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You are here: BAILII >> Databases >> Irish Court of Appeal >> H.S. v The Director of Public Prosecutions [2019] IECA 266 (22 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA266.html
Cite as: [2019] IECA 266
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THE COURT OF APPEAL
Neutral Citation Number: [2019] IECA 266
Record Number: 2019/91
Edwards J.
Whelan J.
Kennedy J.
BETWEEN/
H. S.
RESPONDENT
- AND –
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
JUDGMENT of the Court delivered on the 22nd day of October 2019 by Ms. Justice
Máire Whelan
Introduction
1. This is an appeal by the Director of Public Prosecutions from the High Court judgment of
1st March, 2019 and subsequent orders extending time for the bringing by the
respondent of an application by way of judicial review and granting an order of prohibition
of the trial on indictment of the respondent on seventeen charges of alleged historic child
sex abuse of his two younger sisters.
2. The respondent sought an order of prohibition to restrain further prosecution of the
criminal proceedings on the basis that there was a real risk that the trial would be unfair.
He raised arguments of delay, actual and presumptive prejudice, the unavailability of
possible witnesses due to death or absence of recollection and general unfairness arising
from the lapse of time contending that some individuals who might have been of
assistance to him as witnesses are now deceased or otherwise have no clear recollection
of events.
Background
3. The respondent was born in 1960. The book of evidence was served on him on the 1st
June, 2017 and the case was sent forward for trial on that date with the trial date fixed
for the 25th July, 2018. The first complainant is his sister M. born circa 1966. There are
five charges of indecent assault and one charge of rape between the years 1974 and 1978
in relation to her. The abuse is alleged to have commenced when she was eight years old.
4. There are a further eleven counts (ten of indecent assault and one of rape) in respect of
the second complainant, his sister R., relating to the years 1977 – 1985. R. was born
circa 1970. The abuse is alleged to have commenced when she was seven years old. All of
the offences are alleged to have taken place in the family home (which changed on a
number of occasions during the relevant years) where the sisters resided with the parents
of the parties both of whom are alive.
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5. The home environment was volatile and unstable, characterised by the alcoholism,
violence and brutality of the father. The father and mother were routinely absent from the
home by reason of work leaving the younger children, including the complainants, to fend
for themselves. There were but two incidents in which a specific date is identified in the
statement of charges. Both pertain to the complaints of the respondent’s sister R. The
first is alleged to have occurred on Christmas Eve, 1977 and the second during a visit by
the respondent in 1985 to the family home to inform his family of his engagement. It is
alleged that during that visit their parents were at work and he raped R. in her bedroom.
Judgment of the High Court
Procedural issue - Extension of time
6. In his judgment delivered 1st March, 2019 the High Court judge noted that the Director of
Public Prosecutions had raised objection that the judicial review proceedings had been
instituted outside the three-month time limit specified in O. 84 r. 21 of the Rules of the
Superior Court and no good or sufficient reason had been identified for the delay and that
the High Court should refuse any extension of time.
7. The High Court judge observes at para. 25 that the complainants’ mother had provided a
supplemental witness statement to the gardaí on the 7th December, 2017. This was not
disclosed to the defence until the 4th April, 2018. The late disclosure of this statement
was relied on by the respondent as sufficient reason to warrant an extension of time. He
considered that the supplemental witness statement of the mother: -
“…does address a number of potentially significant matters as follows. In some
instances, this involves an elaboration on matters addressed in the mother’s first
witness statement of 4 November 2015.”
The judgment noted that the statement set out in detail the mother’s recollection of an
incident alleged to have occurred in the family home on Christmas Day, 1978, (the
Christmas Day, 1978 incident) over twelve months after one of the alleged incidents of
abuse on R. which she dates to Christmas Eve, 1977. R. had recalled a shotgun being
discharged in the family home by a third party on Christmas Day, 1978. The mother in
her supplemental statement does not recall a gun being fired. An uncle reputed to have
been present during the Christmas Day, 1978 incident is now deceased. Another witness
is stated to be too unwell to give evidence. The Christmas Day, 1978 incident is referred
to in the mother’s first statement but her supplemental witness statement gave more
particulars.
8. The High Court judge also notes that the said statement: -
“…sets out in more detail the circumstances in which the second complainant was
taken to a medical doctor in about the time of some of the alleged indecent
assaults. The medical doctor is now deceased.”
9. The judgment notes that the mother provides a description of the layout of one of the
houses in which the indecent assaults are said to have occurred and whether the
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bedrooms had functioning locks. The statement of the mother also provided further
details of an alleged admission by the respondent to his mother of his “touching” or
“petting” his sister R. The respondent is recorded as having stated to his mother when
confronted that this conduct was “harmless” and did not go as far as sexual assault.
10. On the issue of the calculation of time for instituting judicial review proceedings, at para.
31 the High Court judge noted: -
“It is not clear from the case law, however, as to the date from which time is to be
calculated for the purposes of an application to restrain a criminal prosecution. In
particular, there is some debate as to whether the time limit should be calculated
(i) from the date of the return for trial, or
(ii) from the later date of the formal service of an indictment.”
indicated that the time limit runs from the date of the indictment. He noted that: -
“The correctness of the approach adopted in CC v. Ireland has, however, since been
queried by the judgment of the High Court (Kearns P.) in Coton v. The Director of
Public Prosecutions [2015] IEHC 302.”
Paras. 37-38 of the judgment notes: -
this court, and, accordingly, I cannot accept the DPP’s submission that time begins
to run from the date of the return for trial.
In any event, even if this court were in a position to adopt the alternative approach
suggested by the High Court (Kearns P.) in Coton v. The Director of Public
Prosecutions [2015] IEHC 302, I am satisfied that the late disclosure of the
supplemental statement of the complainants’ mother on 4 April, 2018 was a
sufficiently significant event so as to reset the clock for the purposes of judicial
review proceedings.”
11. The High Court judgment continues at paras. 39-41: -
“There was some debate at the hearing before me as to whether the supplemental
witness statement contained material which was sufficiently relevant to the issues
in the judicial review proceedings as to affect the running of the time-limit. It was
also suggested that the supplemental witness statement merely elaborated upon
material in the first statement.”
“I must admit that I have a concern as to whether this is the correct approach to
take in the context of judicial review proceedings in respect of a pending criminal
prosecution. The applicant is entitled to the presumption of innocence. This applies
not just to the pending criminal trial, but also to these judicial review proceedings.
(See comments of Hardiman J. in J. O'C. v. Director of Public Prosecutions [2000] 3
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I.R. [478] at 517 et seq.). It does not seem to me to be consistent with the
presumption of innocence to expect the applicant and/or his solicitor to explain on
affidavit why it is that the belatedly disclosed material is relevant. To require an
accused person to do so may well have the undesirable consequence of requiring
him to disclose aspects of his proposed defence of the criminal proceedings.”
“… I am satisfied that—on an objective reading—the supplemental witness
statement does disclose material which is relevant to and supportive of the
application for judicial review.”
12. The judgment continues at para. 42: -
“The supplemental witness statement at the very least strengthened the case for
judicial review—and perhaps even presented grounds for the first time—by allowing
the applicant to point to specific issues in respect of which the unavailable
witnesses might have given evidence. Separately, a further letter of 23 April 2018
from the Chief Prosecution Solicitor also disclosed further details of the police
investigation, and, in particular, the fact that two relatives (another uncle of the
complainants, and the mother-in-law of one of the complainants) had indicated that
they had no recollection of these matters and did not wish to make statements.”
13. The judgment concluded at para. 47 of the judgment that: -
“The applicant was entitled to await receipt of the response to the request for
further disclosure. This was received in April 2018, and the ex parte application for
leave to apply for judicial review was made within three months of that date.”
14. Lest he be incorrect in his finding that the application was brought within time the High
Court judge proceeded to consider whether it would have been appropriate to grant an
extension of time. He considered O. 84 r. 21(3) and (4) as amended and the relevant
jurisprudence concluding at para. 53: -
“I am satisfied that both limbs of the test under Order 84, rule 21(3) have been
met. If and insofar as there was any delay in instituting these proceedings, same is
justified by the delay on the part of the DPP in disclosing the supplemental witness
statement of the complainant's mother.”
The substantive issue
15. With regard to the substantive ground for seeking prohibition – whether there was a risk
of an unfair trial – the court noted that the alleged offences were said to have occurred
some thirty to forty years previously;
“The principal specific prejudice alleged by the applicant is the loss of potential
witnesses, as follows”:
(i)
The respondent maintains that he was not resident in the family home in
the years 1974 – 1978 and that he had lived with his grandparents and
latterly with his grand-aunt. All these individuals are now deceased and “…
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the delay will make it more difficult for the applicant to establish an
important line of defence, namely that he was not in residence during the
time the alleged sexual abuse was being carried out.”
(ii)
Regarding the death of the respondent’s wife the judge theorised; “The wife
might have been in a position to provide exculpatory evidence. For
example, she might have been able to confirm that he did not regularly visit
the family home during the relevant period.”
(iii) In regard to the allegation that R. had been raped on the occasion when the
respondent attended the family home in 1985 to announce his engagement
the court noted; “It is not clear from the witness statement as to who is
said to have been in the house on this occasion, and, in particular, it is not
clear whether it is said that the applicant's fiancé[e] was present.” He then
postulated that; “But for the lapse of time, it might have been expected
that the other people in the house that day would have been available to
give evidence as to their recollection of events.” The High Court judge
considered that same “might have been relevant to the jury’s assessment
of the credibility of the complainant to consider whether the events as
alleged could have occurred without having come to the attention of the
other people in the house… as a consequence of the delay, it appears as if
there are now no witnesses available to give evidence.”
(iv) “The two key participants in the event on Christmas Day 1978… are now
deceased. The second complainant and her mother have provided very
different accounts of this incident, and, in particular, as to whether it
involved the discharge of a shotgun…The fact that the two principal
witnesses are now deceased or unavailable through illness is a potential
cause of prejudice.”
(v) “The medical doctor who had examined the second complainant in or about
the time of the alleged sexual abuse is also now deceased… this is
something which the defence legal team may have wished to pursue at
trial.”
(vi) “Two other relatives… have indicated they had no recollection of these
matters and did not wish to make statements.”
16. The High Court judge concluded at paras. 58-61 that: -
“…the very significant lapse of time since the alleged offences occurred in this case
has created a real risk of an unfair trial…
Such potential witnesses as have survived are elderly, and a number of same have
indicated to An Garda Síochána that they have no clear recollection of events.
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… a trial of this type will ultimately reduce itself to a form of swearing match
between the applicant and the two complainants...
I do not think that the risk of an unfair trial can be avoided by the trial judge giving
specific warnings to the jury in relation to matters such as the danger of convicting
on the basis of uncorroborated evidence, or of convicting in cases of significant
delay. …The lack of specificity in relation to the dates of most of the alleged
offences makes it almost impossible for the applicant to challenge the evidence by
way of cross-examination or to rely on an alibi defence. In respect of the two
offences in respect of which a date is identifiable, the consequence of the delay is
that potential witnesses are now deceased, and those who have survived have no
clear recollection of the events.”
The court ordered that the DPP be prohibited from further prosecuting the respondent in
respect of the 17 charges in question.
Grounds of Appeal
17. The Director appealed. The notice of appeal identifies eight separate grounds where the
High Court judge is alleged to have erred: -
(1) In refusing to hold that the time for judicial review begins to run in a criminal case
from the date of the return for trial in circumstances where this principle was
(2) In holding that the disclosure of the mother’s supplemental statement was a
sufficiently significant event to reset the clock for the running of time for the
purposes of seeking judicial review.
(3) In holding that there was no onus on the respondent and/or his solicitor to explain
why the “belatedly disclosed material” is relevant in relation to the extension of
time.
(4) In holding that there was a real risk of an unfair trial because of the unavailability
of each of:
(a) The doctor;
(b) The grandparents;
(c) The grand-aunt; and
(d) The wife of the respondent,
in circumstances where there is no indication that any of these witnesses could
have given evidence that would be of assistance to the respondent at trial.
(5) In holding that the unavailability of the complainant’s uncle and the latter’s friend
led to a “potential cause of prejudice” in circumstances where they had been
present at a peripheral incident in the family home one year after an alleged
incident of abuse but where there was no indication that they had any information
in relation to the alleged abuse.
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(6) In failing to take adequate account of the fact that the mother and father of the
respondent (who were resident at the family home where the alleged abuse took
place) are available to give evidence.
(7) In failing to give any weight to the authority of Ó’C v. The DPP and Others
[2014] IEHC 65 which decision was approved by the Supreme Court in J.(S).T. v.
President of the Circuit Court and Another [2015] IESC 25 and more recently by
the Court of Appeal in R.B. v DPP [2019] I.E.C.A 48.
(8) In failing to leave the issue of prejudice to the trial judge who is best placed to
make such an assessment having regard to the evidence tendered at trial and
further erred in holding that the prejudice was “obvious”.
18. The respondent opposes the appeal.
Submissions on behalf of the appellant
19. In regard to the High Court’s finding that there existed a real risk of an unfair trial
because of the unavailability of a number of individuals whose absence through death or
other indisposition was considered a potential cause of prejudice, the DPP argued that this
finding is based on pure speculation as to what evidence could have been given by them.
Only some of the alleged acts of sex abuse are said to have occurred when the
respondent was residing in the family home.
20. It was contended that the judgment at para. 57(i) amounts to pure speculation as to what
evidence, if any, could have been given by the grandparents or grand-aunt were they
alive.
21. With regard to the non-availability of the respondent’s former wife who died circa 2012 it
was contended that all of the alleged abuse is claimed to have occurred prior to the
marriage. It was argued that the judge erred in relying on a dissenting judgment of
Hardiman J. at para. 57(ii) in J O’C v. DPP [2000] 3 I.R. 478 to support his conclusions.
22. It was contended that it was entirely speculative for the High Court to assert that the
respondent’s former wife could ever have given exculpatory evidence.
23. Regarding the Christmas Day, 1978 incident it was argued that same was entirely
peripheral and did not form part of the narrative in relation to any alleged incident of
sexual abuse.
24. Regarding the non-availability of the deceased family doctor it was contended that it is
not part of the prosecution’s case that the doctor was ever informed by R., or anybody,
about the sex abuse allegations or had ever physically examined R. in relation to such
allegations.
25. In relation to two other individuals who are alive but indisposed who when approached by
the gardaí had no recollection of matters, it was contended that it had never been alleged
that either was an eyewitness or could have provided any relevant evidence.
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The appellant’s arguments regarding the role of the trial judge in ensuring a fair trial
26. It was contended on behalf of the appellant that the decision of O’Malley J. in the High
cited with approval by both the Supreme Court and the Court of Appeal – represents the
current state of the law and ought to have been followed by the High Court judge. It was
further argued that the said decision is authority for the proposition that a claim of
prejudice arising from the unavailability of a witness is a matter which may be raised with
the trial judge who is best placed to determine the issue. The appellant argued that it is
pure speculation as to what evidence any of the missing witnesses in this case could have
given on behalf of the respondent at trial. The two most relevant witnesses – other than
the complainants – are still alive namely, the parties’ father and mother.
Exceptional circumstances
27. It was further contended by the DPP that the High Court judge had not given sufficient
weight to the role of the trial judge and the established jurisprudence of the Court of
Appeal and the Supreme Court that, absent any truly exceptional circumstances, the issue
of prejudice is a matter best left to the trial judge. It was argued that since the decision in
S.H. v. DPP [2006] 3 IR 575 a far more stringent test for prohibition lies and that the
remedy is now only granted exceptionally. Reliance was placed on Nash v. DPP
[2015] IESC 32 and the decisions of Clarke J. (as he then was) and Charleton J. which had
emphasised that the higher courts will only intervene to grant prohibition in exceptional
circumstances. It was contended that the High Court judge had erred in his application of
the authorities and the legal principles to the facts of this case.
Arguments regarding extension of time and procedural grounds of appeal
28. It was contended that the High Court judge had erred in determining that there was no
onus on the respondent to explain why the “belatedly disclosed material” warranted the
granting of an extension of time to seek judicial review. Further, that he erred in refusing
to hold that the time for seeking judicial review begins to run in a criminal case from the
date of the return for trial. It was pointed out that an indictment is almost invariably
served at the commencement of a trial. The determination of the High Court that the time
for seeking judicial review runs from the service of the indictment would permit an
applicant to institute judicial review proceedings on the eve of trial and would cause very
significant disruption to the orderly conduct and management of criminal trials in the
Circuit and Central Criminal Courts it was contended.
29. It was contended that the respondent had failed to meet the requirements of O.84 r.21(3)
of the Rules of the Superior Courts, 1986 as amended by the Rules of Superior Courts
(Judicial Review) 2011 (S.I. No. 691 of 2011) which provides that the court shall only
extend the three month period within which an application for judicial review is to be
brought if it is satisfied that there are good and sufficient reasons for doing so and the
circumstances were outside the control of, or could not reasonably been anticipated by
the applicant who seeks the extension of time.
30. Insofar as the High Court judge had relied on the supplemental statement of the
complainants’ mother – disclosed on the 4th April, 2018 – as constituting a sufficiently
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significant event to reset the clock for the purposes of instituting judicial review
proceedings, it was contended that the judge had erred. It was material, the appellant
contended, that the respondent had not engaged with the facts or indicated why it was
contended that the new statement had changed matters to such a degree that prohibition
was at that point considered to be a necessary relief.
Arguments on behalf of the respondent
31. It was acknowledged that there was no dispute between the parties as to the legal
principles applicable on an application seeking prohibition and same are well established.
Each case must be determined upon its own facts. It was contended that the decision of
the High Court was based on the application of well-established legal principles to the
facts before it. With regard to the unavailable witnesses the following arguments were
advanced:
(a) There was no dispute between the parties as to where the onus of proof lies and
that the respondent was obliged to engage with the facts and demonstrate that
prejudice accruing to him is not merely theoretical.
(b) There was “a real possibility” that the individuals in question would have been of
assistance to the defence.
(c) It was contended that the appellant had erred regarding the standard of proof
applicable in an application for prohibition – such an applicant cannot be expected
to show either as an established certainty or even a probability that a witness
would have been of assistance to the defence. Rather, it must be sufficient to
establish the relevance of a lost witness as a real possibility and the respondent had
discharged such a burden in this case.
32. It was argued that whilst it is preferable if a prohibition applicant could advance positive
evidence outlining specifically what a particular witness would have said if available, a
degree of leniency must be afforded where a complainant’s delay (however
understandable) has deprived the applicant of the opportunity of ascertaining precisely
what evidence could have been given by a potential witness prior to their death or the
erosion or diminution of their memory. Hence, it was contended that a degree of
speculation with regard to lost evidence is unavoidable and must as a matter of principle
be permissible. The dissenting judgment of Hardiman J. in J. O'C. v. DPP [2000] 3 I.R.
478 was cited as authority for the proposition.
33. It was contended that the respondent’s former wife was the most significant potential
witness. By reason of her death the respondent did not have the opportunity to ascertain
her recollection of relevant events before the complainants brought their allegations to
the gardaí. It would be irrational in such circumstances to expect the respondent to
establish precisely what she would or would not have said. By reason of her death, it was
argued, the loss of such evidence was irremediable and deprived the respondent of a vital
opportunity to challenge his sister R.’s narrative of the sole occasion when she claims she
was raped by him. The incident was one of just two out of the seventeen charges which is
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linked to a particular event or date. As such, it was contended that the 1985 engagement
announcement was one of the few “islands of fact” on which the prosecution case was
built and one of the few concrete assertions which the respondent could challenge with
any particularity.
34. It was contended that the death of his grandparents deprived the respondent of the
ability to prove when he was resident with them. He argued that they were best placed to
give evidence of the frequency of his visits to the family home at the material times.
35. He contended that the death of the family doctor deprived him of the opportunity of
challenging the evidence of R. and their mother that a doctor diagnosed her childhood
ailments as being “psychosomatic”. Such a diagnosis appears nowhere in the hospital
chart and records disclosed to the respondent, he argued.
36. In regard to the death of the maternal uncle J. and the indisposition of the latter’s friend
B., two individuals alleged to have been present when a shotgun was allegedly discharged
on Christmas Day, 1978, it was disputed that their evidence would be confined to
peripheral matters only as the Director of Public Prosecutions contended. It was argued
that such evidence could be of assistance to the respondent to challenge the credibility
and coherence of the complainant R., her narrative and to interrogate the timeline
advanced. It was argued that the non-availability of these witnesses is a significant blow.
Witnesses in lieu
37. The respondent contended that the availability of the parties’ father and mother cannot
be deployed as mitigation for the prejudice accruing to the respondent from the loss of
other witnesses, given that their recollection of events is patchy at best and in some
respects fully eroded.
Relevance of existing jurisprudence
38. The respondent argued that since no two cases are the same and the application of the
established principles to one set of circumstances cannot simply be transposed to
another, the existing case law is not particularly helpful. He sought to rely on the majority
particular facts to be within the “wholly exceptional circumstances” category such that the
grant of prohibition was warranted.
39. It was posited that “wholly exceptional circumstances” are present in the instant case,
with inherent prejudice arising from the cumulative impact of the evidence and assistance
lost to the respondent, particularly in light of factors including; that the allegations are
vague in nature, made without any supporting forensic or documentary evidence and
range back up to forty-five years – a time when the respondent was a minor and had not
reached full maturity. It is the combination of circumstances which renders this an
exceptional case warranting the grant of prohibition, the respondent contended. It was
argued that if the case goes to trial the jury would be left with a swearing match which
would put the respondent in an invidious position.
Role of the trial judge
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regarding the role of the trial judge. The respondent agreed with the appellant’s outline
submissions on the evolution of the Superior Courts’ jurisprudence concerning the central
role of the trial judge in ensuring the fairness of a criminal trial and that prohibition is now
generally granted in advance of trial only where the applicant has established manifest,
unavoidable prejudice such as to give rise to a real risk of an unfair trial. It was
contended that such exceptionality has been established in this case.
Extension of time
41. It was argued on behalf of the respondent that where the complainants had waited for up
to forty years before bringing their allegations to the gardaí who, in turn, had waited
seven months before interviewing him and a further eleven months had elapsed before
charges were brought, the respondent had initially concentrated on seeking essential
disclosure from the appellant and had waited a few short months until some of the
requested disclosures had been received before issuing prohibition proceedings. He
contended that this, on the facts, was reasonable. Reliance was placed on the affidavit of
his solicitor sworn on the 8th June, 2018 which explained why prohibition proceedings had
issued when they did.
Discussion
42. Over the past two decades there have been significant developments in judicial thinking
in this jurisdiction regarding the manner in which the courts treat applications for the
prohibition of a trial concerning allegations of historic child sexual abuse. The complex
dynamics and impediments inherent in the prosecution of historic child sexual abuse
cases led to an evolution in approach to achieve the correct striking of a fair balance
between the competing interests taking on board the often secretive, manipulative and
coercive features that may characterise the sexual abuse of children as well as the
specific factors in any given case that may come into play in delaying disclosure to the
authorities. The courts have endeavoured to strike a balance between the societal rights
that such matters be amenable to trial on the one hand and the fundamental right of an
accused person to due process and a fair trial. In the decision of G. v. DPP [1994] 1 I.R.
374 at p. 381 Denham J. (as she then was) opined: -
“Insofar as there are new developments and knowledge in our society on issues
related to the charges laid in this case then these matters must be dealt with in a
fair and just way by the courts.”
The case in question concerned charges of sexual offences involving seven children
alleged to have occurred over a period of approximately fourteen years.
fact that courts by then were achieving a greater understanding of the nature of such
offences stating: -
“As knowledge grows of the nature and effects of child sexual abuse and as
medical, psychiatric and psychological evidence is expanded and presented to the
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courts other factors may become apparent. Also, each case depends on its own
circumstances.”
44. Historic child sex abuse trials over the past two decades have shown that such offences
may occur routinely in circumstances where no third-party accounts are forthcoming and
where no “island of fact” is available as was observed by MacMenamin J. in J.S. v. DPP
generally considered a sound basis for seeking prohibition of a trial involving allegations
of historical child sexual abuse. Recent decisions from this court including the decision
delivered by Edwards J. in DPP v M.D. [2018] I.E.C.A. 277 confirm that position.
45. While it is recognised that it is frequently important to the defence in a case such as the
present one to be in a position to test a complainant’s evidence in relation to allegations
with reference to available islands of fact, there is, however, nothing in the evidence in
the present case to support the respondent’s contention that the alleged shotgun incident
of Christmas Day, 1978, could ever represent an “island of fact” against which any
specific allegation of sexual assault could be effectively fact-checked. The allegation of
abuse closest in time to the said date is claimed to have occurred over one year
previously.
46. As the High Court judge correctly noted in his judgment the key decision of the Supreme
Court which identifies the operative principles governing an application for prohibition of a
assault allegations by four complainants dating from the 1960’s. The children were aged
between seven and ten at the date of the alleged incidents. Chief Justice Murray in his
judgment made clear that: -
“…there is no necessity to hold an inquiry into, or to establish the reasons for, delay
in making a complaint. The issue for a court is whether the delay has resulted in
prejudice to an accused so as to give rise to a real or serious risk of an unfair trial.
The court does not exclude wholly exceptional circumstances where it would be
unfair or unjust to put an accused on trial”.
47. In S.H. v. DPP, of note is the observation of Murray C. J. at p. 618: -
“The court’s experience… has found that there is a range of circumstances
extending beyond dominion or psychological consequences flowing directly from the
abuse which militate or inhibit victims from bringing complaints of sexual abuse to
the notice of other persons, in particular those outside their family and even more
particularly the gardaí with a view to a possible trial.”
Accordingly, an inquiry as to the reasons for any delay in making a complaint need no
longer be made.
48. Murray C.J. emphasised at p. 620, that in an application such as the present: -
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“The test is whether there is a real or serious risk that the applicant, by reason of
the delay, would not obtain a fair trial, or that a trial would be unfair as a
consequence of the delay. The test is to be applied in light of the circumstances of
the case…
The inquiry which should be made is whether the degree of prejudice is such as to
give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any,
will depend on the circumstances of the case.”
He observed at p. 621: -
“There is no doubt that difficulties arise in defending a case many years after an
event. However, the courts may not legislate, the courts may not take a policy
decision that after a stated number of years an offence may not be prosecuted.
Also, as the legislature has not …established a statute of limitations that…may be
viewed as a policy of the representatives of the People. Thus, each case falls to be
considered on its own circumstances.”
49. The High Court judgment noted that the appellant relied on the decision of the Supreme
judgment had clarified further the position of the Supreme Court on the correct approach
to be adopted when considering an application for prohibition of a criminal trial in a
historic child sex abuse case, Charleton J. stating at para. 23: -
“The trial judge now has the primary role in decisions of this kind and judicial
review is rarely appropriate. An application to the trial judge is an alternative to
judicial review.”
50. It is clear from the Nash decision that it is desirable, save in the most exceptional
circumstances, that an application to prohibit or restrain a trial in such cases must be
made to the relevant trial judge rather than by way of judicial review proceedings.
Charleton J. further observed at para. 23: -
“An application to stop a trial before the trial judge may best be decided upon a
consideration of all of the evidence and how the alleged defect, be it delay or
missing evidence or unavailable witnesses, impacts on the overall case. Whether
the real risk of an unfair trial that cannot otherwise be avoided then exists is, in
such cases of an argument that justice has been diminished, often best seen in the
context of such live evidence as has been presented and not through the contest on
affidavit that characterises these cases on judicial review seeking prohibition in the
High Court or on appeal.”
51. The decision of Charleton J. in Nash reiterates the said judge’s earlier decision in K. v. His
Honour Judge Carroll Moran and Others [2010] IEHC 23 where at para. 9 he distilled
the applicable principles of law into nine key propositions: -
Page 14 ⇓
“(1) The High Court should be slow to interfere with a decision by the Director of Public
Prosecutions that a prosecution should be brought. The proper forum for the
adjudication of guilt in serious criminal cases is, under the Constitution, a trial by
(2) It is to be presumed that an accused person facing a criminal trial will receive a trial
in due course of law, one that is fair and abides by constitutional procedures. The
trial judge is the primary party to uphold the relevant rights which are: the
entitlement of the accused to a fair trial; the right of the community to have serious
crime prosecuted; and the right of the victims of crime to have recourse to the
forum of criminal trial where there is reasonable evidence and the trial can be fairly
(1988) 3 Frewen 141.
(3) The onus of proof is therefore on the accused, when taking judicial review as an
applicant to stop a criminal trial. That onus is discharged only where it is proved
that there is a real risk of an unfair trial occurring. In this context, an unfair trial
means one where any potential unfairness cannot be avoided by appropriate rulings
and directions on the part of the trial Judge. The unfairness of the trial must
therefore be unavoidable; Z. v. DPP [1994] 2 I.R. 476 at p. 506 - 507.
(4) In adjudicating on whether a real risk occurs that is unavoidable that an unfair trial
will take place, the High Court on judicial review should bear in mind …. that a trial
Judge will warn a jury that because of the elapse of time between the alleged
occurrence of the facts giving rise to the charges, and the trial, that the accused
will be handicapped by reason of the lack of precision in the presentation of the
case, and the disappearance of evidence such as diaries, or potentially helpful
witnesses, or by the normal failure of memory. This form of warning is now
standard in all old sexual violence cases and a model form of the warning, not
necessarily to be repeated in that form by all trial Judges, as articulated by Haugh
J. is to be found in the decision of the Court of Criminal Appeal in The People (DPP)
v. E.C. [2006] IECCA 69.
(5) The burden of a proof on an applicant in these cases is not discharged by merely
making a general allegation of prejudice by reason of the years that have elapsed
between the alleged events and the commencement of the criminal process.
Rather, there is a burden on such an applicant to fully and actively engage with the
facts of the particular case in order to demonstrate in a specific way how the risk of
134 at p. 144.
(6) Whereas previously the Supreme Court had focused upon an issue as to whether
the victim could not reasonably have been expected to make a complaint of sexual
violence against the accused because of the dominion which he had exercised over
her, the test now is whether the delay has resulted in prejudice to an accused so as
Page 15 ⇓
(7) Additionally, there can be circumstances, which are wholly exceptional, where it
would be unfair or unjust to put an accused on trial. Relevant factors include a
lengthy elapse of time, old age, the sudden emergence of extreme stress in
consequence of the charges, and which are beyond that associated with the normal
stress that a person will feel when facing a criminal charge and, lastly, severe ill
(8) Previous cases, insofar as they are referred on the basis [of] facts that are
advocated to be similar, are of limited value. The test as to whether a real risk of
an unfair trial has been made out by an applicant, or that an applicant has
established the wholly exceptional circumstances that had rendered unfair or unjust
to put him on trial, are to be adjudicated in the light of all of the circumstances of
(9) …it can be the case sometimes that circumstances such as extreme age or very
poor health will be contributory factors to an applicant succeeding in making out
that a real risk of an unavoidably fair trial is established.”
Missing witnesses
52. As the High Court judge noted in his judgment at para. 7, O’Malley J. in P.B. v. DPP
[2013] IEHC 401 – in a passage cited with approval in the judgment of this court in
M.S. v. Director of Public Prosecutions [2015] IECA 309 – emphasised that the point of
the decision in S.H. and the authorities that followed is that difficulties caused to a
defendant in the case of old allegations are best dealt with in the court of trial. The
judgment of this court in M.S. v. Director of Public Prosecutions considered that unless
the delays in question have caused irremediable prejudice in terms of either missing
witnesses or evidence: -
“Experience has shown that, special circumstances aside, the court of trial is
generally better placed than the judicial review judge to make an assessment of
this matter, particularly having regard to the run of the evidence and the evidence
actually tendered.”
“… when an applicant seeks to establish that the absence of a specific witness or
piece of evidence has caused prejudice, he or she must be in a position to point to,
at least, a real possibility that the witness or evidence would have been of
assistance to the defence. In other words, I do not believe that it is sufficient to
point to a theoretical possibility that an unavailable witness might have had
something to say that would contradict the complainant's account and that of other
witnesses.”
The judge continued at para. 66: -
“In this case, it is theoretically possible that C. gave an account to Dr. O’Carroll
which was wholly at variance with that given to others and consistent with the
Page 16 ⇓
innocence of the applicant, or which, at least, was materially inconsistent with her
other accounts. On the basis of the evidence, however, that is not a real
possibility.”
The judgment continues at paras. 67-68: -
“The question is, I consider, whether there is a real possibility that the missing
material would reveal a material inconsistency which would be of benefit to the
applicant. In my view, there is nothing in the evidence to suggest that this is a
realistic possibility as might be the case if, for example, it was shown that she had
given materially inconsistent accounts in other instances. I do not consider that the
presumption of innocence requires the court to assume, in the absence of any
supporting evidence, that it did happen in relation to Dr. O’Carroll.
This is not to suggest that the applicant bears an onus of proving his innocence it is
simply that the establishment of a ‘real risk’ must involve establishing a ‘real
possibility’ that evidence did exist, which could have been helpful, but is no longer
available.”
C.J. in considering an issue of missing records observed as follows at para. 27: -
“In all the circumstances, the missing records are not a basis upon which to prohibit
the trial. In a recent case of Ó'C. v. D.P.P [2014], O'Malley J. rejected the argument
that missing records from a health centre and the death of a doctor, to whom the
complainant had spoken to about alleged sexual abuse, were matters which should
persuade the Court to grant prohibition. Each case has to be considered on its own
facts. The alleged absence of documents in this case does not appear to be such
upon which to prohibit a trial. That said, it is an issue which may be opened to the
trial judge, who will be best placed to determine the matter.”
55. A succinct exposition on the current jurisprudence of the Supreme Court and this court on
the general desirability of the issue of prejudice being dealt with at the trial rather than
speculatively by way of an application for prohibition is to be found in the judgment of
Coffey J. in R.B. v. DPP [2018] I.E.H.C. 326. He stated at para. 15: -
“It seems to me that the effect of the modern jurisprudence relating to allegations
of undue delay in historic sexual abuse cases is to postpone the issue of prejudice
to the trial itself so that it can be assessed by the trial judge having regard to the
granular detail of the actual evidence that is to go to the jury with the result that
prohibition should only be granted in advance of a trial where the prejudice
complained of is manifest, unavoidable and of such significance as to give rise to a
real or serious risk of an unfair trial.”
Page 17 ⇓
His decision was upheld on appeal in this court in a judgment delivered by Baker J.
reported at R.B. v. DPP [2019] I.E.C.A. 48. I am satisfied that the excerpt represents a
correct statement of the current state of the jurisprudence.
56. It is incumbent on an applicant who seeks to prohibit a criminal trial to demonstrate that
the prejudice contended for is manifestly unavoidable and of such significance as to
demonstrably give rise to a real or serious risk of an unfair trial.
57. The question for determination is whether the High Court judge correctly applied the
relevant legal principles cited in his judgment to the facts of the case.
Functions of trial judge
58. The parties to this appeal are in agreement that the central figure in delivering a fair trial
is the trial judge and as is submitted on behalf of the respondent; “The case-law has
evolved to the extent that prohibition is now generally granted in advance of a trial only
where the appellant has established manifest, unavoidable prejudice of such significance
as to give rise to a real risk of an unfair trial.”
59. As was observed by O’Malley J. in P. v. The Judges of Dublin Circuit Court and the DPP
and the Attorney General [2019] IESC 26: -
“The prosecution of sexual offences alleged to have been committed many years, or
even decades, ago has thrown up many challenges for the criminal justice system.”
60. The granting of orders prohibiting criminal trial in the case of historic child sex abuse
cases usurps the principle that the appropriate constitutional forum for the adjudication of
guilt in serious criminal cases is a trial by judge and jury. The principles in that regard set
forth by Charleton J. as a judge of the High Court in K. v. His Honour Judge Carroll Moran
and Others [2010] IEHC 23 have been followed continuously thereafter and upheld
both by the Supreme Court and by this court.
Distinguishability of the decision of this court in B.S. v. DPP [2017] IECA 342
where the majority determined that an order prohibiting the trial was warranted.
Several key factors distinguish that decision from the instant case: -
(1) The applicant had been returned for trial on one count only which it was alleged
had occurred on an unspecified date between the 1st January, 1970 and the 21st
May, 1970 when the applicant was sixteen years of age. By contrast in the instant
case the respondent has been returned for trial on seventeen counts of sexual
assault, two of which concern rape.
(2) The period of offending in this case is of substantially greater duration – over a
decade ranging from 1974 to 1985.
(3) The respondent, whilst he was a minor during the commission of seven of the
alleged offences, was also a person of full age when it is alleged other of the
offences, including rape, took place.
Page 18 ⇓
(4) The instant case involves more than one complainant.
(5) In B.S. the court found that the appellant had engaged with the evidence and his
belief that the three deceased witnesses could have been of assistance to him went
well beyond mere assertion. The deceased witnesses were shown to be potentially
helpful to the defence. An essential element in this case which distinguishes it from
many of the authorities sought to be relied upon on behalf of the respondent is that
both the father and mother of the parties are still alive and available to give
evidence and be subjected to cross-examination. There were differences in
recollection between the mother and the complainant R., differences that can be
fully exploited at trial by cross-examination if considered appropriate.
Conclusions
Witnesses
62. The respondent based his claim for prohibition of a criminal trial primarily on the lost
witnesses he asserted are unavailable to him at trial. I am satisfied that the dicta of
O’Malley J. in Ó’C v. DPP constitutes a correct exposition of the standard applicable where
it is contended that the unavailability of a witness through death or incapacity or
otherwise warrants prohibition by reason of a real possibility that the ensuing trial will be
unfair.
i. The former wife
63. There is real doubt as to whether the respondent’s estranged wife, who died in either
2011 or 2012, was even present in the family home in 1985 on the occasion when the
respondent visited to inform his family of his engagement and when, it is alleged, the last
act of sexual assault by the respondent on his sister R. occurred. There is no allegation
that he sexually abused either complainant following the marriage. The averments and
exhibits supporting the application for prohibition refrain from asserting unequivocally
that she was present at all in the house on the occasion in question in 1985.
64. The respondent deposed in an affidavit verifying his statement grounding the application
for leave on the 25th May, 2018 at 15(ii): -
“The applicant lived with his ex-wife [A.M.] during some of the period of the alleged
offences against [R.]. She would have been in a position to provide evidence
relevant to his defence. Her death in 2012 has deprived him of another significant
witness. This materially affects his ability to test the case against him and to
challenge the credibility of the complainants’ and/or other witnesses.”
65. Beyond mere assertion there is a significant failure to engage fully and actively with the
facts to demonstrate specifically and with reasonable particularity what that evidence
might be or how the absence of his estranged wife and her non-availability as a witness
gives rise to any risk of an unfair trial. Neither would there appear to be any statement
before the court asserting that the ex-wife was ever present in the complainants’ family
home at or about the time of any of the other sixteen alleged incidents of abuse the
subject matter of the other indictments. The overall impression to be inferred is that she
was not present in the family home on the said occasion in 1985.
Page 19 ⇓
66. The bare assertions concerning his deceased estranged wife that “she would have been in
a position to provide evidence relevant to his defence” and the unsupported contention in
the statement of grounds that; “Had they sought out a statement from the applicant’s ex-
wife when they first became aware of the allegations, at which time she was still alive,
they would have preserved significant evidence which had a potential bearing on the issue
of guilt or innocence” are entirely vague, devoid of any particularity and are mere
theoretical possibilities which fail to engage with the facts. They offer no particularity as
to what the “significant evidence” might be and fail to demonstrate, as the law requires,
how specifically her evidence might have assisted the respondent.
67. There is no sound basis identified for the contention that she would have been in a
position to give any relevant evidence which was potentially helpful to the respondent.
What she might or might not have said, were she in a position to give evidence, is in the
realms of pure speculation. For instance, as matters stand, it might be expected that she
could say that she was not present at all in the house on the occasion in question. Her
untimely death in 2012 or thereabouts precludes the possibility of taking the matter
beyond conjecture at this stage. The assessment by the High Court judge that had the
ex-wife been in the house and had she been available to give evidence “it might have
been relevant to the jury’s assessment of the credibility of the complainant to consider
whether the events as alleged could have occurred without coming to the attention of the
other people in the house” is in the realm of theory and conjecture, and is not a sound
basis for making an order prohibiting the trial proceeding. The dissenting judgment of
Hardiman J. in J. O’C. v. Director of Public Prosecutions [2000] 3 I.R. 478 relied upon is of
limited relevance given firstly, that it was a dissenting judgment and given that over the
ensuing twenty years since it was delivered the criteria governing the making of an order
of prohibition in respect of a criminal trial in historic child sexual abuse cases have
substantially evolved as outlined above such that aspects of the said dissenting judgment
have now been substantially superseded.
ii. The grandparents
68. It is contended by the respondent that he moved out of the family home and went to live
with his maternal grandparents on a farm a distance away from the family home. He
argued that they are relevant witnesses as they would be best placed to give evidence of
the frequency of his visits to the family home during the period of time he resided with
them. However, that is not so. Logically, all they could testify to at best would be that he
had or had not on a given date not indicated that he was going to visit his original family
home. Such evidence would not be probative of any issue arising such as would render
them potentially helpful witness for the respondent. By contrast, his parents are still alive
and they were at all material times normally resident in the family home. His mother is a
witness in the book of evidence and his father can be called if required to give direct
evidence of the frequency or otherwise of visits to the family home.
iii. The grand-aunt
69. It was contended that the respondent had resided with his grand-aunt in England for a
time. However that does not appear to be in dispute. The complainants appear to accept
that he resided in England for some months and then returned to Ireland, and thereafter
Page 20 ⇓
joined the army. No stateable basis has been identified for a contention that he is
prejudiced by her non-availability to confirm what is not in contention between the
parties.
iv. Death of uncle J. and non-availability of J.’s friend B. pertaining to events on
Christmas Day 1978.
70. I am not satisfied that there was probative evidence before the High Court sufficient to
warrant a determination that the absence of both the said witnesses amounted to a
“potential cause of prejudice”. The incident in question in respect of which the
complainant R. recalls that a loaded shotgun was accidentally discharged in the family
home on Christmas Day, 1978 was not an occasion when any act of abuse, the subject
matter of any of the charges, is alleged to have taken place. Indeed, it is distant in time
from the most proximate count by approximately one year. Furthermore, insofar as it
constitutes one of the “islands of fact” in the case and affords an opportunity to stress
test the credibility of R. this can be done readily by cross-examination in light of the
contents of the book of evidence, and in particular the statement of the parties’ mother
where she disagrees with R.’s recollections and denies that any shot was fired in the
family home on Christmas Day, 1978 in the manner that R. contends. There was no
nexus between this incident and any of the alleged incidents of sex abuse. I am satisfied
that on balance it constitutes a wholly peripheral issue. Therefore, no line of questioning
at the trial in regard to the credibility or reliability of R. as a witness and a re-counter of
fact is diminished or in any way trenched upon by the non-availability of the uncle J. and
his friend B. through death or indisposition respectively. I am further satisfied that the
evidence that might have been given had they been available to testify would not go to
the truth or falsity of any of the offences set forth in the statement of charges, there
being no suggestion that they were ever present or had any nexus with any of the alleged
incidents at all.
v. The family doctor
71. The family doctor is now deceased. However, it was not suggested that at any time the
said doctor was informed about the alleged abuse or that he ever physically examined the
complainant R. in relation to an allegation of sexual abuse; and at most it is contended
that he treated her in connection with a urinary or kidney tract infection or infections. If,
as the respondent contends, the records as exist make no reference to a psychosomatic
condition that any suggestion on the part of R. or the parties’ mother that her childhood
ailments had a psychosomatic dimension can be fully argued at trial and can be the
subject of cross-examination and formal legal submission. The doctor was never in a
position to give any evidence as to whether R. was or was not abused by the respondent.
vi. Lack of recollection of mother-in-law of R. and maternal uncle
The indisposition and lack of recollection of these parties is wholly irrelevant to any issue
in this trial. There is no suggestion that they were present or aware of any alleged
incident set out in the statement of charges. Neither is it contended that they were
eyewitnesses or ever in a position to tender relevant evidence which might have assisted
the respondent in relation to any complaint of abuse.
Demonstration of a real risk of an unfair trial
Page 21 ⇓
72. I am not satisfied that the respondent engaged in a specific way with the evidence
actually available to the degree that the jurisprudence now requires of an applicant who
seeks to prohibit a criminal trial taking place, and to remove discretion with regard to its
conduct from the trial judge merely on the basis of affidavit evidence. Whilst reliance was
will be recalled that the said judge on behalf of the majority in the Supreme Court stated
at para. 24: -
“In order to demonstrate that risk [of an unfair trial] there is obviously a need for
an applicant to engage in a specific way with the evidence actually available so as
to make the risk apparent. … This is not a burdensome onus of proof: what is in
question, after all, is the demonstration of a real risk, as opposed to an established
certainty, or even probability of an unfair trial.”
73. I am satisfied that the High Court erred in granting an order prohibiting the trial and in
reaching a conclusion that the significant lapse of time since the alleged offences occurred
in the case gave rise to a real risk of an unfair trial. The High Court judge in determining
that the deaths or non-availability of the various individuals referred to in the judgment –
and above – had the effect of denying the respondent an opportunity to advance lines of
defence including;
i. his residence;
ii. the circumstances of his visits to the family home – especially at times such as
Christmas Eve and the announcement of his engagement; and
iii. the credibility of the complainants’ recollections,
failed to apply the established jurisprudence to the facts of this case and disregarded the
fact that at most the respondent’s assertions of prejudice amounted to theoretical
possibilities that the unavailable witnesses might have something to say that could
possibly contradict the accounts of the complainants. None resided in or even asserted to
be present at the family home on the dates when sexual abuse or rape was alleged to
have occurred. There is no indication that any had knowledge of the alleged offences or
complaints regarding same. None was demonstrated with supporting evidence to be a
potentially helpful witness to the respondent.
74. I am satisfied in the instant case that the respondent’s contentions fall far short of
demonstrating actual identifiable prejudice of a kind which could not be cured by
directions of a trial judge at the hearing. In concluding to the contrary at paras. 60 - 61 of
the judgment the High Court judge was in error and failed to apply the by now well
established legal authorities to the facts of this case.
75. Hence, at para. 63 of his judgment the High Court judge erred in failing to distinguish the
facts of the instant case from those which obtained in B.S. v. DPP which latter decision
derives from its own exceptional facts and cannot be said to be of any general application.
Page 22 ⇓
The decision in B.S. v. The DPP turned on its own unusual facts, particularly a single
incident alleged to have occurred forty-seven years’ prior at a time when he was a minor.
There was no witness available who could address the issues. Potentially helpful witnesses
were all deceased. By contrast, in the instant case there are two complainants. There are
seventeen separate charges ranging over many years. When the unavailable witnesses
are more closely scrutinised it is clear that at best the evidence they might be in a
position to give would be entirely peripheral to the central issue as to whether the
allegations of sexual abuse comprised in the seventeen counts did or did not take place.
76. Contrary to the conclusions of the High Court judge, the respondent failed to establish
manifest, unavoidable prejudice of such significance and gravity as to give rise to a real
risk of an unfair trial which could not be avoided by appropriate rulings and directions by
the trial judge who would have the opportunity to consider the granular detail of the
actual evidence. The fact that the current state of affairs may be likely to give rise to a
swearing match at trial, as the High Court judge considered, makes it no different from
most other trials and cannot be said to put the respondent in an invidious position.
Adversarial trials represent the process in this jurisdiction whereby facts are to be
determined in accordance with the evidence.
The constitutional norm provides that trial by judge and jury is the appropriate form
for determination of guilt or innocence in serious criminal matters
77. Allowing the matter to go to trial accords with the constitutional order which provides that
the determination of guilt in serious criminal matters is in a trial by judge and jury. In
light of the failure of the respondent to adduce cogent evidence in support of his
application to meet the threshold for intervention, a refusal of the application for
prohibition was warranted.
78. A refusal to make an order of prohibition could not be said to amount to an abdication of
a difficult decision as the High Court judge erroneously suggested at para. 62 of the
judgment. It is the judge at trial who is primarily charged with upholding all relevant
rights of the parties concerned and it is inappropriate to usurp that process save in the
exceptional case where there is cogent evidence demonstrating the real risk of an unfair
trial and where such prejudice cannot be avoided.
79. Our laws acknowledge the many stakeholders in the administration of the criminal justice
system. The right to a fair trial is fundamental but some consideration of other interests is
also warranted. A criminal trial is also recognised, from a public interest perspective, as a
mechanism to vindicate the legal, constitutional, EU and ECHR rights of an alleged victim
of crime, the strengthening of such rights has been a feature of recent legal
developments, including the introduction of Directive 2012/29/EU of the European
Parliament and of the Council of 25th October, 2012 establishing minimum standards on
the rights, support and protection of victims of crime, and replacing Council Framework
Decision 2001/220/JHA (Victims Directive). Such rights include the positive rights arising
from the State’s “obligation to conduct an effective prosecution” (Söderman v Sweden
(Application No. 5786/08) European Court of Human Rights, 12th November, 2013, para.
Page 23 ⇓
33.
80. In reaching his conclusion, the High Court judge erred in failing to accord sufficient weight
to the constitutional norm which provides the appropriate form for the determination of
guilt or innocence in serious criminal cases as being a trial by judge and jury.
81. In light of the aforesaid, to allow a criminal trial to be de-railed unnecessarily by granting
an order of prohibition, as I am satisfied arose in the instant case, when the basis for
such an application is insufficient or vague and where the respondent has failed to
demonstrate in a specific manner – as the law requires – how exactly each of the
unavailable witnesses would have obviated the risk of prejudice or an unfair trial ran
counter to the legal authorities and was erroneous.
82. All such issues can be dealt with within the trial.
The trial judge is best placed to make an assessment
83. The High Court judge erred in failing to have due regard to the fact that in a trial
concerning sexual assault the burden of proof rests on the prosecution and the oral
testimony of the relevant witnesses and complainants will be comprehensively stress
tested in cross-examination. The trial judge has a far greater opportunity to consider the
testimony of the witnesses and to make directions or orders as he sees fit. This offers a
far superior process to an exercise carried out in the context of judicial review, relying
merely on written statements, frequently averments and affidavits sworn inevitably by
parties, with no direct knowledge of the matters or incidents alleged.
84. The prosecution has available to it a full panoply of remedies, applications, submissions,
arguments and requisitions to exercise as considered appropriate depending on how the
run of the evidence goes. The trial judge is in a position to make such rulings as are
appropriate and grant directions to protect the fairness of the trial and ensure its integrity
and that it is conducted fairly. The trial judge’s position is unique as the central party
charged with upholding the relevant rights, and in particular the entitlement of the
accused person to a fair trial which he or she can balance with regard to the rights and
interests of the other stakeholders, including the public interest that serious crime be
prosecuted and the entitlement of complainants who assert that they are victims of crime
to have recourse to the courts where there is reasonable evidence and the trial can be
fairly conducted as was stated by Charleton J. in K. v. His Honour Judge Carroll Moran
and Others [2010] IEHC 23.
85. The High Court judge failed to give adequate weight to the presumption of innocence
which governs the trial and imposes the burden of proof beyond all reasonable doubt
upon the prosecution. There are extensive inbuilt protections in the criminal trial process
which are available to aid the respondent and his legal team, and which may result in an
appropriate case in some or all of the counts not going to the jury and the requirement in
law that the jury be satisfied beyond all reasonable doubt as to give before convicting on
any one or more count.
Page 24 ⇓
86. I am satisfied that on balance, whilst the desire of said judge to achieve justice is
understandable and he expressed the noble concern that he “cannot simply abdicate the
difficult decision to the trial judge”, in fact, the approach adopted had the undoubted
unintended consequence of usurping the established standard, resulting in the halting of a
trial in circumstances where the respondent had failed to establish manifest, unavoidable
prejudice of such significance as to give rise to a real risk of an unfair trial in all the
circumstances of the case.
Time Limit
87. The High Court judge erred in his approach at para. 40 of the judgment where he stated:
-
“It does not seem to me to be consistent with the presumption of innocence to
expect the applicant and/or his solicitor to explain on affidavit why it is that the
belatedly disclosed material is relevant. To require an accused person to do so may
well have the undesirable consequence of requiring him to disclose aspects of his
proposed defence of the criminal proceedings.”
88. It is incumbent on the applicant who seeks prohibition of a trial to engage with the
evidence and the facts to demonstrate with clarity why prohibition of his trial should lie or
why time should be extended for the making of such an application and this respondent
did neither.
89. Contrary to the High Court judge’s conclusions the supplemental statement of the
complainants’ mother was not demonstrated by the respondent to be a sufficiently
significant event as warranted resetting the clock for the purposes of seeking judicial
review. In several respects the later statement merely amplified her earlier statement.
There was insufficient evidence put before the court by the respondent to warrant it being
treated as pivotal to the judge’s granting of an order of prohibition. It was incumbent on
the respondent to engage with the facts and demonstrate why the statement per se
constituted good and sufficient reason for the extension of time such that the legal test
under O. 84 r. 21 is met.
90. There is a dispute between the parties as to whether the decision in Coton v DPP
[2015] IEHC 302 is correct or whether it conflicts with the earlier Supreme Court decision in in
C.C. v. Ireland [2006] 4 IR 1, which appears to have indicated that the time limit for
seeking judicial review runs from the date of the indictment rather than the date of the
return for trial. However, since the substantive basis on which prohibition was granted
has been dealt with above it is not necessary to determine whether the two decisions can
be harmoniously construed. It is noteworthy that in Coton Kearns P. pointed out that
considerable changes had been effected to O. 84 and that there was considerably less
tolerance of delay than had been the case 10 years before.
91. For the foregoing reasons, I would allow the appeal and set aside the orders of the High
Court.
Result: Appeal Allowed