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Judgment Title: R.C. -v- DPP

Neutral Citation: [2009] IESC 32

Supreme Court Record Number: 94/08

High Court Record Number: 2006 650 JR

Date of Delivery: 01 April 2009

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Geoghegan J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Denham J.	Appeal allowed - set aside High Court Order	Hardiman J., Geoghegan J.

Outcome: Allow And Set Aside

THE SUPREME COURT

[S.C. No: 94 of 2008]

Denham J.
Hardiman J.
Geoghegan J.

Between/

R.C.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judgment delivered the 1st day of April, 2009 by Denham J.

1. This appeal raises the issue of an absence of telephone records.

2. This is an appeal by R.C., the applicant/appellant, hereinafter referred as "the appellant", from the judgment of the High Court (MacMenamin J.) delivered on the 31st July, 2007.

3. The appellant is charged with sexual assault of a minor, five charges contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s.37 of the Sex Offenders Act 2001. The offences are alleged to have been committed between the 1st May, 2001 and the 31st August, 2001, at which time the complainant was a minor, she became 13 years old during this time.

4. An important aspect of the complainant's description of events was that the appellant would call or text her and request her to visit him in his apartment. The appellant has stated that whenever he called her it was in response to a call or text message from her. The appellant has at all times denied the allegations.

5. The appellant sought leave to apply for judicial review, to seek an order prohibiting the prosecution.

6. On the 19th June, 2006, the High Court (O'Neill J.) gave leave to the appellant to apply by way of application for judicial review for an order of prohibition.

7. The grounds upon which this relief was granted were:

(i) The appellant stands charged with sexual assault of the complainant in accordance with the charges set out in the book of evidence.

(ii) The State's case rests on the uncorroborated evidence of the complainant.

(iii) The appellant denies the charges vehemently and says the charges arise as the complainant felt ill will towards him, for reasons more particularly set out in the appellant's memorandum of interview.

(iv) Part of the State's case consists of adducing the appellant's telephone records in an effort to implicate him with the complaint and to try to substantiate the allegations.

(v) The appellant denies initiating telephone calls and has indicated clearly in his memoranda of interview that, in the main, any telephone calls made to the complainant were in response to text messages and/or telephone calls and/or messages from the complainant.

(vi) While the State have procured the appellant's telephone records and have exhibited them, the State did not, despite the explanations in the appellant's memoranda of interview, seek to procure the complainant's telephone records before the matter was returned for trial before the Circuit Court. The appellant stated that the authorities had a duty to procure the evidence (following the authority of the Supreme Court in Dunne v. The Director of Public Prosecutions [2002] 2 ILRM 241.

(vii) Subsequent to the return for trial the matter appeared in the Circuit Court when two counsel were assigned and thereafter the matter appeared in the Circuit Court on the 28th June, 2005.

(viii) On that date, counsel for the appellant sought that the complainant's telephone records be now made available by way of disclosure. Counsel's note states that Judge Michael O'Shea adjourned the matter to the subsequent sessions and that disclosure was to be complete.

(ix) No disclosure was made prior to the November, 2005 sessions and, at those sessions, the solicitor representing the respondent agreed that the records would be made available.

(x) The matter was again adjourned for this purpose to the January 2006 sessions and subsequently to the March, 2006 sessions in order that the State might comply with the agreement to make disclosure.

(xi) A letter dated the 30th March, 2006 was sent by the State's solicitor to the appellant's solicitor.

(xii) On or about the 25th April, 2006, when the matter was listed before Kilkenny Circuit Court, almost a year from the date of the original application (in circumstances where the required evidence had not been procured), counsel for the State indicated to the court that a letter would be obtained from the telephone company in question indicating that the records were no longer available.

(xiii) On or about the 2nd May, 2006, when the matter was again listed before the Circuit Court, counsel indicated that the aforementioned letter from the telephone company would be provided to the solicitor for the appellant by the end of the week.

(xiv) No letter was provided by the end of the week.

(xv) On or about the 9th May, 2006, the solicitor for the prosecution provided a letter dated the 8th May, 2006, from Meteor mobile telephone company stating that they were unable to provide telephone records dating back to 2001. They also provided a letter from O2, a mobile telephone company stating that they were unable to provide telephone records dating back to 2001.

(xvi) In fact, the complainant's mobile telephone number has an "087" prefix, which indicates that she was a customer of Vodafone. No letter was provided from Vodafone stating whether records were available from 2001 nor, more specifically, was a letter provided from any of the three companies stating whether they had records relating to the complainant's actual telephone.

(xvii) In the circumstances, it appears that the State has not only failed to procure and make disclosure as required, but has failed even to attempt to procure the records required. This has significantly prejudiced the appellant in defending himself against the charges laid against him.

(xviii) The circumstances set out above do not include the initial period of delay which, of itself, also seriously prejudices the appellant's entitlement to a fair trial. The allegations concern accusations made against the appellant during the summer of 2001 at the time when the complainant was approximately 12 years of age.

(xix) Despite the vehement denials of the appellant, the State did not seek to pursue the matter until March, 2004, when the appellant was returned for trial. The complainant is now approximately 17 years of age and the jury will be expected to try and rely on her childhood memory of events five years previously.

(xx) The appellant has been prejudiced in his every day life and continues to be so due to these allegations which have caused him to be shunned by society and cause him continued embarrassment.

(xxi) Witnesses who would have been available in 2001 have now left the jurisdiction, including Mr Eamon Walsh, who has emigrated to New Zealand, and members of a band named "Deuces Wild" who can no longer be located.

(xxii) Documentation pertaining to the running of the appellant's public house were disposed of at a time when it was understood that the matter would not proceed, but would have been of assistance to the appellant in his defence.

8. On 31st July, 2007, the High Court gave judgment in the matter, refusing the application for judicial review.

9. The appellant has appealed against the judgment of the High Court. The grounds of the appeal are that the learned High Court judge erred and misdirected himself in law and/or fact in the following respects:-

(a) In finding that the prejudice to the appellant from the non-availability of the telephone records ("the records") the subject matter of the application for judicial review was collateral to the central feature of the criminal case against him.

(b) In finding that the establishment of the truth of the assertion made by the appellant would not go to the issue of guilt or innocence.

(c) In failing to give any or any sufficient weight to the appellant's assertions of innocence.

(d) In giving due consideration to the fact that consent was not a defence available to the appellant in circumstances where the appellant denied all allegations made against him.

(e) In holding that the records would not be probative in value on any essential issue.

(f) In finding that the appellant had not discharged the onus of establishing that he had suffered stress and anxiety.

(g) In finding that sufficient evidence had been adduced by the Director of Public Prosecutions to justify the delay in prosecuting the criminal trial.

(h) In finding that the delay in prosecuting had not been inordinate.

(i) In finding, without evidence, that the appellant had access to the information that might have been obtained from the records.

(j) In finding that the Director of Public Prosecutions and/or the Gardaí did not have a duty to obtain the records.

(k) In finding that the materiality of the records had not been demonstrated by the appellant.

(l) In finding that the duty of the Gardaí to obtain the records did not come within the parameters of reasonable particulars.

(m) In finding that no specific prejudice had been established from the non-availability of the records.

10. At issue on this appeal is the difficult question of whether a prosecution brought by the Director of Public Prosecutions should be prohibited. Such an order should be made only in exceptional circumstances.

11. The test to be applied by the Court is whether there is a real risk of an unfair trial: whether the appellant has established that in the circumstances he runs a real risk of an unfair trial.

12. The facts may be seen from the grounding documents in this application for judicial review, which include affidavits and copies of the memoranda of interviews with the appellant in the book of evidence.

13. Facts

The sexual assaults are alleged to have taken place between 1st May, 2001, and 31st August, 2001. The complainant made a complaint on the 5th September, 2001. The appellant has at all times denied the allegations.

14. Intertwined in the interviews by members of An Garda Síochána with the appellant are references to the appellant calling or texting the complainant. For example:

In her Statement No. 1 the complainant states:-

"… Over the following few weeks he rang me a couple of times a week on my mobile. He would ask me where I was, and if I would call down to him for a while.

… After that for several weeks during July and August he rang me a couple of times a week, maybe two or three and would ask me to meet him, or he’d leave a text message.

… He started sending me text messages at this time as well. …

One evening when he was talking to me on the phone he said …

… One evening about 3 weeks ago (August 2001) he rang my house.

He sent a text message yesterday, September 4th asking me to meet him."

In her fourth statement the complainant stated:-

"I want to say now that I never told him anything about my grandfather like that I was afraid of him or that he was in my room and wouldn't get out because that never happened and I'm not afraid of him. That was not the reason that I used to ring [the appellant]. A few weeks after I made a statement to Garda Curran for the first time at [the garda station] I did send a text to [the appellant] saying "I was sorry about the whole thing". I don't remember the exact words. I said this because I liked him and I was sorry for getting him into trouble but it was all the truth. That was the only message I sent as far as I can remember.

The night he drove me to the Creamery he had rung earlier to say he wanted to meet me in ten minutes."

15. In the appellant's interviews he answered questions on the matter of phone calls and texts. For example, in his statement dated 25th October, 2001, in answer to questions from Garda Noelle Curran and Sergeant P.J. Whelan:

"Gda. Curran Did you ever give [the complainant] money for her phone?

R.C. I gave her €10 maybe. I might have said "are you alright for credit for your phone".

Gda. Curran Would it not be fair to say that you gave her money to allow her to stay in contact with you?

R.C. That would not be a fair assumption.

Sgt. Whelan. How much contact would you have had with [the complainant]?

R.C. Not that much. I would have returned her calls.

Sgt. Whelan. What would she be calling for?

R.C. Not much. I was convinced she had a crush on me. She never made any advances.

Gda. Curran. What would you think of that?

R.C. A passing phase.

Gda. Curran. Did you encourage it?

R.C. No.

Gda. Curran. Did you ever send or phone her unprompted by a call from her?

R.C. No.

…

Gda. Curran. Did you ever ring [the complainant] to ask her to meet you?

R.C. No.

…

Sgt. Whelan. [the complainant] says she got a lot of call [sic] from you?

R.C. She didn't.

…

Gda. Curran. Why were you sending text messages giving her money did you not feel you were playing with fire?

R.C. In hindsight it was. I already told her mother that I thought she had a crush on me."

In another memo of interview taken on the 25th October 2001 with the appellant, where the interviewers were Garda Curran and Garda Joseph Griffin, the following was stated:-

"Gda. Curran. How much contact by test [sic] message would you have with [the complainant]?

R.C. I wouldn’t have a lot, I can’t remember how much but it wouldn’t be a lot.

Gda. Curran. Did you usually sent [sic] her a message yourself or would it be in reply to hers?

R.C. It would be in reply to her, if you’re talking about over a three month or so period, they’re probably could be a time I sent her one, just general one, how are you, that type of thing.

Gda. Curran. After [Y] left the pub would you have reason to have much contact with [the complainant]?

R.C. No, I wouldn't have thought I would have had, the contact with her before would have been more substantial, not that I would have had a lot anyway.

Gda. Griffin. How did you feel about a young one having a crush on you, were you flattered?

R.C. I wasn't flattered, if I was I wouldn't have told [Y]. I didn't have an opinion. I didn't think it was dangerous. Maybe she didn't have a crush on me. My girlfriend [A] is sure that she did.

Gda. Griffin. Does the message "I'm on my own, why don't you come up for half an hour" or something to that effect, which was sent from your phone to [the complainant] mean anything to you?

R.C. No I never sent it.

Gda. Griffin. Do you recall ever sending a message like that to any phone?

R.C. It's like a message I'd send to [A].

Gda. Griffin. Can you account for it in any way?

R.C. No.

Gda. Curran. I read the message and read the number it came from, it was … Who owns that number?

R.C. It's mine.

Gda. Curran. It's an inappropriate message to send to a young one's phone.

R.C. I agree it's very inappropriate, if it came from my phone, then it came from my phone, but I didn't send it on purpose.

Gda. Griffin. Would her number be programmed into your phone?

R.C. It would have been up until May.

Gda. Griffin. After the row you got rid of them all?

R.C. Yeah I didn't see the need to have them. So I got rid of them all.

Gda. Curran. Do you remember sending a specific message to [the complainant] about seeing your lovely Aunt ha, ha, ha?

R.C. No, I don't.

R.C. I have got several messages from this 087 number I don't know the number … … was at the end up to two weeks ago.

R.C. "Don't get mad at me" was one "Are we still friends" "Why aren't you replying to me". I can't remember the exact text but I think this was the jist [sic] of them.

Gda. Curran. When did you get these messages?

R.C. I got these messages on a Sunday night it would be 3 weeks ago this Sunday.

Gda. Curran. You didn't reply to them?

R.C. I didn't reply to them. I was told not to by my solicitor. I wouldn't have replied anyway. I thought it was from [the complainant's] phone, but I can't be sure."

The memo of the fourth interview with the appellant on 25th October, 2001 commenced as follows:-

"Sgt. Whelan. Why are you only telling me about these text messages now?

R.C. I only just remembered them.

Sgt. Whelan We've been talking about them all day about contact and text messages?

R.C. I'm telling you, I only just remembered them.

Sgt. Whelan. We feel that you have been less than up front about your contact with [the complainant].

R.C. I've told you everything, I haven't done anything wrong.

Sgt. Whelan. What do you think about [the complainant] at this stage?

R.C. I have no ill feeling about the child, you don't know these two, they're evil.

Gda. Curran. The two are [Y] and her sister [the complainant] is not evil?

R.C. I know she's not, the other two are.

Gda. Curran. Are you saying that [the complainant] was never in your apartment on her own?

R.C. Never."

16. The appellant opened a pub in March, 2001. The complainant's mother and aunt were employed. The appellant sacked the complainant's aunt some time in May, and the complainant's mother left then. There had been incidents prior to that event. The appellant alleges that they started talking about him, spreading things about money, that he owed them money. The appellant was involved in the pub only for the next 3 or 4 months. He was out of it a few weeks when he was interviewed in October 2001.

17. A decision was made by the prosecution to obtain telephone records. Garda Noelle Curran sought telephone records. In her affidavit of the 9th November, 2006 she deposed:-

"In November 2001 I requested telephone records as part of the investigation. At that time [the complainant] was a customer of Vodafone. The appellant had two phone numbers, one serviced by Meteor and the other by O2. I made this request via Crime and Security Division of the gardaí, which is based in Garda Headquarters. I originally sought records relating to all three numbers from March 2001 to September 2001. However Crime and Security suggested that a narrower timeframe would be easier to trace. At this point I concluded that it was unnecessary to request details pertaining to [the complainant’s] phone as well as [the appellant's] phones. I concluded that if I were in possession of [the appellant's] phone records these would detail incoming and outgoing calls made to those numbers including any made by [the complainant]. I concluded that it would be mere duplication to obtain [the complainant’s] phone records as well as [the appellant's]." (Emphasis added).

In her affidavit of the 12th February, 2007, she deposed:-

"I say and believe that it is accurate to state that the details in the Book of Evidence detail only the outgoing calls of [the appellant]. I say and believe that the Crime and Security Division of the gardaí determined that such records would be sufficient for the purposes of the investigation."

18.

Lost evidence

The absence of information on the complainant's telephone calls is relevant. Their relevance has been entrenched in the proceedings and any future trial by the method of the investigation. There was systematic questioning of the appellant of alleged telephone calls by the appellant to the complainant. In his replies the appellant makes significant references to calls by the complainant to him. Even at the investigation stage the issue of the telephone calls was significant.

19. In all the circumstances of this case the telephone records of both the appellant and the complainant are important, relevant and probative evidence.

20. Garda Curran deposed that she sought the telephone records, and that she was of the view that if she obtained the appellant's phone records they would detail incoming calls as well as outgoing calls, and that therefore it was unnecessary to seek the complainant's phone records. This illustrates a decision which was correct, i.e. to obtain the telephone records of both the appellant to the complainant and the complainant to the appellant. However, she also illustrates a mistake, that the appellant's phone records would record incoming calls and would thus show the complainant's calls to the appellant.

21. In her later affidavit Garda Curran states that Crime and Security Division of the gardaí determined that the appellant's records would be sufficient. If they were of the same mistaken view as Garda Curran, that the phone records of the appellant would disclose incoming calls from the complainant, that is an explanation. It is clearly a situation where both records are relevant and probative.

22. In the circumstances, the prosecution did have a duty to seek the telephone records of both the appellant and the complainant.

23. The law is well settled in this area and also has been addressed in many cases recently: Dunne v. Director of Public Prosecutions [2002] 2 IR 305; Scully v. Director of Public

Prosecutions [2005] 1 IR 242; McFarlane v. Director of Public Prosecutions [2008] IESC 7; Savage v. Director of Public Prosecutions [2008] IESC 39. The roots of the jurisprudence lie in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71.

24. Each case is required to be determined on its own circumstances. An Garda Síochána have a duty to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence so far as is necessary and practicable. The duty to preserve and disclose evidence as qualified by Lynch J. in Murphy v. D.P.P. cannot be defined precisely as it depends on the circumstances. The duty must be interpreted in a fair and reasonable manner and it does not require An Garda Síochána to engage in disproportionate commitment of manpower and resources. If evidence has not been obtained or no longer exists the reason for its absence is part of the matrix of the facts but it is not a determining factor in the test to be applied. The test to be applied was stated in D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and Z. v. Director of Public Prosecutions [1994] 2 I.R. 476. The onus to be established is that of a real risk of an unfair trial which cannot be avoided by rulings and directions by the trial judge, the risk must be real and the unfairness of trial must be an unavoidable unfairness of trial.

25. There appears to have been an unfortunate misunderstanding in this case. It is clear Garda Curran requested the telephone records as part of the investigation in November, 2001. She originally sought records from March, 2001 to September, 2001. However, a narrower timeframe was suggested to her. For some reason, not quite clear from the affidavits, the records of the outgoing calls of the appellant only were obtained. This was an error. The calls of the complainant would also be required in the investigation and for a fair trial.

26. Sometimes it may be appropriate to refuse to prohibit a trial, but to prohibit the use by the prosecution of some evidence - to ensure a fair trial. However, because of the entrenched issue of the phone records in the investigation and the circumstances of the offences alleged, that is not possible in this case.

27. The prejudice alleged by the appellant is that the telephone records of the complainant, if available, would have corroborated his account of his contact with the complainant between May, 2001 and September, 2001. Such telephone records would confirm that the complainant regularly phoned the appellant and sent him texts during that period, and that this would corroborate his oral evidence. Thus they go to the core issue of the case, the credibility of the appellant and the complainant.

28. The delay in prosecuting the case had a significant effect. It appears reasonable in the circumstances that the appellant took the view that no prosecution was proceeding, after the interviews, where he denied the allegations, in the autumn of 2001. He was not charged until January, 2004. The book of evidence is dated 1st March, 2004. It is at that time that the relevance and the importance of the telephone calls and records became apparent. It appears that Vodafone keeps records for a maximum of three years. While it may have been possible to obtain the records in March, 2004, it is noteworthy that there was a delay of 17 months between the request for records in June 2005 to Vodafone's reply in November, 2006.

29. There was a significant delay between the initial interviews by the gardaí of the appellant and the commencement of the proceedings. In the grounding affidavit of Martin O'Carroll, solicitor for the appellant, Mr O'Carroll deposes that the appellant believed, as a result of attending with the gardaí and denying the allegations, that the matter had been dropped and that he was surprised and upset when almost three years later the matter was proceeding. Without the necessity of determining the truth of this hearsay evidence it illustrates that a consequence of the delay by the prosecution is that it would be reasonable for the appellant to have taken no step in relation to a prosecution during that time from 25th October, 2001 to January, 2004, and indeed the service of the book of evidence in March, 2004.

30. In general the absence of phone records is not a reason to prohibit a trial. It is the particular circumstances of this case, including the approach taken in the investigation, and the questions asked and answered as to mobile phone use, together with the failure of the prosecution to seek the phone records of the complainant, while obtaining those of the appellant, which create circumstances where there is a real risk of an unfair trial.

31. Conclusion

The prosecution had a duty to seek the telephone records of both the appellant and the complainant in the circumstances of this case. While the telephone records of the appellant were obtained those of the complainant were not. That evidence was not obtained and is now lost, as appears from the circumstances of the case. For the reasons given, I consider that the absence of this evidence gives rise to a real risk of an unfair trial. Consequently, I would allow the appeal, set aside the order of the High Court, and grant an order restraining the Director of Public Prosecutions from proceeding with these prosecutions.