Irish Court of Criminal Appeal

Judgment Title: DPP -v- Eamon Cooke

Neutral Citation: [2009] IECCA 55


Court of Criminal Appeal Record Number: 84/07

Date of Delivery: 11 May 2009

Court: Court of Criminal Appeal

Macken, J.
Hanna, J. No CCA 84/07
MacMenamin, J.

THE COURT OF CRIMINAL APPEAL


Between/

DIRECTOR OF PUBLIC PROSECUTIONS


-and-

Eamon Cooke

Judgment of the Court delivered on the 11th day of May 2009 by Macken, J.


This is the applicant’s application for leave to appeal against conviction. He was convicted on the 28th February 2007 and on the 1st March 2007 of a total of 42 counts of assault in respect of two different complainants, the offences taking place, in the case of one complainant, between 1974 and 1978, and in respect of the other, between 1976 and 1978. The applicant was sentenced on counts 22-26 to one year imprisonment in respect of each of these, to run consecutively one to the other, on counts 38-42 to one year in respect of each of these, also to run consecutively one to the other, this latter five year total sentence to run consecutively to the first five years imposed on counts 22-26. On counts 1-21 and 27-37 the applicant was convicted of one year in respect of each offence, each to run concurrently with the other, and all to run concurrently with the sentence imposed on count 38. The total term to be served therefore amounts to ten years dating from the 30th March 2007, with a reduction from that ten year total sentence of the time already spent in prison. To complete the picture, the applicant had previously been convicted in December 2002 on the same charges of indecent assault in respect of the same two complainants. That conviction was quashed in May 2006 by this Court arising from the learned trial judge’s charge to the jury in that trial.

The applicant has listed a significant number of grounds of appeal against conviction, 13 in all, but some of the different grounds, in reality, overlap. For example grounds numbers 1-3 all concern the question of corroboration. This application is, at this time, against conviction only, as is usual. It is appropriate to set out a general description of the groups of grounds, which are as follows:

1 Corroboration (grounds 1-3)

2 Complaints concerning the inadequacy of the learned trial judge’s charge (grounds 4, 5, 8, 9, 10, 11, and 12)

3 The absence of certain materials (ground 6(1) and (2))

4 The manner and content of the cross-examination of the applicant (ground 7)

5 The perversity of the judge’s charge (ground 13)

At the commencement of the hearing of this application for leave, on the 21st July 2008, senior counsel for the applicant, properly notified the Court that the two main grounds of appeal both arise from the learned trial judge’s charge especially as concerns the two issues of delay and corroboration, and without formally conceding any of the other grounds of appeal, accepted that these are encapsulated in, or arise in consequence of or in connection with the two main grounds.

Counsel also indicated that she had been briefed in the matter only a short time previously, but had consulted with her instructing solicitor and with the applicant, and, upon enquiry of the Court, indicated that her client was fully satisfied to proceed with his appeal. Later in the course of the hearing however, counsel notified the court of her client’s request to have the application adjourned after all, to a subsequent date. Counsel for the applicant having presented the applicant’s case with admirable clarity and in a highly competent and professional manner, it was not immediately clear to the Court why the applicant wished to adjourn the application, but in circumstances where counsel had been briefed only a very short time previously, the Court, exceptionally, permitted the adjournment, and the matter came on for hearing on the adjourned date, the 23rd February 2009.
The application to add new grounds of appeal:
After the adjournment, and before the resumption of this leave application, by notice of motion dated the 28th day of January 2009, the applicant sought leave to adduce new evidence and, in consequence, to add several new grounds of appeal. The reliefs sought are in the following terms:

(1) Leave to adduce new evidence in the form of extracts from a book entitled “Playing in the Dark” written by S. K. McG. (with Rosie Dunn), one of the complainants to the prosecution of the applicant, in support of the grounds of appeal already lodged and the new grounds of appeal sought to be relied upon which book has been published since the trial and conviction of the Applicant.

(2) Leave to add and rely upon the following further grounds of appeal at the hearing of the above entitled Appeal:-

(a) A further and new allegation of anal rape made by the complainant S. McG. in the book “Playing in the Dark” never made heretofore casts serious doubt upon the credibility of her testimony and thereby renders the convictions of the Applicant unsafe.

(b) The fact that this allegation of anal rape arises in circumstances where S. McG. first discussed this assertion with other complainants at the trial.

(c) The vivid and detailed description of S. McG. observing the Applicant in the Intensive Care Unit of St. James Hospital in or about 1983 is manifestly false. This casts considerable doubt upon the reliance to be placed upon the credibility of any allegations made by this Complainant.

(d) Given the Joint Trial and conviction of the Applicant relating to counts concerning two complainants and the reliance placed by the Prosecution on the evidence of each complainant as giving support to the evidence of the other, all of the convictions of the Applicant are thereby rendered unsafe.

This notice of motion is grounded on several affidavits, sworn by the applicant on the 28th January 2009, 6th February 2009, and the 23rd February 2009, and by his solicitor Gregory F. O’Neill, on the 28th day of January 2009 and the 20th February 2009. The application is opposed by the respondent and an affidavit was sworn on his behalf by Inspector Gerard Kelly on the 23rd February 2009.

The application to adduce new evidence and add further grounds is based exclusively on extracts from the above book, authored, or co-authored, by one of the complainants in the trial. The publication of this book had become known to the respondent who notified the applicant’s solicitor of the fact of intended publication. There was some difficulty securing a copy of the book but eventually this became available and was furnished to the applicant’s solicitor by the respondent. The applicant complains about two particular matters dealt with in the book.

The first of these concerns a claim by the complainant in question that she had seen the applicant in the intensive care unit of St James’ Hospital in 1983, and of the adverse effect this had on her. A second concerns a further extract from the book in which it is suggested that the applicant may have, or had, allegedly further abused that complainant in a manner never previously disclosed, either to the gardaí or in the course of the trial, or at any time, so far as the applicant is aware, prior to the publication of the book.

As to the first extract, the applicant in his affidavit grounding the motion avers that the “contents of my solicitor’s grounding affidavit are true”. The first extract is described by him as the “vivid and detailed” description of the complainant, S. K-McG, observing the applicant in the intensive care unit of St. James’s hospital in 1983. The applicant’s solicitor avers in his first affidavit, having regard to the facts as disclosed to him by the applicant, and to the true position, that the complainant’s statement is “manifestly false”. Mr O’Neill also swears that the statement “casts grave doubt on the reliability to be placed on the credibility of the complainant”. By his affidavit of the 6th February 2009, the applicant refers the court to an “independent record of my admissions as an inpatient” sought on his behalf by his solicitor from the hospital. The basis for the above classification of the extract and its consequences, are the applicant’s instructions to his solicitor that he had not been, at the time claimed, an in-patient in the intensive care unit in St James’ Hospital, and that the first occasion on which he was admitted was in 1997 when he suffered a heart attack. In fact, upon further inquiry on behalf of the respondent, it was established that the applicant had in fact been admitted to St James’ hospital, but at an earlier date to any of those previously listed by the hospital. This was not in 1983 as the complainant stated, on her recollection, but in 1984 when she was about 17 years old, the events the subject of the charges having occurred at a time when the complainant was between 7 and 11 years old.

This information of course affected the first ground upon which the notice of motion is based. Counsel for the applicant, when it became available, accepted that there had been an error, because, it was said, the full information had not been made available by the hospital to the applicant’s solicitor. She correctly accepted that the discrepancy between 1983 and 1984 in the recollection of the complainant was not critical to the statement in the book or to the issue before the court. No criticism can be made of the applicant’s solicitor, who took all appropriate steps in the matter upon instructions received from the applicant. Mr. O’Neill was very diligent in following up his instructions.

However, there remains a real question mark over the limited and careful averment of the applicant to the effect only that he had never been in “the intensive care unit” of St James’ hospital at the time, and since his first admission was in 1997, as a cardiac patient, the complainant was “entirely untrue” in the matters described in the book. This averment clearly did not disclose the full picture to the court. It is particularly of concern that this averment was made by the applicant, who must have known that he in had in fact been in St James’ hospital in or around the time the complainant was speaking of, and was there for a period of several days. He has referred on affidavit to his admission “as a day patient”, but that was in 1993 according to the hospital records. The applicant’s further affidavit of the 23rd February 2009 purporting to explain the position, is also very telling. It states, inter alia:
“(3) I say that having read the book by S. K. McG. my instructions to my solicitor were that I was never in the intensive care unit in St James’ hospital during the 1980s. I say that I had a recollection of being a day patient in St James’ hospital sometime in the 1980s but I certainly was never in intensive care.
…
(5) I say that Mr O’Neill visited me at Wheatfield prison on the 19th February 2009 and informed me that the records at St James’ hospital had found a further in patient episode between the 11th July 1984 and the 16th July 1984. I remember that I was in the hospital for a period about this time in relation to an injury I received to my leg when using a mechanical saw. I have no reason to believe that I was ever placed in the intensive care unit during this admission.”
Nowhere in this affidavit is any explanation given by the applicant for having omitted to give this very important information – indeed the only relevant information – to his solicitor, or any basis for any surprising lapse in memory, and indeed none is claimed. Were this omission claimed to be based on a lapse of memory, it would be difficult to accept, as the true position of the applicant’s memory is evident from a consideration of the transcript of the trial, which discloses a characteristic, pointed out by counsel for the respondent in a different context referred to below, namely, that he has a quite extraordinary and precise memory for details, including dates, people, places, events, happenings, occurrences and so forth, over a lengthy period of time and stretching back very many years, without being confused or unsure of these in any material respect. The court does not find it credible that a stay in the hospital, as an inpatient, for five days in respect of an injury by a mechanical saw, could have been forgotten by the applicant. The court finds it disquieting that the applicant sought to distinguish, in his latest affidavit, his admission that he had been in the hospital around the relevant period after all, and his continued insistence only that he was not in the “intensive care unit”.

Liberty to adduce additional evidence and to add an additional grounds based on the statement in the book concerning St. James’ hospital is refused, not only because of the events as they unfolded, and as the true picture emerged, as properly accepted by the applicant’s counsel, and which supports in a material respect the complainant’s position, but also because the court feels obliged to conclude that the applicant did in fact well know and recollect the earlier admission, but failed to inform his solicitor of it. He has given no explanation for the omission or for the failure to disclose the full facts surrounding the history of that admission to the hospital, including the highly relevant fact that he had been admitted for as long as five days and for quite a serious injury in or around the relevant period.

On the second ground, still extant, that is, the statement in the book concerning the further allegation of abuse, it is necessary to cite what is said and published. The particular extract commences at page 56 of the book and reads as follows:
“This short period of time when his abuse of me suddenly escalated is difficult for me to talk about because it brought so much shame into my adult life. At the time I was still drawn to visit his house even though I was clearly becoming confused. The incentives he gave me, and the freedom in the house, were still enough to lure me back time and again because that’s how effectively he had groomed me. What happened in his bedroom that day, which he passed off as ‘an accident’, was one of the most frightening examples of his power over me and the extent to which he would go in order to fulfil his disgusting and perverted desires. But it didn’t stop there.
A short while later, I was on my own in his bedroom when he came in and offered me a banana to eat. I was delighted because fruit was kind of scarce for us at the time. It was a very strange experience because while I remember his coming into the bedroom and me then eating the fruit, I can’t recall anything of what happened next. So much of what Cooke did to me is vividly imprinted on my memory to this day, that I’m certain that on this occasion I was drugged. I didn’t knowingly take any tablets, but I can never be sure that he didn’t put something into that banana.
The next thing I can remember is waking up in his bed and realising that I didn’t know what had just happened. I was lying on the side of the bed, groggy and disorientated. I felt really sick and poorly. More than anything, I remember feeling frightened because it was the first time I had ever woken upon in any environment other than my own home, or at least woken up to find my family were nowhere nearby. I know I can’t have been asleep for more than an hour because it was late in the day and Cooke would have known I had to be home for my dinner. Worse still, I felt very uncomfortable. I suddenly felt like I wanted to go to the toilet and my bottom was very sore.
Then I saw blood on the sheets. I was horrified and asked Cooke where it had come from. He said he had cut himself shaving, but I knew it couldn’t be that because it was right where I had been sitting. I didn’t know what to think back then, but many years later it dawned on me that something very terrible happened that day. Today I am certain that he drugged me in an attempt to rape me anally while I was unconscious.
This experience sickens me so much I have never been able to speak publicly about it before. I couldn’t even include it in my adult statement to the Garda because even now it makes me feel dirty and embarrassed. When it happened I didn’t feel dirty as I was too young to realise the significance of the assault. At Cooke’s criminal trial, I met two more of his victims who had been through the very same experience some years after me and realised then that it was not a one off – it was the very worst level of his abuse. His depravity knew no bounds.
I confessed to one of the victims I met at the trial that I had not felt able to say everything in my police statement because I had felt so much shame at some of what had happened to me. I confided that, at that stage, I had not even been able to tell my own husband. She asked if I would share what letter the act began with and I said ‘b’. She asked if he had buggered me and I said I wasn’t sure but believed he had certainly attempted to. Then, to my horror, it came up again with another of the victims who said, ‘Oh my god, he told me the blood on the sheets was tomato sauce’.
Mercifully, I had remained asleep throughout the whole incident. That was probably the most severe assault on me, but through a misplaced sense of shame and embarrassment, it was the one thing I left out of my later police statement because I was too mortified to tell anyone. It probably would have meant a longer prison sentence for Cooke had I had the courage to speak out sooner. This is still a very hard part of my story to share with anyone, but if I left it out I would be failing to demonstrate just how sick an individual Eamonn Cooke is.”
The legal principles or criteria applicable to an application to adduce new evidence and to add further grounds are well established. They are encapsulated in the judgments of both the Supreme Court, and of this court, in particular in the cases of DPP v O’Regan [2007] 3 IR 805, DPP v Halligan (unreported Court of Criminal Appeal 4th July 2008) and DPP v Willoughby (unreported Court of Criminal Appeal 6th July 2004), as well as Murphy v Minister for Defence [1991] 2 IR 161, and many others. Those criteria may be stated as follows:

(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources;

(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired.

(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.

These principles have been widely applied at this stage and the above extract, which is from DPP v Willoughby, supra., adopted and endorsed by the Supreme Court in DPP v Regan, supra., must be considered as the established law on the topic at this time.

Counsel for the applicant submits that the extract falls squarely within the above principles, because had this material been made available after the complainant’s original statement to the gardaí, but before the applicant’s trial, it would have been used on behalf of the applicant as part of his defence. Counsel for the respondent argues that the criteria are not met in the present case because the statement consists only of “post trial narrative” which does not bear on the actual charges laid against the applicant and does not affect them. Counsel for the respondent further submits that it is not at all certain that the above information, even if it had been disclosed prior to the applicant’s trial, would or could have been used by the defence, as claimed, having regard to the likely dangers of doing so.
Conclusion:
The above allegation in the book is a serious one, although not as definite in score as the written submissions filed on behalf of the applicant suggest. It was not disclosed prior to publication. The question which arises is whether or not the statement falls within the parameters or the requirements set out in the above case law. This is not a case of the defendant failing to bring forward his entire case at trial as required under (a) above, because clearly the defendant brought forward his entire case in relation to the actual charges the subject of the trial. Nor is it the case, and there is no basis for the court to find, that the statement in the book could have been known or discovered by the defendant prior to his trial, in the absence of any admissions on his part. It would be wholly inappropriate for this court to express any view on its veracity or accuracy. Its publication post-dated the trial. On such unusual facts it does not appear that criteria (a) and (b) above, could be wholly applicable in the circumstances of this particular case.

As to the application of the two remaining requirements, these have been the subject of further jurisprudence, including the judgment of this court in DPP v Naughton (Unreported, Court of Criminal Appeal, 3rd March 2008). That case concerned fresh evidence in the form of documentation consisting of notes of a meeting of a social work department of a hospital which has not been previously disclosed. In determining how to approach the application of the above criteria, this court (Kearns, J.) stated:
“The sole issue therefore is to determine by means of an objective evaluation the potential impact of this documentation, had it been available to the defence at the time of the trial.”
And further:

“The principles in that regard were laid down in a number of cases beginning with the judgment of Blayney, J. in The People(DPP) v Gannon [1997]1 IR 40 where he said at pp. 47-48:
“The court (in that particular case) could not conclude for certain that the advent of the newly–discovered material would have had no effect on the manner in which the case was conducted. The furthest one could go would be to say that it is possible that it might not have had any effect and this would not relieve the court from examining what the position would have been if the defence had availed of the newly– discovered material and altered its strategy accordingly.”
In the recent case of DPP v Michael Joseph Kelly [2008] 2 ILRM 217, in the context of an application pursuant to s.2 of the Criminal Procedure Act 1993, but applying the above criteria, this court said:
“What the court is required to do is to carry out an objective evaluation of the newly discovered fact with a view to determining, in the light of it, whether the applicant’s conviction was unsafe and unsatisfactory in the context of what the legal advisors might have done with the material if it had been available to them.”
As to evaluating on an objective basis whether the evidence is credible and whether it might have had a material and important influence on the result of the case, considering it by reference to all other evidence at the trial, this court is not satisfied that the applicant has established that these criteria are met, for the reasons now set out.

It is true that the material now sought to be adduced as fresh evidence can be described, as it is by the respondent, as “post trial narrative of sexual abuse”. But that description of the material, even if accepted as a correct one, does not, in consequence, exclude it from falling within the ambit of and meeting the above criteria. Whether it does or not must depend on an appropriate objective analysis of the material in question. Such narrative or allegation would, however, have to be in some way in material conflict with the evidence of the complainant in relation to the charges on which the applicant was convicted, or undermine that evidence in such a way as to have an important influence on the result of the trial. The applicant in the written submission, points to the complainant’s evidence at trial as not including an allegation of penetration by the applicant, and contends that the new evidence is in conflict with that evidence, by claiming an alleged anal rape. Counsel did not, in oral argument, develop that submission. On an objective analysis of the material, it would appear that the furthest the complainant goes in the extract from the book is to say that she believed, many years later, but did not appreciate at the time, that an event may have occurred or possibly occurred or a further assault may have been attempted by the applicant, but the extract does not, in fact, allege penetration. It is therefore not surprising that counsel did not base her argument on this alleged material conflict.

Counsel on behalf of the applicant submits, nevertheless, that the extract could have had a material effect on the credibility of the complainant and therefore could have been used as a valuable tool in the course of cross-examination to challenge her credibility. As to this argument, it will be recalled firstly that credibility was seriously in issue in the trial itself, and on that issue the jury quite clearly believed the two complainants notwithstanding vigorous cross-examination, and disbelieved the defendant, notwithstanding his own evidence and the vigorous defence of his innocence.

Having regard to the outcome of the proceedings in which the credibility of the complainants was accepted by the jury, it is not clear that this additional material would have been “of material and important influence on the result of the case” on that ground. The phrase used in all the jurisprudence is not limited to materiality in terms of possible cross-examination. Rather, the new evidence which is sought to be admitted must be of a nature which might have a material and important influence “on the result” of the case. A material and important influence, even if not a decisive influence, on the result of the case in the present trial could only consist of a reasonable possibility or perhaps even a likelihood of an acquittal of the applicant on some or all of the charges in question. As was stated in the Supreme Court in DPP v O’Regan, supra., in relation to the latter point:
“Equally, it can only be seen as entirely reasonable and proportionate to incorporate in the principles a requirement that the proposed new evidence is credible and, if admitted, that it might have a material or important, though not necessarily decisive, influence on the result of the case. The Court is also satisfied that any consideration of materiality must be conducted by reference to all the other evidence at the trial and not considered in isolation.” (emphasis added)
The same approach is seen in English case law. The above principles and their applicability are similar to those found to be appropriate in R v Parks [1961] 3 All ER 633 in which Parker, J. stated:
“First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence of the trial.” (emphasis added)

The court also noted:
“it is only rarely that this court allows further evidence to be called and it is quite clear that the principles on which this court acts must be kept within narrow confines, otherwise in every case this court would be asked in effect to carry out a new trial.”
Secondly, when assessing the materiality of the evidence, as is clear from DPP v Regan, supra., this must be considered by reference to all other evidence in the trial, and not in isolation. As mentioned, it is suggested by the applicant’s counsel that this requirement is met because the new material could be usefully employed in the course of cross-examination to probe alleged inconsistencies in the applicant’s statements. This is premised on the assumption, correct in the court’s view, that the new material would have been included in a subsequent statement of intended evidence, made available to the defence prior to the trial, and which might well be, depending on its nature, in conflict with or different to an earlier statement. The accused’s counsel could, as is stated, seek to explore any alleged inconsistencies between the two statements for the purposes of undermining that complainant’s evidence and/or credibility. The possibility exists, of course, that such further allegations or complaints of the nature set out in the above extract from the book might have been the subject of additional charges. But, even if further charges were never laid, this additional material might also have been accompanied by psychological or other evidence as to the reasons for its late disclosure. Leaving aside these matters, and taking the material at its highest however, from the applicant’s position, having regard to the nature of the allegation it is not at all clear to the court, and counsel for the applicant did not explain - despite being challenged by counsel for the prosecution to do so - how such an allegation might be safely utilised in the course of cross-examination of the complainant. It is perfectly obvious that defence counsel at trial would find it immensely difficult to challenge the complainant on such an explosive statement on the grounds of alleged inconsistency with her earlier statement, without running the very high risk that the complainant would be permitted to give extremely damaging further or rebuttal evidence to the jury, including evidence of the reasons why the nature of this particular allegation and its effect on her led to its late disclosure.

The court has considerable doubts as to whether an allegation of such a prejudicial nature could or would ever have been introduced in evidence in the course of a trial on the extant indecent assault charges, and considers that if there were any attempt on the part of the prosecution to introduce such evidence this would more likely have been objected to as being wholly prejudicial to the defence and as having no probative value in relation to the charges actually laid, even of not being admissible at all in respect of them. Equally any attempt by counsel for the accused to introduce the material would have the likely effects mentioned earlier. The court is of the view therefore, that, when evaluated objectively, not in isolation, but by reference to all other evidence adduced, including evidence of simultaneous assaults of two young girls, this fresh evidence would not likely have had a material or important influence on the result of the trial, nor would it likely have led to a reasonable doubt in the minds of the jury as to the guilt of the applicant.

Having regard to the foregoing, the applicant has not established, and the court is not satisfied, that the new evidence sought to be adduced by way of the cited extract from the above book meets the relevant requirements, and the application to do so, and to add consequential new grounds based on it, is refused.
The original grounds:
Returning to the application for leave to appeal on the original grounds, prior to the application for an adjournment, counsel had set out, from the 14 grounds of appeal lodged, the two main grounds of appeal being pursued, namely, (a) the inadequacy of the learned trial judge’s warning in the course of her charge on question of delay, which involved not only grounds 4 and 5 of the Grounds of Appeal, but also several other associated grounds, namely, 6 (in part), 8, 9 10, 11 and 12, all being connected to the above ground, and (b) the manner in which the issue of corroboration was dealt with, being grounds 1 – 3 of the Grounds of Appeal. It seems clear from the exchanges with counsel that no application is being advanced on Grounds 6(iv) or 7, and that Ground 13 is relevant only as part of the consequences which flow from the two main grounds.

On a preliminary matter, according to the written submissions filed on behalf of the applicant, the fundamental issue central to all the grounds of appeal is stated to be the following:
“All of the issues raised in this appeal concern old cases and the difficulties that arise when old cases are proceeded with by the Director of Public Prosecutions. Each ground of appeal is relied upon, but the gravamen of this appeal is that Mr. Cooke could not and did not have a fair trial having regard to the antiquity of this case. It is submitted that the learned trial judge’s charge to the jury was not sufficient to protect the applicant having regard to the disadvantages suffered by him by reason of the inordinate delay. The particular circumstances of this case and the nature of the evidence tendered and acted upon by the jury render the convictions unsafe.” (emphasis added)
As to the statement that the applicant “could not” have a fair trial because of the fact that is an old case, such a contention, if held by the applicant, could have been the subject of a judicial review application on the grounds that no possible charge or ruling of the trial judge could cure the effect of delay by virtue of the fact that it was an old, or even a very old, case. Either no application for judicial review was sought before the retrial, or was sought and rejected. It must be assumed therefore that appropriate rulings and a proper charge by the trial judge would be capable of ensuring a fair trial for the applicant. No argument to the contrary was made at the oral hearing. The appeal must therefore be considered as proceeding on the basis that neither the rulings nor the charge of the trial judge were in fact or in law appropriate or sufficient, and it is worth noting that the only grounds in reality actually argued by counsel, correctly in the court’s view, are that the trial judge’s charge was inadequate to ensure that the applicant’s trial was fair and the convictions safe.

The court proposes to deal with the issue of corroboration and how it was dealt with in the charge, in the first place, in accordance with the listed Grounds of Appeal, and then with the charge on the issue of delay.
The issue of corroboration: the applicant’s argument
The basic premise of the applicant’s complaint in relation to this can be stated as follows. Firstly, (a) the dates upon which the complainants allege they had been abused did not cover the same period of time and therefore, while there was an overlap in time, it was not possible to separate any particular allegation of the complainants of being abused in the presence of each other, even simultaneously, from those allegations of abuse of each of them at separate times and/or on the non-overlapping dates; (b) while the evidence of each of the complainants was admissible in relation to what she allegedly saw happening to the other complainant, this could not constitute evidence corroborating the evidence of the other complainant, because they were each complainants and corroboration is not permissible in such a case; (c) no corroboration warning was sought on the applicant’s behalf and deliberately so; this had been previously agreed between the prosecution and the defence and the issue of corroboration therefore should not have been raised at all, but was raised by the prosecution; (d) collusion between the complainants, and between them and other witnesses or third parties, was the real basis of the applicant’s defence at trial, and in law, in such a situation, a corroboration warning should not be part of the charge at all; and (e) finally, under this first group, according to the written submissions, but not pressed during the oral argument, the evidence of each of the complainants was unreliable because of lengthy delay and it was therefore impermissible, on that ground alone, to accept or allow the evidence of one to corroborate the evidence of the other.

Secondly, (a) even if the court accepted that the evidence of one complainant could, in law, corroborate the other’s evidence, the learned trial judge erred in principle in the charge arising from use of the term “corroboration” because she failed to warn the jury that the credibility of each complainant had to be examined discretely and first accepted and only then could the jury consider whether or not her evidence was corroborative of the other complainant’s evidence; and (b) counsel for the applicant at trial had sought to have the word “consistency” used, as the being more appropriate in the context of the present trial, but the learned trial judge wrongly failed to charge the jury accordingly.

The respondent’s argument:
Counsel for the respondent argues, firstly, that (a) the learned trial judge’s charge in relation to the issue of corroboration was perfectly acceptable; the “corroboration” referred to in this case related, in reality, to the direct eye witness evidence of each complainant; (b) each complainant gave evidence that the applicant had on numerous occasions indecently assaulted her in front of the other or even simultaneously, in the same room or location; (c) this evidence, being eye witness evidence of the commission of the offences, is wholly admissible direct evidence; (d) the direct evidence of an eye witness to the indecent assault of the other party, is, prima facie, capable of corroborating that other complainant’s account or evidence; (e) if that evidence is accepted by the jury as being independent and credible, it is the best form of “corroborative” evidence; and (f) the applicant is wrong in law in suggesting that corroboration cannot arise where the defence, as here, alleged collusion between the complainants or between either of them and a third party.

Secondly, counsel for the respondent submits that: (a) there was no legal requirement for corroboration, or for a corroboration warning, and points to the fact that the defence made no application in respect of any such requirement; (b) contrary to the contention of the applicant, this state of affairs was clearly indicated after the closing speeches of counsel for the respective parties and after a discussion on the issue between both counsel and the judge which preceded the trial judge’s charge. Thirdly, the actual classification of the evidence in question by the learned trial judge as being “capable of corroboration” had the consequence of conferring a benefit on the applicant, as accused, because it thereby attracted directions from the learned trial judge as to its independence, which was not, in law, required in the case of the direct evidence given.

Finally, counsel for the respondent contends that: (a) the learned trial judge properly directed the jury that they must be satisfied that the evidence of one complainant was credible, coherent and independent, before deeming it capable of corroborating the other complainant’s evidence; (b) the tenor of the charge to the jury on corroboration was akin to an accomplice warning on the evidence in question, and was far in excess of what was necessary, and more than met the legal requirements, if any.


Conclusion:
Having considered the learned trial judge’s charge and her definition of corroboration given in the following terms “it is independent evidence that does not come from the complainant which tends to show in some material particular (a) that the offence was committed and (b) that it was committed by the accused”, this definition appears to the court to be a sufficiently clear and concise definition of corroboration as not to attract any criticism of it.

Counsel for the respondent, in the written submissions, as she did in the course of the trial, draws the court’s attention to the decision of the Supreme Court in the case of DPP v John Gilligan [2006] 1 IR 107 as setting out the correct approach in this jurisdiction to the question of corroboration. Contrary to the applicant’s written submission and oral argument to the opposite effect, in that case the Supreme Court held that it is not a two stage process of determining first, whether a witness is credible, and if so, then addressing the issue of corroboration by means of his/her evidence. It is not necessary for the purposes of this case to set out in detail the entire of the extract from the above case, the judgment being very recent and adopting an approach, which derives from the case of Attorney General of Hong Kong v Wong Muk Ping [1987] 1 AC 501 and which is different to and distinguishes the case law of the United Kingdom. The statement of Denham, J. in DPP v John Gilligan, supra., in which corroboration was a critical issue, is as follows:
“This is a matter of common sense. Corroboration arises where the evidence to be corroborated has a degree of credibility. However, corroboration is not a two stage process. It is not a process in which there is first a determination as to whether a witness is credible, and, if he is credible, then the issue of corroboration is addressed, I would distinguish any two step approach based on an interpretation of R v Hester [1973] A.C. 296.” (emphasis added)
In the written submissions filed on behalf of the applicant, having invoked United Kingdom case law in support of the applicant’s position, the written submissions refer to the above judgment in the following terms:
“The Court is also referred to the case of Director of Public
Prosecutions v Gilligan, (Unrep, Supreme Court, 23rd November 2005) in relation to remarks made by Denham, J. as to the strict interpretation placed on (sic) our courts on the issue of corroborative evidence.”
The Supreme Court decision in the above case - the judgment of Denham, J. was the unanimous decision of the Court – is undoubtedly the law on corroboration in this jurisdiction, rather than that invoked in the written submissions filed on behalf of the applicant. Having regard to the judgment of the Supreme Court in the above case, the correctness of which is not challenged by the applicant, save indirectly by invoking United Kingdom case law, the authoritative statement of the law on corroboration in this jurisdiction is found in DPP v Gilligan, supra.

Defence counsel’s main argument on corroboration in the course of the trial was rather nuanced. His contention and that of counsel for the applicant in this court, was that corroboration was not a matter at all for the jury in the present case, because the evidence of each complainant could not in law corroborate the evidence of the other complainant, for the very reason that each of them was a complainant. He distinguished the evidence of each complainant, even eye witness evidence, from that of an independent eye witness to the events, whose evidence could properly corroborate that of either complainant. He secondly argued there could be no corroboration because of the allegation of collusion, and finally he argued that, even if he was wrong on that latter point, nevertheless until such time as the jury considered the evidence of each of the complainants to be such that her case on each of the charges was established beyond reasonable doubt, her evidence could not be invoked to corroborate the evidence of the other complainant. Counsel at the trial did not expressly invoke the case of DPP v. Morrissey (unreported, Court of Criminal Appeal, 10 July 1998) which was opened by counsel for the prosecution. His choice of wording, as part of the charge, was “consistency”.

It is appropriate at this stage to deal with the case of DPP v Morrissey, supra. That judgment concerned quite exceptional facts. Allegations were made that the accused had sexually abused the complainant, she being the daughter of the accused’s partner. The allegations were supported by the complainant’s mother. The accused however in turn alleged a conspiracy between the complainant and her mother to cover up the real reason for the separation of the accused and the mother, which was that the mother was, he claimed, engaged in a highly inappropriate relationship with a member of her own family. Tellingly, there were very significant discrepancies between the evidence of the complainant and the mother, and, as stated in the judgment, in significant material respects, their evidence was actually conflicting. These discrepancies led this Court to conclude that an application made during the course of the trial for a direction to acquit the defendant ought to have been acceded to. On the second issue, which concerned the adequacy of the trial judge’s charge on several major grounds, in the course of a lengthy judgment, the court stated, inter alia:
“On corroboration, the learned trial judge indicated that the evidence of the mother could be treated as corroboration of the evidence of the complainant. Whereas counsel for the defence did apparently accept such a proposition, it seems to the Court that such a charge should not be given to the jury where a case being made by the defence is that there is a conspiracy to put forward a false case. Corroboration must come from independent evidence. There mere fact that two parties in conspiracy with each other give the same evidence does not make the evidence of one, corroboration of the evidence of the other.”
The court did not however state, as it did in respect of the application to acquit, that the conviction should be set aside on the corroboration issue. It held that, having regard to the application to acquit which should have been granted, to comments in favour of the complainant made in the presence of the jury, to the inadequacy of the charge on the issue of onus of proof, to the status and effect of the bringing of a prosecution by the DPP, and to the failure to put the defence case adequately to the jury, all together justified setting aside the conviction. It is noteworthy that on the basis of the material inconsistencies in the evidence, upon which any conviction by the jury would have been found to be perverse, the Court directed that there should be no retrial.

There was no discussion as to whether corroboration was at all necessary, and clearly the statement is obiter. On the contrary, as to corroboration, what the court said was that this must come from “independent evidence”. Having regard to the very significant discrepancies and even conflicting evidence of the mother and the complainant, and to the grounds upon which the verdict was set aside, the principle that can be taken from the case is that the mere fact that two parties, who are in a conspiracy with each other, give the same evidence, cannot not make that evidence corroborative of the other. It would be both illogical, and an unduly broad legal statement to suggest, as the applicant does, that the principle to be drawn from the case is that, once collusion is alleged, corroboration can never be an issue for the jury. If that were so, it would have as its effect, that if collusion is merely alleged, and regardless of whether the allegation is meritorious or whether a jury is not at all persuaded by the evidence in support of the allegation of collusion, corroboration can never be a feature in such a case.

Given the factual matrix and the actual grounds upon which the conviction was set aside in DPP v Morrissey, supra., and including the final sentence in the above extract, the invocation of that judgment over and above the clear unanimous decision of the Supreme Court in DPP v Gilligan, supra., on corroboration, is not readily understood, although the court accepts that the statement of this Court in Morrissey, supra., if not considered in its correct context, might give the impression that the principle is extremely broad. Quite clearly this could not, in law, be correct, whereas, when properly understood, the statement in that case on corroboration is wholly unexceptional, where conspiracy is established or is as plainly evident as it was there. The court finds that corroboration cannot, as a matter of law, be ousted from a case simply because collusion is alleged.

In the present case, in contra distinction to what arose in DPP v Morrissey, supra., even though there was an allegation of collusion made by the applicant, the jury was entitled to reject it, and it clearly did. Moreover there is no suggestion of “material conflicting evidence”. Provided therefore that the jury, having rejected the allegation of collusion, was satisfied as to the credibility and independence of the evidence tendered by each of the complainants, the court cannot see why the evidence of one of them could not, in relation to the witnessed assaults to which the other was subjected, corroborate the evidence of that other complainant.

As to the extract in the written submissions relied on, from Healy, Irish Law of Evidence, 2004, counsel for the applicant argued, as did counsel at trial, that the issue of corroboration could not arise in the case of the evidence of these two complainants precisely because they were both complainants, and in that regard, the applicant in the written submissions invokes the following extract:
“Mutually corroborative evidence of sexual offences conducted in private is necessarily co-dependent evidence. It is also highly prejudicial and difficult to rebut, particularly in cases of sexual offence, proof of which tends, by its nature, to be sparse and indirect. In some cases the similarity in accounts that first justified the joinder of indictments against the accused may later prove to be the very elements giving rise to suspicion of collusion or complicity between the complainants.”
What is clear from this extract is that this type of offence is, generally speaking, or perhaps almost always, carried out in private with no witnesses. In such circumstances, the evidence of one complainant cannot normally, in fact or in law, corroborate the evidence of another complainant(s). In that context, the extract is legally correct and perfectly logical. But while that is true where the assaults have occurred totally in private, here the evidence of the complainants was of simultaneous assaults, and of assaults in the presence of one another, a wholly different scenario. In law, there is no reason why in circumstances where the offences are, exceptionally, as here, not committed in private, the eye witness evidence of one complainant cannot corroborate the evidence of the other, provided all other criteria are met, and no valid argument is made otherwise in this application.

A further argument made is to the following effect. While not accepting that there could be corroboration, because of the matters referred to in the above paragraphs, nevertheless, it was submitted, a jury could only move to the issue of corroboration once it had decided that, as to the complaints made by each individual complainant against the applicant, each charge had first been established beyond reasonable doubt. This at first glance seems an attractive and simple argument, but on analysis it does not appear to the court to be correct in law, and in its application would render corroboration impossible in a case of this nature. It would lead to the prosecution having, in effect, to “opt” for the evidence of one or other complainant as the “corroborative” evidence. No other possibility exists. If the complaints of a complainant must first be established beyond reasonable doubt before any regard could be had for the evidence of a co-complainant who witnessed the assaults and whose eye witness evidence was wholly admissible, there would be no place for corroboration in the jury’s determination of an accused’s guilt on the charges relating to those complaints. If however corroboration is part of what a jury may consider for the purposes of establishing guilt beyond reasonable doubt, as it clearly is, then, on the applicant’s argument it would only be in circumstances where the charges of assault of one of the complainants were determined without any recourse to corroborative evidence, that her evidence could then, but only then, be used to corroborate the evidence of the other. As was stated by Denham J. in Gilligan, supra., the question of corroboration is really one of common sense to be determined in the context of the entire proceedings.

It is important also to understand exactly what is meant by corroboration in this context. In DPP v Meehan [2006] 3 IR 468 this court (Kearns, J.) stated:
“As pointed out by Lord Pearson in DPP v Hestor [1973] AC 296 at 321:
The word corroboration in itself has no special legal meaning: it is connected with a Latin word “robur” and the English word “robust” and it means “strengthen”: perhaps the best synonym is “support”.”
And again in the case of DPP v Colm Murphy [2005] 2 IR 125 this court (Kearns, J.) stated:
“Before addressing this issue it is important to point out, that as a matter of law, the distinction which can properly be drawn between evidence which is in the legal sense corroborative on the one hand or merely supportive on the other arises only in a limited number of cases. In the vast majority of circumstances the distinction between corroborative and supportive evidence is of little substance. It is only in the limited category of cases where either –
(a) Corroboration is required as a matter of law, or
(b) There is established either in case law or as a matter of statute an obligation to warn a jury as to the dangers of convicting without corroboration,
that the technical requirements for evidence to qualify as being corroborative in the formal sense are relevant.”
These extracts help to place corroboration in its correct context, and make it clear that there is no legal basis upon which the eye witness evidence of one person of the assault on another person, as in the present case, provided that eye witness evidence is accepted by the jury as being credible and independent, cannot corroborate the evidence of the other complainant. It quite clearly can.

An argument is also made that corroboration of one complainant’s evidence should not be permitted in respect of the evidence of the other complainant in this case, on the basis that whereas there was an overlap in some of the charges in terms of the time span of those charges, such an overlap did not exist in the case of several other charges. This factual position is correct but the court is not satisfied that it alters the position in law. In the case of the complainant AMK there were 26 charges covering periods between January 1976 and December 1978. In the case of the other complainant, that is to say SK-MCG, there were 15 charges stretching over a longer period from mid 1974 to mid 1978. Charges 1-11 inclusive in the case of the complainant AMK, overlap with charges 33-42 inclusive, in the case of the complainant SK-McG. No reliance on corroborative evidence was placed by the prosecution in relation to any assaults in periods not covered by the above overlap or in relation to assaults which were neither simultaneous nor witnessed by the other complainant, even if within the same period. The argument therefore has no basis.

Finally, the court is satisfied that the respondent correctly states that the characterisation of the evidence in question - although direct eye witness evidence - as possible corroboration evidence had, as its effect, to confer a significantly greater protection for the accused where this would not ordinarily have been necessary, the learned trial judge charging the jury, as she did, in relation to the requirements of credibility, coherence and independence flowing from the case law. It is not necessary, in the above circumstances, to consider the preference of defence counsel for the word “consistency”, counsel in his closing speech having, in fact, drawn the attention of the jury to the absence of corroboration.

None of the arguments presented on the corroboration issue are such as to question in any way the convictions or the fairness of the trial. Leave to appeal on Grounds 1-3 of the Grounds of Appeal is refused.
The delay ground in the charge:
The court now deals with the second group of grounds, numbering seven or eight in all, which concern the alleged inadequacy of the learned trial judge’s charge in relation to the issue of delay. These are grounds 4, 5, 6 (in part), 8, 9, 10, 11 and 12. Some of the latter are as stated above, consequential grounds.

Before dealing with the individual arguments put forward in relation to these grounds it is necessary first to deal with a general aspect of these grounds upon which leave to appeal is sought. This relates to the well known difficulty arising for an applicant where no requisitions have been raised in relation to a charge, or, as in this case, a recharge, and despite this, grounds for leave to appeal are nevertheless invoked on this application.

It is useful to set out exactly what was said in requisitions on the charge and after the recharge. This was dealt with on 28th February, 2007, Day 14 of the trial. After the judge’s charge counsel for the applicant and for the respondent indicated that there were some matters arising which each wished to address. As to the issue of corroboration which was raised first, this is dealt with above. Moving on the issue of delay, senior counsel for the applicant stated:
“Briefly my Lord on delay, but then the question of the phraseology your Lordship used, talking about inferences …”
The exchanges then reverted to the issue of corroboration, and the arguments on that were responded to by counsel for the prosecution.

Counsel for the applicant then returned to the issue of delay and addressed the court on the disadvantages, from the applicant’s point of view arising from delay, concerning two items, firstly, a missing tape, and secondly, a statement of one of the complainants to the gardaí, which was no longer available. He suggested that the judge might point to these factors, within the issue of delay, to highlight what delay involved. The learned trial judge agreed to remind the jury about the statement. Counsel for the applicant then moved on to the question of inferences. Counsel for the respondent suggested to the trial court that further requisitions could be raised after the recharge, “if necessary”. The jury was recharged but not on the two above items mentioned by counsel for the applicant nor on the statement which the trial judge said she would mention. After the recharge there were no further requisitions but the following exchange took place:
Registrar: Time is now 6.03 p.m.

Mr. McCarthy: I thought you were standing up.

Judge: I was waiting for more requisitions.

Mr. McCarthy: If you wish.

Judge: Very good. … (emphasis added)
Even after this exchange, there were still no further requisitions on the recharge, from either party.
Conclusion:
It will be seen from the foregoing that although the issue of delay, which is now sought to be emphasised in very strong terms on behalf of the applicant, while mentioned in the course of requisitions on the charge, was not given much emphasis by counsel, and a review of the transcript would suggest the contrary. What is also of note is that no case law was invoked on behalf of the applicant at any time in relation to the issue of delay, and, in particular, the judge was not addressed on, and there was no mention of, the earlier judgment of this court in relation to the absence altogether from the charge to the jury of any mention of delay, at the first trial of the applicant on the same charges, and which led to the earlier convictions being set aside. While it might not have been desirable for issues in that earlier trial to have been exposed to the jury, this court would expect that both the earlier judgment of this court in DPP v E.C. (unreported, Court of Criminal Appeal 29 May 2006), and perhaps also the decision in DPP v R.B., (unreported, Court of Criminal Appeal, 12th February 2003) would be specifically brought to the attention of the learned trial judge by counsel, if delay, and how it was dealt with in the charge, was considered to be such an important feature as is now suggested in the lengthy written submissions filed, and as part of counsel’s oral submissions. The court would also have expected counsel to have addressed the learned trial judge in much greater detail, and with far greater particularity, and by reference to the above, and other, relevant case law.

In contrast, counsel for the applicant at trial argued with great particularity and at considerable length, on the issue of corroboration. The court considers it reasonable to conclude that, contrary to the situation arising in relation to corroboration, counsel for the applicant, extremely skilled in criminal law trials, did not consider, either for tactical, or defence, or for other reasons, that the issue of delay should be pressed any further than it was, and that the learned trial judge’s charge was wholly adequate in that regard. Delay was referred to by counsel in his closing address to the jury, and although that does not release the trial judge from doing so it was also referred to by the learned trial judge in the course of her charge.

The above being the position, the long established jurisprudence epitomised by DPP v Cronin [2006] 3 ILRM and the cases following it applies, unless there are exceptional reasons for permitting this ground to be considered as part of this application so as to avoid a real or substantial injustice arising. In support of this ground of appeal the applicant furnished, in the written grounds, lengthy extracts from numerous cases concerning reliance on a ground of appeal which has not been subject to any ruling or, in this case, any further requisition on the recharge. These lengthy extracts all concern the same well established point, well known to the court, namely that, exceptionally, a point not taken in the course of trial may nevertheless, in particular circumstances, be dealt with in the course of an application for leave to appeal in this court. There is, of course, an equally clear line of authority which establishes the conditions to be met, when an applicant seeks to come within the exceptions to the Cronin line of jurisprudence, which the written submissions do not refer to, and the applicant does not meet.

Counsel for the applicant accepted, in oral submissions, that no further requisition was raised on the recharge. There has been no intimation to the court as to why, if the charge was considered by counsel to be unsatisfactory on the delay point, and it was not adequately dealt with in the recharge, as claimed, no further requisitions were raised even when invited, and there is no suggestion in the transcript that the failure to do so was due to any inadvertence on the part of the highly experienced and skilled representative of the applicant, save in passing, in the oral submissions to this court, when counsel suggests it must have been an oversight. The applicant does not comply with, or come within the established case law on the exceptions to the above jurisprudence, and is, strictly speaking, not entitled to raise this ground of appeal.

Had the court been required, however, to consider this matter on the basis that there was an inadequate charge on the issue of delay the learned trial judge in her charge on this matter stated as follows:
“Now I am going to address you on the facts and I am going to come back again to the law because I want you to look at the facts in context and I am duty bound, the Superior Courts themselves have said that this is something the judge must draw to the attention of the jury, that when you are dealing with very old cases as these are, people’s memories may become frail, they make take up positions, it can be very difficult for an accused person to actually raise a defence. [Counsel] dealt at length about the difficulties that his client would have in dealing with allegations that are almost 30 years old and some of them are more than 30 years old. It’s much easier to deal with fresher allegations because you are in a position to call witnesses who were there, you are in a position to remember much more what you were doing. So when you are looking at the evidence, look at it in the context of these allegations being more than somewhat stale allegations ... It seems to me that there is very little wrong with anybody’s memory on the facts that we have heard here. People were able to go into a lot of detail. Both Mr. Cooke and the two little girls who complained seemed to remember very well the layout of the house and the comings and goings, the dates of which the radio station started, who worked there etc., but you must nevertheless bear in mind the warning that I am giving you that these things have to be seen in context.”
There is no requirement in law that a charge by a trial judge must follow a particular fixed rigid or established formula of words, a matter clearly recognised in the jurisprudence, the details of which it is not necessary for the court to cite. A charge is always a matter for the trial judge, in which he or she must exercise his/her appropriate judicial function in accordance with the law, and the facts of a particular case.

The question which would arise therefore, is whether the warning concerning delay was sufficiently detailed by reference to specific difficulties for the defence in the trial in this case. In that regard, it is helpful to look at a sample range of charges and to how these have been reviewed by this Court.

In the case of DPP v C.C. (unreported, Court of Criminal Appeal, 2nd February, 2006), the charge was as follows:
“As to the timeframe … I think I harped on that repeatedly, highlighting all the contentions, the length of time ago and the frailties and the question of – I harped, I remember, on witness memories and so on, so I think the course of the charge in its entirely adequately met that too.”
On review of the adequacy of that very brief charge on the question of delay, this Court stated:
“ It goes without saying that this ruling does not address adequately the particular difficulties faced by a defendant in the applicant’s position, being as it is no more than an expression of the general difficulties which delay can bring to the capacity of witnesses to recall events of more than 30 year previously.”
Even if this court considers that the charge in the present case was not as complete or as full as the very detailed charge in the case of DPP v R.B., (unreported, Court of Criminal Appeal 12th February 2003), such extensive detail is not necessarily required, as is clear from the case of DPP v P.J. [2003] 3 IR 550, in which this Court, (McGuinness, J.) stated:
“The dangers inherent in a trial which takes place many years after the offence is alleged and the difficulties which such a trial creates for the defence, has been repeatedly stressed by this court, by the High Court and by the Supreme Court. The problems caused for the defence by delay on the part of a complainant were dealt with in great detail by Hardiman J. in his judgment in J.L. v DPP [2000] 3 IR 122. It has again and again been pointed out that trial judges are obliged to issue appropriate directions and ruling to avoid the possible prejudicial effect of delay in sexual abuse cases.”
In the same case, the court further stated (p.570):
“We fully concur with the conclusions reached by this court in The People (DPP) v R.B.. supra. It may not always be necessary for a trial judge, in charging the jury in this type of case, to go into such elaborate detail as to the effects of delay. In our view however, he or she should deal reasonably fully with the various aspects of the problems caused by delay in the making of a complaint of this nature.”
A similar approach to this latter case was taken by this court in the application for leave to appeal in respect of the earlier convictions of the applicant, in D.P.P. v E.C., supra., in which this court recognised that although the charge in D.P.P. v R.B., supra., was a good example of a delay warning, it was nevertheless not satisfied that it was “appropriate in the present case, or in every other case…”. It seems to the Court that there is a range of possible sample charges between the extremely detailed one in the D.P.P. v R.B., case and the very bare one in D.P.P. v C.C. case. A mid way point, or one closer to either extreme, may frequently be seen. Each charge should therefore be considered and reviewed in the context of the particular trial.

What can be said about the charge which the learned trial judge actually delivered in this particular case in relation to the question of delay is that she mentioned the following factors as being appropriate to be considered, namely:

1. The allegations were very old. She mentioned 30 years.
2. She considered the case to be “more than stale”.

3. An accused is in a position which is worse in the case of such an old case than where there are fresh allegations.
4. That, because of this, conducting a defence is more difficult.
5. The reason for this, as she explained, is that witnesses may no longer be available to the defence.
6. An accused in such an old case may not be in a position to recall what he was doing at the time of the allegations.

7. She explained that in such a case people may adopt positions in relation to the allegation.

8. She gave her opinion, as she was entitled to, that both the complainants and the applicant appeared to have good memories for detail.

9. She referred to all these matters as a “warning”.

She also referred in some detail to the evidence of the various witnesses and to the issues concerning delay mentioned in the closing address of counsel for the applicant. The court is satisfied that, on balance, the charge of the trial judge was adequate in the circumstances of the present case.

The two matters which counsel for the defence at trial sought to have mentioned specifically were a statement made by one of the complainants to the gardaí several years previously, and a tape which had been made an even longer time before that, in or around 1978. As to the statement, the evidence at trial was that the likelihood was that although the statement had been taken, it was disposed of immediately or almost immediately after it was taken, in a waste basket. It seems clear that even if the trial had taken place at a much earlier date, that statement would not have been available, so that its absence was not due to delay, as such. As to the tape which the trial judge did not agree to mention further, its history according to the evidence is as follows. One of the complainants had allegedly said something concerning the applicant’s behaviour towards her in or around 1978, to a girl then aged about 15, who worked at the radio station established by the applicant. She in turn mentioned this to a man called Dillon, who apparently made a tape or arranged for it to be made. Dillon and the applicant fell out over affairs at the radio station and there is no evidence as to what happened to the tape at that stage. Eventually another man, a Vincent Connell, who had also worked at the radio station, appears to have got possession of the tape, and offered to sell it to the applicant, who paid £200, a figure which he said was a large sum, but which Mr. Connell knew the radio station could well pay. The applicant had then placed the tape, together with much other equipment and tapes in one of two underground walk-in large containers on land he owned, and where it, and the other material, together with the transmitter for the radio station remained until about 2000 when the land was sold, and he was obliged to remove these underground containers. He then gave all or most of the contents or these two containers to a third person, whom he had not seen for at least six or nine months prior to this trial, although apparently he had been in contact with him up until around 2002. The applicant in evidence said that the tape was entirely innocuous. It would appear to the court in such circumstances that the tape and its availability or lack of availability was entirely within the control of the applicant, and it may be assumed also that he knew at the time the tape was given to this third party, admittedly with lots of other tapes and equipment, that it might have been useful in the course of his defence. While its absence might have been the subject of comment from the judge, as the defence earlier requested, such comment would have to be seen against the evidence of what happened to it.

In any event, it is unclear to the court that the absence of either of these items was such as to cause specific prejudice to the applicant, as accused, and no case was made at trial that they would or would likely do so. It also seems clear to the court that counsel for the applicant at trial likely recognised and accepted that position, given the absence of any requisition on the recharge. In such circumstances, the absence of a specific warning on either of them does not appear to have led to an unfair trial or to unsafe convictions.

There is moreover, another matter which satisfies the court that in any event, no injustice occurred in the present case. The issue of delay in a case such as this arises because, with very old cases, it may well be that a defendant will find it very difficult to verify by evidence, places, times, events, etc., which he/she would ordinarily, in a much newer or fresher case, be able to present as part of his defence (although the applicant, from the transcript, has a remarkable memory). This is, however, a well known and recognised problem for a defence arising in such cases, and it has been said, including in the above cases, that because of delay, there may be few or even no “island of facts” upon which a jury could, with reasonable certainty, reach its verdicts in a manner fair to a defendant. That is why, in general, a trial judge must give appropriate warnings in the case of trials which take place after a long period of time.
In the present case there are unusual factors. The first is that the
complainants gave evidence of being simultaneously assaulted by the applicant, or of being present while the other was assaulted, a quite different scenario to that which usually arises, which is that such assaults are carried out completely in private. When so carried out there is no possible corroboration, which in turn, in old cases often gives rise to a mere “swearing match” between complainant and accused.

Secondly, in the present trial, apart from corroboration, there were many islands of fact which might assist the jury in deciding which version of events was appropriate to accept. An “island of fact” is well described in the following terms:
“An island of fact contemplates a situation where in a case there is a particular factual matter which there is a dispute about. And the resolution of that factual matter doesn’t resolve the case as a whole but it may help to resolve it. It may help in deciding which version of events a jury should accept. For example if there is a case involving a teacher allegedly sexually interfering with one of his pupils, there might be an allegation that in relation to the door of classroom, it was bolted. There might be an issue in the case as to whether there was a bolt on the door at all. There might be an issue in the case as to whether the door was capable of being locked.
Now the resolution of that issue is not going to resolve whether or not there was sexual abuse in the case. But the resolution of whether or not there was a bolt on the door or whether it was capable of being locked might affect whether or not the teacher’s evidence is going to be accepted, or whether or not the child’s evidence is going to be accepted. And that has come to be known as an island of fact.”
Such “islands of fact” included, for example, evidence relating to the layout of the house, to the manner in which children accessed the house through the garage and the back garden of the house, to quantities of equipment, television sets and so forth, and telephones, in the garage itself, especially after the applicant closed his electrical shop, to the contents of the house, such as specific furniture, and several others, on which the jury was entitled to accept or reject the evidence of the complainants or of the applicant.

Apart from such islands of fact, there was additional evidence of a telling nature, closely related to the assaults as alleged, which the jury was also entitled to accept or reject. These included the following: (a) third party evidence that there were phones or a phone on a top shelf in the garage and that the applicant used to lift the children up onto the shelf, and while taking them down, would place his hands under their clothes and around their bottoms; (b) evidence of the complainants about the body odour and general lack of hygiene of the applicant, and his acceptance in evidence that he did not bathe for weeks; (c) their evidence that his beard scratched the complainants during the sexual assaults, and his acceptance in evidence that he did not shave regularly; (d) their evidence that he wore no underwear, which he denied, and the fact, established in evidence, that when arrested although fully clothed, he wore no underwear; (e) the evidence of one of the complainants who said she was not permitted into the applicant’s house prior to the opening of the radio station, except when his wife was away from the house, which he denied, and his acknowledgement that during the relevant period his wife was from time to time, usually on a six monthly basis and for a week or two, a hospital inpatient. The jury clearly accepted the version of these events as given in evidence by the complainants, and as supporting the complainant’s credibility.

In such circumstances, even if the above ground of the treatment of delay in the charge was to have been determined by this court in favour of the applicant, the court is satisfied nevertheless that the proviso in s.3(a) of the Criminal Justice Act, 1993, is wholly appropriate to apply in this case, there having being more than adequate, and indeed even ample, evidence upon which the jury was entitled to convict the applicant on all the charges, and there is no question of any miscarriage of justice.

Having regard to the above findings it is not necessary to consider the remaining grounds separately.

The application for leave to appeal is, in the above circumstances, rejected.