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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions v C.C. [2019] IESC 94_4 (19 December 2019)
URL: http://www.bailii.org/ie/cases/IESC/2019/2019IESC94_4.html
Cite as: [2019] IESC 94_4
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See Judgment by Clarke, CJ : [2019] IESC 94_1
O’Donnell J.
MacMenamin J.
See Judgment by Charleton J : [2019] IESC 94_3
See Judgment by O'Malley J : [2019] IESC 94_2
AN CHÚIRT UACHTARACH
THE SUPREME COURT
[S:AP:IE:2018:000025]
BETWEEN/
THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR/RESPONDENT
AND
C.C.
DEFENDANT/APPELLANT
Judgment of O’Donnell J. delivered the 19th day of December, 2019.
Introduction
1. The incremental development of the law is not simply linear. Cases emerge with different
facts which place principles previously announced in a different light, perhaps requiring
reconsideration, qualification, and even, on occasion, a change of course. General
principles announced by appellate courts are applied in a myriad of different situations by
trial courts, and by repetition can become reduced to rules of thumb which over time may
themselves require further clarification, adjustment or qualification. The development of
the law in any field is a process of adjustment and correction.
2. The emergence of the phenomenon of allegations of child sexual abuse occurring many
years prior to the making of the complaint has been a significant feature of life in many
countries in the late 20th century, and has posed particular problems for the law, both
civil and criminal. At the risk of some oversimplification, it came to be recognised that the
sexual abuse of children was a serious problem which, by its nature, tended to remain
hidden. It was further recognised that one of the consequences of the sexual abuse of a
child at a young age is that the victim would frequently be unable to make a complaint
and to pursue it for many years afterwards. This was particularly so at a time when the
phenomenon of sexual abuse of children was not generally recognised in society.
3. The lapse of time, however, between an allegation of abuse, a complaint, and any trial
(whether civil or criminal) poses obvious problems for the fairness of the process towards
the defendant, and, therefore, the fairness of the process generally. Normally, it is
understood that trials, particularly those which depend on the oral evidence and
recollection of witnesses, should proceed within a reasonably short period from the events
described. It is generally accepted that there comes a point when any dispute about
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events goes beyond the reach of fair litigation, and becomes, if anything, a matter for
historical debate and opinion, rather than adjudication with all the legal consequences
that may follow. At that point, any trial would not be the administration of justice. There
are a number of matters which are relevant to the decision as to whether that point has
been reached, which may include any culpability on the part of the prosecution in the
lapse of time, the length of the lapse of time itself, the death or unavailability of
witnesses, the loss of real evidence, records or recordings, or any other events that real
life can throw up. Even then, while there may be an agreement that there is, in principle,
a point at which an allegation, even of serious criminal conduct, is beyond the reach of
fair litigation, different courts and different judges may reasonably differ as to whether
that point has been reached in any particular case. To that extent, the assessment is
always dependent on the facts of a particular case, and the manner in which those facts
are evaluated.
4. As set out in the judgment of the Chief Justice, the approach of the courts to criminal
prosecutions in respect of child sexual abuse that is alleged to have occurred at a
considerable distance in time from the trial has gone through a number of distinct
developments. Initially, the Superior Courts heard judicial review applications seeking to
prohibit such trials on grounds of lapse of time and/or culpable delay. Cases of that kind
developed to involve sometimes lengthy hearings on oral evidence as to the cause of the
delay in making a complaint, and, in particular, whether it could be said that the delay or
lapse of time could be explained as a consequence of the abuse alleged to have been
suffered. Apart from the inherent difficulty of applying such a test in the context of the
criminal process, the fundamental component of which is that the accused is presumed
innocent, such hearings could be an additional ordeal for the victim, and also necessarily
created the prospect of very substantial delays in the trial process.
5. A significant development occurred in S.H. v. Director of Public Prosecutions [2006] IESC
considerable judicial knowledge of the phenomenon of abuse, and its consequences for
criminal complaints. He said at p. 620 of the report:-
“45 As I stated in P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 at p. 105:-
‘Expert evidence in a succession of cases which have come before this court
and the High Court has demonstrated that young or very young victims of
sexual abuse are often very reluctant or find it impossible to come forward
and disclose the abuse to others or in particular to complain to gardaí until
many years later (if at all). In fact this has been so clearly demonstrated in a
succession of cases that the court would probably be entitled to take judicial
notice of the fact that this is an inherent element in the nature of such
offences.’
46 The court's judicial knowledge of these issues has been further expanded in the
period since that particular case. Consequently there is judicial knowledge of this
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aspect of offending. Reasons for such delay are well established, they are no longer
"new factors".
47 Therefore, I am satisfied that it is no longer necessary to establish such reasons for
the delay. The issue for 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. The court
would thus restate the test as:-
The test is whether there is a real or serious risk that the applicant, by
reason of the delay, would not obtain a fair trial, or that a trial would be
unfair as a consequence of the delay. The test is to be applied in light of the
circumstances of the case.”
6. As identified in the judgment of the Chief Justice at para. 1.3, it has become accepted as
broadly preferable that, other than in very clear-cut cases which will not be affected by
the development of the evidence at the trial, this issue:-
“should be left to the trial judge rather than, as tended to be 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
positon to 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”.
7. This development can itself be traced to the decision in The People (Director of Public
Denham J. (as she then was), where she said, at pp. 247 to 248:-
“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.”
8. It is not necessary to consider in detail the steps by which it was considered inappropriate
to permit these matters to be dealt with by preliminary application at the trial, as occurs
in some other comparable jurisdictions. See Connelly v. DPP [1964] A.C. 1254, 1354,
1355 and the jurisprudence that followed. See e.g. A.L.T. Choo, Abuse of Process and
Judicial Stays of Criminal Proceedings (2nd edn, O.U.P., 2008), pp. 40-51, 71-90; D.
Corker & D. Young, Abuse of Process and Fairness in Criminal Proceedings (Butterworths,
2000), pp. 1-36. The fact that Irish law arrived at a roughly similar point by a different
route is, perhaps, an example of the sometimes haphazard manner in which the law
develops in response to particular cases and arguments.
9. In Ireland, it is established that the jurisdiction to quash an indictment did not extend to a
contention that the prosecution would constitute an abuse of process, by reason of delay
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or on some other basis. In P.O’C, it was reasoned that the appropriate procedure for
bringing such a challenge was by way of pre-trial judicial review application. In cases
pending in Central Criminal Court, this meant an application for an injunction restraining
the DPP from prosecuting the case, since that court was not subject to judicial review.
The underlying reasoning appears to have been that the trial court was not the
appropriate forum for the investigation of factual claims relating to delay which might
involve claims of culpable delay and prejudice. The preferable route was therefore a
judicial review application, coupled with the possibility of an application during the trial
(most often at the close of the evidence), as confirmed in P.O’C. itself.
10. This position is not necessarily particularly logical or consistent. Facts relating to delay
and prejudice can be addressed in the trial court in the course of the P.O’C. application,
and, strictly speaking, the DPP commits no legal wrong in prosecuting a case the court
later considers to be beyond the reach of a fair trial, but this is one more example of the
truth of the observation that the lifeblood of the law is not necessarily remorseless logic.
The position reached in this jurisdiction where clear cut cases may be brought by way of
anticipatory judicial review, and other cases addressed at trial in the light of the evidence
adduced, is reasonably practical and fair.
11. The position now has been reached, however, where it is generally accepted that in most
cases it is preferable that delay be addressed by a so-called “P.O’C. application” made at
the close of the prosecution case, or by the evidence generally, if the accused adduces
any evidence. The reasons for preferring that the matter be ventilated in the course of the
trial have been set out in some detail in the judgment of the Chief Justice, and now
appear settled. One example may, however, suffice. In a helpful passage in her judgment
(Unreported, High Court, O’Malley J., 6 September 2013), O’Malley J. said, 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 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.”
12. It will be necessary to consider in a little more detail later in this judgment the underlying
reasons for the approach which now holds sway, but at this point it is sufficient to note
that this was the jurisdiction invoked in this case. The trial judge was requested at the
close of the prosecution case to withdraw the case from the jury, on the basis that it was
one of those exceptional cases where, notwithstanding the fact that there had been
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evidence adduced upon which a jury properly directed could convict the accused, the
difficulties for the defence were such that it was not just to proceed.
13. I fully agree that the developments in P.O'C. and S.H., as traced in the judgment of the
High Court quoted above, mean that in other and clear-cut cases where the deficiency is
of a kind which will not be affected by the manner in which the trial proceeds or by the
evidence adduced, the trial is the appropriate location for any decision as to whether the
lapse of time and impact on the case is such that the case is beyond the reach of fair
adjudication – or, in the words of O’Malley J., that it is not just for the trial to proceed.
14. I also fully agree that this has the important corollary that trial judges must exercise that
jurisdiction fully and conscientiously, and be prepared to withdraw cases based on their
own consideration of the impact of a lapse of time on the case. It should be emphasised,
moreover, that the test is not whether a trial judge would himself or herself consider that
a guilty verdict was or could be appropriate (that is, that as a matter of fact the
defendant was or might be guilty of the offence), but rather the distinct question of
whether any question of guilt, if arrived at, could be considered to have been achieved by
a process which would be considered just. The trial judge is not asked to second-guess or
anticipate the decision of the jury, but rather whether the process meets the standard
required to permit a jury to deliver its verdict.
15. Not only is this a distinct function of the judge, it is one to which a judge is particularly
suited. It might be thought that most questions of the extent and significance of the
evidence can safely be left to a jury, who must be satisfied beyond any reasonable doubt
before they can convict an accused. Generally speaking, deficiencies in the evidence –
lapses, inconsistencies, gaps, and absences – will tend to make it more difficult to reach
that standard. Furthermore, a jury in delay or in lapse of time cases will be given a
detailed warning about the impact of delay upon their adjudications, which is now
deservedly known as a “Haugh warning” in reference to the charge given to the jury by
Haugh J. at the trial in The People (Director of Public Prosecutions) v. R.B. and approved
by the Court of Criminal Appeal in that case: see The People (Director of Public
Prosecutions) v. R.B. (Unreported, Court of Criminal Appeal, 12 February 2003).
16. These are, themselves, substantial guarantees of the fairness of the process.
Nevertheless, a trial judge has critical information and experience in this regard that a
jury lacks. The assessment of the impact of lapse of time and the unavailability of
evidence necessarily involves an assessment not just of the evidence actually adduced,
which the jury can be expected to appreciate and assess, but rather a consideration of the
absence of evidence. A jury has no comparator against which to gauge the trial which
they are hearing. A trial judge, by contrast, will normally have heard many cases and
may have participated in such trials as a practising lawyer, and therefore may be
expected to have the capacity to attempt to assess the impact on the trial in reality of
what is now unavailable. A trial judge may be expected to understand that in a trial in
which all available evidence is adduced and tested, there may be a number of side-issues
which may be explored with greater or lesser effect, which may give rise to unexpected
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twists and turns, and which may be of benefit to the accused, if not in providing evidence
that is positively exculpatory, at least raising doubts about the case. This investigation is
part of the trial process.
17. Even, therefore, if the core components of a case remain – the complainant’s allegation
and the defendant’s denial, whether contained in evidence, a statement made, or simply
by maintaining that the case has not been established – a trial which is limited to such
matters may be rendered unjust because it has been shorn of all the surrounding detail
which might be expected in a trial held soon after the event, the investigation and testing
of which is a normal part of the fair trial process.
18. Few trials, however, are perfect reproductions of all the evidence that could possibly
exist. The absence of a witness or a piece of evidence does not render such trials unfair. A
trial judge has therefore a vantage point which allows him or her to consider whether
what has occurred crosses the line between a just and an unjust process. In shorthand
terms, this involves considering whether the evidence which is no longer available is “no
more than a missed opportunity”, as the trial judge and the Court of Appeal considered,
or by contrast whether the applicant has “lost the real possibility of an obviously useful
line of defence”, as considered by the majority in this court, adopting in this regard the
(Unreported, Supreme Court, 21 December 2006) (“S.B.”), at para. 56. These judicially
adopted phrases seek to identify either side of the dividing line: it is inevitable that many
cases will proceed to trial without all the evidence that was potentially available at the
time of the alleged offence, but that in itself does not prevent a trial occurring. There is a
point, however, at which the deficiencies are of such significance and reality in the
context of the particular case that it can be said that it is no longer just to proceed.
19. It follows that there is a particular and distinct onus upon trial judges to address this
issue separately and conscientiously. This jurisdiction, which is in addition to the power of
the jury to consider the impact of lapse of time, is an important protection for fair trial
rights in circumstances which can be challenging. The exercise of that jurisdiction can,
and must, be reviewed on appeal. That is a further important aspect of maintaining a fair
trial. However, it is in the nature of such a determination, which is to some extent
dependent upon an appreciation of the manner in which the case has progressed, the
demeanour of witnesses and parties, and the manner and cogency with which evidence is
given, that a significant margin of appreciation must necessarily be afforded to the
decision of the judge presiding at the trial. For this reason, it is important that trial judges
should set out the relevant factors involved, their assessment of them, and the reasons
for arriving at their conclusion, in order to permit an assessment of the matter on appeal.
Facts
20. The relevant facts may be succinctly stated, as they have been in the judgment of the
Chief Justice, whose account I gratefully adopt. The complainant, who I will call A.U.,
made a complaint in 2004 that she had been sexually abused by her uncle, the appellant,
Mr. C., in 1971/1972 when she was 11 years of age. Two incidents were detailed, the
more serious of which (and, for reasons which will become clear, also the one on which
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most focus has been placed in these proceedings), involved a claim that she had been
raped by the appellant in his bedroom at his house in County Clare, where she was
staying at the time. She gave evidence that Mr. C. had had a serious row with his then
partner, M.Cy., which had resulted in a dispute between Mr. C. and his son C.C., leading
to a confrontation in which C.C. had produced a shotgun. Later in this dramatic evening,
it is alleged that M.Cy. took A.U. to Mr. C.’s bedroom and took her nightdress off and left
her on the bed, and that the rape occurred thereafter.
21. The Director of Public Prosecutions directed charges in 2006. Mr. C. was not in Ireland,
having left Clare for Donegal, then Panama, and latterly the United Kingdom. In 2008,
M.Cy. died. She had not been interviewed by An Garda Síochána at that time. No finding
of culpability in any delay was made, whether on the part of the Gardaí in pursuing the
complaint, or in relation to Mr. C.’s changes of address. The issue, therefore, turned
solely on the question of the lapse of time and prejudice to the trial. In the course of the
evidence in the trial itself, A.U., C.C., and a brother of A.U. gave evidence which differed
in certain respects, but all of which referred to the altercation in the house at the time the
three young people were staying there. C.C. also gave evidence of having confronted his
father with allegations that he had inappropriate relations with a young woman, and that
he did not deny it, but rather promised to stay away from young girls and to seek help.
Mr. C. did not give evidence himself, but he had made a statement to the Gardaí which
was introduced in evidence, in which he denied A.U.’s allegations, suggested that M.Cy.
would confirm his account, and denied that A.U. had been in the house in County Clare.
22. In the course of evidence in the P.O’C. application, C.C. gave further evidence which is
central to this application. He stated that he had been alerted to allegations of his father’s
behaviour in relation to other young girls, indeed his own sister, and therefore Mr. C.’s
daughter. At one point, he had gone to Holyhead to meet his two aunts (the appellant’s
sisters). M.Cy. came to the meeting at some point. It is clear that this occurred prior to
2004. Mr. C. gave evidence that the three women indicated he should not contact A.U.
because “it was all lies”.
23. Essentially, the basis of the application in this case is that, unusually in cases alleging
sexual abuse occurring some long time ago, there was considerable surrounding evidence
available. In particular, M.Cy. was a third party witness whose evidence was clearly
central, since it was an essential part of the allegation made by A.U. that M.Cy. had been
complicit in bringing her to Mr. C.’s bedroom, and, furthermore, she was a person who
had given an indication that she would dispute the allegation (“all lies”). This is, as I
understand it, the basis on which the Chief Justice would conclude, as set out at para.
8.25 of his judgment, that:-
“There can be little doubt that, had M.Cy. been available to give evidence, there is
at least a real 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
Page 8 ⇓
sufficient extent to cause the jury to at least have a reasonable doubt as to the
guilt of Mr. C.”
24. I think, however, that a real risk is created where the case turns on an assessment of
facts, but a succinct statement of facts is given at appellate level, particularly where no
issue of law arises. The facts that are identified, the level of generality at which they are
stated, and the manner they are presented may, in fact, be highly influential in the
decision. There is no doubt that M.Cy. was someone who, if available, would have been
an important potential witness. If she gave evidence, and that evidence was considered
credible, then it was very likely to be influential. If she confirmed the complainant’s
account, she would undoubtedly strengthen the prosecution case significantly: if,
however, she denied it convincingly, that would correspondingly support the appellant’s
account and undermine the prosecution case.
25. However, these are only two of the possible hypotheses, and into the equation must also
be factored some other possibilities, including that she might not have been available, or
might not have been a willing witness, or that her evidence would have been vague, non-
committal and neutral, and thus unhelpful to either side, or that whatever account she
gave would have been incredible, or damaged in cross-examination to the extent that it
was possibly unhelpful to the side which, at least ostensibly, her evidence had seemed to
favour. What is beyond argument, and the significance of which must be evaluated here,
is, however, the undeniable fact of the significant role alleged to have been played by
M.Cy. in the complainant A.U.’s account, and the significance of the indication of M.Cy.’s
views contained in the reference to it being “all lies”.
Discussion
26. I appreciate that any application of the test in P.O'C. is highly fact-specific and involves a
cumulative assessment of a number of different factors, to which, moreover, no fixed
weight can be assigned in advance. It is, however, useful to isolate the factors involved in
this case and consider their relative impact.
27. I think it is right to start from the position that the events are alleged to have occurred a
very long time prior to the trial, and although it was some time before C.C. could be
charged and brought before a court, it is not suggested that he is to be held responsible
for any part of this period. The length of time which has lapsed is itself, in my view, a
significant factor in this case weighing in the appellant’s favour. No one suggests,
however, that that lapse of time on its own is sufficient to render the trial unjust.
28. There is also no doubt that the unusual facts of this case mean that M.Cy. was a potential
witness of considerable importance. Again, however, on its own, I do not think that the
absence of M.Cy., at least without culpability on the part of the prosecution, can be said
to be decisive in this case. She or any other witness could have been unavailable,
whether through her own decision, or possibly death, even if the trial had occurred within
a very short period after the events concerned. That possibility arises in any case, and
trials are not rendered unfair or unjust simply because of the absence of a witness whose
evidence, although relevant, is not an essential proof. If it were otherwise, then the
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absence of a single witness, or even a co-accused or accomplice, would mean that any
trial was impossible. Generally speaking, the trial process should be robust enough to
handle the absence of witnesses or real evidence that occurs without fault, unless and
until the cumulative impact is such as to render the trial either impossible or unfair. Once
again, however, the significance of the role of M.Cy. in the complainant’s account, and her
absence (for whatever reason), coupled with the lengthy lapse of time, are substantial
factors in any consideration of whether it was just to let the case proceed.
29. It seems, however, from this analysis, that the decisive element in the assessment urged
by the appellant, and accepted by the Chief Justice, is the apparent indication given by
the “all lies” reference that M.Cy. was not just a very relevant witness, but might have
been in a position to give evidence that would be highly favourable to the defence “which
had the real possibility of surviving an attack on its credibility so as to lead to the
possibility that a jury might not be satisfied beyond a reasonable doubt of the guilt of the
accused.”
30. I would tend to agree that, all things being equal, if M.Cy. had been acquainted with the
detail of the complainant’s allegation, and had given, for example, an individual,
comprehensive, detailed and perhaps formal, account denying the specific allegation
made by A.U., then, leaving to one side for the moment the issue of the admission
analysed by O’Malley J., and absent compelling countervailing factors, a trial court could
not be satisfied that a trial in the absence of such evidence or some compensating factor
(which is it not now necessary to consider) should be permitted to proceed. It is,
however, necessary to consider in some detail whether the evidence reaches that point,
and crosses the line between the “lost opportunity” type of cases, or those where it can
be said that a real and substantial line of defence has been removed.
31. The relevant evidence in this regard was given in the course of the P.O’C. application.
Significantly, it emerged during evidence-in-chief, when Mr. C. was being examined by
counsel for the prosecution. The evidence given was somewhat general in its terms, being
apparently directed towards the question of the reasons for the lapse of time. C.C. gave
evidence that he went to Holyhead and spoke to his two aunts (one of whom was the
mother of the complainant) about the allegation made by his sister (the daughter of Mr.
C.) that she had been sexually abused by Mr. C. M.Cy. joined the discussion in the house
at some point. It is clear that the focus of the conversation was the allegation made by
C.C.’s sister. It is quite clear that he did not raise the allegations made by A.U. He was
not aware of those at the time, and this meeting occurred prior to 2004, when she made
her complaint. He was asked if he had revealed anything that he had learned from A.U.
and replied “I hadn’t spoken to [A.U.] at that stage. I spoke to them about what my sister
had told me.” (Transcript, Day 3, p. 13, line 11). The witness was asked if the women
(who were dealt with collectively throughout this passage of evidence) had given any
guidance, and he responded “the guidance was not to go to [A.U.]” (Transcript, Day 3, p.
13, line 30). The following exchange occurred:-
“Q. Did they say why?
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A. Well, they said it was all lies.
Q. Did they give any reason for not going forward?
Counsel for the defence: Sorry, the witness has already answered the question.
Counsel for the prosecution may not like the answer but –
Counsel for the prosecution: Were they surprised at the information? Was it news
to them?
A. They didn’t seem to – well, really it’s hard to answer for other people. They didn’t
seem surprised. [F.] said nothing ever happened to hers and –
Counsel for the defence: I’m not on notice of this now. This goes beyond what’s
in the book.
Counsel for the prosecution: Well I’m not on notice of what has just been stated
either.
Counsel for the defence: At some point there has to be some attempt to give my
client a fair trial.”
32. It is clear that the particular answer on which such reliance has now been placed is
something which both counsel had not anticipated. Counsel for the defence
understandably sought to isolate it, and in the event did not himself seek to cross-
examine on the point at all. Later in the sequence of questions, the witness returned to
the disposition of the women:-
“Q. Was there any other reason put forward [for not bringing up the matter or seeking
further information from A.U.] that you can remember, please?
A. It was difficult to talk because [F.] said she didn’t want her husband to know
anything, his name is [G.], that he would go mad, and [B.] was – I don’t know if
she was married or living at the time with – she didn’t want her partner to know
anything and [M.Cy.] was also, I believe, married to a man and she didn’t want him
involved in any of this.”
33. This evidence is, on any view, a significant distance from a detailed formal account
rejecting a specific allegation which has been put in detail to the witness. It is apparent
that the reference to “all lies” was in reference to an allegation which did not involve
either M.Cy. or the complainant at all. It related to the allegation made by the appellant’s
daughter, and the sister of C.C.. It was suggested that C.C. should not go to A.U., or
perhaps do anything else, because the allegation being made by C.C.’s sister was not
true. It is perhaps possible to infer from this that there was an implication that there was
a concern that A.U. would support her cousin’s allegation. If so, and this is also
speculative, then it might be thought that if A.U. supported allegations which were “all
lies”, that would be damaging to her credibility. It might also imply that if A.U.’s
Page 11 ⇓
allegations were put to M.Cy., including the suggestion of her involvement in the incident,
that she might dismiss that too as “all lies”. It seems difficult to suggest that it meant
that the three women in general (and M.Cy. in particular) were somehow aware of what
A.U. had not yet said concerning Mr. C. and M.Cy.’s involvement, and considered that too
to be a lie. However it is viewed, it is, self-evidently, very far from a clear-cut and formal
statement challenging a specific account.
34. However, even this evidence does not stand alone. C.C.’s account included an explanation
of the attitude of the women to the matter, which puts the reference to “lies” in a
somewhat different light. This was relevant to the weight which this, or any other court,
should accord to the suggestion that M.Cy. would give evidence highly favourable to Mr.
C. Furthermore, the court of trial had a much greater opportunity to assess the family
dynamic than is available to any appellate court. Additionally, as counsel for the
prosecution pointed out, the fact was that the specific issue raised at the meeting in
Holyhead, that is, C.C.’s sister’s allegation of sexual abuse by her father, resulted in a
prosecution and conviction. It followed, necessarily, that what was said in a general way
at the meeting in Holyhead to be “lies” had been found by a jury to be true beyond any
reasonable doubt. This was something which the court was entitled to take into account in
considering the weight it should give to the suggestion that the reference at the meeting
in Holyhead to C.C.’s sister making allegations which were “all lies” might suggest that
M.Cy. would give evidence highly favourable to the defence in respect of allegations made
by A.U. that had not been aired at the time of the Holyhead meeting.
35. It was also relevant that the circumstances in this case meant that the absence of M.Cy.
did not mean that the case was reduced to one of simple allegation and bare denial. The
detail of the allegation and the unusual features of the case meant that there were a
number of aspects of the case which could be challenged and tested. While Mr. C. did not
give evidence, he did make a statement to the Gardaí, which was relied on in part in this
respect, since it contained the statement that Mr. C. was confident that M.Cy. would
support his version of events. That statement, however, also denied that A.U. had ever
stayed in the house in County Clare. In that regard, there were three witnesses to the
contrary: the complainant herself, her brother, and C.C. If that evidence was undermined,
then it would be a significant blow to the credibility of A.U.’s account of the alleged abuse.
The evidence given by the witnesses in this respect was, however, challenged only in a
formal way. Furthermore, there was the significant evidence of the tacit admission to C.C.
This evidence, if not challenged and undermined, was strong evidence supporting the
prosecution case, since innocent recipients of allegations of serious sexual abuse,
particularly against their young female relatives, do not normally receive them in silence
and promise to reform. It is necessary to set out this evidence. C.C. was asked in
evidence-in-chief (Transcript, Day 2, p. 48, line 14 to p. 49, line 9) whether he had an
intention to talk to his father about something:-
Q. And when you went there, did you have an intention or a purpose to talk to [Mr. C.]
about something?
Page 12 ⇓
A. Yes.
Q. And was it a result of what you’d heard from [A.U.]?
A. Yes.
Q. And did you tell him anything of what she said to you?
A. I did, yes.
Q. And what was his reaction to that?
A. Well, I was very surprised because I – he didn’t deny that any – anything, and
more or less said it was her own fault.
Q. And in talking about what – her own fault, did you tell him what it was that he was
supposed to have done with [A.U.]?
A. Yes. There was a – she had – she had said he had been sexually abusive towards
her.
Q. And is that what you told him?
A. Yes.
Q. And did you have any further discussion after that as to what should be done about
that?
A. Yes.
Q. What – what did – what was said or what happened?
A. Well, on – there was a lot said. But I suggested that he should – because I had
children at the time, I suggested he should stay clear, he told me that that was in
the past, I made a suggestion that he should stay clear of children and that his wife
at the time should know, you know, that he needs to be careful.
Q. And what did he say to that suggestion?
A. And he said there was no problem with that and I suggested maybe he get some
help or something, and he agreed to that. He met me at some point later when he
had a letter of appointment or something to see somebody in [name of town],
some psychologist or…
Q. Yes. Thank you, Mr. [C.C.], would you answer my friend’s questions?
36. In this context, however, this allegation also provided a separate issue upon which the
prosecution case could be tested, and if possible undermined. It was suggested to C.C.
that he had a grudge against his father, and his recall and reliability were challenged
Page 13 ⇓
robustly. In regard to the specific evidence, however, the cross-examination in this regard
was essentially formal. It was put to C.C. (Transcript, Day 2, p. 67, lines 2 to 21) that his
father disputed this account, and little more:-
A. […] And all I had at that time then was a worry that this might have happened,
when I approached my father and he didn’t deny this to me on – then I got worried
and –
Q. And I appreciate that has been your evidence and I’m putting it to you that it’s not
the truth, there was no such conversation with your father.
A. That’s – that’s your job, sorry.
Q. Ah well, with the greatest of respect now Mr. [C.C.], it’s not as simple as that?
A. Sorry?
Q. I have to – I have to indicate to you, it’s a legal requirement, I have to indicate to
you what aspects of your evidence are disputed?
A. I’m aware of that.
Q. You understand that?
A. Yes, course.
Q. It's not fair to you if I simply sit here and allow you give your evidence and then
say to the jury, well you shouldn’t believe Mr. [C.C.]?
A. Oh I’m aware of that, I’m not asking anyone to believe me.
Q. Right, all right. It’s not simply a matter of me doing my job, Mr. [C.C.]?
A. What I meant is it’s your job to bring the defences.
Q. Thank you, Mr. [C.C.]?
A. Thank you.
37. Counsel for the defence, it should be said, conducted of a difficult case with great skill in
difficult circumstances. Again, however, this was an issue raised in the case which allowed
for the possibility of dispute, challenge and testing, if that was possible. But it also went
to the issue that the trial judge had to decide on the P.O’C. application, since it was part
of the dynamic of this case. If, for example, this evidence had been strongly challenged,
and the account or presentation of the witness seriously shaken, that would be something
that would weigh in the balance on any consideration by the trial judge as to whether it
was just to permit the case to proceed. I fully agree with the analysis of this aspect of the
case contained in the judgment of O’Malley J.
Page 14 ⇓
38. In my view, this case can usefully be compared with S.B. and the judgment of Hardiman
J. therein (Kearns and Macken JJ. concurring), which can be taken as perhaps the high
point of the jurisdiction in which the absence of evidence and witnesses was found to
justify the prohibition of a trial and was relied on by the defence at the trial in this case,
and is, of course, the source of the “lost opportunity vs real possibility of a loss of an
obviously useful line of defence” distinction. In S.B., an allegation was made by a patient
in a psychiatric hospital that on a number of occasions he had been woken from his bed,
brought to a room by the accused, and sexually abused there. He further alleged that he
had made this complaint to two different nurses, and that one of them had told him that
it had been passed on to a named doctor. It is suggested that, after making his
complaint, the complainant was given an injection and put to sleep. He later left the
hospital and had forgotten all about the incidents until many years later when he visited
the hospital “which brought it all back”. The two nurses and doctor were no longer
available. Furthermore, there was evidence that the hospital had employment records,
which had however been routinely destroyed by the time of the trial. Such records would
have been capable of showing if the defendant was employed on night duty on at least
four occasions when the complainant was a patient in the hospital. There was,
furthermore, evidence of a period of sick leave taken by the accused during a relevant
period which appeared wholly to exclude his presence in respect of one incident, and
partially or wholly in respect of another. The Supreme Court concluded that the accused
had “lost the real possibility of an obviously useful line of defence” and upheld the
decision of the High Court to prohibit the trial.
39. It seems clear that the facts in S.B. presented a much stronger case that any trial would
be unfair than arises here. The account, not merely of abuse by an individual nurse in a
hospital, but also of contemporaneous complaints without any follow-up and the
apparently suspicious administration of an injection, is more than a little unusual, and to
that extent may be said to at least raise questions as to its credibility. Moreover, it
presented obvious points at which it could be challenged. It was significant that, in one
respect in which there was independent evidence, the account given by the complainant
was inconsistent with it. Moreover, among the evidence which was now unavailable was
evidence in the shape of attendance records which could have dealt a decisive, indeed
fatal, blow to the credibility of the complainant’s account, and which would not be in any
way dependent on the assessment of individual witnesses. It simply cannot be said that
the indication, given by a very general account of a collective conversation, that certain
allegations (which did not include the allegations which are the subject of these
proceedings) were “all lies”, comes close to this type of situation. It has not been
suggested, at least directly, that the account given by the complainant in her oral
evidence had been damaged in any way. Reference is made to differing accounts being
given of the altercation in the house resulting in the production of a shotgun.
40. Significantly, however, all three accounts were inconsistent with the appellant’s statement
that the complainant never stayed in the house. It is quintessentially a matter for the
judge and jury at a trial, exercising their respective functions, to come to a conclusion as
to what, if anything, was to be deduced from this. But I do not understand that this court
Page 15 ⇓
now suggests that this was in some way damaging to the complainant’s credibility, or
indeed, if it did so suggest, that it could prefer its own assessment of this issue to that of
the trial judge. This case is therefore markedly less compelling than the situation which
arose in S.B.
41. Taken in the round, therefore, I am, for my part, unable to accept that the evidence in
this regard, taken together with the admissions evidence as analysed by O’Malley J.,
should be characterised as giving rise to a real possibility that M.Cy. might have been in a
position to give evidence “highly favourable” to the defence, which would, moreover, have
survived any challenge to its credibility, with the result that the defence had lost not just
an opportunity, but the real possibility of an obviously useful line of defence. That is not
only speculative, but is a speculation which, at least in my view, is remote. I would not,
therefore, for my part, disturb the finding of the Central Criminal Court and the Court of
Appeal that it was not unjust to proceed with the trial.
42. In this regard, I do not understand there to be a difference of principle between the
approach taken by the Chief Justice and that taken by the majority: the Chief Justice
would, as I understand it, give somewhat more weight to the absence of M.Cy. and to the
possibility that the evidence she might give would be helpful to the defence, and less
weight to the admissions than the majority would. This difference of degree is perhaps
unavoidable where it is a matter for the judgment of individual judges. However, my
respectful disagreement with the judgment of the Chief Justice is not merely that I am
not persuaded by the assessment of evidence, but rather that the approach seems to
make that assessment de novo, and, in doing so, does not sufficiently respect the
separate functions of the trial court and the Court of Appeal, both of which came to a
different conclusion, or indeed the underlying logic that has led the courts to prefer that
challenges of this nature should best be addressed in the real life context of a trial with
oral evidence, rather than through the prism of judicial review.
43. It is apparent from the account given in the judgment of the Chief Justice and set out at
the outset of my judgment that the jurisdiction identified by the court in P.O'C. places a
heavy obligation on trial judges. It follows, however, that some margin of appreciation
must be afforded to a trial court’s assessment, and, in this context, to the review by the
Court of Appeal, whose function it is to hear appeals from all trials on indictment, and
which therefore has unrivalled experience in comparing any given trial with what is
normally encountered. The Chief Justice suggests that this court is free to reconsider this
matter afresh because he considers an error of principle was made by the trial court.
Both courts addressed the test in S.H and, while one might have reservations about the
manner in which the decisions were expressed, or some of the matters raised, it is
necessary to keep in mind that the ruling of the trial court occurred in the middle of the
trial, and that in both the trial court and the Court of Appeal, there were many other
issues raised for consideration. There is no doubt, however, that both courts addressed
the fundamental question posed in S.H. and adopted in subsequent decisions: was it just
to permit the trial to proceed? The conclusion of the trial judge that this was a lost
opportunity case must, I think, be understood as implicitly rejecting the contention that it
Page 16 ⇓
was a real possibility of an obviously useful line of defence in the case. I am not
persuaded that there was an error of principle in failing to say so expressly. The
formulation of the Court of Appeal, both in how it characterised the absence of M.Cy., and
its subsequent analysis is, I accept, unsatisfactory, but I do not think this court should
lose sight of the fact that both courts understood the basic test to be applied, and had
considerable experience of the trial and appellate process to permit them to do so. But in
any event, I do not think an appellate court should approach its task as if it were in the
same position as the trial court, in particular. I would approach this case on the basis that
both courts were aware of the fundamental issue, and, moreover, that a court reviewing
matters from a transcript should be conscious of the limitations of that exercise.
44. The logic underlying this recent approach of the courts is that the assessment of the
overall fairness of the proceedings is best carried out at the trial, rather than in advance
on the basis of affidavit evidence professionally drafted and speculation as to what might
transpire at a trial. The courts came to require that applicants at least directly engage
with the case, rather than seek to raise hypothetical issues. Moreover, the place that any
lost evidence, whether real or oral, might play in a case was best assessed in the context
of the case itself, and the manner in which it proceeded.
45. These considerations are present to some extent, at least when the matter is sought to be
reviewed on appeal by reference to the transcripts. It is the case that the evidence has
been cross-examined, and to that extent more concrete information is available, but the
fact remains that an appellate court is viewing the case through the prism of paper, in
this case a transcript, just as much as the judicial review court viewed it in advance
through an affidavit exhibiting a book of evidence. It is not necessary to indulge in any
undue enthusiasm for the advantages of the eagle-eyed judge of trial, but it remains the
case that, as has been observed, appellate courts should not interfere with findings of fact
by trial judges unless compelled to do so, not least because, in making such decisions,
the trial judge will have regard to “the whole sea of evidence presented to him, whereas
an appellate court will only be island hopping”, and “the atmosphere of a court room
cannot in any event be recreated by reference to documents, including transcripts of
evidence”: see the judgment of Lewison L.J. in ACLBDD Holdings Ltd. v. Staechelin
[2019] EWCA Civ 817, [2019] 3 All ER 429. These observations apply with particular
force in the context of a test which involves a consideration of the overall justice of a trial,
and, in particular, the assessment of the impact on the trial of the absence of a witness.
The logic of the decisions in in P.O'C. and S.H.– that such assessment is best made at the
trial – has some continuing validity here, and an appellate court, when reviewing such a
decision, should have good reason to disturb the finding of the trial court, having regard
to the limitations of the material available to the appellate court in respect of the
adjudication which the trial court was obliged to make.
46. It is, I think, apparent that there is a consensus in this court as to how a court of trial
should approach an application such as this. The difference between us in this case
involves the assessment of the facts in this particular and unusual case. Insomuch as this
case can be said to raise any distinct issue of law, rather than the application of general
Page 17 ⇓
principles to particular, if unusual, facts, then I would suggest that the following principles
might be identified:-
(i) The jurisdiction to determine whether it is just to permit a trial of an accused
person on historic allegations to proceed, is one normally best conducted at the
trial;
(ii) The decision the trial judge should make is whether he or she is satisfied that it is
just to permit the trial to proceed;
(iii) The obligation on the trial judge is to make a separate and distinct determination in
this regard, and the trial judge must do so conscientiously, in the light of
everything that has occurred at the trial;
(iv) The test to be applied does not involve any assessment of the guilt or innocence of
the accused, which is a matter for the jury, but rather the fairness and justice of
the process by which it is sought to determine that matter;
(v) While an appellate court must recognise that a trial court has particular advantages
in the making of this assessment, the decision of a trial court is subject to appeal,
and trial judges should therefore set out clearly the considerations leading to the
conclusion that it is or is not just to permit the trial to proceed.
47. Applying this approach, I would not interfere with the determination of the trial court in
this case, as upheld in the Court of Appeal. I agree with the judgments of Charleton and
O’Malley JJ. and the approach suggested by the Chief Justice at paragraphs 9.2 -9.4 of his
judgment. I would accordingly dismiss the appeal.
Result: Appeal Dismissed