JUDGMENT of Mr. Justice Hardiman delivered the 29th day of March, 2006.
I agree that this appeal must be dismissed, for the reasons given by Mr. Justice Fennelly in the judgment he is about to deliver. In my view the applicant has not been able to make any showing on the facts of the case which would entitle him to relief either on the ground of delay or on the ground of inadequate disclosure. Nor, in my view, has he sufficiently used the procedures actually or potentially open to him before seeking this relief. But there are aspects of the case on which I wish to reserve my position until a suitable case arises for their disposition. These relate to disclosure.
A special jurisprudence has arisen in relation to old cases of alleged sexual abuse of children. As a result of this, prosecutions are routinely permitted after a lapse of time such that it would make it quite impermissible to pursue any other form of litigation, civil or criminal. In other types of case complaints so old would be regarded as beyond the reach of fair litigation.
It must be recognised that the decision to permit in certain circumstances the trial of very old cases carries with it a positive duty to take steps to ensure, insofar as possible, that these cases can fairly be tried. Lapse of time undermines memory and often makes it difficult or impossible to challenge the complainants account in any detailed way, or to find evidence with which to contradict him or her. There may be many ways in which these difficulties can be addressed, which do not call for comment here. But, since the topic of disclosure has arisen in a specific way I wish to state that I am not to be taken as agreeing with the director’s submission that disclosure is always or primarily a matter for the trial judge. As the law stands, the elaborate procedures which have been provided for discovery in civil cases do not apply to criminal cases. Furthermore, and despite the cogent recommendations of the Working Group on the Jurisdiction of the Courts which reported in May, 2003, no provision has been made for the sort of preliminary hearing before the trial judge on arraignment which might address these problems. Indeed, at present there is no certainty that the judge presiding over the arraignment will be the eventual trial judge. Moreover, the Courts have had recent experience of disturbing cases (including one case where a conviction leading to a sentence of life imprisonment was subsequently held to be a miscarriage of justice) of grave shortcomings in disclosure. These included non disclosure of the fact that a Prosecution witness had previously made a dubious allegation of rape against another party. (DPP v. Nora Wall, CCA, 16.12.05)
For these reasons I wish to make it clear that, in my view, at least unless and until a satisfactory provision for disclosure or discovery in criminal cases comes into being, an applicant is, in a suitable case, entitled to raise the question of disclosure on judicial review. In particular, it appears to me that an applicant in an old sex abuse case may be entitled to sight of all statements in the nature of complaints or disclosures of alleged abuse. In many instances these will be the only “islands of fact” available to an applicant. It will clearly be of the greatest importance to establish if there is consistency over time in the complaints made, or if they evolved over time, and if so why.
PG v. DPP
JUDGMENT of Mr Justice Fennelly delivered on the 29th day of March, 2006.
In these proceedings, the Appellant seeks an injunction restraining the Respondent from continuing with his prosecution for sexual offences allegedly committed by him more than twenty years ago. There are two distinct prosecutions: the first, where the complainant is his niece and where the proceedings are in the Central Criminal Court; the second, where the complainant is his nephew, and where the proceedings are in the Circuit Criminal Court.
The Appellant’s niece was born on 25th June 1972. She has complained that the Appellant raped her on three occasions between June 1981 and June1985 and that he sexually assaulted her on six occasions between June 1980 and June 1985.
The Appellant’s nephew was born on 16th July 1973. He has complained of two incidents of sexual assault on dates unknown between December 1979 and July 1982.
In all cases, the offences are alleged to have occurred on unknown dates over specified periods of several months or up to two years. The offences against the niece are alleged to have committed when she was from eight to thirteen years of age; the nephew was aged from six to nine. The Appellant was born on 29th June 1950. Hence he was aged twenty nine at the date of the first offence alleged against his nephew and thirty five at the date of the last offence against his niece.
A book of evidence was served in each case and returns for trial were made respectively to the Central Criminal Court and the Circuit Criminal Court in each case on 11th September 2001.
On 11th February 2002, O’Caoimh J made an order granting the Appellant leave to apply by way of judicial review for an injunction restraining the Respondent from prosecuting him in respect of each of these two sets of charges. The grounds for the application are essentially twofold:
1. delay by the complainant in each case thus depriving the Appellant of his constitutional right to a trial in due course of law and/or with reasonable expedition;
2. failure of the Respondent to disclose certain evidence, principally the notes of psychological or other experts attending the complainants, thus depriving the Appellant of his right to fair procedures and natural justice and, hence, to a fair trial in due course of law.
Murphy J refused the application for an injunction. His judgment is dated 11th June 2004. The Appellant appeals to this Court.
Each of these complaints needs to be considered separately in respect of each applicant. I propose, in the first instance to deal with the issue of delay.
Delay
From even the brief account of ages dates set out above, it is clear that these cases fall to be considered as cases of complaints of sexual offences alleged to have been committed, many years ago, by a close adult family member against children of tender years. In such cases, the courts may infer from elements such as the youth of the complainant, family relationship and age difference that the alleged perpetrator is in such a relationship of dominance or authority vis à vis the complainant that the delay in making the complaint is attributable to the accused person. For that purpose, the facts alleged by the complainant are assumed to be true. The history of the making of complaints and the explanations offered for the delay in making them must be considered against that background.
The legal principles governing the approach which the court should adopt in a case such as the present are well settled. This development can be traced from judgments of Finlay C.J. in G. v Director of Public Prosecutions [1994] I.R. 374 (see reference to “the extent to which the applicant had contributed to the delay” at page 380); Hogan v President of the Circuit Court [1994] 2 I.R. 513 ( “...cases consisting of charges by young children……involve wholly different considerations…” at page 521). The entire problem was considered comprehensively by Denham J, speaking for this Court in B. v Director of Public Prosecutions [1997] 3 I.R. 140. This last judgment formed the basis of what has been definitively stated in two judgments of the former Chief Justice, Keane C.J. In P.C. v Director of Public Prosecutions [1999] 2 IR 25, Keane J, as he then was, stated at page 68:
“Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial "in due course of law". The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.
If that stage has been reached, the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial.”
He restated this analysis in slightly more extensive form two years later in P.O’C. v Director of Public Prosecutions [2000] 3 I.R. 87, stating at page 93:
“There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious crimes. However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge "save in due course of law" entitles any person so charged to a trial with reasonable expedition. Accordingly, significant and culpable delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained. Where there is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to the nature of the crime itself. This question arises in cases of sexual offences allegedly committed by adults against children and particularly in cases where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent, teacher or religious. In cases coming within the last named category, the inquiry conducted by the court which is asked to halt the trial necessarily involves an assumption by the court that the allegation of the victim is true. Without such an assumption, it would not be possible for the court to conduct any such inquiry and the court would be obliged automatically to halt the trial of a person because of the expiry of a lengthy period of time, even though the failure to make a complaint was due to domination exercised by the adult over the young child during the period of the abuse and even where - as has happened in a number of cases - the abuse has been perpetrated over many years by a parent or step-parent of a child actually living in the family home with the perpetrator. Since that patently cannot be the law, the presumption of innocence which applies in its full rigour to a criminal trial cannot apply to inquiries of this nature.
If, such an assumption having been made, the court invited to halt the trial is satisfied that, as a matter of probability, the failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without more, will not be a reason for halting the trial. There remains, however, a further inquiry which must be conducted by the court in every case, i.e. as to whether the degree to which the applicant's ability to defend himself or herself has been impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier stage of the inquiry that the delay is the result of the applicant's own conduct ceases to have effect once that stage of the inquiry has been concluded. In the final stage of the inquiry, the applicant is presumed to be innocent of the offence with which he has been charged and, if he or she can demonstrate to the court that it is probable that a specific defence which might otherwise have been open to him or her is now no longer available because of the passage of time, the court may then halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge.”
He reiterated the test to be adopted in cases of sexual offences allegedly committed by adults against children later in the same year in J.O’C v Director of Public Prosecutions [2000] 3 I.R. 478, stating at page 484:
“In each case, the first inquiry must be as to whether the delay has been such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. Special considerations apply to cases of alleged sexual offences against children where, as here, no blame for the delay can be attached to the prosecuting authorities. In such cases, the court invited to stay the prosecution must decide whether, as a matter of probability, assuming the complaint be truthful, the delay in making it was referable to the accused's own actions.”
It does not follow that it is easy to apply these principles to the endlessly varying sets of factual circumstances which present themselves to the Court in these cases. It has repeatedly been emphasised that regard has to be had to all the circumstances of the individual case. Denham J, in her concurring judgment in P.C. v Director of Public Prosecutions, cited above, mentioned “dominance, relative ages, place of offence, nature of offence,” but stressed that the list was not exhaustive. (See page 58). Keane J, at page 67, mentioned “the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of her participation, albeit unwillingly, in what she sees as wrongdoing.” It has also been accepted in a number of cases that any admissions allegedly made by the applicant may be taken into account. Such admissions may tend to counter suggestions that the applicant is disadvantaged by fading memory caused by lapse of time.
It is now necessary to refer to the facts alleged and the history of the complaints.
The Appellant is an uncle by marriage of the first complainant, whom I will call “the niece.” In addition, the niece was very close to and spent a lot of time, as a child, with two of the Appellant’s children, who were close to her in age. Originally, the Appellant lived at a town some distance away from the town where the niece lived with her parents. The niece’s grandparents lived next door to her house. In about 1984, the Appellant and his wife built a house in the back garden of the grandparents’ house and thus moved to live next door to the niece’s family.
Almost all the offences are alleged to have been committed either at or in the immediate vicinity of the niece’s home or next door at her grandmother’s house, where the Appellant’s family regularly stayed. Some incidents are described as having been committed in or beside a garden shed. One is alleged to have been committed when the niece was staying overnight at the Appellant’s original house with his daughter, one in the Appellant’s car, when he was driving her home and one during a family picnic, when the other adults were not near. The niece believes both these incidents occurred in the summer of 1981. As is apparent from the charges, the niece describes three incidents of alleged sexual abuse, which if true, would amount to rape.
According to the niece, the Appellant would tell her she was a good girl, not to tell anyone about the sexual incidents, that it was their secret. He told her not tell anyone or she could not play with his girls. The niece has said she did not tell anyone for this reason, as the girls were her best friends. He promised her money and sweets. He also threatened to “take my Mam away from my Dad and that he would hurt my Dad and that nobody would believe me.” On another occasion, he slapped her on the knee and told her that she was not allowed to tell anyone “as it would be bold and that the Guards would come to take me away and that it was my fault that it had happened.”
This complainant says that she realised that what had happened with the Appellant was wrong when, in about 1985, she had her first period and her mother told her the facts of life. Thereafter, she resisted approaches from the Appellant and was able to get away from him. She was afraid to tell her mother as she thought no one would believe her and that she would be taken away from her friends. When she was fifteen another family member warned her mother who in turn warned the niece about the potential sexual threat from the Appellant. She broke down and told her mother that he had been abusing her for several years, though she did not go into all the details. She did not allege rape at that stage. Most importantly, fearing her father’s reaction, she begged her mother not to tell her father and she agreed to keep the secret. Thus, no formal complaint was made.
The niece next complained of the sexual abuse in early 1999. She discussed it with her family. It is also suggested, though there is no direct evidence of this, that she may have discussed the matter with Ms Annette Bagnall, an acupuncturist, who referred her to Dr Rosemary Troy, a psychologist. The niece attended Dr Troy for therapy and counselling commencing in May 1999. At that time she was planning her wedding and explained that she wished to deal with her psychological difficulties. Dr Troy reported that she had suffered damage as a result of her childhood experiences and that she continued to suffer from psychological symptoms.
In late November the niece contacted the Domestic Violence and Sexual Assault unit of An Garda Síochána, to inquire as to how to go about making a complaint of child sex abuse, but did not then make any formal complaint. On 19th February 2000 she called by arrangement to a Garda station where she made a written complaint to An Garda Síochána. She made further statements on 5th June and 29th November 2000.
The Appellant was arrested on 25th March 2000, detained pursuant to section 4 of the Criminal Justice Act, 1984 and questioned, but released without charge on 26th March. In the course of a number of interviews, the Appellant made statements capable of amounting to partial admissions of sexual assault, but he strenuously denied the allegations of rape. The Appellant was ultimately arrested on 26th March 2001
In her affidavit sworn in these judicial-review proceedings, the niece has repeated that she had been afraid that her father would be ashamed of her and very angry about what had occurred. She said that, through the therapy from Dr Troy, she had “gathered the strength first to discuss the abuses with [her] father for the very first time and thereafter, to report the abuse to An Garda Síochána.” The niece was examined, for the purpose of the judicial-review proceedings, on behalf of the State, by Dr Melissa Carmody, a Registered and fully qualified Psychologist. Although counsel for the Appellant has criticised the basis of the report sought from Dr Carmody as being whether the delay in reporting was “reasonable,” I believe that this is too literal a reading of what she did. She conducted several in-depth interviews with the complainant. She reported on the family background. She also discussed the niece’s history with Dr Troy. She reviewed the history, as set out above. She came to the conclusion that, at age fifteen, when the niece decided not to report the abuse, principally because of fear of her father’s reaction, she was not “in an appropriate mental state……to have made a report to the authorities…” She concluded:
“It was not until she received the support of her counsellor that she was in an appropriate mental state to be able to make the difficult disclosure to her family, and then to the authorities.”
Dr Carmody was extensively cross-examined on behalf of the Appellant, but on the whole at a level of generality. Much of the cross-examination was directed to the consistency of the complaints made and the possibility of recovered memory. These may well be relevant matters at trial. The present issue concerns the explanation for the delay in complaining.
There can be no doubt whatever that the delay in complaining up to the age of fifteen is adequately explained. Mr Hartnett, Senior Counsel, on behalf of the Appellant did not suggest otherwise. Making the assumption, relevant to this stage of the case, that the niece’s statements are true, it is obvious that the extreme youth of the complainant, the adult status of the Appellant and the very close family relationship that the essential elements are in place from which it is appropriate to conclude that there was a relationship of dominance or authority. The evidence discloses that there was a very close extended family. It is particularly relevant that the niece was so close to the Appellant’s own children and, in this context, highly significant that he is alleged to have threatened to withdraw this friendship if he was exposed.
These matters are all important in reaching the conclusion, necessary for application of the first part of the test laid down by Keane C.J. and Denham J for cases of this sort, that responsibility for the delay can be laid at the door of the Appellant. By the same token, it is highly relevant that the niece explained her unwillingness to disclose at the age of fifteen by reference to concerns about the possible reaction of her father. The effects of the family relationship did not cease upon the disclosure to the mother. The Appellant must continue to shoulder that responsibility. I believe Dr Carmody’s evidence was cogent and unshaken by cross-examination. I also believe it is appropriate to take account, when considering the effect of the delay, that the Appellant made certain admissions when questioned by the Gardaí.
The case of the nephew is very much in parallel, so far as family circumstances are concerned. The nephew makes two complaints of sexual assault. He fixes the dates as being, in the first case, “about” 1980” and in the second “close enough to the first incident [when he] was 7 or 8 years old.” After each incident he says that the Appellant said “this would be our secret, don’t tell anybody, I’ll buy you some sweets, and nobody will believe you anyway.”
He made no formal complaint until his sister told him about her experience as outlined above. He has said on affidavit that he knew that what had happened was wrong but that he was brought up to respect authority and adults. He continued:
“I was quite shy and did not mix well with other boys of my own age. As a result I was close to my family and would not have dared to report my uncle’s abuse to other family members. I felt that if I had done so there would have been a lot of strife between our families. I felt ashamed as if I had done something wrong.”
The nephew left home at seventeen and “tried to deal with the effect of the abuse by putting it to the back of [his] mind.” He moved to England about 1995 and got married about 1998. However, as he explained, this was not sufficient to overcome his problems. He swore:
“Over time I found it increasingly difficult to deal with the effects of the abuse. I suffered from uncontrollable anger, which affected my marital relationship. I found that memories of the abuse began to interfere with our sexual relationship. I became anxious and began to develop irrational fears.”
From May 1998, some three weeks after his marriage, he began to attend Mr Christopher Hopper, a Psychosynthesis Therapist and Counsellor based in Guildford, Surrey. He says that it took some time before he was able to speak with Mr Hopper about the abuse he had suffered, but that this allowed him to come to terms with the abuse. He ceased attending Mr Hopper in August 1999.
In December 1999, his sister asked him to come home to discuss an important matter. She told him of her own allegations of abuse at the hands of the Appellant. The nephew discussed the matter with his wife. It was only after the meeting with his sister that he felt able to bring the abuse to the attention of the authorities. He decided to make a report to An Garda Síochána. He made statements of complaint to members of the force on 25th March 2000 when on a visit home to his family.
Dr Carmody also attended the nephew, who travelled home from England. She conducted a detailed psychological examination over two meetings, including a consultation with Mr Hopper. The latter reported to her that the nephew had thought that the abuse had been his fault and that it was his opinion that he was not in the right frame of mind to report it until 1999. The nephew told Dr Carmody that the closeness of his own and the Appellant’s family contributed to his decision not to disclose the abuse. Dr Carmody reported that it was reasonable not to report the abuse while he was living in the family home. He felt it would disrupt the family relationships. After disclosure to Mr Hopper, he decided not to take the story of abuse any further but to deal with it within the counselling sessions and to get on with his life.
The case of the nephew is not identical with that of his sister. In his case, there is no element of possible admissions. However, the unusually close family relationship is a common element. The families were not only closely related, but they lived beside each other for many years. On the evidence the parents socialised with each other. The children of the two families grew up together and became very close. If the evidence of the complainants is true, the Appellant threatened the nephew, as he had done in the case of the niece. It was obvious and must have been obvious to him that such a close and cherished family relationship would inhibit a child from disrupting it, as would be inevitable, with such serious allegations.
In all the circumstances of this case also, I find the delay adequately explained. The factual background is very similar to that of the niece (with the exception of the threat to withdraw the society of the Appellant’s daughters). The nephew’s evidence on affidavit is uncontradicted. The Court has been told that a notice to cross-examine was served, but not proceeded with. The nephew has himself explained how he first came to seek the professional help of Mr Hopper and how that helped him. His attendance on Mr Hopper went on to August 1999, a comparatively short time before his meeting with his sister in December 1999 and his decision to complain.
In conclusion, I would accept that there has been very significant delay in the reporting of the alleged sexual offences in each of these cases. That delay called for explanation. In that respect the burden of providing adequate explanation rests on the Respondent. However, I find that the burden has been discharged. The Appellant cannot, therefore, rely on general prejudice. He has not alleged any specific prejudice. I would dismiss the appeal insofar as it is based on delay in making complaint.
Failure to Disclose Material Evidence
As already mentioned, the Appellant obtained leave to apply for an injunction by way Judicial Review on the distinct ground of the failure of the Respondent to disclose relevant evidence to the defence.
Following the return for trial, solicitors for the Appellant conducted extensive correspondence with the Chief State Solicitor seeking disclosure of specified material.
The first request, made in a letter of 31st October 2001, was for disclosure of details of the acupuncturist, mentioned above. Dr Troy was recorded as saying in her statement in the Book of Evidence that the niece had been referred to her by her acupuncturist, “whom she attends regularly and who became aware of her situation.” The Chief State Solicitor provided the name and address of the acupuncturist on 26th November 2001 and stated in the same letter that the niece would be abroad until the end of November. The Chief Prosecution Solicitor, who had then become involved, wrote again on 24th February stating that she had written to “the Superintendent requesting him to contact Ms. Annette Bagnall with a view to disclosing the said documentation.” It was stated that the latter had “written back to him stating that she is declining your request on the grounds of confidentiality to her client.”
A similar situation arose concerning Mr Hopper, the Psychosynthesis Therapist and Counsellor, who had attended the nephew. On 25th October 2001, the solicitors for the Appellant asked for full details of the therapy engaged in between the nephew and Mr C.A. Hopper including all clinical notes and documentation. The Chief State Solicitor provided details of Dr Hopper on 26th November 201, but said that Dr Hopper “was not prepared to make the disclosures mentioned ……..as this would not be ethical and would breach client confidentiality.” The State Solicitor for Kildare supplied a copy of a letter from Mr Hopper on 27th November confirming this and stating that this “confidentiality [was] required of [him] by any client.” He cited his professional code of ethics.
Mr Hartnett, in argument, justified the need for access to the notes, respectively, of Ms Bagnall and Mr Hopper. He made the following points:
· the notes, particularly of Mr Hopper, should have been made available to the psychologist (Dr Carmody) for the purposes of her examination;· there is particular difficulty for the defence in cases of delayed complaints in sexual cases and a need for caution in examining complaints, especially to see whether they have varied over time;· in the case of the niece, no complaint of rape was made at the earlier stages;· there is a need to examine the circumstances of disclosure of complaints of sexual abuse;· there is evidence of repressed memory, particularly in the case of the nephew. It may be said immediately that it is unsatisfactory that the notes of two experts are being withheld on the grounds of confidentiality. Mr Anthony Collins, Senior Counsel, for the Respondent has informed the Court that the complainant (the niece) has consented to the disclosure of Ms Bagnall’s notes. It is not clear, on the other hand, whether the nephew has similarly consented in the case of Mr Hopper. In each case, the Respondent appears to have sought the notes only to be met with a refusal on the ground of client confidentiality.
Before attempting to resolve this matter, I should advert to the fact that, while Mr Hartnett had argued equally strenuously for the production of Dr Troy’s clinical notes, it emerged at the hearing, and Mr Hartnett accepted, that the Respondent had never been asked for disclosure of these notes. This aspect of the case had not, therefore, been the subject of leave to apply for Judicial Review. It should be added that there is nothing whatever to prevent the Appellant’s solicitors even now from making a request for Dr Troy’s notes. In view of her attitude in the case of Ms Bagnall, there is no reason to believe that the complainant will object to their disclosure.
It should also be observed that, in neither case are the notes in the possession of the Respondent, but that he has, nonetheless, sought them from the respective experts.
The Respondent, in his written submissions, has argued that disclosure falls to be addressed exclusively within the trial process. Mr Collins, on behalf of the Respondent, submitted that there was an air of artificiality in the position of the Appellant. He referred to the procedures in the High Court. Each of the complainants had sworn affidavits. The Appellant’s solicitors gave written notice that they did not wish to proceed with the cross-examination. The nephew would have had to travel from England, but the niece was in Court. Mr Collins also stated that an offer had been made openly to the Appellant to have each of the complainants psychologically examined but the offer had not been taken up.
The niece’s affidavit says that she attended Dr Troy in May 1999 “for the purpose of receiving psychological therapy…... because [she] wanted to confront and deal with [her] experiences of sexual abuse.” This has not been challenged.
Mr Collins relied on a dictum of Keane C.J. in D.H. v Groarke [2002] I.R. 522. In that case, this Court unanimously held that the Rules of the Superior Courts relating to discovery do not apply in the context of a criminal trial. Keane C.J. added, however:
“The fact that discovery in the form provided for in the rules for civil litigation is not available in criminal proceedings does not have as a necessary consequence an erosion of the fair procedures to which defendants are entitled. Thus, in the present case, it was open to the solicitor for the applicant to ensure at the deposition stage that any relevant records or notes in the possession of the social workers were produced and, to at least a limited extent, that was done. Moreover, the social workers can be required by the applicant to attend the trial and produce any relevant documents by the issue of a subpoena duces decum.”
It was submitted that the Appellant’s arguments concerning non-disclosure of clinical notes were principally relevant to the delay issue in these Judicial Review proceedings rather than to the trial. The Appellant could have sought third party discovery of those notes in those proceedings, but did not do so.
Before expressing the conclusions I have come to, I would draw attention to the fact that the Appellant has not, either in written or oral submissions, relied on the line of authority represented principally by Braddish v Director of Public Prosecutions [2001] 3 IR 127; Dunne v Director of Public Prosecutions [2002] I.R. 305; Bowes v Director of Public Prosecutions; McGrath v same [2003] 2 I.R. 25; McKeown v The Judges of the Dublin District Court And the Director of Public Prosecutions (Supreme Court, unreported, McCracken J 9th April 2003). Those are cases where the gardai had been in possession of an item of alleged evidential value, but parted with the possession of it before, it was claimed, the legal advisers had had an opportunity of examining it. That may or may not have been the reason for the Appellant’s decision not to rely on these cases. At any rate, they should not be discussed when they have not been argued.
I turn then to consider the decision of the Court separately in respect of each of the two pending trials.
Firstly, I consider the case in the Central Criminal Court. The niece does not mention Ms Bagnall either in her affidavit or her statements. Both in her statement and in her affidavit, she mentions her discussion with her mother when she was fifteen and, next, her attendance on Dr Troy in 1999. There is no evidence that she complained to Ms Bagnall about sexual abuse, except from speculation arising from the statement that Ms Bagnall referred the complainant to Dr Troy. Clearly, in any event, the evidence of Dr Troy is more likely to be relevant. Although she is a witness on the Book of Evidence, the Appellant has not to date sought disclosure of her notes. In view of this and other procedural options followed by the Appellant, I do not think he has established that any real risk of an unfair trial arises, at this stage, from the failure to disclose the notes of Ms Bagnall.
Secondly, I consider the case of the nephew. I can state at the outset that, having considered the cross-examination of Dr Carmody, upon which Mr Hartnett placed especial reliance, I do not believe he has at all established that there is evidence of repressed or recovered memory. As already stated much of the cross-examination was at a general level and not related specifically to either complainant. Mr Hartnett did put to Dr Carmody statements from Mr Hopper’s report to the effect that “the events……have for the most part been suppressed from his [the nephew’s] conscious mind but pop into his conscious mind from time to time.” However, Dr Carmody insisted that she had spoken both to the complainant and to Mr Hopper and stated that her understanding was that the former “had clear memories of the abuse when he started to attend Mr Hopper.”
I accept, nonetheless, that, in the ordinary way, the Appellant would normally, as a matter of fairness, be entitled to disclosure of Mr Hopper’s clinical notes for the purpose of cross-examination, if they were in the possession of the prosecution. However, the Respondent is not in possession of these notes and has made reasonable efforts to obtain them.
That need not be the end of the matter. This Court cannot direct the Respondent as to how to perform his functions. Still less can it direct the complainant. Nor can it direct Mr Hopper, who, in any event, is outside the jurisdiction. It can, however, draw attention to the fact that it is the fundamental obligation of a trial judge to ensure that a trial is fair. There is no reason whatever to assume that the trial judge, in either case, will not address the issues raised and rule upon them appropriately. It is obviously desirable that the apparent blockage to the disclosure of Mr Hopper’s notes would be removed, if that is possible. Mr Hopper’s duty of confidentiality is owed to his client, in this case, the nephew. If the nephew agrees to the disclosure of Mr Hopper’s notes for the purposes of the prosecution, it is difficult to envisage any responsible professional person continuing to detain them. I am sure that this problem can be resolved through the good offices of the Respondent. If the matter is not resolved in this way, it will be a matter for the trial judge to deal with it. Presumably the complainant can be asked about it in his evidence. The trial judge must be and is in law bound to arrange the progress of the trial so as to render justice and to guarantee fair procedures to all parties, especially the accused. I agree with the submission of the Respondent that matters of disclosure are within the province of the trial judge. They are not matters for judicial review except to the extent that an accused person can show that, having taken all reasonable steps to obtain disclosure, necessary material is being withheld from him to such an extent as to give rise to a real risk of an unfair trial.
I might add that this type of practical problem might well be addressed through the mechanism of a preliminary hearing whose adoption was recommended by the Working Group on the Jurisdiction of the Courts in its report of May 2003 on “The Criminal Jurisdiction of the Courts.” The Working Group reported on systems and procedures employed in a number of other jurisdictions, notably England and Wales, Scotland and Australia. At paragraph 775, the Group recommended that a “Preliminary Hearing be introduced in all cases [of indictable offences] on arraignment.” Among the suggested matters listed for consideration on such a hearing was “to identify and determine whether the prosecution has made full disclosure in conformity with its current obligations.” So far as I am aware, these proposals have not been implemented.
In all the circumstances, I am satisfied that the Appellant has not made out a case for an injunction prohibiting his continued prosecution on the ground of non-disclosure.
Since the Appellant has failed under all headings, I would dismiss the appeal and affirm the order of the High Court.
