High Court dismisses rape trial prohibition application as applicant failed to prove real risk of unfair trial.

Neutral Citation Number: [2009] IEHC 121

THE HIGH COURT

2007 1291 JR

Between

J. C.

Applicant

And

The Director of Public Prosecutions

Respondent

Judgment of Mr Justice Michael Peart delivered on the 13th day of March 2009

The applicant stands charged with a number of offences of rape and indecent assault against three complainants alleged to have

been committed in January 1969 and August 1973.The applicant is now aged 73 years, and has pleaded not guilty. On this application

he seeks to prohibit his trial on these charges on the ground that the delay by the complainants in making complaints to An Garda

Siochana has resulted in such prejudice to his ability to defend himself at his trial, that his trial should be prohibited. Those complaints

were made in October and November 2004.

Prosecutorial delay was one of the grounds originally relied upon by the applicant in these proceedings, but is no longer being relied

upon. In addition, certain allegations of blackmail were included as a ground for seeking the reliefs, but this ground also is not being

pursued. It has been stated by the applicant that his health has been adversely affected by these charges, but that is not being

relied upon as distinct ground for the reliefs sought. However, the evidence in that regard is put forward in a general way to provide

additional context for the application. In that regard it is stated by the applicant that he suffers from depression, has heart

palpitations and has difficulty sleeping.

The grounds being relied upon by the applicant are the unavailability of certain witnesses who have died or are otherwise unavailable

to give evidence, and the unavailability of certain medical records. These matters are submitted to present a real risk that the

applicant cannot not receive a fair trial.

The three complainants lived in close proximity to each other and to the applicant in the centre of Dublin. At the relevant time the

complainants were in their early teens, and knew each other well. The applicant was some twenty years older, and was unmarried at

the time. The applicant was secretary of a local parents’ association and was a member of the local church choir of which the

complainants were also members. It is alleged that it was his involvement in that choir and in organising other events in the area,

such as bringing two of the complainants to football matches, which facilitated the applicant’s contact with the complainants. The

alleged offences are said to have been committed by the applicant at an office premises in the city where he worked (“the office”),

as well as at his mother’s house where he himself lived (“the home”). One of the complainants alleges that he was also indecently

assaulted by the applicant while on a number of holidays abroad with the applicant. There is no need at this point to set out with any

more particularity the details of the offences of which the applicant stands charged, or the particular locations at which they are said

to have been committed. I will deal separately with the alleged prejudice put forward by the applicant in respect of each of the three

complainants and refer to any further detail of those complaints as may be relevant for the purpose of considering whether or not it is

sufficient to present a real risk of an unfair trial.

Prejudice in relation to charges related the first named complainant (“JN”)

JN alleges that the offences occurred on a weekly basis at the office, as well as at the home, and while abroad on holiday with the

applicant. JN alleges that the applicant would on occasion buy him alcoholic drinks, and then bring him back to the office where he

would show him pornographic pictures and books, and when acts of a sexual nature would take place between them. JN alleges that

around November 1969 a career guidance teacher at his school (Ms. F) came to his mother and tried to persuade his mother not to

allow JN to go on a holiday to the Canaries, but that his mother allowed him to go. JN says that he does not know what caused Ms. F

to visit his mother in this way. It appears that on another holiday with the applicant to Bulgaria, JN and the applicant actually met

this Ms. F there, and that on that occasion she appeared not to want JN to have anything to do with the applicant.

JN states also that the abuse would occur at the home, and describes how there was a basement in that house which was used as a

parlour/kitchen and that there were two ground floor bedrooms. He states that the applicant and his mother shared one of these

bedrooms, that there was a sofa bed also in that room, and that he and the applicant would share the sofa bed in that room. While

JN does not say that on all those occasions the applicant’s mother was present, it is submitted on this application that it is implicit

that she was so present. In that regard, it is relevant to refer to a later statement made by JN on the 19th September 2008 when he

referred to various matters, but, inter alia, an incident in March 1971 when at the invitation of the applicant he stayed over at the

applicant’s house that night. In that statement he states that on this occasion he shared the same sofa bed as the applicant and

that “his mother slept in the same room”. He describes an indecent assault on that occasion. The applicant submits that this confirms

what may not have been clear from earlier statements, namely that it is indeed alleged that on the occasions on which incidents are

alleged to have occurred in the house, the applicant’s mother was sharing the same room in which those incidents are said to have

occurred.

Relevant also to the prejudice alleged by the applicant is that JN states that when the applicant was fifteen or sixteen he attended a

psychiatrist in Jervis Street Hospital, and that this psychiatrist told him that if “it happens again” to ring him. He states also that

when he was aged twenty his doctor sent him to St. Patrick’s Hospital which he attended as an out-patient, and that he attended AA

for one year. In a later statement JN recalls the name of his doctor (Dr Hampson), and believes that the psychiatrist he attended at

St.Patrick’s Hospital may have been a Dr Patell, but he cannot recall the name of the psychiatrist he attended at Jervis Street

Hospital.

The applicant in his grounding affidavit refers to the statement by JN that Ms. F spoke to JN’s mother to persuade her not to allow JN

go on holiday with him, and of meeting her on one of these holidays as described above. He states that he has no recollection of

having met Ms. F while on the holiday as described, and further that JN’s mother now suffers from Alzheimer’s Disease and is therefore

not in a position to provide any evidence as to any such conversation with Ms. F in 1969. In that affidavit he states that all efforts

by his solicitor to trace that Ms. F have been unsuccessful, and that while his solicitor has sought confirmation from the prosecution

that Ms. F will be tendered as a witness, no such confirmation has been forthcoming. In fact, in a replying affidavit, the investigating

Garda Sergeant, Mark Kavanagh, states that this person has been traced and is in a position to attend the applicant’s trial, but goes

on to say that JN never made any complaint of sexual abuse to her. A statement from her is included in the Book of Evidence in which

she simply refers to her meeting with JN’s mother, who, she says, had no concerns at the time about JN going with the applicant on

holiday, and that in 1971 while on holiday in Rhodes she by chance met the applicant and JN who were staying in the same hotel

there as she was.

In relation to the death of his mother and the prejudice caused to him as a result he confirms in his second affidavit that he and his

mother shared a bedroom in the house, and he denies the allegation that he slept with JN in the same room as his mother, and states

that if his mother was alive she would have been able to corroborate his denials in this regard. In his first affidavit he states that his

mother was present in the house during all times when it is alleged that these offences were committed there, and that if she was

still alive she would be able to give evidence helpful to his defence, in particular as to the unlikelihood of any of the allegations being

correct having regard to her actual observations of his conduct, and the unlikelihood of the allegations being correct having regard to

her habits, conduct and presence in her dwelling area and the fact that if such sexual abuse had taken place it would be likely that

she would have discovered it.

Another matter said to prejudice the fairness of the applicant’s trial is unavailability of any medical records in relation to JN’s

consultation with a psychiatrist in Jervis Street Hospital, his visit to his GP, and his visit to Dr Patel in St. Patrick’s Hospital, to which

he referred in his statement. He states that no confirmation has been forthcoming from the prosecution that any of these doctors will

be tendered as witnesses at the trial. He submits that his trial is prejudiced as a result since the presence of these doctors and their

notes could have been of significant assistance to him in providing a range of evidence going to the credibility and reliability of the

allegations being made by JN. Sgt Kavanagh confirms in his affidavit that searches at St. Patrick’s Hospital indicate that any such

records for JN are no longer available, and similarly for Jervis Street Hospital. He goes on to state that contact with Dr Hampson, JN’s

GP at the time has confirmed that he referred JN to Dr Patel, but that due to the passage of time it has not been possible to locate

any record of that appointment.

Prejudice in relation to charges related the second named complainant (“GN”)

This complainant describes in her statement how she was a member of the church choir already referred to, as was the applicant.

She recalls being in the house with the applicant and recalls being shown pornography there by the applicant in one of the basement

rooms in the house. In her statement she gives a brief description of this house, stating that in the basement there were two rooms,

one at the front and one at the back. She states that the applicant and his mother lived in the front room there, and describes it to

some extent. This is the room in which she says that she was shown pornographic pictures. She recalls also going upstairs to the

ground floor with the applicant to a second room which the applicant and his mother had, and which was used as a bedroom, and

describes being raped there.

She states also that on occasion she would be brought by the applicant to his office premises on a Sunday after church. She

describes being abused there also. She sets out some description of this office building and its layout. She says that when they went

into the building the applicant would put the latch on the door which meant that nobody else, even if the had a key, could get into

the building. She states that they would then go up two flights of stairs and into a small office on the right hand side of the back of

the building which led into a larger office at the front which had two windows. She then describes what used to happen. She

describes other such incidents which took place in the applicant’s car, and other matters which are not germane to the present

application.

In relation to these matters, the applicant in his grounding affidavit refers to the fact that she has stated that when they would go

to the office he would put the latch on the hall door so that even if one had a key it would be impossible to open the door. He states

in that regard that this office building was occupied by a named limited company, and also by two sisters (“A & M”) who are now

deceased. He goes on to say that he cannot recall whether the door of the building was capable of being locked, but that if the door

had been capable of being locked in this manner, he would never have locked it in this way as it was in regular seven day use by the

limited company he refers to, and by A & M. He states further that while key-holders of the company could gain access to their

offices by another door, this was not the case for A& M.

In relation to the incidents said to have occurred at the house, the applicant makes the same point that I have set out in relation to

the first complainant, namely that since his mother is now deceased she is not available to him as a witness to refute the likelihood of

the allegations being correct having regard to her actual observation of his conduct and behaviour since she was at all times present

in the house, and that if the abuse had occurred as alleged, she would have discovered it.

Prejudice in relation to charges related the third named complainant (“JO’T”)

This complainant states that she was in the choir also, and recalls being given a lift home by the applicant after Sunday Mass, the

applicant stating that he had to get something from his office, and going there with him. She states that this office was close to

Liberty Hall, and that the front door was made of brown mahogany. She recalls going up some steps and then up to the second floor

and that the applicant locked the door at the top of the stairs. She goes on to describe acts of indecent assault and rape. She

describes another occasion on which something similar occurred in the office. She states that this would occur every couple of

weeks, and that on each occasion she would be brought up to the same second floor office and that the applicant would always lock

the door. She describes the last occasion on which she was in that office which was the occasion on which she told the applicant

that she was pregnant, and states that thereafter he never again approached her. Of some relevance to this application is that in

about 1984 this complainant met and lived with M and they had a son together. However, M unfortunately died some twelve years

later in 1996 when he fell from a window as a result of a fire. However, in her statement she says that after their child was born she

told M what the applicant had done to her and that she had had a child.

The applicant states in his affidavit that the death of M, as well as the absence of the other witnesses to which he has referred, has

deprived him of possible evidence which could have been of assistance to him in his defence by providing a range of evidence as to

the credibility and reliability of the complainants, as he himself finds it extremely difficult to remember details or adduce evidence as

to such details which might lead to an effective cross-examination of the complainants.

Submissions – the applicant

Giollaíosa Ó Lideadha SC for the applicant submits that the matters to which the applicant has referred in his affidavits are such as to

cause him prejudice, and that individually, and cumulatively, they are such as to give rise to a probability of a real risk of an unfair

trial, and are matters which cannot be simply be dealt with by the usual warnings to the jury by the trial judge. He highlights the fact

that a large number of the offences are alleged to have occurred between 1969 and 1973 in various locations and in respect of three

separate complainants. He points to the fact that the complaints emerged only in 2004, and the applicant was not charged until May

2007. He refers to the age and state of health of the applicant, and submits that these factors, taken with the various matters

referred to by the applicant, amount to a clear prejudice to the chances of a fair trial for the applicant.

It is submitted that the applicant, faced of the oral evidence expected to be given by the complainants and other witnesses will at

that stage be confined to his denials that these events occurred as alleged, and that in such circumstances, all he can do is impugn

the credibility and reliability of the complainants’ evidence, and that his capacity to do this is irreparably impaired by the absence of

witnesses such as his mother who has died, the absence of M (the deceased husband of J O’T), the absence of the sisters A & M

(who lived in the office premises), and the absence of the medical records and notes relating to JN.

It is submitted that the applicant cannot now adduce any evidence as to the nature of the lock on the door to the office, either that

on the front door or that which led into the room in that building in which it is alleged that some of these offences took place. The

building has been altered since that time. It is submitted that if A & M were still available, they might agree that the door to the

building was not capable of being locked in the manner in which the complainants describe. It is submitted that if A & M had agreed

that the door could not have been locked so as to prevent any other key-holder gaining entrance, this would seriously undermine the

credibility and reliability of those complainants not only in relation to that particular evidence but also generally in relation to their

allegations and evidence. Equally he submits that A & M might have stated that they went in and out of that building on Sundays

during the years in question, and never encountered any difficulty in gaining entrance – another possible piece of evidence that could

support the applicant’s denial of these offences.

In relation to the absence of M due to his death in 1996, the applicant submits that this person may well have denied that JO’T ever

told him about the alleged incidents and the birth of her first child, as she says she did. It is submitted that if he denied being told

this by her, this also would seriously affect her credibility and reliability as a complainant. The applicant submits that there is a

reasonable possibility that he would have denied being told.

As to the unavailability of the applicant’s mother, it is submitted that since it has been stated even by JN that the applicant and his

mother shared the same bedroom on the occasions when JN slept in the same sofa bed as the applicant, her evidence would be

crucial since she would have been able to confirm that she would have been aware of any incident happening as JN alleges on those

occasions. As a result of her unavailability, the applicant submits that his ability to support his own denials in that regard by his

mother’s evidence is a serious prejudice as there is no other witness who could assist him in that regard.

As to the unavailability of medical notes or of the psychiatrists who JN consulted, the applicant submits that these may well have

assisted him since they may have contained references to what JN said at that time about these matters, and that it could have

assisted the applicant’s denial of the incidents, or shown them to be highly unlikely, or at least inconsistent with other versions of the

events.

In all of these ways, the applicant submits that his capacity to impugn the credibility of witnesses has been seriously impaired, and

that in a case such as this it is the ability to impugn credibility which very often forms the best line of defence, since it is in the

nature of these cases that the evidence of complainants can only be denied by an accused person, and that it is necessary to be

able to support those denials with an attack on credibility.

Submissions – respondent

Diarmuid McGuinness SC for the respondent submits that it is important to bear in mind that not all the matters submitted to give rise

to prejudice and a real risk of an unfair trial are relevant to each complainant. For example, he submits that JN and JO’T say nothing

about the door of the office being put on the latch and not being capable of being opened by any other key-holder trying to enter the

building. That is a matter referred to by GN. Mr McGuinness draws attention to the fact that the prejudices said to arise in relation to

the complaints made by JN are said to be the absence of Ms. F (in fact she is available), the absence of medical records and notes,

and the death of the applicant’s mother.

Mr McGuinness points to the fact that it is only in relation to GN’s complaints that the absence of A & M is relevant since it is she who

makes reference to the locking mechanism on the door to the office building. No other prejudice is said to affect those charges.

Mr McGuinness submits that when the prejudice alleged to exist in relation to the capacity to defend the charges is looked at in

relation to each particular complainant’s charges, it is clear that if there is any prejudice arising it cannot be seen as giving rise to a

probability of a real risk of an unfair trial. He refers to the fact that Ms. F is now an availability witness, and that if anything she will

be helpful to the applicant’s defence as she would appear to corroborate that there was no objection raised by JN’s mother to the

proposed holiday abroad with the applicant, and says nothing adverse to or critical of the applicant. It is submitted that the fact that

she refers to meeting the applicant and JN in Rhodes rather than in Bulgaria or the Canaries is of no significance and can be the

subject of cross-examination if necessary.

Mr McGuinness submits that the only prejudice said to relate to the JO’T charges is the death of M in 1998 who, she states, she told

about the matters. He submits that it is fanciful for the applicant to speculate that if he was alive M would deny that JO’T told him

about these incidents and the birth of her first child, and that there is no substance whatever in this claim of prejudice – the only

prejudice related to JO’T.

In relation to the unavailability of the applicant’s mother it is submitted that this is not a real prejudice since it has not been alleged

by JN that any of the offences occurred while the applicant’s mother was present in the room.

In relation to the absence of A & M it is submitted that there is no denial by the applicant that there was a lock of some kind on the

door, and that the only question arising is whether the lock was capable of being locked in a way which prevented another person

entering through the door, and that neither A nor M is likely to have been in a position to confirm that fact one way or another. In

such circumstances, it is submitted, no real prejudice to a fair trial can result from the absence of A & M as witnesses.

Conclusions

There is no doubt that these offences are said to have occurred a very long time ago. That of itself is insufficient to require that the

trial be prohibited, in the absence of compelling reasons for concluding that there is a probability of a real risk that the applicant

cannot receive a fair trial. Each case must be considered on its own facts and circumstances, and in particular by reference to the

particular matters said to give rise to such prejudice. In so considering the application for prohibition, the Court is entitled to have

regard to the capacity of, indeed obligation upon, the trial judge to give appropriate warnings and direction to the jury arising from

the fact that the offences are alleged to have occurred so long ago, and as to how to assess the credibility and reliability of

witnesses, given that they must to a large extent rely on their recollections of events and other facts extending back to when they

were young teenagers – in this case a distance of some thirty five years. It will be open to the trial judge to warn the jury to be very

careful when considering whether or not the prosecution has proved its case beyond a reasonable doubt, and of course that it is

necessary for the jury to consider the evidence in respect of each complainant’s offences separately.

In the present case, as has been submitted by Mr McGuinness, the matters said by the applicant to give rise to prejudice do not

apply to each complainant. I have set out how for example only one matter of alleged prejudice relates to the complaints made by

JO’T, namely the unfortunate death of her partner, M. The trial judge will be in a position to give warnings to the jury related to the

evidence given by each complainant, and any relevant witnesses. The prejudice said to arise from the absence of medical records for

JN is purely speculative as to what they may or may not have contained. The absence of A & M in relation to the manner in which the

lock on the office premises was capable of being locked is not of sufficient importance and relevance to amount to real prejudice.

While their evidence might have assisted the applicant’s efforts to attack credibility, he is not confined to that potential evidence for

that purpose. In relation to the absence of the applicant’s mother, she may well have confirmed that at all times she slept in the room

while JN and the applicant were there. She may well have confirmed that she never saw the applicant committing any of the acts said

to have taken place on the sofa bed. But JN appears to accept that the applicant and his mother shared this bedroom, and is not

saying, as far as can be gleaned from his statements, that these offences took place only when she was not in that room. Neither

does he say specifically that they occurred when she was present. These are matters which can be dealt with in cross-examination

of JN. I agree that the possibility that M might have denied that JO’T told him about these matters is so slim as to render his absence

of no real significance for the credibility of JO’T. But even if he confirmed that JO’T had not told him about her child, its effect on

credibility overall could not be affected to any great extent in relation to other evidence which she would give in relation to the

alleged offences.

I cannot conclude that as a result of any of the matters referred to by the applicant, taken either individually or cumulatively, he is

unable as a matter of probability to receive a fair trial. While undoubtedly the applicant may speculate as to what unavailable

witnesses may have been able to say, or what the absent medical records and notes may have contained, he has failed to

demonstrate that as a matter of probability there is a real risk of an unfair trial. He has done his best to link the alleged prejudices to

specific areas of evidence likely to be given by the complainants. However, there is a great deal of evidence which will be given by

each complainant, and other witnesses whose statements are contained in the Book of Evidence, as well as other witnesses disclosed

and who can be available to the applicant should he choose to avail of their being tendered, and in respect of which no prejudice is

alleged. Looking at the case in the round, the particular matters, taken individually and in relation to each separate complainant,

relate to relatively tangential matters going only to credibility, and in some instances on a purely speculative basis.

That in my view fails to get the applicant over the line as far as establishing a probability of real risk of an unfair trial, particularly

given the requirement upon the trial judge to give careful and clear warnings to the jury having regard to the long passage of time

since the date of the alleged offences, and the absence of certain potential witnesses and evidence.

I therefore refuse the reliefs sought on this application.