High Court dismisses judicial review claim that police failed to preserve exculpatory evidence in rape case.

Neutral Citation Number: [2009] IEHC 294

THE HIGH COURT

JUDICIAL REVIEW

2008 289 JR

BETWEEN

T. McG.

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Herbert delivered on the 30th day of June 2009

The applicant is charged with a single count of rape, contrary to s. 48 of the Offences Against the Person Act 1861, and

s. 2 of the Criminal Justice Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990,

arising from an alleged incident on the 6th November, 2005, at the dwelling house of the complainant.

By order of this Court made on the 14th March, 2008, the applicant was given leave to seek an injunction by way of an

application for judicial review restraining the respondent from prosecuting the applicant in the Central Criminal Court on

that charge, and, if necessary, an order extending the time for the bringing of the judicial review application.

The grounds upon which the applicant was granted leave to seek judicial review were as follows:-

(i) That the members of An Garda Síochána are under a duty, arising from their unique investigative role, to seek out and

preserve all evidence having a bearing or potential bearing on the issue of the guilt or innocence of an accused;

(ii) That, in failing to seek out or preserve or provide to the defence evidence of a potentially exculpatory nature, namely

evidence from forensic testing of the bed sheets, mattress and bedclothes from the scene of the alleged incident from

which the said charge has arisen, that could have been beneficial to the applicant’s defence, the respondent and the

relevant members of An Garda Síochána have created a real risk that the applicant will not obtain a fair trial in due course

of law;

(iii) That, over and above the forensic evidence, the respondent and An Garda Síochána failed to properly investigate or

cause to be properly investigated, the criminal allegation against the applicant, and failed to fairly and fully probe the

circumstances surrounding that charge;

(iv) That the respondent and the An Garda Síochána failed to properly interview or subsequently re-interview any of the

persons who made statements in respect of the criminal charge against the applicant. Specifically, the respondent and An

Garda Síochána failed to re-interview the complainant, the complainant’s daughter, the complainant’s son, or any other

key witnesses in the context of subsequently disclosed information about the complainant’s psychiatric condition, life

circumstances and personal history of false allegations;

(v) That the respondent and An Garda Síochána failed to advise the complainant that she should submit herself to a

physical examination thereby denying the applicant evidence of a potentially exculpatory nature, namely medical

evidence;

(vi) That the respondent failed to provide full and meaningful disclosure of information and materials in his power or

control in a proper or timely manner, or at all;

(vii) That the respondent failed to take into account or properly investigate the prima facie mala fides of the complainant

and the malicious nature of her complaints, including motives behind same;

(viii) That the respondent has failed to perform his functions properly or fairly in the bringing of the criminal charge against

the applicant;

(ix) That the applicant’s right to natural justice and fair procedures have been breached and would further be breached

by any criminal trial arising the from the charge herein;

(x) In the light of what is now known about the complainant, in the light of the request made to the respondent to

arrange to re-interview the complainant and other key witnesses, and in the light of the demonstrated failure of An Garda

Síochána and the respondent to properly investigate the matter and take such further statements as were required, any

trial of the charge would be unfair, not in accordance with law, not in accordance with the Constitution and in particular

Article 38 thereof, and contrary to the applicant’s constitutional rights to fair procedures in the trial and pre-trial process;

(xi) In all the circumstances of the case, justice requires that the respondent should not be permitted to put the

applicant on trial.

In the Statement of Opposition dated the 4th June, 2008, the respondent opposes the relief sought on the following

grounds:-

(1) The Applicant failed to seek judicial review promptly and/or within the time provided by the Rules of the Superior

Courts and has not adduced any good reason why the Court should extend the time for seeking judicial review.

(2) Pursuant to the provisions of the Prosecution of Offences Act 1974, the respondent is entrusted with the decision

whether or not to initiate a prosecution where he considers that there is credible evidence that the offence alleged has

been committed and in the absence of mala fides, improper motive or improper policy on his part this decision is not

subject to judicial review.

(3) The Court has not and should not appear to have any responsibility for the institution of a prosecution or to determine

the evidence upon which it is to be advanced.

(4) The respondent has no function in relation to the investigation of an alleged crime nor is he responsible for the actions

of members of An Garda Síochána.

(5) The investigation by An Garda Síochána was conducted properly and diligently and there was no failure to seek out

and/or to preserve all evidence.

(6) The Applicant has not discharged the onus of showing that there is a real and substantial risk that he will face an

unfair trial.

(7) The respondent has fully complied with his duties relating to disclosure and further and in the alternative, disclosure is

a matter for the Trial Judge and is not properly a matter for judicial review.

(8) There has been no breach of the Applicant’s right to natural justice and/or fair procedures nor would such a right be

breached by putting the Applicant on trial in relation to this charge.

(9) There is no evidence of mala fides on the part of the complainant nor is there evidence of malice in relation to the

making of the complaint.

(10) There has been no breach of the Applicant’s right to a trial in due course of law in accordance with Article 38 of the

Constitution.

THE FACTS

The facts relevant to this application as gleaned from the several Affidavits filed in the application are as follows.

The alleged rape is claimed to have occurred in the complainant’s bed in her bedroom at about 5.00 am on the 6th

November, 2005. A reference to the calendar shows that the 6th November, 2005, was a Sunday. On the evening of the

next day, Monday, the complainant told a friend who had telephoned her that the applicant had raped her, “on Saturday

night the 7th November, 2005 or Sunday morning”. In her statement to An Garda Síochána the complainant alleged that

on Saturday she had organised a party for a relative by marriage in a local licensed premises. She stated that she had

only three drinks during the course of the evening as she was responsible for the money. In his statement to An Garda

Síochána the applicant denied the alleged rape and said that the complainant’s daughter had told him that the

complainant had a severe drink problem, that she loved attention and, that she was not happy with him and, had asked

her daughter what was going to happen to her (the complainant) now that she was going out with the applicant.

The complainant’s daughter made three statements to Detective Garda McLoughlin, on the 14th January, 2006, 23rd

January, 2006, and 22nd March, 2006. However she subsequently sought to withdrew these statements stating that she

did not then wish to have anything to do with the case and the main reason she withdrew her statements was that at

the time she felt put under pressure by the doctors attached to the hospital to which the complainant was admitted and

she was unable to put up with the stress of the case. Subsequently, the evidence of the complainants’ daughter was

taken on Deposition before a judge of the District Court on the 17th October, 2007.

In this Deposition the complainant’s daughter stated that on Monday after 8.00 pm the complainant came into the house

with one of her friends and told her what had happened on the Saturday night. The applicant was upstairs and the

complainant’s daughter had gone upstairs and taxed him with her mother’s accusation. They had some conversation and

then went downstairs in which a further conversation ensued. What the applicant said on both occasions is a matter of

dispute. In the course of a cautioned Interview conducted with the applicant on the 27th February, 2006, after he had

been arrested, he was asked whether the complainant’s daughter was correct in saying that when he came downstairs he

had said, “I couldn’t have done it and if I did I don’t remember”. The applicant responded that what he said when he

came downstairs was, “there is no way I could have done this. I don’t remember you being in the house”. He was asked

whether the complainant was correct in saying that he said, “I don’t remember doing anything and I can’t remember”. The

applicant responded that this was not correct and what he said was, “I didn’t do anything”. In her statement to An Garda

Síochána the complainant asserts that after the applicant had got off her, he said, using her name, “we’ll keep this as our

little secret” and had then left the room. He came back after about 10 or 15 minutes and she immediately told him, “get

out of the room or I’ll call (daughter)” and she did call her daughter’s name about twice and he left the room and did not

come back into the room.

The applicant was arrested on the 27th February, 2006. He was interviewed after caution by Detective Garda Edward

McLoughlin and Sergeant Christine Quinn at 11.36 am and 14.25 pm on that day. The memoranda of these interviews

state that the notes were read over to the applicant who made one change in the notes of the second interview. The

applicant signed both memoranda. The applicant was sent forward for trial at the Central Criminal Court by Order of the

District Court made on the 6th December, 2006. The trial date was set for the 21st May, 2007. This trial date was

vacated on the 8th May, 2007, because Disclosure sought by the solicitors for the applicant had not been furnished and

because a date for the taking of the evidence of the complainant’s daughter on Deposition in the District Court had not

yet been notified. A new trial date on the 3rd December, 2007 was fixed. Requests for Disclosure were made by letters

from the Solicitors for the applicant dated the 19th January, 2007, 1st March, 2007, 23rd July, 2007, 26th June, 2007,

19th October, 2007 and 21st November, 2007.

Under cover of a letter dated the 2nd December, 2007, the defence was furnished with a very considerable body of

material comprising of, medical and psychiatric notes and records relating to the complainant, counselling notes relating to

the complainant and, other documents relevant to the complainant’s psychiatric history, and life circumstances including

previous claims of sexual and physical abuse made by her. The trial was adjourned by consent of the parties to enable the

defence to deal with this disclosure. The defence contended, and this was not denied, that this large volume of material

was not indexed, was not in any order, that handwritten portions of the material were extremely difficult to decipher and

that the author and provenance of some of the documents was entirely unclear.

By a letter dated the 27th December, 2007, the solicitors for the applicant informed the Director of Public Prosecutions

that they intended to seek an Order of Prohibition by way of Judicial Review within 21 days unless the Director in the

meanwhile decided to discontinue the trial of the applicant. This very extensive letter, - it ran to 21 pages, - set out in

detail the reasons why the defence considered that it would be unjust for the Director to continue with the trial of the

applicant. By letter dated the 4th January, 2008, the Director indicated that the matter was under consideration.

Meanwhile, Counsel for the defence was asked by Counsel for the prosecution to defer applying for an order granting

leave to seek judicial review. On the advice of his legal advisors the applicant agreed to give the Director time to consider

the matter.

By letter dated the 13th February, 2008, the solicitors for the applicant wrote to the Director of Public Prosecutions

emphasising that other Disclosure sought by them remained outstanding. When the matter was listed for mention before

the Central Criminal Court on the 25th February, 2008, Counsel for the Director of Public Prosecutions informed the Court

that the case was ready for hearing and sought a new trial date. Counsel for the applicant informed the Court that

responses to several requests for Disclosure were still outstanding. By order of this Court made on the 14th March, 2008,

the applicant was granted leave to seek judicial review by way of an injunction restraining the Director of Public

Prosecutions from prosecuting the applicant in the Central Criminal Court on the charge of rape. The applicant was further

granted leave, if necessary, to seek an order extending the time for the bringing of the judicial review application.

In the letter dated the 19th February, 2007, from the solicitors for the applicant to the State solicitors, the writer refers

to the fact that in her statement to An Garda Síochána the complainant had referred to memories of childhood rapes and

of sexual and physical assaults and of obtaining psychological and counselling help. In addition to general disclosure the

writer sought disclosure of, (a) documents pertaining to any previous allegations of rape or of sexual assault, (b) notes

compiled by psychologists, treating counsellors or social workers in respect of the complainant and (c) reports from any of

the foregoing. The writer sought disclosure of whether any charges had been brought and if so the background details

and the results of the prosecution. The writer also sought disclosure of mobile telephone records in respect of an incident

alleged to have occurred on the 6th November, 2001. By a letter dated the 1st March 2007, the solicitors for the

applicant reminded the State solicitors that they had not received a response to their letter of the 19th January, 2007. In

addition the writer requested copies of all statements made but not contained in the Book of Evidence, copies of any

complaints made by the complainant to social workers and, all text messages made or received by the complainant’s

daughter on her mobile telephone.

By letters dated the 4th May, 2007, 10th May, 2007, 16th May, 2007, 22nd May, 2007, and, the 13th June, 2007, the

solicitors for the applicant wrote to the State solicitors and to the Director of Public Prosecutions regarding the taking on

deposition of the evidence of the complainant’s daughter. A date was finally obtained for the taking of this evidence

before a Judge of the District Court on the 24th September, 2007, but the matter had to be further postponed until the

17th October, 2007, when the evidence was finally taken.

By letters dated the 23rd July, 2007, 26th July, 2007, and the 19th October, 2007, the solicitors for the applicant

complained to the State solicitors that the disclosure sought in their letters dated 19th January, 2007, and the 1st March,

2007, had not been made. By a letter dated the 21st November, 2007, from the solicitors for the applicant to the office of

the Director of Public Prosecutions, the writer recorded that they had been informed by An Garda Síochána that they had

no knowledge of any previous complaints of sexual assault by the complainant which had resulted in charges. However,

the writer sought disclosure of any such complaints on the part of the complainant, whether they had resulted in charges

or not. In addition, the writer sought disclosure of any documents in the possession, power or procurement of the Director

of Public Prosecutions or An Garda Síochána relating to any of the following:-

1. Allegations of abuse arising from the complainant’s stay in a (named) institution from age three to age seven.

2. Allegation that the complainant was abused by neighbours of her foster parents when she was aged between

seven and sixteen.

3. Any allegations of abuse made against the complainant’s first husband.

4. Any allegations made against the complainant’s second husband relating to the allegation that he abused the

complainant’s daughter.

5. All counselling notes from interviews with the complainant.

6. All medical reports relating to the psychiatric condition of the complainant.

The writer also sought disclosure of any forensic tests carried out by An Garda Síochána on the nightclothes and

bedclothes of the complainant at the time of the alleged rape, together with any reports and documents pertaining to

such tests. The writer indicated that the making of this disclosure was most urgent as the trial had been fixed to

commence in the Central Criminal Court on the 3rd December, 2007.

In the letter dated the 27th December, 2007, from the solicitors for the applicant to the Director of Public Prosecutions

calling upon him, in exercise of his power under s. 6 of Prosecution of Offences Act 1974, to discontinue the trial of the

applicant, the solicitors for the applicant pointed to three specific areas which they stated fatally undermined the fairness

of the prosecution. These were identified as:-

1. The refusal of the complainant to submit to a physical examination after the alleged rape, resulting in potential

prejudice to the applicant in that a negative finding in terms of semen, tenderness, bruising and other marks could

have undermined her credibility.

2. The inexplicable failure on the part of An Garda Síochána to examine the scene of the alleged crime and to carry

out any forensic examination of the bedclothes and the complainant’s nightclothes.

3. The medical records and other information disclosed for the first time on the 2nd December, 2007, which

disclosed that the complainant had made many false allegations in the past, had repeatedly told lies to get her own

way, has had significant psychiatric difficulties, may be confused and recalling occasions when she was raped as a

child and, that she bears considerable ill will towards the applicant and was not happy that her daughter was in a

relationship with him.

The solicitors for the applicant rely upon the following matters, averred by them to be recorded in the medical notes and

other material disclosed to them by An Garda Síochána on the 2nd December, 2007, as demonstrating, in a case, which

they submit is otherwise one of assertion on the part of the complainant and denial on the part of the applicant, that

there is a real and substantial risk that the applicant cannot have a fair trial.

EARLY MEDICAL HISTORY

At age fifteen years, the complainant first made contact with the Psychiatric Services Section of the Area Health

Authority. In March 1975, aged eighteen years, the complainant made a complaint of having been physically assaulted at

home. It was noted that there were difficulties with her supervision, that she was having “hysterical manifestations” and

may have been suffering from epilepsy. In 1989, the complainant’s marriage was annulled. She claimed that her husband

had beat her and was having an affair with another women. The complainant was diagnosed as suffering from depression

and blackouts, and it was recorded that she had been drinking heavily for the previous year, at the rate of a bottle of

whiskey a day. During 2001, the complainant had numerous voluntary admissions to psychiatric care and was in regular

contact with the Adult Mental Health Unit of the hospital.

HISTORY 2001 TO AUGUST 2005

In July 2001, the complainant was found to have been drinking excessively for a week at a rate of 20 units per day. She

claimed that her husband was beating her. For the first time she made a claim of having suffered sexual abuse as a child

aged eight years while in foster care. The complainant was found to be abusing alcohol and double medicating. It was

recorded that she was procuring Zimovane from other users and by means of multiple prescriptions and was engaging in

lies and deceit about this. In 2002, the complainant was voluntarily admitted to the Psychiatric Unit following a period of

alcohol abuse. It was noted that the complainant had a long history of alcohol abuse and of depression resulting from

incidents of sexual abuse in her past. She was found to be suffering from alcohol dependence syndrome. It was recorded

that she had complained of having difficulties with her daughter who had recently given birth. In January 2003, the

complainant became a voluntary patient in the Psychiatric Unit. She complained that for the previous six months her mood

was bad and she had poor motivation. It is noted that she had several other admissions during the course of 2003. She

stated that her condition was due to letter which she had received from the Rape Crisis Centre which claimed that her

daughter when aged about twelve years had been raped by the complainant’s then partner, the father of her son. She

stated that this had reminded her of how she had been abused while in Residential Care and of her abuse by a nephew of

her foster parents and also by three neighbours of her foster parents between the ages of seven years and sixteen years.

In 2005, the notes record friction between the complainant and her daughter who was then socialising with and dating

the applicant.

PRE ALLEGED RAPE PERIOD

In August 2005, it was noted that the complainant had stated that at a wedding party her daughter had consumed a

great deal of alcohol and had announced that she was pregnant. An altercation arose between her and the applicant, in

which she abused and attacked him. The applicant went home, but the complainant’s daughter followed him and was

refused admission because of her abusive behaviour. The complainant stated that she was obliged to telephone next day

to apologise for her daughter’s behaviour. Subsequently her daughter claimed that she had suffered a miscarriage,

because the applicant had punched her in the stomach. Her daughter had broken off her relationship with the applicant

which pleased the complainant. Her daughter had become very angry with the complainant who said she was going to

report this to An Garda Síochána. The complainant was admitted to the Psychiatric Unit because of over medicating.

On the 12th September, 2005, the complainant was back in the Adult Mental Health Unit suffering from shaking which had

persisted for the previous week. She claimed that the above episode had brought back memories of her own traumatic

childhood experiences. On the 15th September, 2005, she was admitted as an in-patient to the Hospital suffering from

depression and suicidal ideation. She stated that she was extremely upset as she felt that her daughter was not

interested in what was happening to her. On the 27th September, 2007, it was reported that the complainant was

drinking heavily at weekends. She was very annoyed that her daughter and the applicant had become reunited and by the

fact that he had come to the house and had stayed overnight. She felt let down by her daughter, who had assured her

that she would not take the applicant back.

On the 5th October, 2005, it was noted that the complainant was very upset that the applicant was back and appeared

to be moving into the house. She continued to complain about this and was advised to lay down a rule that the applicant

was not to stay in the house overnight. On the 2nd November, 2005, it was reported that the complainant had been

drinking heavily the previous weekend. The notes suggests that the complainant had been devastated by the reported

striking of her daughter by the applicant in the course of the events above described and she started remembering her

own childhood experiences.

POST ALLEGED RAPE PERIOD

The material disclosed on the 2nd December, 2007, indicates that the complainant was an in-patient in the Psychiatric

Unit of the hospital between the 9th November, 2005 (two or three days after the alleged rape) and the 9th March, 2006.

She made statements to An Garda Síochána on the 16th December, 2005 and again on the 15th January, 2006. The notes

record that she stated that she liked to live with her daughter and her daughter’s daughter, but not with the applicant.

However, her daughter had made it clear that she was unhappy about the complaint to An Garda Síochána concerning the

applicant. There was great disharmony in the house at Christmas 2006 and New Year. The complainant complained of

rows between herself and her son and her daughter. The complainant took an overdose of medication. On the 3rd April,

2006, the complainant reported that her daughter had struck her with her fist. On the 18th April, 2006, the complainant

reported that her son had hit her three times over the previous two days because she could not stop coughing. The

notes record that the complainant alleged that she had been persistently abused by her son and her daughter. She

claimed that her son would come into her bedroom and had shaken her violently three or four times. He hit her on the side

of the head with a book. She claimed that her daughter was not paying the household bills. In early May 2006, the

complainant was readmitted to the Psychiatric Unit.

The disclosed medical notes contain a letter from the complainant’s daughter dated the 14th June, 2006, in which she

complains that her mother was telling lies to the family, to friends, to neighbours, to doctors and to the psychiatrist about

what was happening at home. She stated that the complainant stole from her and from her brother, that she rooted

through their bedrooms and followed them around the house. Her daughter complained that the complainant could be

violent, she had grabbed a knife and had threatened to commit suicide, had knocked dents in the washing machine and

had ripped out a pipe under the sink in a fit of temper. The complainant’s daughter in this letter stated, that she and her

brother slept behind locked doors. She stated that the complainant was over medicating, was violent if she did not have

her way and, was eating excessively because of the medication. She complained that the complainant drank herself to a

state of raving intoxication. The notes record that the complainant stated that her daughter, “was out of control”, had

crashed the car, was sleeping late and was missing her educational courses.

About this time the Inspector of An Garda Síochána in charge of the investigation sought a report form the complainant’s

treating psychologist, in relation to her then present state of mental health. The Report is dated the 24th May, 2006, and

states as follows:-

“At this session (23rd February, 2006), (the complainant) began to open up and inform me that her daughter had

informed her that she had heard the complainant tell the applicant at the time of the reported rape, ‘I’ll tell

(daughter) if you do not stop’ and heard the applicant say, ‘ we will keep this as our little secret’. She went on to

say how (her daughter) had a lot of ambivalent feelings regarding the reported rape. She wished that (the

complainant) had not gone to the Gardaí and reported her now ex-boyfriend. She was expressing fear being back at

home and being lectured by her daughter.”

The notes record that the complainant was still double medicating and the social workers were very alarmed that she had

given a sleeping tablet to her son.

On the 18th July, 2006, the complainant was re-admitted into the Psychiatric Unit for nine days as a result of abusing

alcohol and prescription drugs. On the 29th August, 2006, the complainant stated that her daughter had threatened to hit

her on a few occasions. She claimed that her son had rubbed ice cream in her face with a mop saying that she was

useless. He had also placed an alarm in her room which went off every 15 minutes. On the 6th September, 2006, the

complainant made an official complaint regarding the ice cream and alarm clock incidents as a result of which her daughter

and her son were interviewed by social workers. Her son informed them that he had accidentally knocked over the ice

cream bowl and there was no mop incident. He said that the complainant had sat there flicking ash into a mop bucket. He

stated that there was no alarm and that the sound of which she complained of was the “battery low” warning of the

smoke alarm and he had fixed it. He said that he and his sister had to sleep with their doors locked because the

complainant had threatened to kill him. The social workers concluded that the situation was too volatile for the

complainant’s son and daughter to remain in the house, particularly her son, given the threat made by the complainant to

kill him. They considered that there was a serious safety issue involved. By a letter dated the 18th October, 2006,

solicitors for the H.S.E. wrote to the complainant’s son and daughter regarding her complaint that they had subjected the

complainant to verbal and physical abuse. On the 17th November, 2006, the notes record that the complainant had

claimed that her daughter had kicked her.

The complainant complained that, during Christmas 2006, her daughter tried to strangle her and to burn down the house.

This complaint was investigated by a senior social worker from the H.S.E. The complainant stated that she had drunk a

bottle of whiskey the previous day. The complainant told a hospital staff nurse that her son was drunk and was vomiting

while babysitting her granddaughter. The complainant’s daughter told the social workers that on the 20th December,

2006, the complainant went on a drinking binge, was sick everywhere and refused to clear up afterwards, so they had to

leave her lying in vomit. The complainant had remained in bed until the 23rd December, 2006. On the 25th December,

2006, she had consumed a bottle of wine by 11.30 am, she then consumed two more bottles of wine and at least four

other drinks. By midnight the complainant was drunk and abusive so they left her and went to bed. On the 31st

December, 2006, the complainant was drinking heavily and while trying to open the microwave, had fallen and broken her

hand. She and her brother tried to help the complainant to get up, but she would not let them near her. Eventually she

became unconscious and they were able to put her to bed. The complainant’s daughter said that her brother had made a

video of this incident on his mobile telephone. The complainant’s daughter said that her brother was sick on St. Stephen’s

night, but that this was not due to the consumption of alcohol. He was unable to return to school on 8th January, 2007,

because of a throat infection. The complainant stated that on 9th January, 2007, she had asked her son to do some

hoovering. He had refused and had hit her on her right arm with the head and hose of the Hoover and broken her arm. He

then said, “go ahead and tell (name) . . . and the staff, who would believe a nutter bitch and there is two of use against

you”. A senior social worker interviewed the complainant’s daughter and her son about this. The complainant’s daughter

said that this was an entire fabrication and her brother agreed.

The disclosed notes record that the senior social worker interviewed the complainant’s foster mother, who had confirmed

aspects of the complainant’s behaviour. As regards the alleged rape, her foster mother had wondered whether the

complainant was, “all mixed up and making allegations that relate to the past”.

The Adult Mental Health Unit notes disclosed to the defence on the 2nd December, 2007, record that on the 2nd January,

2007, the complainant had said that she had a good Christmas and a good New Year. On the 10th January, 2007, the

complainant was asked if she felt safe at home and she said she did, but that too much of the household work was falling

to her. On the 12th January, 2007, it was noted that complainant’s left hand was in a plaster of paris cast and that she

was for review in the Orthopaedic Unit of the hospital in two weeks. On the 15th January, 2007, the notes record that

the complainant said that she was only pretending that all was well at home. Her son was drunk on St. Stephen’s night.

He had also hit her on the right hand with the Hoover. On the 24th January, 2007, the complainant complained, that her

daughter was very angry following the service of a witness summons on her and had threatened to strangle her and to

burn the house down and then drown herself. On the 25th January, 2007, the complainant alleged that her daughter

threatened to strangle her with her bare hands because she had complained to the gardaí that her daughter was hitting

her. There is a reference in these notes to an accident in the kitchen on New Year’s Eve in which the complainant had

fallen and broken her arm.

At the end of February 2007, the complainant’s daughter and the complainant’s son left the house. In March 2007, the

complainant was re-admitted to the Psychiatric Unit of the hospital. The Admission Note reads:-

“Impossible to estimate the true mental state of patient, because of the dishonesty perpetrated on staff of unit –

over the last few months in particular. Despite support at day hospital patient is seriously abusing (named drug),

tablets were smuggled into her and she was consuming alcohol on the ward.”

In April 2007, the complainant was reported as hearing voices in bed at night. She thought that these might be the voices

of the nurses when she was a child. In September 2007, it was recorded that the complainant had suffered several crises

over the summer arising from financial problems, alcohol abuse, abuse of prescribed medication and obtaining extra

(named tablets). She was diagnosed as suffering from persecutory ideation with auditory hallucinations and her situation

remained acute.

The complainant made a detailed statement to An Garda Síochána on the 16th December, 2005. It is to be noted that

this was forty one days after the alleged rape. In a statement made by a Consultant Psychiatrist to Detective Garda

Edward McLoughlin, on the 20th November, 2007, it is stated that the complainant was admitted to the Adult Mental

Health Unit on the 9th November, 2005, complaining of depression and suicidal thoughts. In this statement and in an

affidavit sworn in these proceedings on the 4th June, 2008, this Consultant Psychiatrist states that it is her opinion that

the delay on the part of the complainant in reporting the alleged rape to An Garda Síochána was reasonable, despite

having reported the matter to her general medical practitioner, because of her mental state and high levels of distress

and anxiety, because of her concerns regarding the impact of such reporting on her relationship with her daughter and

because of her past history of sexual abuse during her childhood and adolescence. The statement concludes by recording

that in recent times the complainant had made great efforts to deal with her problems in a mature fashion and was very

compliant with treatment currently.

In a statement made by a general medical practitioner to Detective Garda Edward McLoughlin on the 20th November,

2007, he states that the complainant was a long standing patient of his practice. He states that she had attended for

consultation on the 7th November, 2005, and had informed him that on the previous Saturday night the 5th November,

she had been subjected to rape by her daughter’s partner. She appeared distressed and had informed him that she was

arranging to meet her adviser regarding sexual abuse. He stated that he had advised her that she should arrange to

undergo a formal sexual assault examination, although she was somewhat confused as to the appropriate option, given

the relationship of the assailant with her daughter. He had not attended her with respect to the alleged incident apart

from the above attendance.

Having regard to the issues raised by the applicant in this application, it is important to refer to certain aspects of the

complainant’s statement to An Garda Síochána. The following is her account of the alleged rape, the clothing worn by her,

and the location and time of the alleged rape:-

“I got home at 3.00 am. (My daughter and her partner) were not home. I checked their room. I had a cup of tea

and a cigarette and went to bed. I did not wear any nightclothes. I just left on my bra and knickers. I fell fast

asleep, next thing I remember was the duvet being pulled off my bed and the next thing (the applicant) was on top

of me. He called me my name, and he was naked and while on top of me, he put one hand down and pulled off my

knickers, while I was in shock, you know how you’d be after being woke up. I said ‘stop’, but he put his penis into

my vagina and he began thrusting himself on top of me and while keeping his penis in my vagina. He didn’t hurt me,

only a little at first, but he wasn’t rough. But I couldn’t push him off, he was too heavy. He kept doing this for

about 10 minutes, but he did not ejaculate. He even withdrew his penis at one point and began rubbing it with his

own hand and then inserted it back into my vagina, but he still didn’t ejaculate. So he got off me and said ‘(her

name), we’ll keep this as our little secret’ and left the room. He didn’t take my bra off. I just sat on the bed in a

state of shock. I checked the time and it was about 5.00 am.”

In her statement the complainant said that on that Sunday, she did not come out of her room at all only to go to the

toilet. She took some anti-depressants and a sleeping tablet. On Monday her daughter and her partner did not get up

until 1.00 pm approximately. When they came downstairs the applicant behaved as normal and just said “hello (her name)”

and went to the kitchen and had tea and then they went into town. She started to cry and her granddaughter asked her

why she was crying. A female friend telephoned to apologise for not being at the party on Saturday night and she told her

friend, on being pressed, that the applicant had raped her. Her daughter and the applicant came back to the house and

her son was also there. About 4.30 pm her female friend took her to see the general medical practitioner and her son

looked after her granddaughter. In the statement the complainant says that she told the general medical practitioner the

whole story and she thought that she would be examined then and there. He said that she would have to go to the

Guards first and then to a Gynaecologist for examination. She states that the general medical practitioner advised her

that she should go to the Guards after she left him or at least the following morning and he gave her a prescription. She

says that her female friend and herself went to a public house, where her friend had dinner and they discussed what she

should do. She was afraid to go to the Guards, because of her daughter, whether she would believe her, so therefore

they went back to the house.

The complainant then recounts how she told her daughter of the alleged rape and the exchanges which then ensued

between them and the applicant, to which I have already averted. Her female friend, who had remained present

throughout, brought the complainant to the complainant’s brother’s house, where she remained until the afternoon of

Tuesday the 8th November, 2005. The complainant states that she telephoned (the hospital) to tell them she could not

attend (for a pre-arranged consultation) and what had happened and she then went to bed having taken her tablets. At

approximately 4.00 pm a nurse (named) from the Hospital and a social worker came to the door. She states that her

daughter told her to get rid of them. They left but told her to be at (the hospital) the following morning. That evening she

told her son John what had occurred. The complainant states that she did not want to make a statement before then,

(16th December, 2007) because she was afraid for her father and mother who are both in their 80s, but they found out

about it, so she wanted to make the statement then. She said that her daughter did not want her to go to the guards,

but she was afraid that the applicant would do this to someone else.

In the final paragraph of her statement, the complainant states as follows:-

“I contacted the (area) Rape Crisis Centre and I spoke to a Lady and gave her my name and number. That was on

Wednesday the 9th November, 2005. I got a call from them last Friday the 10th December, 2005, and was going to

make an appointment when I got out of the Hospital and did, for Thursday the 15th December, 2005, but I told

them to leave it until I found out what was happening, so then she said that they may sent someone up to me here

in the Hospital, but no one has called yet. This rape has really upset and traumatised me because of the flashbacks

and nightmares, I am having and it brings back the bad memories of rapes and sexual and physical assaults, I was

subjected to between the age of four years and seven years while in care and between seven and sixteen by

neighbours. Two of them are now dead. I am trying to deal with those the best I can. I attended counselling and a

psychologist (names given). (The applicant) would have been made aware of my past by (my daughter)”.

In the statements made to Detective Garda McLoughlin by the complainant’s daughter, statements which she

subsequently said she wished to withdraw, for the reasons to which I have already averted, she stated that her mother

told her about the alleged rape at 8.00 pm on Monday the 7th November, 2005, in the presence of her mother’s female

friend. When she heard her mother describe what had occurred, she had said to the applicant “you did do it”. She stated

that from the description her mother had given her of what she alleges the applicant did to her, she would believe her

mother as she had slept with the applicant and knew from that it was the same way. This was her opinion and it was

based on her experience with the applicant.

The complainant’s female friend made a statement to An Garda Síochána which is included in the Book of Evidence. She

stated that she contacted the complainant on the 8th November, 2005, and the complainant told her what had happened

on Saturday night the 7th November, 2005, a Sunday morning. She states that it was she, who arranged the appointment

for the complainant with the general medical practitioner at 4.30 pm on the 8th November, 2005. Her recollection of what

occurred after the complainant in her presence, told her daughter of the alleged rape on the 8th November, 2005, is as

follows:-

“We got (her daughter) on her own and we told her. (Her daughter) just fell to the floor in disbelief and distraught

and said “just get him to fuck out of the house”. She then calmed down and went upstairs and brought (the

applicant) down to us. The complainant’s daughter then said to (the applicant) in my presence what (the

complainant) had told her “you had raped my mother” and he said “no way that is a lie”. I said (the complainant)

would not lie, look at the state of her. He then said if I did I could not remember. (The complainant’s daughter) said

it was because of the Red Bull and vodka. Then (the applicant) said “(the complainant’s name) did I hurt you”. I can

recall saying don’t be asking stupid questions. I felt at that stage to take (the complainant) out of the house, and

away as I felt it was for the best. I wanted (the complainant) to go to the guards after this, because of (the

applicant’s) reactions. He was cool and calm and he did not raise his voice, he kept saying he could not remember

and did I hurt you. I can recall (the complainant) say in front of (the applicant) as it was suggested by whom I

cannot remember that (the applicant) thought it was (the complainant’s daughter). She stated too that (the

applicant) said “this will be our secret (calling her by her name)”. The only people present while all this took place

was (the complainant), (the complainant’s daughter), (the applicant) and myself. After this I took (the complainant)

out to her brother in (named place). On the way out we meet (her brother’s wife) at a filling station and (the

complainant) told her and later told (her brother). I left (the complainant) that night at 10.30 pm approximately and

went home. I have visited (the complainant) in the hospital since and she told me she told the Gardaí. I wish to

add, while we were in (the general medical practitioner’s) (the complainant’s) social worker rang and she told her

what had happened. I also spoke to her on the phone”.

In a statement given by the community mental health nurse for the area to An Garda Síochána she recalled that on the

8th November, 2005, accompanied by a senior social worker, she made a domiciliary visit to the complainant at the

request of the nurse manager of the hospital. They met the complainant who told them that she had been sexually

assaulted by her daughter’s boyfriend on the night of the 6th November, 2005, in the early hours of the morning at 4.00

am. The complainant was very distressed at the time and crying. They advised her to report the matter to the Gardaí.

She asked the complainant to attend the following morning at the hospital to see the Acting Consultant Psychiatrist and

she agreed. The complainant stated that she was advised by the general medical practitioner to attend at Accident and

Emergency for gynaecological examination, but she did not avail of it. A statement in similar was terms given by the senior

social worker, Adult Mental Health, to An Garda Síochána.

In her Deposition evidence given on the 17th October, 2007, the complainant’s daughter said that she and the applicant

went to bed in the same bed. When she woke up, the applicant was not there, he was in her daughter’s bed. [Note: the

complainant’s granddaughter was staying elsewhere on the occasion]. She stated that she had spilled a glass of water on

the bed and assumed that that was the reason why the applicant had left the bed. On Sunday she noticed that the

applicant was a bit different but put this down to drink and being hung over. She stated that the applicant had said to

her that the complainant would be going in again to the Acute Unit as she had too much drink over the weekend. The

applicant knew that the complainant had psychiatric difficulties. On Monday after 8.00 pm the complainant came in with

one of her friends and told the witness what had happened on Sunday night. The witness stated that she said to the

applicant, “they’re saying downstairs that you raped my mother like”. The applicant went downstairs to confront them. He

said, “I can’t remember”. The witness said that this had stuck in my mind. She stated that in March the applicant was

very intimidating towards her. They had discussed what happened and she felt intimidated and threatened. She recalled

that she had become angry and had thrown a drink at him. She stated that later she telephoned to apologise and made a

statement withdrawing the other statements in order to get on with her life and forget about it.

In cross examination, the complainant’s daughter was asked whether the reason she gave for withdrawing these other

statements, was that she had felt under pressure from doctors and she replied in the affirmative. She confirmed that the

complainant had a drink problem and was in hospital prior to November, 2005. She confirmed that there were issues about

the complainant having been abused when she was growing up. The witness stated that on Saturday night and into

Sunday, she herself was well drunk and could not recall at what time they had got back to the house, but it was later

than 2.30 am. She had fallen asleep at once and had spilled water on the bed. On Monday, her mother and her mother’s

friend had come back to the house about 8.30 pm. It was put to the witness that the applicant had given clear

instructions that when the allegation was put to him he had denied it. The witness replied, “no he didn’t, he never denied

it he said, I can’t remember”. Again it was put to the witness that when the allegation was made, the applicant denied it

in the clearest terms. The witness replied in the negative. She stated that their relationship had ended about three weeks

after that. She accepted that she had made contact with him again and they renewed sexual relationships thereafter.

She stated that the social workers were insisting on the complainant reporting the matter to the Gardaí. She was asked if

she had ever in the past found her mother unreliable and she replied in the negative.

In a replying affidavit, sworn on behalf of the respondent on the 4th June, 2008, Detective Garda Edward McLoughlin, who

identifies himself as a member of the investigation team, confirms that the complainant did not report the alleged rape to

An Garda Síochána until the 16th December, 2005, that is 41 days after the alleged rape. At para. 8 of this affidavit

Detective Garda McLoughlin avers that:-

“From inquiries carried out, I ascertained that the house in question was a rented accommodation. The complainant

had left this house on the 9th November, 2005, when she was committed to a psychiatric hospital following a

breakdown she suffered in the aftermath of the incident of the 5th November, 2005. She had lived there with her

daughter (name stated), her son (name stated) and her grand-daughter (name stated). The other members of her

family left this property on the 28th November, 2005. Subsequently new residents moved into this house. I was also

aware that the Applicant had stayed in the house for at least two nights after the incident. Moreover the

complainant in her statement of complaint indicates that the accused did not ejaculate. Accordingly there would

have been no semen left at the scene. Because of the aforesaid factors, the gardaí took the view that the scene

would have been contaminated and an operational decision was taken that an examination of the scene would not

have yielded evidence of any probative value at that remove.”

At para. 9 of the same affidavit, Detective Garda McLouhglin avers that as the complaint was made 41 days after the

alleged rape, An Garda Síochána did not believe it would have been helpful to their investigation to advise the complainant

to undergo a physical examination then as no evidence would have been obtained as a result, due to the passage of time.

At para. 11 of this affidavit, Detective Garda McLoughlin, does not accept that the complainant had a history of making

false allegations. He states that she had never made a complaint in relation to a sexual offence to An Garda Síochána

prior to his complaint. He considered that her “treating professionals” were satisfied that the complainant had suffered a

history of childhood sexual abuse. At para 12 of this affidavit, Detective Garda McLouhglin, states that An Garda Síochána

have always known and accepted that the complainant suffered from psychiatric problems, including alcohol abuse and

depression and that she had been treated for these problems over a number of years. He states that this fact was well

known to the applicant prior to the disclosure (on the 2nd December, 2007) and was also known to his legal advisers, and

in this respect he refers to the evidence of the complainant’s daughter given on Deposition (I infer that the reference is

to the cross examination at p. 18 lines 17 – 34 and p. 19 lines 1 – 13). At para. 13 of this affidavit, detective Garda

McLoughlin, avers that the statements of the general medical practitioner, the consultant psychologist, the senior staff

nurse and the senior social worker are not inconsistent with the complainant’s statement. He also points to the fact that

none of these health care professionals express any concerns about the mental state of the complainant not do they

suggest that her accusation against the applicant was a fabrication or was motivated by malice. At para. 14 of this

affidavit, Detective Garda McLoughlin states that the statement made by the complainant’s daughter and by her female

friend are consistent to the complainant’s account of the alleged rape and that the portion of her daughter’s statement

(which, I have already noted, she subsequently stated she wished to withdraw for the reasons to which I have

adverted), in relation to the manner in which the alleged rape was carried out provides a measure of corroboration in this

regard. At para. 15 of this affidavit, Detective Garda McLoughlin denies that the complainant’s failure to report the alleged

rape the next day, (I infer that he is referring to the Sunday), reflects on her credibility having regard to the identity of

the alleged perpetrator and her relationship with her daughter. At para 16 of this affidavit, Detective Garda McLoughlin

states that he wishes to emphasise that at no stage in the investigation did he find the allegations in any way suspect,

manifestly false or maliciously motivated, basing this view on the statements taken during the course of the investigation

all of which he considered were supportive of the complaint and the evidence of the complainant.

At para. 17 of this affidavit, Detective Garda McLoughlin avers as follows:-

“I say that full disclosure has been made by the prosecution. I am not in possession of any documentation or

evidence relevant to the matters in issue which have not been disclosed to the prosecution [I assume that the

reference should be to the defence]. The complainant did not attend any psychiatric services for over 20 years.

She did attend psychiatric services up to the age of 17 or 18 years. Accordingly, there are in fact no notes

available between 1978 and 2001, to the best of my knowledge. Nor did I ever come into possession in relation to

any notes from the Rape Crisis Centre. I did not conduct any investigation with the Centre and accordingly have

not been furnished with any documentation from the Centre. I am also aware that it is not the policy of the centre

to ever release such notes on grounds of client confidentiality.”

At para. 18 of this affidavit, Detective Garda McLoughlin, observes that if there had been disharmony between the

complainant and her children, at no point did the complainant’s daughter indicate in writing or otherwise that she was

unhappy with her mother’s complaint in relation to the applicant.

In an affidavit sworn on the 14th July, 2008, on behalf of the respondent, Deirdre Thompson, Solicitor in the office of the

Chief Prosecuting Solicitor, at para. 5 avers as follows:-

“I say and believe that the matters raised in the Applicant’s solicitor’s letter of the 27th December, 2007, prompted

a full review of the matter at the very highest level in the office of the Respondent and after receipt the Director,

Mr. James Hamilton, decided that the prosecution should proceed. The plaintiff’s psychiatric condition and life

circumstances were known to the Respondent prior to the direction of the prosecution. The prosecution was

directed on the grounds that there was credible evidence that the offence had been committed. This is the

standard applied to every prosecution.”

SUBMISSIONS

In the Statement of Grounds, in the written submission and, in the course of argument before the court, it is claimed that

there is a real or serious risk that the applicant would not receive a fair trial for all of the following reasons:-

1. The medical and psychiatric notes demonstrate that the complainant is a dangerously unreliable remembrancer, with a

history of having deceived and manipulated various healthcare professionals and, of making allegations of sexual abuse.

2. What is said by the complainant’s daughter as recorded in her three statements to An Garda Síochána is unreliable

because she sought subsequently to withdraw these statements.

3. An Garda Síochána failed to investigate the, “inexplicable gap” in the medical – psychiatric records between 1978 and

2001 and, having regard to the contents of the disclosed records, this could have a bearing or potential bearing on the

issue of guilt or innocence of the applicant.

4. The complainant having failed to complain of the alleged rape between the early hours of Sunday morning and late on

Monday afternoon, failed to undergo a formal sexual assault examination as advised by her general medical practitioner.

5. An Garda Síochána did not carry out any forensic examinations or investigation of the complainant’s bedroom, the

mattress, pillows or duvet and, the clothes worn by the complainant at the time of the alleged rape.

6. An Garda Síochána did not ensure that the complainant had a physical and gynaecological examination when she

reported the alleged rape to them 41 days after the date of the alleged incident.

7. Despite the fact that a Report dated the 24th May, 2006, from a psychologist, which was included in the disclosed

medical – psychiatric notes, records that the complainant had informed the psychologist that she was told by her

daughter, that at the time of the alleged rape she heard the complainant say to the applicant, “I’ll tell (daughter) if you

don’t stop”, and had heard him reply, “We will keep this as our little secret”, An Garda Síochána did not re-interview and

take statements from the complainant, her daughter and the psychologist about this matter.

8. Despite the fact that in her statement, the complainant had informed An Garda Síochána that she had contacted the

Area Rape Crisis Centre and had spoken to persons there, An Garda Síochána did not investigate this matter and seek

disclosure of records from the Rape Crisis Centre.

9. An Garda Síochána did not seek out and preserve the mobile telephone visual recording which the complainant’s

daughter is recorded, in the medical – psychiatric notes as having informed social workers, was made by her brother of an

incident alleged to have occurred on New Years Eve 2006, in which the complainant had fallen and broken her hand, an

injury which she informed social workers, had been caused by her son.

10. An Garda Síochána failed to interview and obtain a statement from the complainant’s foster mother, despite the

record in the medical – psychiatric notes, that she had stated to a senior social worker, with regard to the alleged rape,

that she wondered whether the complainant was all mixed up and was making allegations that related to the past.

11. The disclosed medical – psychiatric notes reveal that the complainant was ill-disposed towards the applicant prior to

the alleged rape, and the respondent failed to take this into account and failed to properly investigate the prima facie

mala fides of the complainant and the malicious nature of her complaint.

12. An Garda Síochána did not re-interview the complainant, her daughter, her son and other key witnesses in the

context of what the medical – psychiatric notes and records disclosed of her psychiatric condition, life circumstances and

her making false allegations.

It is submitted, that the applicant had fully engaged with the known facts and had demonstrated that there was a real or

serious risk that he would not receive a fair trial. The court, Counsel said, must look not only at the individual complaints,

but must take a general overview of the matter and have regard to the fact that there are a multiplicity of complaints in

the instant case. Counsel for the applicant accepted that it was not sufficient to demonstrate that there were

shortcomings in the investigative process and that the onus was on the applicant to show that there was a real risk that

he would not receive a fair trial.

While accepting that a trial judge has ample powers to make rulings as to Law and to give instructions to the jury,

Counsel submitted that on the facts of the instant case no warnings, rulings or instructions could overcome the non

availability of crucial evidence.

Because of the matters in respect of which complaint was made, there was no objective factor in the evidence and

Counsel submitted that this rendered the intended trial a profoundly hazardous proceeding. It was not sufficient, Counsel

stated, for the respondent to contend that these matters could be dealt with by rulings and directions of the trial judge.

Counsel relied on the following passage from the judgment of Denham J. in D.C. v. The Director of Public Prosecutions

[2005] 4 I.R. 281 (Supreme Court), where that learned judge had stated:-

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

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

defendant may not be exposed to the commencement of the process. . . .”

On behalf of the respondent it was submitted that the applicant had not discharged the onus of proof, which lay on him,

of establishing that there was a real risk. – not just a remote, theoretical or fanciful risk, - of an unfair trial, which could

not be avoided by rulings and directions on the part of the trial judge.

The decision of An Garda Síochána not to carry out the particular forensic examinations or to insist upon the complainant

undergoing a physical and gynaecological examination, for the reasons stated by Detective Garda McLoughlin was both

reasonable and rational and, did not amount to a failure to seek out and preserve all evidence having a bearing or

potential bearing on the issue of the guilt or innocence of the applicant. There was no obligation or duty on An Garda

Síochána to re-interview or to take additional statements from the complainant or her daughter because of what was

recorded in the report of the psychologist, dated the 24th May, 2006, which report had been disclosed to the applicant.

Detective Garda McLoughlin had sworn on affidavit, that all medical and psychiatric notes in the possession of An Garda

Síochána had been disclosed to the applicant’s legal advisers. He averred that to the best of his knowledge the

complainant had not attended the Psychiatric Unit between 1978 and 2001 and there were no notes available for this

period. Detective Garda McLoughlin had stated in his affidavit that he did not have any notes from the Rape Crisis Centre

in his possession and he had not carried out any investigation involving the Rape Crisis Centre. Detective Garda

McLoughlin had further stated on affidavit that none of the health care professionals who had made statements to An

Garda Síochána, - the general medical practitioner, the consultant psychologist, the senior staff nurse and, the senior

social worker, - had expressed any concerns about the mental state of the complainant, nor did they suggest that her

accusation against the applicant was a fabrication or was motivated by malice.

Counsel for the respondent submitted that a lack of medical or forensic evidence is not at all uncommon in sexual cases.

Though the absence of this evidence in the instant case was known to the applicant from the date of the service of the

Book of Evidence on the 6th December, 2006, no application was made to seek to halt the trial on this basis and, it was

accepted by the applicant’s legal advisers during the course of argument that such an application was unlikely to be

successful. The respondent denied that there was any failure on the part of An Garda Síochána to seek out and preserve

evidence, as explained in Scully v. Director of Public Prosecutions [2005] 1 I.R. 242 at 250 – 251, per Hardiman J.

(Supreme Court). The trial judge, counsel submitted, is possessed of ample powers, including the power to deal with

issues of disclosure, and is obliged to use these powers to ensure that the trial is fair. Counsel for the respondent

accepted that the onus on the applicant was to demonstrate a “real risk” as opposed to a “certainty” or even a

“probability”, that the trial would be unfair.

DISCUSSION

The first matter which falls to be determined is whether or not there has been delay on the part of the applicant in

seeking this relief and, if so, whether there is good reason for extending the period to enable this application to be made.

Order 84, r. 21 of the Rules of the Superior Courts requires that an application for judicial review, where the relief sought

is prohibition, shall be made promptly and in any event within three months from the date when grounds for the

application first arose. In considering this matter, the court has regard to what was held by Hardiman J. in Scully v. The

Director of Public Prosecutions [2005] 1 I.R. 242 at 247, para. 9:-

“. . . one is concerned not simply with the temporal extent of the delay but with the time lapse in all the

circumstances of the case. It is essential that the Court should view any lapse of time in its context in the

particular case if, on the one hand, the requirements of fair procedures are to be met and, on the other hand, the

administration of justice is not to be compromised by artificial, tactically grounded complaints.”

On the service of the Book of Evidence on the 4th December, 2006, the applicant must have become aware that no

forensic investigation of the bedroom, bed linen and, night attire had been carried out by An Garda Síochána and that the

complainant had not undergone any physical, medical or gynaecological examination. It is clear from the evidence of the

complainant’s daughter taken on Deposition on the 17th October, 2007, that the applicant was then aware that the

complainant had a history of psychiatric/psychological difficulties and of serious alcohol abuse, that the complainant’s

daughter had endeavoured to retract her three statements made to An Garda Síochána and that the complainant had not

complained of the alleged rape between the early hours of Sunday morning and Monday afternoon. It was further clear

from the Book of Evidence, that the complainant had not taken the advice of her general medical practitioner to have a

formal sexual assault examination, (vide statements of witnesses 4 and 5 in the Book of Evidence).

Judicial review was not sought until the 14th March,, 2008, despite the fact that these matters are now advanced as

reasons while there is a real or serious risk that the applicant will not receive a fair trial. It was accepted in argument that

counsel had considered the question of the failure to carry out a forensic investigation and the failure to have a

gynaecological examination and had advised that an application to prohibit the trial of the applicant on these grounds

would be most unlikely to succeed. I consider that counsel were entirely correct in this advice.

The medical and psychiatric notes and records were furnished by An Garda Síochána to the Solicitors for the applicant on

the 2nd December, 2007. By a letter dated the 27th December, 2007, the Solicitors for the applicant called upon the

respondent to discontinue the prosecution failing which an application would be made for leave to seek judicial review in

the form of prohibition. A response was received from the respondent, dated the 4th January, 2008, stating that the

matter was under consideration. By a letter dated the 13th February, 2008, the Solicitors for the applicant reminded the

respondent that they had not received an answer to their letter dated the 27th December, 2007, indicating his decision in

the matter. However, when the prosecution was listed for mention before the Central Criminal Court on the 25th February,

2008, for the purpose of fixing a trial date, it was then made perfectly clear to the applicant’s legal advisers that the

respondent was proceeding with the prosecution.

The applicant’s claim for relief is based upon information concerning the complainant and, alleged failures on the part of

An Garda Síochána to properly investigate the complaint, of which his legal advisers only became aware as a result of the

disclosure on the 2nd December, 2007, of the medical and psychiatric notes and records. Counsel for the applicant

submitted that in the light of the contents of these notes and records, the other matters of which they had been aware

on or prior to the 17th October, 2007, (taking of evidence on Deposition of the complainant’s daughter) require to be

reassessed and assume an entirely new significance. In my judgment, the date when the grounds for this application first

arose was not the date of the service of the Book of Evidence, but the 2nd December, 2007, the date of disclosure of

these medical and psychiatric notes and records, which were in the possession of An Garda Síochána even though it is

not intended to refer to them as part of the case for the prosecution.

This being so, the latest date allowed by the provisions of O. 84, r. 21 of the Rules of the Superior Courts for the bringing

of this application was the 2nd March, 2008, (see also O. 122, r. 1). In fact, the application for leave to seek judicial

review was not made until the 14th March, 2008. However, in view of the shortness of this delay, especially in the

context of the time lapse between the arrest of the applicant on the 27th February, 2006, and the disclosure of the

notes and records on the 2nd December, 2007, in view of the letters exchanged between the solicitors for the applicant

and the respondent dated the 27th February, 2007, 4th January, 2008, and, 13th February, 2008, to which I have already

referred, in view of the fact that it was not until the 25th February, 2008, that the applicant’s legal advisers discovered

that the respondent intended to press ahead with the prosecution and, in view of the fact that neither the respondent

nor any third party could properly be said to have been damnified by this delay, the court considers that it would be

unjust and altogether disproportionate not to extend the time for the making of this application. The court will therefore

extend the time to the 14th March, 2008.

A recorded comment by a healthcare professional, that the complainant had deceived and manipulated healthcare

personnel and others in order to obtain extra unauthorised medication, to conceal her abuse of alcohol on the ward or, to

seek attention, even if admitted as by evidence, is scarcely a basis for a finding that the complainant is so incorrigibly,

compulsively and universally mendacious that in the absence of some corroborative evidence there is a real or serious risk

that the applicant would not receive a fair trial. Otherwise, this background material is a matter to be addressed in the

context of the credit of the complainant and of the provisions of s. 7 of the Criminal Law (Rape) (Amendment) Act 1990,

(No. 32 of 1990), and the discretion vested in the trial judge by that section.

The sworn evidence of the complainant’s daughter taken on Deposition supports what is recorded in the medical –

psychiatric notes and records that the complainant from July 2001 onwards, when she was about 44 years of age,

reported to healthcare professionals that she had been sexually abused as a child and as a teenager and, had identified

at least some of the persons by whom she had been sexually abused. However, there is nothing in the disclosed medical –

psychiatric records and notes which suggest that the complainant had at any time made a complaint to An Garda

Síochána in relation to this sexual abuse or in relation to the burial of babies or misbehaviour of attending priests at the

institution where she spent her childhood years. This is supported by the affidavit evidence of Detective Garda

McLoughlin. There is nothing in the disclosed medical – psychiatric notes and records which would suggest that the

healthcare professionals had any reason to doubt the truthfulness of these complaints of sexual abuse. This is altogether

dissimilar from the situation which pertained in the case of The Director of Public Prosecutions v. Nora Wall [2005]

I.E.C.C.A. 140.

In that case the court concluded that:-

“The prosecution which did take place inasmuch as it involved the tendering of corroborative evidence by a witness

known to be unreliable was thus, in that format, a prosecution that should not have been brought.”

The court found that a corroborative witness had made a statement to An Garda Síochána which was untrue. Members of

An Garda Síochána who had dealings with this witness during previous investigations had found her to be most unreliable.

The officer within the office of the Director of Public Prosecutions charged with responsibility for the file had noted that

this witness’s evidence should not be accepted as accurate. A decision was taken that this witness should not be called

as a witness in the case of the prosecution, but due to a most unfortunate error she was called and gave evidence at the

trial. The court also found that there had been significant non disclosure in that case, including the information that this

witness had made but had not pursued an allegation of being raped in England and that she had a very approximate and

material psychiatric history. In my judgment, there is nothing whatever in the complainant’s background in the instant

case as disclosed by the medical – psychiatric notes and records, however tragic or sordid, it otherwise might be, which

could justify a conclusion that she was so unreliable that this prosecution should not have been brought and, should

therefore be stopped.

The disclosed medical – psychiatric notes and records refer to accusations made by the complainant to healthcare

professionals, in the period both prior to and subsequent to the date of the alleged rape, that she had been physically

abused by her daughter and her son. These allegations were investigated by social workers and the accusations were

denied and counter allegations made involving claims of serious alcohol abuse by the complainant. No definite findings

appear to have been made as to whether these allegations or counter allegations were true. Perhaps this material might

be considered relevant as affecting the credibility of the complainant, - I make no finding whatever in this regard, - but I

do not accept that it in any way renders her so manifestly unreliable as a witness that there is a real or serious risk that

the applicant could not receive a fair trial and should therefore not be exposed to the commencement of the process.

The three statements made by the complainant’s daughter are not evidence of the matters stated in them and, neither is

the sworn Deposition evidence, (except in certain circumstances such as, were the witness not to give evidence at the

trial due to fear or intimidation). If this listed witness gives evidence, then these statements, if inconsistent with her

sworn oral testimony, may be used to cross examine her with a view to establishing a lack of consistency and therefore of

credibility. The fact that she indicated that she wished to withdraw these statements for the reasons give by her, does

not render her so totally unreliable a witness that she should not be called in evidence in the case for the prosecution. No

analogy in my judgment may properly be drawn between the circumstances of this witness and the witness in Director of

Public Prosecutions v. Nora Wall (above cited).

At para. 17, his replying affidavit sworn in these judicial review proceedings on the 4th June, 2008, Detective Garda

McLoughlin swears that to the best of his knowledge there are no notes relating to the complainant from the psychiatric

services in respect of the years 1978 to 2001 inclusive. Though the applicant’s legal advisers clearly carried out a most

comprehensive and even minute examination of the medical – psychiatric notes and records disclosed to them by the

respondent on the 2nd December, 2007, it was not suggested to this Court that there was some indication in these notes

and records to the contrary. Neither is there any such indication in any of the other documents disclosed, such as, the

statement of the Consultant Psychiatrist made on the 20th November, 2007, the statement of the general medical

practitioner made on the 20th November, 2007, the Report of the psychologist dated the 24th May, 2006, the statement

of the Community Mental Health Nurse and the statement of Senior Social Worker Adult Mental Health. This is a matter

which the applicant’s legal advisers may pursue further at the trial and, the trial judge has adequate powers to deal justly

and properly with issues of disclosure and non-disclosure. In my judgment as the matter now stands it is neither

necessary not practicable for An Garda Síochána to pursue this matter any further.

Early complaint and the results of forensic examination and gynaecological medical and physical examination, are simply

aspects of the evidence in a rape trial which can go to the strength or weakness of the prosecution case. Some or all of

these matters are very frequently absent and they are not in any sense necessary to sustain a fair prosecution. Evidence

of an early complaint by an alleged victim goes towards establishing consistency and therefore credibility. Material derived

from forensic, medical, physical and gynaecological examination is capable of providing corroboration of the evidence of a

complainant and a negative finding is of undoubted assistance to an accused person. In my judgment, if there was a duty

on An Garda Síochána in the circumstances of the instant case, to carry out a forensic examination of the bed, bed linen

and night attire and, to take all reasonable measures to ensure that the complainant submitted herself to physical and

gynaecological examination, that obligation existed just as much prior to, as subsequent to the disclosure to the Solicitors

for the applicant of the medical – psychiatric records and notes on the 2nd December, 2007.

The existence of a duty on the part of An Garda Síochána to seek out, so far as is necessary and practicable, evidence

which might realistically and, not to just remotely, theoretically or fancifully, afford an applicant a real opportunity of

rebutting the prosecution case, could not depend upon whether a complainant appeared to be a reliable, not so reliable

or, a totally unreliable witness. I am satisfied on the facts stated on oath by Detective Garda McLouhglin in his affidavit

and, not challenged with appropriate affidavit evidence by the applicant, that the operational decision taken in the

instant case by An Garda Síochána, not to carry out a forensic examination or to insist upon the complainant submitting

to a medical, physical or gynaecological examination was realistic, reasonable and rational. The fact that the complainant

did not complain until Monday afternoon, and the fact that she did not follow the advice of her general medical

practitioner to undergo a formal sexual assault examination remains. The fact that her failure to complain about the

alleged rape to An Garda Síochána for 41 days resulted in there being no forensic or medical evidence remains. The weight

to be attached to this evidence and to any explanations offered is entirely a matter for a jury properly directed. In my

judgment these aspects of the evidence do not assume any greater significance because the disclosed medical –

psychiatric notes and records may enable it to be established that the complainant was deceitful and manipulative on

occasions during the course of her medical treatment and, that she had informed the health care professionals that she

had been sexually assaulted as a child and as a teenager. Neither do they assume any greater importance, because she

delayed in complaining about the alleged rape, because she did not follow the advice of her doctor to undergo a sexual

assault examination, because her daughter, - for a time at lease – continued to live with and have sexual relations with

the applicant or, because the complainant has a long history of alcohol abuse and psychiatric illness,. None of these

matters render the operational decision of An Garda Síochána a breach of their duty to take realistic and rational steps to

seek out and to preserve all important evidence regardless of which way it points.

I find that there was no requirement for An Garda Síochána to re-interview and take further statements from the

complainant and from her daughter concerning the statement in the Psychologist’s Report of the 24th May, 2006, that the

complainant had informed her that her daughter had overheard her say, “I’ll tell [daughter] if you don’t stop” and had

heard the applicant reply, “we will keep this our little secret”. This Report is not included in the Book of Evidence, but was

properly disclosed to the defence. This assertion does not appear in the complainant’s statement to An Garda Síochána or

in any of the three statements made by her daughter or, in her daughter’s evidence taken on Deposition. The prosecution

does not intend to use this material but it is open to the defence to make whatever use (if any) of it they consider

proper. An Garda Síochána do not have any documents or notes from the Rape Crisis Centre, nor is there any indication

that any such exist. Neither do they have the mobile telephone photographic footage stated in the medical – psychiatric

notes and records to have been taken by the complainant’s son of an alleged incident in which the complainant fractured

her wrist or her hand. If the defence consider that these matters are important and should be pursued, it is open to them

to make application to the trial judge who can make appropriate orders. As the applicant denies that the alleged incident

occurred at all, this issue could only go to credit.

The comment referred to in the medical – psychiatric notes and records as having been made by the complainant’s foster

mother to a senior social worker that she wondered whether the complainant was all mixed up and making allegations that

related to the past, is no more than mere surmise. It does not and could not amount to an evidential basis for a finding

that the complainant was confused in her evidence or was fantasising. I find that there was absolutely no obligation on

An Garda Síochána to interview and take a statement from this woman. Should they wish to pursue it, there is no legal

inhibition to the defence interviewing her and calling her as a witness.

Whether anything contained in the medical – psychiatric notes and records is sufficiently relevant to be admissible in

evidence as supplying a possible motive for the making of a false allegation of rape against the applicant by the

complainant, is a matter essentially for a ruling by a trial judge. If it can be established that the complainant, prior to the

alleged rape, had expressed dislike for the applicant or annoyance or anxiety that her daughter was meeting the applicant

as his girlfriend, it remains open to debate as to whether such facts could supply a motive for making a false allegation of

rape and, as to what weight (if any) should be given to such possible motive. In my judgment, nothing indicated by the

applicant amounts to prima facie evidence of mala fides or of malice on the part of the complainant.

In my judgment, having made full disclosure of the medical – psychiatric notes and records to the defence, there was no

obligation on An Garda Síochána to re-interview the complainant, her daughter, her son, or any other witness. I am

satisfied that there is nothing in the extracts from these medical – psychiatric notes and records placed before this Court

by the applicant, which would require that some aspect of the evidence be re-investigated by An Garda Síochána or the

decision to prosecute be re-assessed by the respondent.

CONCLUSION

In my judgment, neither individually nor collectively, could the pleaded matters give rise to a real or serious risk that the

applicant would not receive a fair trial.

CASES REFERRED TO IN ARGUMENT

D.P.P. v. Nora Wall [2005] I.E.C.C.A. 140.

C.C. and P.G. v. Ireland, The Attorney General and The Director of Public Prosecutions [2005] I.E.S.C. 48.

McFarlane v. D.P.P. and Others (Unreported, Supreme Court, 7th March, 2006).

K.M. v. D.P.P. [1994] 1 I.R. 514.

Braddish v. D.P.P. and Another [2001] 3 I.R. 127.

Dunne v. D.P.P. [2002] 2 I.R. 305.

D.K. v. D.P.P. [2006] I.E.S.C. 40.

O’Flynn v. Clifford and Others [1998] I.R. 740.

Scully v. D.P.P. [2005] 1 I.R. 242.

P.G. v. D.P.P. [2007] 3 I.R. 39.

O.H. v. D.P.P. [2007] I.E.S.C. 12.

B.F. v. D.P.P. (Unreported, High Court, 15th June, 2007).

Bowes and McGrath v. D.P.P. [2005] 2 I.R. 25.

H. v. D.P.P. [2006] I.E.S.C. 55.

J.B. v. D.P.P. (Unreported, Supreme Court, 29th November, 2006).

P.L. v. Buttimer [2004] 4 I.R. 494.

J.O’C. v. D.P.P. [2000] 3 I.R. 478.

Noonan (aka, Hoban) v. D.P.P. (Unreported, Supreme Court, 27th July, 2007).

D.C. v. D.P.P. [2005] 4 I.R. 281.

P.T. v. D.P.P. (Unreported, Supreme Court, 31st July, 2007).

Healy and Dodd v. D.P.P. (Unreported, High Court, 30th May, 2005).

O’Donnell v. Corporation of Dunlaoghaire [1991] I.L.R.M. 301.

Folan v. D.P.P. [1989] I.L.R.M.

Z. v. D.P.P. [1994] 2 I.L.R.M. 481.

State (McCormack) v. Curran [1987] I.L.R.M. 225.

B.T.F. v. D.P.P. [2005] 2 I.R. 559.