applicant was returned for trial by a single order referring to charges 1 - 32. The

applicant seeks certiorari to quash this order. The respondent objects to this on both legal and discretionary grounds.

Moreover he says that, if the order is to be quashed, it should be quashed only insofar as it relates to charges 1 - 30, and not

in relation to the last two charges. In other words, the Director seeks, if necessary, to sever the order returning for trial and

preserve it insofar as it relates to the last two charges.

The ground on which this order is sought is the learned District Judge’s refusal to permit the witness Mr. K. to be called as a

witness for the purpose of disposing him. The background to this application has been set out above: Mr. K. was the only

witness from the hospital who was on the list of proposed witnesses. He had examined various records as a result of which

he made the statement already much quoted above about the applicant’s presence on the named Ward at certain times. This

evidence was admittedly hearsay. If any attempt was to be made to challenge it, the sources of it required to be investigated.

Moreover, since Mr. K. was a prosecution witness on the Book of Evidence it seems impossible to challenge the relevance

of what he had to say. This, indeed, is the witness whom Mr. McDonagh for the Director suggested should not be taken

literally - see above.

Statutory background.

The statutory provision directly in point is s.7 of the Criminal Procedure Act, 1967, which in so far as relevant provides as

follows:

(2) The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the

attendance before the justice of any person whether included in the supply list of witnesses or not and to examine him by

way of sworn deposition.

(3) A witness under sub-section (2) may be cross-examined and re-examined on his evidence. His deposition shall be taken

down in writing, read over to him and signed by him and by the Justice”.

These sub-sections appear to confer an absolute and unqualified right on the prosecution and on the defence equally. This is

a right to require the attendance before the Justice of any person and to examine him by way of deposition. That is exactly

what Ms. Hegarty, as solicitor for the applicant, did in this case. Her intention to do so was long flagged both in

correspondence and in court. Indeed, the learned District Judge went so far as to direct that the witness, Mr. K., should

bring certain documents with him for the purpose of deposition. I do not agree with the Director’s submission that she

constantly postponed the depositions: any postponement was approved by the District Judge and the last one occurred

precisely because the witness had not in fact brought the relevant documents with him.

The Director conceded that a party does not “normally” need to give a reason for deposing a witness. But he submitted that

a District Judge was entitled to require a statement of reasons before deciding whether or not to permit a witness to be called

on deposition. This was what the learned second-named respondent did here.

There is no statutory support for this proposition. The accused was “entitled… to require the attendance before the Justice

of any person, whether included in the list of witnesses or not, and to examine him by way of sworn deposition”. There is

no question of any need to seek permission to do so or of any power to attach conditions to what the statute creates as an

absolute right. The Director submits, however, that the judge has the power to control the deposition as part of his general

power to control the proceedings in his court. That is undoubtedly true. But it does not appear to me to extend to what

happened here: a refusal to permit the witness to be sworn and to permit any question to be asked. A District Judge has an

undoubted power to control depositions, to rule out inadmissible questions, to prevent cross-examination of a party’s own

witness, to prevent repetitiousness and generally to exercise the same powers as any judge has in relation to a witness called

and examined before him. But that is not what happened here.

The Director drew attention to Ms. Hegarty’s affidavit where she said that the purpose of deposition “was to ascertain the

veracity or otherwise of the references to the third-parties in the [statement of evidence of Mr. K.]”. He said that that

process would necessarily involve cross-examination. This proposition depended on the next proposition the Director

elaborated which was that to draw attention to a statement in the statement of evidence and to ask “May I see the record

that supports that statement?” would constitute cross-examination. I can only say that this is not cross-examination by any

definition of which I am aware. The Director also said that the getting of information of this sort “is not a purpose for which

s.7 exists”. I can see nothing in the text of the statute that excludes it. The Director also contended that what was intended

was a misuse (amended in the course of the hearing from the original “abuse”) of the deposition process. This, in my view,

was a groundless assertion to make against the conduct of the defence, which had been carried out in a diligent and

thoroughly professional manner throughout.

If the learned District Judge had permitted the witness to be sworn, it would of course have been open to the prosecution to

object on any ground that seemed appropriate to the Director to any particular question. If any question was deemed

improper by the District Judge, and that decision was challenged, one would be able to deal with that state of affairs on its

merits. But by refusing to allow the witness even to be sworn, or any question whatever to be asked, the second-named

respondent brought about a situation in which the propriety or otherwise of the questions which might have been asked has

to be dealt with on the basis of speculation. In my view it is impossible to hold that no proper question whatever could have

been directed to Mr. K. Mr. Gageby, in argument, suggested that the question “Can you say that the defendant was in [the

named hospital] at all on a particular date?” was an important one for the defence to ask and a perfectly admissible question.

I agree.

The foregoing is sufficient to dispose of the deposition issue. The defendant, the applicant in these proceedings, was

deprived of an absolute right conferred on him by statute as part of the preliminary examination process. It may be added

that the learned trial judge, in his observations at the end of the taking of evidence in the High Court observed that he

believed that the learned District Justice had gone wrong in this regard. He did not, however, proceed to make the order of

certiorari because he had already granted an injunction restraining the prosecution of all of the charges against the applicant.

Since I would not follow him in that regard because I do not believe that the applicant has made out a case for an injunction

in relation to charges 31 and 32, it becomes necessary to consider the claim to certiorari based on the refusal to permit the

deposition to be taken on this appeal.

I would add that, quite apart from the defendant’s entitlement to call and examine a witness on deposition, the facts of this

case show ample reason for doing so. As in many old cases, there is evidence of the loss, by reason of flux of time, of

witnesses and of records which have a potential to confer what is called in the discovery cases “litigious advantage” on the

defendant. It is therefore important that he should be given every reasonable opportunity to attempt to make up this deficit

by any lawful means. The taking of depositions, in an appropriate case, is an obvious example of a step he can take in this

direction. Indeed, if the defendant complained of the absence of materials, the point might be taken against him that he has

not sought to explore what is and is not available by deposition or otherwise. Where it is intended to prosecute a defendant

in relation to events thirty odd years ago, there should be a sensitivity to the need to facilitate him in attempting to make up

the considerable disadvantage which accrues from the lapse of time.

Conclusion on certiorari claim.

I consider that the order returning for trial is vitiated by the failure to permit the defendant to exercise his statutory right to

call a witness on deposition. In the ordinary way, an order of certiorari would follow this conclusion. But the Director takes

the point that, even if the learned District Judge was wrong in what he did, the error affects the defendant only in relation to

the first thirty charges which, he says, were the only charges in relation to which the witness sought to be deposed was

relevant. Accordingly the Director submits that the order returning for trial should be severed and certiorari granted only in

relation to the order sending forward for trial on those thirty charges. The applicant counters that the order is not severable

and refers to de Búrca v. O hUadhaigh [1976] IR 85. He also refers to Kiernan v. de Búrca [1963] IR 390.

It must be said that this point was not very fully argued and did not seem to have occurred to counsel before it arose in

argument. For this reason I would propose to grant an order prohibiting the further prosecution of the applicant on charges 1

- 30 inclusive referred to in the statement of charges and to indicate that the applicant is entitled to relief by certiorari in

relation to the order returning him for trial. I would put the case back for further argument on the question of whether the

severance of the order returning for trial is possible and appropriate.

S.B. and the DPP and District Judge Hartnett.