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Cite as: [2019] IESC 94_1
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THE SUPREME COURT
Record Number: 2018/25
Clarke C.J.
See Judgment by O'Donnell J : [2019] IESC 94_4
MacMenamin J.
See Judgment by Charleton J : [2019] IESC 94_3
See Judgment by O'Malley J : [2019] IESC 94_2
BETWEEN/
THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR/RESPONDENT
AND
C. Ce.
DEFENDANT/APPELLANT
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 19th December, 2019
1. Introduction
1.1. The proper approach to long delayed criminal prosecutions has been the subject of much
judicial debate in recent years. That debate stems, at least in part, from the emergence
of significant allegations of sexual and other abuse in both institutional and domestic
settings. Very frequently, those making such allegations have come forward at a
significant remove in time from the events alleged to have occurred. While, at least in
many cases, there are entirely understandable reasons explaining why allegations may
not have been made at a time much closer to the alleged events, nonetheless the
prosecution of serious criminal offences long after the event poses problems for the
courts. On the one hand, there is the significant imperative in seeking to ensure that
cases of serious alleged wrongdoing are considered on their merits. However, it is also
necessary to protect the requirements of due process and a fair trial. But the question of
finding the proper balance between these competing demands and putting in place
appropriate procedures to enable courts to determine where that balance lies in the
circumstances of any particular case have been much discussed as the case law has
developed over recent years.
1.2. This case raises such issues. The defendant/appellant (“Mr. C.”) was found guilty on
counts of rape and indecent assault by a jury at the Central Criminal Court on 12 May
2016. The allegations against Mr. C. related to events said to have occurred between 1
August 1971 and 30 April 1972 and thus the offences alleged were said to have taken
place approximately 44 years prior to his trial.
1.3. One of the developments in the case law in recent times has been a suggestion that the
question of whether it is possible to provide a fair trial, in such cases involving a lengthy
lapse of time, should be left to the trial judge rather than, as tended to be the case during
the earlier stage of the development of the jurisprudence, be decided in proceedings
which sought to prohibit the conduct of the criminal trial before it commenced. It will be
necessary to refer briefly to that development in due course but the underlying reason
behind it was a view that a trial judge would normally be in a much better position to
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assess the real extent to which it might be said that prejudice had been caused to the
defence by the lapse of time in question.
1.4. The trial judge in Mr. C.’s case refused an application, made on behalf of Mr. C. at the
conclusion of the prosecution case, to the effect that the trial should proceed no further
because of what was said to be unfairness caused by the absence of two potential
witnesses, with emphasis placed on the absence of one witness in particular, M.Cy. The
principal reason for the trial judge’s refusal of the application stemmed from her
characterisation of the missing evidence as being no more than a “lost opportunity”.
1.5. Following his conviction, Mr. C. appealed to the Court of Appeal on a number of grounds,
one of which related to the trial judge’s refusal to hold that the trial had been rendered
unfair on grounds of delay. The appeal was dismissed on all grounds. Insofar as the
issue of delay was concerned, the Court of Appeal took the view that the suggestion that
M.Cy. would have been of significant assistance to the defence involved a number of
major assumptions which the Court considered were unjustified. It is as against that
decision of the Court of Appeal that Mr. C. now appeals to this court. It is appropriate to
turn first to the grant of leave to appeal.
2. Leave to Appeal
2.1. In a determination of this Court dated 16 January 2019 (Director of Public Prosecutions v.
C Ce [2019] IESCDET 3), Mr. C. was granted leave to appeal that part of the judgment of
the Court of Appeal which determined that his trial had not been rendered unfair by
reason of the lapse of time since the offences in question. In doing so, the Court held
that Mr. C. had raised an issue of general public importance for determination, namely:-
“[T]he extent of the burden on an accused person, tried on historic allegations, who
argues that his trial is unfair because the lapse of time has resulted in the death of
a witness who might have been of assistance to him.”
2.2. As has already been noted, there were a range of issues raised both at the trial of Mr. C.
and on his appeal to the Court of Appeal. However, the only issue which now remains
before the Court is that identified in that determination of this Court granting leave to
appeal. It follows that it is only necessary to consider the rulings of the trial judge and of
the Court of Appeal insofar as they relate to that issue.
3. The Trial
3.1. The complainant, whom I will refer to as A.U., made allegations against Mr. C., A.U.’s
uncle, in relation to events which were said to have taken place on dates unknown
between August 1971 and April 1972, when A.U. and her family stayed with Mr. C. in
Clare. It was A.U.’s account that she had been indecently assaulted by Mr. C. on an
occasion when he had taken her hunting. She also gave evidence of a second incident,
where she alleged that she had been raped by Mr. C. during the same holiday. In this
regard, she referred to the background to the rape, involving a row between Mr. C., Mr.
C.’s partner at the time, M.Cy., and his son, C.C., in the course of which the latter was
said to have produced a shotgun. She further stated that later that evening, M.Cy. had
led A.U. from her bed to the bedroom where Mr. C. was, undressed her, and placed her
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naked in the bed alongside Mr. C. After M.Cy. left the room, Mr. C. was alleged to have
raped A.U.
3.2. The allegations against Mr. C. were made to the Gardaí by A.U. in April 2004. In
December 2004, Mr. C. was arrested, detained and interviewed. The direction to
prosecute Mr. C. on these charges was issued by the D.P.P. in February 2006. In 2005,
Mr. C. had left the jurisdiction, living in several different countries until his arrest and
extradition from the United Kingdom in July 2013. It transpired that M.Cy., and also B.C.,
A.U.’s mother, had both passed away in 2008.
3.3. At the close of the prosecution case, defence counsel made an application to the trial
judge that the trial proceed no further by reason of what was said to be the prejudice to
the accused arising from the lapse of time since the date of the alleged offences and the
absence of M.Cy. and, to a lesser extent, B.C. On that basis, it was said that there was a
real risk of an unfair trial. Counsel for Mr. C. submitted that M.Cy. was a person of
“central importance” in the allegation, as a witness to the events which were alleged to
have occurred, particularly given that, when the allegation of rape was first put to Mr. C.
in 2004, he stated that M.Cy. would be able to verify his denial.
3.4. Counsel for the defence stated that it was “beyond debate” that, if M.Cy. was going to
give evidence that A.U.’s evidence consisted of lies, this would have undoubtedly
undermined the prosecution to a significant extent and affected A.U.’s credibility. The
demonstration of the impossibility of the rape allegation would also, it was said, have had
a significant collateral impact on A.U.’s credibility in relation to the other charge, being
that of indecent assault.
3.5. There was also what was said to be the “reasonable possibility” that M.Cy. would have
contradicted the evidence of C.C., the son of the accused, thus damaging his credibility
not only in relation to his evidence placing A.U. and her siblings in the house at the same
time as Mr. C., but also in relation to the evidence adduced by the prosecution from C.C.
in relation to a form of verbal admission allegedly made by Mr. C. many years later.
3.6. Defence counsel also stated that, while the impact of B.C.’s evidence not being available
was not as great as that in the case of M.Cy., it was a factor to which the court ought to
have regard, as she might have been in a position to have given evidence as to whether
Mr. C. was living in the house at the time she stayed there with her family or as to her
recollection of the incident involving the firearm on the night of the alleged rape.
3.7. Counsel for the prosecution opposed the application to halt the trial, stating that the
evidence of M.Cy. could not have rendered the entire account of A.U. an impossibility,
that it was speculation to say that the absence of M.Cy. meant that Mr. C. had lost the
real possibility of an obviously useful line of defence, and that it was more properly
characterised as a lost opportunity for the defence.
3.8. Prosecuting counsel further suggested that Mr. C. had contributed to the delay and any
potential prejudice suffered by moving away from Clare. Both parties agreed that it was
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a matter of debate as to whether or not a trial could have taken place at which M.Cy.
could have given evidence, in the period between the issuance of the direction to
prosecute by the D.P.P. in February 2006 and her death in April 2008.
3.9. The trial judge, refusing the application, held that she was not persuaded that the
absence of M.Cy. posed a risk of an unfair trial such that the two charges should be
withdrawn from the jury. She stated:-
“I agree that [M.Cy.]’s evidence is a lost opportunity. This is a consequence of delay or
stale cases, because this is what can happen in delayed or stale cases. We cannot
speculate about what her evidence might have been, would it have been favourable
to the prosecution or to the defence? And neither indeed can the jury speculate in
relation to that…”
3.10. She further ruled that the absence of the evidence of M.Cy. was not akin to the absence
of objectively reliable evidence, such as records, which could demonstrate the
improbability of A.U.’s allegations. The trial judge further stated that she would give the
full “Haugh warning” to the jury in relation to the difficulties which arise by reason of
delay and the absence of evidence.
4. The Court of Appeal
4.1. Mr. C. appealed against his conviction. The appeal was dismissed by the Court of Appeal
(Birmingham, Hogan and Mahon JJ.) on 8 December 2017. The reasons for that decision
were provided in the judgment of Birmingham J. delivered on the same date (The People
(at the suit of the Director of Public Prosecutions) v. C. Ce [2017] IECA 326). Mr. C.’s
appeal was dismissed on a number of grounds but it is sufficient for the purposes of this
appeal to set out the conclusions of the Court of Appeal on the issue of the application to
halt the trial by reason of delay.
4.2. In relation to the absence of the evidence of B.C., A.U.’s mother, from the trial, the Court
of Appeal concluded that her absence could not possibly have provided a basis for
stopping the trial. The only evidence which she could have been expected to have been
able to give would have been in relation to the issue of whether Mr. C. and A.U. and her
family all stayed at the same time in the house where the rape offence is alleged to have
occurred. The Court held that it was “speculative in the extreme” to suggest that she
would have given evidence that was contradictory to the evidence of A.U. and that of
A.U.’s brother, C.U. The Court declined to attach a great deal of significance to either
party’s arguments as to Mr. C.’s own contribution to the delay in leaving the jurisdiction.
4.3. Turning to M.Cy., the Court of Appeal considered the role that she was likely to play at
trial in order to assess the significance of her absence. The Court considered that this
question should be viewed holistically, by reference to the evidence actually before the
trial judge.
4.4. It was noted that, had contact been made with M.Cy., she would have had to have been
interviewed under caution, as A.U.’s account would have suggested that M.Cy. was
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complicit in the offence. Furthermore, had M.Cy. been called as a witness by the defence,
the trial judge would have had to warn her that she need not answer questions if by doing
so she might incriminate herself. If she gave evidence in support of Mr. C., Birmingham
P. pointed out that she would have been cross examined on the basis that it would be
suggested that she was denying that the incident occurred because she was an
accomplice to the offence.
4.5. The Court of Appeal then concluded that to take the view that M.Cy. would likely have
been of significant assistance to the defence involves “a number of major assumptions
which appear unjustified having regard to the totality of the evidence”. The Court then
reviewed the evidence adduced by the prosecution which it considered was corroborative
of A.U.’s allegations and concluded, at para. 33 of the judgment:-
“It cannot therefore be said that this was simply a case of an uncorroborated allegation of
rape and indecent assault which is said to have taken place some 45 years earlier.
There was other independent testimony which, if accepted, was strongly indicative
of guilt. While there was no doubt but that the death of [M.Cy.] in 2008
represented, in the words of the trial judge, a missed opportunity for the defence,
nevertheless, when viewed in the light of the totality of the evidence, it cannot be
said that her absence was so gravely prejudicial in the circumstances such as would
necessarily have warranted halting the trial.”
5. The Case Law
5.1. The jurisprudence on the issue of a lapse of time between when offences are alleged to
have occurred and the making of a formal complaint has evolved significantly since the
courts were first faced with a series of cases alleging historic sexual abuse in the 1990s.
5.2. Where an application was made to prohibit the trial of a person on the grounds of a lapse
of time, the initial approach of the courts was to conduct an inquiry into whether the
applicant was ultimately responsible for the complainant’s delay, examining issues such
as the dominion which the accused exercised over the complainant and the relationship
and the age difference between the parties, (see, for example, B. v. D.P.P. [1997] 3 I.R.
140). If it was found that the applicant was responsible for the delay, he could not rely
on the lapse of time unless it presented a real risk that the applicant would not obtain a
fair trial. Thereafter, the constitutional principle that a trial would be prohibited if there
was a real or serious risk of an unfair trial, as set out in D. v. D.P.P. [1994] 2 I.R. 465,
was applied.
5.3. This two-stage inquiry was generally conducted during judicial review proceedings
brought by the accused in advance of the trial, in which an application was made for
either an order of prohibition of the prosecution of the applicant or for an injunction
restraining the D.P.P. from proceeding further with the prosecution.
significant development in the jurisprudence, however, as judicial notice was taken of the
circumstances of and reasons for delay in making complaints by victims of child sexual
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abuse and it was held that there was no longer a necessity to inquire into the reasons for
a delay in making a complaint. In a recalibration of the test to be applied in cases
involving a lapse in time prior to the making of a complaint, Murray C.J. stated at p. 622
of the reported judgment that the issue which arose for determination by the court is
“whether the delay has resulted in prejudice to an accused so as to give rise to a real or
serious risk of an unfair trial”.
5.5. The courts had previously indicated that, should it not be possible to form a judgment in
advance as to whether a trial would be fair or unfair, it was for the trial judge to ensure
as best he or she could that the trial was fair (per Geoghegan J. in P.L. v. Buttimer [2004]
4 I.R. 494 at p. 520). In The People (Director of Public Prosecutions) v. P. O’C. [2006]
IESC 54, [2006] 3 IR 238, this Court held that the trial court did not have the
jurisdiction to entertain a preliminary motion to quash the indictment on the grounds of
delay. It was affirmed that the “appropriate procedure” by which to address the issue of
delay was that of judicial review proceedings. However, importantly, Denham J. affirmed
the inherent jurisdiction of the trial court to protect its process, address matters relating
to delay which arise on the evidence and make such orders as are necessary during the
course of the trial. She held at p. 247 of the reported judgment:-
“This is the general principle of law, if a trial is delayed the appropriate remedy in which
to raise that issue is by way of judicial review. However, whether an application for
judicial review is made or not, the trial court retains at all time its inherent and
constitutional duty to ensure that there is due process and a fair trial. Thus, in the
course of the trial matters may arise, evidence may be given, which renders a trial
unfair, or the process unfair. In these circumstances the trial judge retains the
jurisdiction of preventing the trial from proceeding. This jurisdiction is exercised in
the course of a trial but does not enable, or relate to, a preliminary hearing at the
commencement of a trial on the issue of delay.”
5.6. A shift in thinking has ensued in relation to the correct stage of proceedings at which an
application to halt a trial on the grounds of delay should be made, as noted in P.B. v.
D.P.P. [2013] IEHC 401. There, O’Malley J. stated that where the court must determine
whether prejudice has arisen as a result of a lapse of time and, if so, whether it is such as
to give rise to a real or serious risk of an unfair trial, each case falls to be considered on
its own facts and in the light of the power of the trial judge to ensure a fair trial by means
of appropriate rulings and directions. This includes the jurisdiction to withdraw the case
from the jury where the trial judge considers that such is the only way to prevent
injustice to the accused. She continued at para. 59:-
“The point of the decision in S.H and the authorities that followed is that the difficulties
caused to a defendant in cases of old allegations (and I do accept that there can be
very real difficulties) are best dealt with in the court of trial. Trial judges are now
accustomed to dealing with such cases and using such powers as are necessary to
prevent injustice to accused persons. It is perfectly clear that a trial judge is not
restricted to simply giving warnings to the jury but may, where necessary in
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exceptional cases, withdraw the case from the jury on the basis that the difficulties
for the defence are such that it is not just to proceed. Such a decision, in the
normal course of events, will often be better taken in the light of the evidence as
actually given rather than as speculated about in judicial review proceedings.”
5.7. Recent decisions of the Court of Appeal have affirmed the views expressed by O’Malley J.
in P.B. v. D.P.P. to the effect that the trial court will often be in a better position than the
judge in judicial review proceedings to make an assessment of whether the accused has
suffered irremediable prejudice giving rise to a real risk of an unfair trial, having regard to
the run of the case and the evidence which is actually tendered; see M.S. v. D.P.P. [2015]
IECA 309, at para. 49, and R.B. v. D.P.P. [2019] IECA 48 at paras. 9-16. The issue was
judicial review proceedings in which an order of prohibition was sought on the grounds of
lapse of time and where culpable delay on the part of prosecuting authorities was alleged
by the applicant. At para. 2.21 of my judgment, I recognised the “growing tendency” on
the part of the courts to consider, in the context of an ex ante application to prohibit a
trial from going ahead, whether it might be more appropriate to leave the final decision to
the trial judge and also set out the basis on which I considered that this course of action
may be preferable.
5.8. Charleton J., at para. 23 of his judgment in the same case, was in agreement, stating:-
“The trial judge now has the primary role in decisions of this kind and judicial review is
rarely appropriate. An application to the trial judge is an alternative to judicial
review. As Clarke J states in his judgment on this appeal, if the case is one that
there has been a diminishment in the availability of a trial that would be otherwise
complete in every respect due to the factors complained of, then this judgment
would concur that since the appropriate balance may best be seen by the trial
judge in the context of a complete analysis of the facts of the case, it is preferable
that an application to halt the trial be made to that forum. Where however, as
Clarke J states, the case is one of a clear denial of justice resultant upon the factors
found to be culpably wanting, prohibition by the High Court should be granted. An
application to stop a trial before the trial judge may best be decided upon a
consideration of all of the evidence and how the alleged defect, be it delay or
missing evidence or unavailable witnesses, impacts on the overall case. Whether
the real risk of an unfair trial that cannot otherwise be avoided then exists is, in
such cases of an argument that justice has been diminished, often best seen in the
context of such live evidence as has been presented and not through the contest on
affidavit that characterises these cases on judicial review seeking prohibition in the
High Court or on appeal.”
5.9. As evidenced by the facts of the present proceedings, a consequence of delay is often that
certain key witnesses are unavailable for trial or are deceased. In order to establish that
a real or serious risk of an unfair trial exists as a result of the absence of a witness, it was
always considered that there was a burden on the applicant to fully engage with the facts
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of the particular case in order to demonstrate in a specific way how the risk arose. See,
5.10. The threshold to be met on such an application has been stated in differing terms across
witnesses to whom allegations of indecent assault were said to be made was in issue. If
these witnesses had denied that complaints were made, the credibility of the complainant
would have suffered significantly and thus the applicant was held by Hardiman J. to have
“lost the real possibility of an obviously useful line of defence” and was granted injunctive
relief.
5.11. MacMenamin J. set out the “two fundamental tests” as to specific prejudice arising from
para. 32:-
“(i) whether the applicant has engaged with the facts and demonstrated the materiality
of unavailable evidence; and (ii) whether the evidence can be obtained elsewhere,
or can be dealt with by warnings from the trial judge?”
5.12. In that case, MacMenamin J. assessed the potential prejudice arising from the absence of
a number of witnesses on the facts of the case, holding that the evidence of a garda to
whom the applicant had made a complaint in writing many years previous to the effect
that his father had been sexually abusing his sisters, who were the complainants, “clearly
would have the effect of buttressing his credibility” and that this would have been of
significant benefit to the applicant in defending the charges faced. The absence of this
witness was held by MacMenamin J. to constitute specific prejudice sufficient to warrant a
grant of prohibition.
5.13. In assessing whether the absence of certain witnesses gave rise to irremediable prejudice
“demonstrated to be essential in order to assist the applicant’s defence in respect of the
charges” and whether other witnesses were available who could provide evidence in
relation to the same matters.
absence of evidence, an applicant must point to a “real possibility that the witnesses or
evidence would have been of assistance to the defence” and dismissed the principle that it
was sufficient to point to a theoretical possibility that the evidence of an unavailable
witness might contradict the complainant's account or that of other witnesses. At para.
67, she continued:-
‘The question is, I consider, whether there is a real possibility that the missing material
would reveal a material inconsistency which would be of benefit to the applicant. In
my view, there is nothing in the evidence to suggest that this is a realistic
possibility as might be the case if, for example, it was shown that [the complainant]
had given materially inconsistent accounts in other instances.’
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5.15. This approach of O’Malley J. was recently followed by the Court of Appeal in R.B. v.
D.P.P., cited above, where Baker J. stated that to raise a real possibility that the missing
evidence would assist in the defence, an applicant for prohibition “must engage in a real
way with that potential evidence and identify how and why it might assist in defending
the charge”.
5.16. However, it is necessary to consider the proper approach to be adopted by a trial judge
who is asked to consider halting a trial on the grounds that it has been demonstrated to
be unfair. It is important to emphasise that much of the language used in the case law
which concerned prohibition of trials necessarily referred to the risk that a trial which
might happen in the future would be unfair. However, where the application is made to
the trial judge, much of the trial will have already taken place.
5.17. Given that the purpose behind the more recent jurisprudence, which suggests that trial
judges are better placed to make decisions of this type, stems from the fact that the trial
judge will have heard evidence, it follows that it is unlikely that it would be appropriate to
entertain an application to halt a trial on the grounds of prejudice caused by delay without
having heard all, or at least most, of the prosecution case. In those circumstances, the
trial judge will have had the opportunity to understand in detail the prosecution case as it
has actually turned out to be at trial, rather than as it might theoretically have been
anticipated to be at the stage of a pre-trial application to prohibit. In passing, it might
also be mentioned that there could be circumstances where an application to halt a trial
might be made after some or all of the defence evidence had been given as well, but a
decision as to the point in time at which it might be considered appropriate to entertain
an application to halt the trial is a matter which the trial judge is uniquely placed to
determine.
5.18. In any event, the first matters which a trial judge will need to assess are the components
of the prosecution case. Clearly, that case must contain sufficient evidence which would
permit a jury properly instructed to convict the accused, for, if that is not the case, the
accused will be entitled to a direction from the trial judge to the jury to acquit and no
question of halting the trial on delay related grounds would arise. The trial judge will
need to consider the key elements of the evidence which have the potential to allow the
prosecution case to go to the jury in the first place.
5.19. Next, the trial judge will have to consider the evidence which is said to be missing by
reason of lapse of time. It is inevitable that this task will involve some level of
speculation, for it is the very fact that the evidence is not available which gives rise to the
potential prejudice in the first place. However, it is clear that what is required is a
legitimate basis on which it can be said to be reasonable to infer that particular evidence,
potentially favourable to the accused, might have been given had the trial taken place at
an earlier stage. There will, obviously, be cases where there may be quite compelling
evidence as to what the missing testimony might have been. For example, a potential
witness who has died may have made a formal statement to An Garda Síochána or might
even have given evidence under oath in other proceedings about facts relevant to the
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trial. On the other hand, questions relating to whether there might truly have been
material evidence which is now missing and, indeed, the content of such evidence if it
existed, may amount to little more than speculation. It follows that the first assessment
which the trial judge must make, on the basis of whatever evidence is available (either as
tendered before the jury at the trial or in a hearing conducted in the absence of the jury),
must be to determine the likelihood that there truly was evidence which is missing and
which would have been potentially material to the trial. The second assessment, which
must be made in conjunction with an assessment of the prosecution case, is as to the
true materiality of the evidence likely to be missing.
5.20. At one end of the scale, it is possible to envisage a case where there is very cogent
reason to believe that evidence, which would be central to the jury’s consideration, has
become unavailable by virtue of lapse of time. At the other end of the scale, the
suggestion that there is missing evidence may amount to little more than speculation. In
between these extremes there will undoubtedly be cases which may require a difficult
balancing of competing factors. The confidence with which it can be said that there truly
is missing evidence and the extent to which it may be reasonable to assume that, in the
light of the prosecution case as it has developed at trial, the missing evidence might be
expected to potentially have had a real impact on the result of the case, are matters
which a trial judge will be required to assess.
5.21. For example, if the prosecution case is very strong, then the evidence said to be missing
would need to be such that there was a real possibility that it could influence the decision
of the jury notwithstanding the strength of the prosecution’s case.
5.22. Ultimately, the trial judge must determine whether the trial meets the standard of a fair
trial. It is important to emphasise that a fair trial does not necessarily have to be a
perfect trial. Almost all trials may potentially run without some possibly relevant evidence
being available. The question of whether a trial is fair does, as the Court of Appeal
considered, require an overall approach. If a theoretical possibility that some tangentially
material piece of evidence is not available were to render a trial unfair, it would be
difficult to envisage many cases in which there could ever be a fair trial. Something more
substantial is required in order that a trial can be considered to be unfair. In cases which
turn on a contention that there is evidence which has become unavailable by lapse of
time, it is necessary to look at the case in the round, to have regard to the likelihood of
evidence favourable to the defence being genuinely lost by reason of the lapse of time
and also to have regard to the role which that evidence might reasonably have been
expected to play at the trial, in the light of the prosecution case as it actually appeared at
the trial.
5.23. But, having identified the way in which a trial judge should approach the question of
whether a trial is fair, it is also necessary to identify the standard to be applied by the
trial judge to the assessment which is to be carried out.
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5.24. It is important to recall the test set out in S.B. v. D.P.P., cited above, where Hardiman J.
considered that a real or serious risk of an unfair trial arose in circumstances where the
accused had “lost the real possibility of an obviously useful line of defence”.
5.25. That case was decided in the context of an application to prohibit a trial rather than an
application to a trial judge to prevent a trial continuing. However, the principle remains
true in either case. As already noted, a trial judge will know in detail the prosecution case
as already made. As also noted, there will inevitably be some degree of speculation as to
what evidence might have been capable of being given were it not for the fact that the
evidence concerned was missing. However, subject to that difficulty, the trial judge will
also be in a position to assess the extent to which that evidence might meet the S.B. test
on a much more objective and less speculative basis than might have been the case in a
pre-trial application to prohibit. It follows that it is for the trial judge to consider, on the
basis of the prosecution case as actually made and having considered the extent to which
it can properly be said that there is evidence missing which would be truly material to
defending the prosecution case as made, whether that missing evidence might be
assessed as providing a real possibility of an obviously useful line of defence so as to
determine whether it is just to permit the trial to continue to a conclusion or whether the
trial must be halted on the basis that it can no longer be considered to be fair.
5.26. It must also be recalled that the precise issue which was expressly referred to in the grant
of leave to appeal in this case is the question of the burden which lies on the accused in
such circumstances. As in certain other situations which arise in the course of criminal
trials, there may be at least two ways in which an accused may identify evidence which
can form the basis of an argument that a particular course of action should be adopted by
the trial judge. It is obviously for the accused to raise the question as to whether the
continuation of a trial is appropriate on the basis of a contention that the trial is unfair by
reason of lapse of time leading to the unavailability of material evidence. When raised, it
is open to the accused to make the case in favour of the trial not continuing by reference
to evidence which is already before the Court as part of the prosecution case. It may be
that in some situations there will be sufficient evidence available from the prosecution
case to enable the accused to advance such an argument. In that context, it is, of
course, the case that the first element to be considered by the trial judge is the
prosecution case which has actually been made at trial. It is also possible that, in some
cases, there will be sufficient evidence already tendered as part of the prosecution case to
enable the accused to make such argument as may be open in relation to the evidence
which would have been likely to have been given had it not been missing. However,
there may be circumstances where it will be necessary for the accused, in the absence of
the jury, to lead additional evidence to enable the trial judge to reach an assessment as
to the missing evidence. The prosecution may also decide to lead evidence in the
absence of the jury which is directed to the same assessment.
5.27. Whether relying solely on evidence led by the prosecution or on that evidence together
with additional evidence, it is for the accused to persuade the trial judge that, having
regard to the prosecution case and such evidence as there may be as to the likely content
Page 12 ⇓
of any missing evidence, it has been established that the accused has, by virtue of lapse
of time and in the light of that missing evidence, lost the real possibility of an obviously
useful line of defence.
5.28. The obligation is on the trial judge to make a separate and distinct determination in that
regard and it is clear that the trial judge must do so conscientiously in the light of all of
the evidence and argument presented at the trial. The ultimate assessment of the trial
judge must be as to whether the trial is fair rather than to reach any assessment which
implies either the guilt or innocence of the accused.
5.29. I would add one point, even though it is not relevant in the particular circumstances of
this case. No trial is perfect. There will always be the possibility that other material
evidence could have been gathered. In addition, evidence which was gathered may not
be available at the trial for a range of reasons. Witnesses may not be capable of being
required to give evidence or physical evidence may be lost or damaged. If it were to be
the case that the absence of any evidence which might have been present in a
theoretically perfect trial could lead to a trial being considered unfair, then it would follow
that very few trials could be conducted. As analysed earlier, the extent to which
prejudice to the defence has been demonstrated to have had a potentially material effect
on the trial is a matter which requires to be assessed by the trial judge in the light of the
range of factors which I have sought to identify.
5.30. However, it should also be noted that there can be cases where prejudice to the defence
arises either from culpable delay on the part of investigating or prosecuting authorities or,
indeed, although rarely, from wrongful acts on the part of such authorities. An overall
assessment as to whether it can be said that a trial is fair can, in an appropriate case,
take into account such culpable actions. An accused is entitled legitimately to complain
that a trial is unfair by reference to a lesser degree of prejudice if that prejudice has been
caused or significantly contributed to by the culpable actions of investigating or
prosecuting authorities. The analysis of the prejudice actually caused should not differ
from that outlined earlier. However, in reaching an overall assessment as to whether the
trial is fair, the trial judge can properly have regard to such culpable failures, for it is
particularly unfair that an accused suffers prejudice due to such culpable activity. It
follows that a lesser degree of prejudice may suffice to render a trial unfair where the
prejudice concerned flows from culpable acts or omissions.
5.31. All that being said, it follows that if, having regard to the factors identified, the trial judge
is satisfied that the trial is unfair by reason of the absence of the missing evidence, then it
should be halted. It is necessary to consider the manner in which both the trial judge and
the Court of Appeal dealt with this issue. That first requires a consideration of the
evidence.
6. The Evidence
6.1. It must, of course, be recorded that the principal evidence tendered on behalf of the
prosecution was that of A.U. Obviously that evidence was such that, were it to be
believed by the jury, it was capable, in principle, of establishing the guilt of Mr. C. beyond
Page 13 ⇓
reasonable doubt. But such will almost always be the case in circumstances where delay
issues arise. If the delay has deprived the prosecution of sufficient evidence to establish
the case beyond reasonable doubt, then there will be no trial in the first place (or a
direction will be granted) and therefore no question of the trial being halted on lapse of
time related grounds will arise. The appropriate analysis must focus on the totality of the
evidence that either was tendered or, arguably, might have been available were it not
missing, so as to reach an overall determination as to whether a fair trial remains
possible.
6.2. In the course of the trial, A.U.’s brother, C.U., gave evidence of visiting Clare and staying
in Mr. C.’s house with his mother, and his siblings, one of whom was A.U. In evidence, he
described an altercation between Mr. C. and Mr. C.’s son, C.C., during the course of which
a shotgun was said to have been produced by C.C. The details he offered of this incident,
which the prosecution say formed the background to the rape, diverged in certain
respects from the description of the incident provided by A.U., and he recalled that the
row took place in the bedroom of Mr. C., while both C.C. and A.U. were inside the room.
6.3. C.C., the son of Mr. C., then gave evidence on behalf of the prosecution. He described his
aunt and her family, including A.U., coming to Ireland for a holiday and staying with Mr.
C. at his house in Clare. He went on to describe intervening in a violent row between Mr.
C. and M.Cy., in the course of which C.C. produced a shotgun, again in somewhat
different terms to the accounts of A.U. and of C.U. He further stated that A.U.’s family
were present in the house on that night.
6.4. C.C. also gave evidence in relation to an occasion when he confronted Mr. C. in relation to
the allegations of A.U., of which he had become aware after having spoken to her. In
response, his father was said not to have denied the allegations and to have agreed to
seek psychiatric help in relation to the matter. It will be necessary to return to this
evidence in due course.
6.5. Mr. C. did not give evidence in his own defence. However, the trial court heard an
account of an interview conducted with him in December 2004, in the course of which he
denied any wrongdoing. He also denied that there had ever been a time when he and
A.U. and her family had all been staying at the house in question in Clare. During that
interview, he also stated that M.Cy. “can verify” that she did not undress A.U. and place
her in the bed beside Mr. C. as alleged. He also denied that any conversation had taken
place between himself and his son, C.C., in which he admitted to abusing A.U.
6.6. The trial judge also heard evidence in the absence of the jury from a retired garda who
had previously investigated the allegations of A.U., as to attempts to locate Mr. C.
following his departure from the jurisdiction and the failed attempts to trace M.Cy.’s
whereabouts, beyond establishing that she had moved to the United Kingdom some years
earlier.
6.7. C.C. also gave evidence, in the absence of the jury, of a meeting he had with M.Cy. and
two of his aunts, including B.C., which took place in Holyhead at an unknown time. In the
Page 14 ⇓
course of that meeting, C.C. said that he outlined a disclosure made to him by his sister
concerning sexual abuse inflicted by Mr. C. His evidence was that he was advised not to
visit A.U. because it was “all lies”. C.C. had not yet met with A.U. at the point at which
he relayed the allegations of his siblings to his aunts and to M.Cy. This meeting, counsel
for Mr. C. argued, indicates that the evidence of the deceased women, and in particular
M.Cy., which was not available to the Court, would likely have been favourable to the
defence. Counsel for the D.P.P. argued that C.C., on the basis of his evidence, was not
aware of the allegations of A.U. at the time of his meeting with the three women in
Holyhead and therefore that the “all lies” remark must refer exclusively to other
allegations made against Mr. C. by his daughters. Counsel for Mr. C. disagreed with this
interpretation of the evidence, arguing that the exhortation not to meet with A.U. which
was given by the women suggests either that the women had pre-existing knowledge of
A.U.’s allegations or else that such allegations were discussed at the meeting in
circumstances where C.C. indicated that he intended to visit A.U. to find out more about
what was alleged. It will also be necessary to return to this aspect of the evidence in due
course.
6.8. Against that backdrop, it is necessary to turn to an analysis of the fairness of the trial
having regard to the lapse of time involved and, in particular, the absence of M.Cy. It is
first appropriate to consider how this question was addressed both by the trial judge and
by the Court of Appeal.
7. The Decisions in the Courts below
7.1. As mentioned, in the course of making the application to halt the trial, counsel for the
defence suggested that C.C.’s evidence regarding his meeting with his aunts and with
M.Cy. demonstrated that M.Cy. had some knowledge of A.U.’s allegations and that
M.Cy.’s state of mind was such that whatever A.U. was going to say could not be
believed. Therefore, it was submitted, this was indicative of the testimony she would
have provided had she been in a position to give evidence at the trial. In determining the
application, the trial judge first stated that she did not agree with this interpretation of
C.C.’s evidence as put forward by defence counsel and appeared to consider that the
conversation between C.C. and the women specifically was in reference to the allegations
against Mr. C. which were made by C.C.’s sisters.
7.2. Dismissing the application, the trial judge then stated the following:-
“I agree that [M.Cy.]’s evidence is a lost opportunity. This is a consequence of delay or
stale cases, because this is what can happen in delayed or stale cases. We cannot
speculate about what her evidence might have been, would it have been favourable
to the prosecution or to the defence? And neither indeed can the jury speculate in
relation to that. Whatever her evidence, I agree with the submission made by
[prosecuting counsel] that it doesn’t come close to the loss of a record which would
show the improbability of the accused in the committing of the offence or the
improbability, or similar to the improbability of a story that a nurse administering
an injection when she had no authority to do so.
Page 15 ⇓
I intended to give the full Haugh warning to the jury. I would intend to refer to [M.Cy.]’s
absence specifically and also to the absence of [B.C.]… And by doing so, I don’t
accept [defence counsel]’s submission that I’m abdicating my duty under the
Constitution by giving a jury a warning in relation to delay by a form of words. And
I’m not persuaded that the absence of [M.Cy.] poses a risk of an unfair trial, such
that the two charges should be withdrawn from the jury and accordingly I’ll refuse
the application.”
7.3. In the judgment of the Court of Appeal, the Court correctly indicated that it wished to
focus on the question of “whether Mr. C.’s trial was a fair one or whether allowing the trial
proceed to a verdict was unfair”. The Court first sought to assess the impact of the
absence of A.U.’s mother, B.C., from the trial and considered the evidence which she
could have been expected to provide in relation to the question of whether A.U.’s family
and Mr. C. both stayed at the same time in the house, where the rape offence was alleged
to have occurred. The Court held that it was “speculative in the extreme” to suggest that
she would have given evidence that was contradictory to the evidence of A.U. and that of
C.U.
7.4. Turning to consider the impact of the absence of the evidence of M.Cy. on the trial, the
Court acknowledged that, on A.U.’s account, M.Cy. was an eye witness to the offence of
rape and was a “very significant figure in the narrative”. The Court considered that its
particular focus of attention should be placed on the position of M.Cy. and the role which
she would have played at trial, while taking account of all the evidence before the trial
judge and the way in which the trial proceeded. At paras. 27 and 28, the Court outlined
its concerns regarding both the availability of M.Cy.’s evidence and the credibility thereof,
should she have given evidence at the trial:-
“27. It would seem inevitable that, had contact been made with [M.Cy.], she
would have had to have been interviewed under caution. What she would
have said, if anything, we cannot of course now know, but it seems unlikely
that she would have been a prosecution witness. There remains the
possibility that she would have been called as a witness by the defence.
Based on the attitude that she and the aunts were expressing at Holyhead,
there must be doubts as to whether she would have been a willing participant
in a trial. She had married, changed her name and was making a new life for
herself. The trial judge would have had to warn her that she need not answer
questions if by doing so she might incriminate herself. If, having been so
advised, she gave evidence in support of the appellant, it would seem
inevitable that she would have been cross examined on the basis that she
was denying the bedroom incident because she was a participant in it, a
facilitator, in effect, an accomplice. Viewed in that light, the defence is
seeking to halt the trial because of the unavailability of someone who was, on
[A.U.]’s account, an accomplice in this incident.
Page 16 ⇓
28. There is no doubt that at first sight the argument on behalf of the defence for
stopping the trial is a powerful one. On A.U.’s account, [M.Cy.] was an eye
witness to relevant matters and, in truth, much more than a bystander. If
she gave evidence denying witnessing anything of the sort described and was
convincing in that regard, that would be a very considerable assistance to the
defence. However, if one considers what role she was likely to play at trial
the significance of her absence is much less.”
7.5. The Court held, at para. 31, that “[t]o take the view that she would likely have been of
significant assistance to the defence involves a number of major assumptions which
appear unjustified having regard to the totality of the evidence”.
7.6. The Court then proceeded to examine the other evidence which it considered was
corroborative of A.U.’s account, namely the evidence of C.C. and C.U., to the effect that
A.U. and her family had stayed in the same location as Mr. C., which, if accepted,
demonstrated that there was an opportunity during which the alleged offences may have
taken place, and the evidence of C.C. of his confrontation with Mr. C. regarding the
allegations of A.U., which Mr. C. was said not to have denied. In light of this, it
continued, at para. 33:-
“33. It cannot therefore be said that this was simply a case of an uncorroborated
allegation of rape and indecent assault which is said to have taken place some 45
years earlier. There was other independent testimony which, if accepted, was
strongly indicative of guilt. While there was no doubt but that the death of [M.Cy.]
in 2008 represented, in the words of the trial judge, a missed opportunity for the
defence, nevertheless, when viewed in the light of the totality of the evidence, it
cannot be said that her absence was so gravely prejudicial in the circumstances
such as would necessarily have warranted halting the trial.”
7.7. On that basis, the Court found that the conclusion of the trial judge that the trial was fair
and ought not to be stopped was an understandable one and refused to interfere
therewith.
8. Discussion
8.1. It is appropriate to start with an analysis of the basis on which both the trial court and the
Court of Appeal reached their respective conclusions to the effect that the trial remained
fair notwithstanding the potentially missing evidence and, in particular, the evidence
which might have been given by M.Cy.
8.2. I have already set out the relevant passage from the ruling of the trial judge. The trial
judge agreed that, in the case of M.Cy., the absence of her evidence was a “lost
opportunity”. It follows that the real question which the trial judge should have
addressed, in the light of the test set out in S.B., was whether that lost opportunity
involved “the real possibility of an obviously useful line of defence”. However, the trial
judge concluded that the potential evidence which M.Cy. might have given did not “come
close to the loss of a record which would show the improbability of the accused in
Page 17 ⇓
committing the offence”. It seems to me that, in so concluding, the trial judge applied an
incorrect test. The question is not whether the relevant missing evidence might have
shown the improbability of the accused committing the offence in question (although
obviously if it did so demonstrate, then it would be hard to conclude that the trial was
fair). The test is, as has been emphasised, whether the missing evidence would have
been likely to have provided a real possibility of an obviously useful line of defence. That
line of defence might or might not have succeeded. But the problem is that the very fact
that the evidence was missing means that we will never know what view a jury might
have taken had the evidence been present. It is for the trial judge to assess, in the light
of the prosecution case and such evidence as there may be as to the content of the
missing evidence, whether the S.B. test is satisfied. On the basis of the ruling of the trial
judge, it seems to me that an incorrect standard was applied.
8.3. It would appear that the Court of Appeal took a slightly different route. That court
speculated on the likely run of the trial had M.Cy. given evidence. The Court of Appeal
did accept that, on first sight, the argument put forward on behalf of the accused was a
“powerful” one given that, on A.U.’s account, M.Cy. was an eye witness to one of the
offences and, as the Court of Appeal put it, “much more than a bystander”. The Court of
Appeal accepted that, had M.Cy. given evidence contrary to A.U.’s account and had she
proved credible, “that would be a very considerable assistance to the defence”.
8.4. However, the reason why the Court of Appeal did not consider that those circumstances
led to the trial being considered unfair was because of an analysis of the difficulties that
the Court considered would have been encountered in respect of M.Cy.’s evidence. It is
true that, on A.U.’s account, M.Cy. would have appeared to have been in the nature of an
accomplice. That might well have led to procedural consequences, such as a warning,
had she given evidence, and it would also have provided an undoubtedly useful line of
cross-examination for the prosecution who might well have been able to suggest to her
that, having regard to the role which A.U. ascribed to her, her evidence was self-serving.
8.5. It does not seem to me to be clear, therefore, that the Court of Appeal properly applied
the S.B. test. That court clearly did conclude that, if M.Cy. had given evidence which
contradicted A.U.’s account, this would have been of considerable assistance to the
defence. As such the evidence clearly was, in the view of the Court of Appeal, an
obviously useful line of defence. It might perhaps be said that the Court also concluded
that the potentially missing evidence of M.Cy. did not truly provide a “real possibility” of
that line of defence being available, for the reasons identified in its judgment. However,
it seems to me that the process whereby the Court of Appeal came to that view involved
trespassing on an assessment of how credible the evidence of the missing witness might
have been. While there may be some circumstances in which such an exercise may be
appropriate, such as where there are objective reasons to seriously doubt the relevant
evidence such as contradictory statements by the witness concerned, it seems to me that
the Court of Appeal trespassed into an area which should more properly be one for the
jury, that being an assessment of the general credibility of a potential witness whose
evidence is missing.
Page 18 ⇓
8.6. In the light of that analysis, I consider that neither the trial court nor the Court of Appeal
truly adopted the proper approach to an assessment of the evidence in this case and it
follows that it is for this Court to consider whether, on the evidence and argument
presented, and applying the correct test, there was an obligation on the trial judge to
have halted the trial on the grounds of unfairness.
8.7. As noted earlier, it is necessary first to look at what additional or corroborative evidence
was presented beyond that of A.U. It is then necessary to analyse the potential evidence
which might have been available had the two women in question, and in particular M.Cy.,
been capable of being called as witnesses.
8.8. It is true that there was corroborative evidence adduced, not least the account given by
the son of Mr. C., which might be taken to amount to an implicit confession. Much of the
other evidence tendered by the prosecution beyond that of A.U. centred on what might be
described as background evidence to events surrounding the occasion on which the rape
is alleged to have occurred. It can, I think, fairly be said that it potentially provides some
corroboration for the general account of those background circumstances given by A.U. It
is, however, true, as noted earlier, that some of the accounts were not entirely consistent
one with the other. It is for that reason that it seems to me to be appropriate to
characterise the evidence of an implicit confession as being the most significant additional
evidence tendered by the prosecution.
8.9. It is, therefore, appropriate to look at the actual evidence of C.C. in somewhat greater
detail. The evidence of C.C. suggested that he first told Mr. C. about an account of abuse
which A.U. had made to him. On being asked for the reaction of Mr. C., C.C. said the
following:-
“Well, I was very surprised because I – he didn’t deny that any – anything, and more or
less said it was her own fault.”
8.10. C.C. also confirmed that the account he had given had been to the effect that A.U. had
said that Mr. C. “had been sexually abusive towards her”. The evidence went on to
suggest that C.C. had indicated to Mr. C. that he should stay clear of children and
“maybe… get some help…”. C.C. testified that Mr. C. had agreed to this. C.C. went on to
indicate that, at a later stage, Mr. C. indicated to him that he had a letter of appointment
for a psychologist or the like. In cross-examination, counsel for Mr. C. put it to the
witness that there had been no such conversation. However, counsel did not pursue this
line of questioning beyond that bare suggestion. No approach was adopted which put
forward a basis on which it was suggested that C.C. was either being untruthful or
mistaken in his recollection.
8.11. It is clear, therefore, that there was no formal confession made under caution. However,
there can be little doubt but that there was admissible evidence from which the jury was
entitled to infer that Mr. C. had made an admission of sexual abuse of A.U.
Page 19 ⇓
8.12. In that context, it is appropriate to refer to the judgment of Hardiman J. in S.A. v D.P.P.
[2007] IESC 43, where the following is stated:-
“…Admissions, depending on their context, may vary greatly in their significance on an
application like this. An unrecorded and disputed allegation may be of little or no
significance unless its terms or context make it very compelling. A disputed
allegation of admissions to Gardaí will normally be verified by recording: an
omission to record will call for explanation. However, in the present case the
admissions do not appear to have been denied or glossed in any way so that it
seems reasonable to take them at face value.
…
To look at these admissions from another point of view, it would in my opinion be
extraordinary to prohibit a trial in circumstances where the defendant admits a
significant amount of behaviour of a criminal nature.”
8.13. While Hardiman J. was dealing with a case in which it was sought to prohibit a trial, there
can be little doubt but that similar considerations must be relevant in assessing the
prosecution’s case for the purposes of identifying the materiality of the evidence said to
be missing. The fact that the accused had admitted to the relevant criminality (to the
extent to which there may be evidence of same) must clearly be a significant factor in
assessing whether there is a fair trial. It is also clear that the comments of Hardiman J.
concerning the limitation on prohibition of trials would not apply in a case where the
relevant admissions were hotly disputed and/or not independently verified. It seems to
me that this case falls somewhere in the middle of the range. The admissions are not
independently verified. While it is true that they were formally disputed at the trial (in
the sense that counsel put it to the witness that the relevant conversation never took
place), no contrary evidence was given at any stage and no positive basis for challenging
the evidence was suggested. While the evidence did not go so far as to suggest that Mr.
C. positively admitted the allegations, it does seem to me that the evidence given by C.C.
was undoubtedly capable of being accepted by the jury as evidence which, in substance,
amounted to an admission. In summary, therefore, so far as this aspect of the
prosecution case is concerned, it seems to me to be appropriate to characterise the
situation as one in which there was unverified evidence which amounted to an admission,
which admission was formally contested but was not the subject of any contrary evidence.
8.14. In this context, I should emphasise that it by no means follows that informal admissions
may not provide strong evidence of guilt in an appropriate case. On one view, it may be
more likely that the perpetrator of a crime may make a candid admission outside the
context of a formal police interview. However, what is at issue here is an assessment of
the strength of the prosecution case in order to assess how realistically it might be said
that the potentially missing evidence might have offered an obviously useful line of
defence. The difference, in that context, between an admission made under caution and
an informal admission is that there may, in the latter case, be much greater scope for the
existence of a dispute about whether the admission was actually made in the first place.
Page 20 ⇓
It is for that reason that an informal admission may potentially play a lesser role in the
overall assessment of whether it is fair to continue with a trial in the light of missing
evidence. However, that point is undoubtedly materially weakened in the circumstances
of this case by reason of the purely formal manner in which the alleged making of the
relevant admission was contested.
8.15. Having looked at the prosecution case, it is next necessary to turn to the question of what
is said to be missing evidence. This case is unusual in the context of historical sex abuse
proceedings in that, on the account of A.U., there was actually a witness who could give
quite direct evidence concerning the events surrounding one of the two alleged incidents.
On one view, as argued on behalf of Mr. C., the absence of M.Cy. from the trial meant
that a key potential witness was not available. It is necessary to assess the importance
of M.Cy.’s potential evidence on at least two bases. First, there is the question of the
evidence which was called in the absence of the jury from which it might be possible to
infer what M.Cy.’s evidence could have been. Second, there are the connected questions
of whether there was any real likelihood that M.Cy. would have given evidence had the
trial taken place while she was alive and of the credibility of her evidence had it been
favourable to the defence.
8.16. As noted earlier, there will always be some element of speculation as to the content of
any evidence which is said to be missing, precisely because it is missing. In some cases,
there may be very strong evidence as to what the missing witness might have been able
to say. For example, a formal statement may have been taken from that witness at some
stage or the witness may have given an account in writing in some form. This case
cannot be put at that level. However, there was, in my view, evidence from which it can
be inferred that M.Cy. would not have accepted the account given by A.U.
8.17. It is true that her description that it was “all lies” is somewhat bald and there may,
indeed, as already noted, be some legitimate debate about precisely what allegation was
under discussion at the time in question. In that context, regard should be had to the
view of the trial judge that the discussion in question did not involve the allegations of
abuse against A.U. at all. However, it is also fair to say that there is realistic evidence
from which it might be inferred that M.Cy. would have been in a position to give evidence
favourable to Mr. C. This case is most certainly not of the type where a debate about the
evidence which could have been given by the missing witness is entirely speculative.
M.Cy. was, after all, an eye witness on A.U.’s own account.
8.18. However, it is also necessary to consider whether M.Cy. would have been likely to have
given evidence and the extent to which her credibility might well have been successfully
challenged had she given evidence favourable to the defence. As the Court of Appeal
correctly noted, the account given by A.U. was such that, if true, M.Cy. would have been
an accomplice. That would undoubtedly have given rise to some difficulties for the
defence and might, indeed, have led either to M.Cy. not having been willing to give
evidence or, even if willing, a decision being taken by the defence not to call her.
Furthermore, there can be little doubt but that, if M.Cy. gave evidence which contradicted
Page 21 ⇓
A.U.’s account, it would have been suggested to her that her evidence was self-serving on
the basis of distancing herself from being complicit in one of the offences.
8.19. Therefore, while there was evidence from which the account which M.Cy. might have
been prepared to give could be inferred, that evidence is not as strong as it might be in
some other cases. There would have to be some question over whether M.Cy. would
ultimately have given evidence had she been alive and there can be little doubt but that,
if she had given evidence favourable to Mr. C., then the prosecution would have sought to
damage her credibility.
8.20. It must, however, be kept in mind that the overall approach is to determine whether the
criteria identified by Hardiman J. in S.B. have been met. The missing witness, in the
shape of M.Cy., would undoubtedly have been able to give evidence highly material to the
case, precisely because she was said by A.U. to have been present. There is at least a
realistic basis for suggesting that her evidence could and would have been tendered and
would have been favourable to the accused. The fact that her credibility might, in such
circumstances, have been challenged does not take away from an assessment of the
fairness of the trial or of an assessment as to whether her evidence might have provided
an obviously useful line of defence. It is no part of that assessment to attempt to reach a
conclusion as to whether she would have been telling the truth had she given evidence
favourable to the accused. Other than general questions arising out of a potential
suggestion that her evidence might have been self-serving, there was no particular basis
(such as contrary statements made in the past) which would allow an objective
assessment to be made that her evidence was unlikely to be regarded by a jury as
credible, such that her evidence could not truly be said to have potentially provided a
realistic basis for suggesting an obviously useful line of defence.
8.21. There was a real possibility that the evidence of M.Cy. could have made a material
difference at the trial. That possibility is not based on speculation or the mere chance
that some identified witness might have happened to have been in a position to give
some evidence relevant to the trial. M.Cy. was a central figure precisely because it was
A.U. herself who placed M.Cy. as having such a role.
8.22. In my view, the various factors which were required to be taken into account in
determining whether there could be a fair trial were, in the particular circumstances of
this case, such that no one factor could be said to be decisive.
8.23. The evidence of an admission by Mr. C. must be taken into account in favour of the
proposition that the trial was ultimately fair, although the weight to be attached to that
factor may not be quite as great as might apply in other cases, having regard to the fact
that there was no independent verification of the admission and that there were at least
some questions about the credibility of the evidence of C.C. (whose account was the only
evidence of any admission by Mr. C.). On the one hand, this is not a case which can be
described as one where it is very clear that the defendant, in the words of Hardiman J.,
admitted “a significant amount of behaviour of a criminal nature”. On the other hand, the
admissions were not challenged other than in a formal way.
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8.24. Likewise, the evidence concerning the testimony that might have been given by M.Cy. in
the event that she would have been available to give evidence at the trial is itself limited.
It is important to emphasise that, most unusually, M.Cy. was a person at the centre of
the account of one of the two incidents of criminality alleged. M.Cy. was not, therefore, a
peripheral or potential witness. On the other hand, the limited evidence concerning the
account which she might have been prepared to give undoubtedly lessened the weight to
be attached to the fact that her evidence was no longer available. This is not a case
where an entirely independent witness with no axe to grind either way had given a clear
indication as to the testimony which they would be prepared to give, such that their
evidence, had it been available, would undoubtedly have been of significant assistance to
the defence.
8.25. Thus, both sides of the equation have their positive and negative sides. But it must be
recalled that the jury was being asked to consider events which, at the date of the trial,
had occurred more than 40 years previously. The general problems which occur in such
cases have been often described. However, in addition, here there can be little doubt
that, had M.Cy. been available to give evidence, there is at least a realistic possibility that
she might have been in a position to give evidence which would have been highly
favourable to the defence and there is also a real possibility that such evidence would
have survived any attack on its credibility to a sufficient extent to cause the jury to at
least have a reasonable doubt as to the guilt of Mr. C. She would, highly unusually, have
potentially been in a position to give direct evidence of the events surrounding an
allegation of historic sexual abuse, although neither the complainant nor the accused.
8.26. In those circumstances, I find it impossible not to conclude that the defence in this case
were deprived of a realistic possibility of an obviously useful line of defence. Whether
that defence might or might not have persuaded the jury to acquit is not the question.
The issue is as to whether there was a realistic basis that it might have made a
difference. While, for the reasons already analysed, that question is far from clear cut, it
seems to me that, having regard to the S.B. test, the balance must lie on the side of a
conclusion that the trial judge should have concluded that it was unfair to continue with
the trial in all the circumstances of this case.
9. Conclusions
9.1. For the reasons analysed earlier in this judgment, I am satisfied that the proper approach
of a trial judge, on being asked to halt a trial on the grounds of prejudice caused by
significant lapse of time, must be to assess whether the trial is fair.
9.2. In that regard, the trial judge must (a) first consider the prosecution case as it has
actually developed at the trial. Thereafter, the trial judge must (b) consider whatever
evidence is available as to the testimony which might or could have been given but which
is said to be no longer available. That exercise will generally involve two principal
considerations. First, the court must (c) consider the available evidence about what
might have been said by the missing witness or what might have been contained in
missing physical evidence, such as documents or objects. The trial judge will be required
to have regard to the degree of confidence with which it can be predicted that the
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particular evidence would have been available, while recognising that the very fact that
the evidence is not available means that that exercise must necessarily be speculative at
least to some extent.
9.3. If the trial judge is satisfied that it has been established that there was a real prospect
that the evidence concerned could have been tendered, next, he or she will be required to
(d) assess the materiality of any such evidence. The materiality of that evidence will
need to be considered in the light of the prosecution case as it evolved at the trial.
9.4. In the light of all of those factors, the court must finally (e) reach an assessment as to
whether the trial is fair. The assessment of whether the trial is fair involves a
conscientious determination by the trial judge whether, on the basis of all of the materials
before the court, it can be said that the test identified by Hardiman J. in S.B. has been
met, being that the absence of the missing evidence has deprived the accused of a
realistic opportunity of an obviously useful line of defence.
9.5. Although not relevant on the facts of this case, it should also be noted that culpable
prosecutorial failure or wrongdoing can be taken into account in assessing the degree of
prejudice which renders a trial unfair. As noted earlier, no trial is perfect. However, the
degree of departure from a theoretically perfect trial which will render the proceedings
unfair can be less where it can be said that culpable action on the part of investigating or
prosecuting authorities have contributed to the prejudice. A lesser departure from what
might be considered to be a theoretically perfect trial will render the proceedings unfair if
that departure is caused or significantly contributed to by culpable action on the part of
investigating or prosecuting authorities. A greater degree of departure from the
theoretically perfect trial will need to be demonstrated in cases where there is no such
culpable activity.
9.6. For the reasons set out earlier in this judgment, and applying the overall approach
identified, I am satisfied that, on balance, the trial in this case was unfair and should have
been halted by the trial judge. The factors on all sides are less than clear cut and the
balance is a narrow one. However, the fact that M.Cy., who was placed by A.U. at the
centre of her account and who was, necessarily, therefore, a potentially important
witness, was missing, is a factor of particular importance. That is so notwithstanding the
fact that there were at least some questions over the evidence which M.Cy. might have
given, over whether she would have been a willing witness and as to her credibility if she
gave evidence favourable to the accused. However, those factors, while relevant and of
some importance, do not fully take away from the fact that she remained a potentially
central witness to events which were said to have occurred 40 years before the trial.
9.7. I remain of that view while taking into account and giving all due weight to the evidence
tendered by the prosecution from C.C. concerning an admission said to have been made
by Mr. C. For the reasons analysed earlier, it seems to me that the evidence concerned
was such that a jury was entitled to consider it to be evidence of an admission. While
formally challenged, no contrary evidence was given by the defence. However, it is also
true that the admission was not made in recorded or otherwise verified circumstances.
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Thus, the weight to be attached to that admission is not of the same level as would attach
to, for example, an admission made under caution in a recorded interview session in a
police station. The evidence of that admission is, notwithstanding this, entitled to all due
weight but it does not seem to me to be sufficient, in the unusual circumstances of this
case, to override the problems caused by the absence of such a central figure as M.Cy.
9.8. In those circumstances, I am satisfied that the appeal should be allowed and the
conviction of Mr. C. quashed.
Result: Appeal Dismissed