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Cite as: [2003] IESC 69, [2003] 4 IR 525

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    No. 77/02 & 190/03

    Denham J.

    McGuinness J.

    Hardiman J.

    Geoghegan J.

    McCracken J.






    [Judgments delivered by McGuinness J & Hardiman J; Denham J, Geoghegan J. & McCracken J concurring]

    Judgment of Mrs Justice McGuinness delivered on the 19th day of December 2003

    This is an appeal by the Director of Public Prosecutions against the order of the High Court (McKechnie J.) whereby the Court granted an injunction restraining the Director from taking any further steps in the prosecution of the applicant, B.J., on two charges of indecent assault and one charge of the rape of H.McC. The charges arise from two alleged incidents. The first charge of indecent assault arises from an incident which is alleged to have occurred at the applicant's house in September 1989. The rape charge and the second indecent assault charge arise from a second incident which is alleged to have taken place in a wood in October 1989. The complainant was aged sixteen at the time of the alleged incidents. She first made a complaint to the Gardai concerning these matters in April 1998.

    The factual background to these judicial review proceedings, the evidence in the High Court and the findings of the High Court judge have all been helpfully and succinctly set out by Hardiman J. in his judgment which I have had the advantage of reading. There is no need to reiterate these matters here.

    The learned High Court judge having carefully surveyed the evidence before him, made certain findings of fact in regard to that evidence. He considered the delay which had occurred between the occurrence of the alleged incidents in September/October 1989 and the complainant's first statement to the Gardai in April 1998. In regard to this period of what is frequently termed "complainant delay" the trial judge held that at least from April/May 1995 onwards the complainant was "free of any inhibiting forces, arising from these events, which might have had a continuing prohibitive effect on the making of a complaint to the appropriate authorities" (judgment page 33).

    The learned trial judge also considered the period of delay which occurred between the complainant's first statement on 9th April 1998 and 3rd March 2000 when the applicant was charged and brought before the District Court, a period of almost two years. McKechnie J. held that this period was excessive and, either by itself or as a compounding factor, would be a ground for granting the relief sought by the applicant.

    McKechnie J., however, rejected the various grounds of specific prejudice put forward by the applicant (to which I shall refer later) and held that, despite the delay factor, the applicant could still have a fair trial. He concluded:

    "I am therefore granting this relief, on the basis that in my view, the delay above identified constitutes a breach of the applicant's right to a trial with reasonable expedition. Such a right in my opinion can exist independently of any other rights attaching to a trial in due course of law. If however I am wrong in this and the true issue is whether or not such a trial, in accordance with Article 38, could be afforded the applicant, it would be my concluded view even now, that it could."

    Against this decision the Director has appealed.

    In recent years a considerable number of cases have come before the High Court and this Court where accused persons have been charged with sexual offences involving children and young persons in circumstances where complaint about the offences in question was not made until many years after the alleged offence. In comparatively few of these cases the Court has held that in addition there has been improper delay on the part of the prosecution authorities.

    In Hogan v President of the Circuit Court [1994] 2 IR 513 (at 521) Finlay C.J. in reference to cases where delay had occurred said:-

    "Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and elapse of time before they are in a position to do so cannot give to an accused a right to prohibit a trial on the basis of the defeat of his constitutional right to an expeditious trial. For example, cases consisting of charges by very young children in regard to assaults on them at an age which are not brought to the attention of the authorities by such children until very many years after they occurred involve wholly different considerations from those applicable to the present case."

    The general approach which should be taken to these particular cases has been set out in the well known passage in the judgment of Keane J (as he then was) in P.C. v The Director of Public Prosecutions [1999] IR 25, at pages 68 and 69, as follows:

    "Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of an unfair trial; that after all is what is meant by the guarantee of a trial 'in due course of law'. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of an accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay, and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the Court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.

    If that stage has been reached, the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

    This approach has been followed in numerous subsequent cases and is now well established.

    In the written submissions filed by the Director in the present appeal it became clear that the Director would seek to argue that, in relation to a case where delay on the part of a complainant had occurred, a prosecution could be restrained only if a real risk of an unfair trial could be demonstrated by the accused. This appeared to involve asking this Court not to follow P.C. v DPP, in particular insofar as that judgment held that delay alone might lead to the trial not being allowed to proceed even where it had not been demonstrated "that the capacity of an accused to defend himself or herself will be impaired".

    As a result of these submissions by the Director, as pointed out by Mr Justice Hardiman in his judgment, this Court permitted the late filing of a cross-appeal by the applicant. This cross-appeal challenged the finding of the learned trial judge that in the circumstances of the case the applicant would not be prejudiced and that he could receive a fair trial.

    The written submissions made on behalf of the Director, which were ably and comprehensively set out in oral argument before this Court by Mc McDonagh both in the present and in the earlier case of D.W. v DPP (Supreme Court 31st October 2003) are far-reaching in their proposed effect. On first consideration it would appear that such an approach must involve this Court overturning the decision in P.C. v DPP at least insofar as it permits the restraining of a prosecution on grounds of delay alone. This would indeed be a radical step in the case of a relatively recent decision which has been much followed. That is not to say, of course, that Mr McDonagh's carefully reasoned arguments should not be considered by this Court. In my view, however, the somewhat unusual facts of the present case, for reasons to which I shall refer later, do not lend themselves to a satisfactory analysis, in context, of Mr McDonagh's major submission.

    It is also clear that in the event of the applicant's cross-appeal succeeding the Director's challenge to the eventual decision of the learned trial judge that the prosecution should be restrained on the ground of delay alone would no longer be relevant. It seems, therefore, that the correct course to follow would be to deal in the first place with the applicant's cross-appeal.

    The grounds of the applicant's cross-appeal are as follows:

    "1. That the learned trial judge erred in fact and in law in holding that the applicant/respondent could have a fair trial on the criminal charges the subject matter of this application.
    2. That the learned trial court judge erred in law and in fact in failing to consider or to attach the appropriate weight to the issues of prejudice which arose in the course of cross-examination of witnesses and in particular, his finding that the Sergeant's memory was defective with regard to the interview found to have taken place in 1990 in respect of the complainant.
    3. That the learned High Court judge erred in law in failing to consider the issue of presumptive prejudice.
    4. That the learned High Court judge erred in law and in fact in failing to attach appropriate weight to the delay on the part of the prosecuting authorities in investigating and prosecuting the alleged offences from May 1990 when they first interviewed the applicant/respondent herein and representations made to the applicant/respondent by the Sergeant thereafter.
    5. That the learned High Court judge erred in law in failing to consider all the circumstances of the case for the purpose of determining whether there was a real risk of an unfair trial of the applicant/respondent".

    In considering these grounds it is in my view necessary to keep in mind that the facts of this case as found by the learned trial judge are strikingly different from those in many cases of delayed complaint of sexual abuse. In the majority of those cases the abuse has taken place during early childhood and has been perpetrated by someone in a position of authority, or at least considerable influence, over the child concerned. Often the incidents of abuse have been repeated and have continued over a lengthy period of time, and have been accompanied by threats aimed at preventing disclosure. Thus the concept of dominance by the perpetrator has played an important part in these cases. The classic example of such a case is B v DPP [1997] 3 IR 140.

    The scenario in the present case is different in almost every respect. The complainant was sixteen years of age when the alleged incidents took place; it is likely that a sixteen year old in 1989 had some degree of knowledge of the world. She was able to tell her mother about the first incident very soon after it occurred although she apparently did not tell her of the alleged rape. It appears that at early stage after her daughter's complaint the mother made some contact with the Garda Siochana in the person of the local Sergeant. Whatever that contact was – and we know very little about it – it caused the Sergeant to interview first the applicant and subsequently the applicant and his wife together. It was found as a fact by the learned trial judge that it was then conveyed by the Sergeant to the applicant that he would hear nothing further about the matter. On account of the lapse of time the applicant cannot recall the detail of these meetings. From the course that the evidence of the Sergeant took in the High Court it is abundantly clear that his memory of these matters has also faded. Whatever may have happened in regard to this Garda inquiry, it is in stark contrast to the complete lack of early complaint which features in other cases.

    There is no evidence whatever of dominance by the applicant in this case. He held no position of authority and had no family relationship with the complainant. Even his acquaintance with the complainant appears to have ceased very shortly after the alleged incidents and she has spent the greater part of the intervening years in England. In addition the learned trial judge has made a finding that the complainant was not in any way inhibited from making a complaint after the spring of 1995, yet she took no action until April 1998. Even then she appears not to have been particularly anxious to facilitate the Gardai in obtaining a further statement from her for the purposes of clarification.

    This Court is thus left with the position that the alleged incidents occurred some ten and a half years before the applicant was charged and where the learned trial judge has held that there was three years unexplained delay by the complainant, followed by an excessively long prosecutorial delay between complaint and eventual charge.

    In the High Court the applicant relied on three grounds of specific prejudice, which are listed at paragraph 5(g) of the trial judge's judgment as follows:-

    "The prejudice claim has been formulated in the following way: firstly H.McC. alleges that the incident in September 1989 was interrupted by the applicant's son (who was nine at the time) coming into the kitchen of the family home. Accordingly his son's recollection would have been of value but only if he had been asked to recall at a much earlier stage than December 1998 or March 2000; secondly that up to November/December 1999 his wife would have been supportive of him in his defence of any prosecution but since then, because of matrimonial difficulties, their relationship, now acrimonious, has deteriorated to a point where he has no confidence that any evidence, much less supportive evidence will be forthcoming from her. In particular he claims that his wife's recollection of H.McC. coming invited and uninvited, as the case may be, to their home in the relevant period would be pertinent as would be her own whereabouts on the occasions in question. Mr J. states that her recollection of what led to the applicant to driving H.McC. home on the dates in question would be material, he being of the view that H.McC's request for a lift home would be supported by his wife. Thirdly, it is either expressly or impliedly claimed that the jeep which was used in October 1989 had central locking and was owned by a friend of the applicant. The jeep according to Mr Jackson was his own and had no system of central locking but, having been disposed of it in 1990, it is not now available as evidence to rebut this suggestion, and finally he alleges that the recollection of the complainant's mother would be of assistance in describing the demeanour of her daughter at or about the relevant time."

    At page 37 paragraph 43 of his judgment the trial judge rejects all of these grounds:

    "Finally it has also been submitted that this trial should be prohibited on the grounds of express or specific prejudice consisting of the matters referred to at paragraph 5(e) and (g) of this judgment. In my opinion there is no basis for this claim…..Secondly, since the jeep in question was disposed of in or about that time, any examination of that vehicle, to offer evidential value, would have had to be carried out at that time or shortly thereafter. Hence charges would have had to be preferred at that stage. Thirdly, I cannot accept that a nine year old child walking disinterestingly (sic.) into a kitchen would have been conscious of any interaction between the complainant and his father. Fourthly, even though quite evidently it would have been more preferable from the applicant's point of view, if his wife was positively disposed towards him, nevertheless I cannot assume any person including Mrs. J. under oath, would do otherwise than to tell the truth. And lastly I do not believe that questioning Mrs C. McC. about the demeanour of her daughter in late 1989, would have obtained for the applicant such probative evidence as without it, would constitute prejudice. Therefore I would refuse any relief under this heading".

    In his submissions to this Court on the cross-appeal Mr Hartnett, senior counsel for the applicant, submitted that the learned trial judge had too hastily disregarded at least some of these grounds of prejudice, bearing in mind the importance laid on practical matters of evidence in earlier cases such as P.O'C v DPP [2000] 3 IR 87.

    In this context I would agree with the learned trial judge on the subject of the nine year old son and on the subject of the complainant's mother but in my view somewhat more weight could be given to the question of the locking mechanism of the jeep. Even if the jeep itself had been disposed of, an earlier trial would at least have offered the possibility of checking the locking system of that particular model of vehicle, evidence which is most unlikely to be available after a lapse of ten years.

    As far as the possible evidence of the applicant's wife is concerned, it seems to me that the major difficulty is not so much her likely change of attitude as the fact that after so long a lapse of time her memory, too, will have faded. In particular at this stage she is no more likely to recall the details of the various interviews than is the applicant or, more strikingly, than is the Sergeant. Similarly she is unlikely to remember the detail of the complainant's visits to the J. home.

    Senior counsel for the applicant in his submissions, however, laid much greater emphasis on the difficulty caused by what emerged in the evidence in cross-examination of the Sergeant. While counsel for the prosecution pointed out that the Sergeant would not be a witness at the actual trial, Mr Hartnett emphasised that the learned trial judge had held as a matter of fact that some type of assurance that the earlier inquiry would go no further has been given by the Sergeant to the applicant. To know the reason that such an assurance had been given was a crucial matter for the defence. There was a wide range of possible reasons, ranging from a doubt as to the credibility of the complainant (or of her mother) to some factor either in the investigatory systems or in the personal attitudes of the relevant Gardai. Whatever the reason was, it could not now be ascertained either by the applicant or by anyone else. It would be only at enormous risk to the applicant that the defence could endeavour to introduce any of this evidence before a jury at the applicant's proposed trial. Thus a potentially effective defence was being denied to the applicant. He would clearly be prejudiced.

    The general and particular prejudice likely to be suffered by an accused person has been well described in some detail by Hardiman J. in his judgment in J.O'C . v DPP [2003] 3 IR 478. In my view the applicant in the present case will suffer both the particular prejudice outlined above and the general prejudice caused by lengthy delay in itself.

    I would allow the cross-appeal. It is therefore unnecessary to consider the grounds argued by the Director in his appeal.

    I would accordingly dismiss the appeal and affirm the order of the learned High Court judge.


    77/02 & 190/03

    Denham J.

    McGuinness J.

    Hardiman J.

    Geoghegan J.

    McCracken J.






    JUDGMENT of Mr. Justice Hardiman delivered on the 19th day of December, 2003.

    This is the Director's appeal against the order of the High Court made the 12th February, 2002 whereby McKechnie J. granted an injunction restraining the Director from taking any further steps in the prosecution of the applicant on three specified charges.

    Factual Background and Conflicts.

    On the 3rd March, 2000 the applicant was arrested and charged with three offences. One of these alleged indecent assault against one HMcC on a date unknown in September, 1989. Another alleged a further offence of indecent assault on a date unknown in October, 1989. The third alleged that, on the same date, the applicant had raped the said HMcC.

    The applicant's claim for relief was grounded on quite a detailed affidavit in which he made a number of very specific allegations. He said that in May or June of 1990 a named detective sergeant from Greystones Garda Station telephoned him and asked him to call to the station. When he did so, he was asked whether he knew HMcC and he agreed that he did. The sergeant then asked him questions about his relationship with HMcC, whether he had made a pass at her, and "general questions of this nature". Due to lapse of time, he says, he cannot remember the precise questions asked nor can he remember whether notes were made of the answers. He says however that the Sergeant asked him to call back accompanied by his wife and that they did this within about a week. The Sergeant again asked questions of the applicant and of his wife in relation to HMcC, her attendances in their house, their relationship with her, whether she called uninvited to the house and other matters. The applicant said that, again due to lapse of time, he could not remember precisely what had occurred. He said however that at the end of the interview the Sergeant thanked them for coming to see him and specifically stated that he was satisfied that the applicant would not hear any more about the matter.

    The applicant claimed that the delay in the case has been excessive and, separately, that it has been prejudicial.

    The Sergeant swore an affidavit in which he said that he had retired from the Gardaí on the 22nd March, 1998. He agreed that he had telephoned Mr J. in or about May, 1990 but from this point on his account dramatically diverged from the applicant's. He said that he had spoken to the applicant in the garda station shortly after that phone call, but it was about a completely different matter to the allegations the subject matter of these charges. He agrees that he said that he wanted to speak to the applicant and to his wife on an occasion shortly after the first interview, and that he did so. But he said this, too, was about the other matter. He categorically stated on affidavit "… the applicant's account of both conversations is completely unfounded. I can state this categorically …" He then went on to give reasons for this. Specifically he said that he had not heard about the allegations in relation to HMcC until March, 1998, about a week before his retirement. He reiterated "I can state quite categorically that, for the reasons already given, I never spoke with the applicant at any time either in the company of his wife, as alleged, or otherwise, concerning any complaint made by Ms HMcC". He continued: "I therefore say that I never made the representation concerning that complaint as alleged by the applicant [in his] affidavit, for the simple reason that I could not have done so."

    Evidence in the High Court.

    At the hearing of this application before McKechnie J. in the High Court it transpired that the former detective sergeant was quite wrong in the recollection which he set out on affidavit. It is both fair and significant for the present application to emphasise that there is no question whatever as to his integrity; he swore what he believed to be true.

    The Sergeant said on affidavit that he called Mr. J. into the station because he was in possession of a written statement alleging sexual assault against him. This however did not relate to the present complainant, he said, but to another young lady, Ms. H., who was then 23 years of age. In cross-examination he was confronted with that lady's written statement and he said "I am on oath at the moment and what I am saying is that that is incorrect in the affidavit… the parts you read about a written statement". This, he said, was because his affidavit "wasn't made with the care and attention that it should have been", for which he accepted responsibility. Ms. H., in fact, had made no statement of accusation, written or otherwise, until almost eighteen months after the interviews of May 1990. The Sergeant was also confronted with letters written by Ms. H. to the applicant which he agreed were inconsistent with her making an allegation of rape or sexual assault against him in May 1990. The Sergeant's explanation for interviewing the applicant in that month, that Ms. H. had made a written allegation of sexual assault against him, thus became absolutely untenable. But the Sergeant continued to deny that the subject of the interviews was an allegation about HMcC. Instead he gave a third account, radically at variance with what he himself had said on affidavit. He said that though he had no statement, and no oral complaint, from Ms. H. he had been speaking to her father whom he knew well. The father is now deceased. According to the Sergeant, the parents of Ms. H. were extremely annoyed with the daughter because of her relationship with the applicant, a married man. In conversation with the Sergeant he made allegations of sexual assault on his daughter against Mr. J. The Sergeant remembers having conversations with Ms. H. at the relevant time but could not remember the contents of any of them. Almost at the very end of the evidence the Sergeant, after these grave difficulties with his memory had been fully explored in cross-examination, for the first time revealed that he suffered from a medical condition, diabetes, which by "my reading of medical journals in relation to the complaint will say that perhaps sometimes it can affect the memory". This was not revealed at any earlier time. On the contrary, at the beginning of his cross-examination the Sergeant, when asked "You are absolutely certain in your recollection and the detail of your recollection?", replied "Absolutely, no doubt about it". Asked whether he admitted the possibility that even people with very good memories could be mistaken he said "No, not in this incident. [Ms. H.] was the person who made the complaint in 1990, the first months of 1990".

    Findings of fact in the High Court.

    The learned High Court judge made certain findings of manifest relevance on this appeal. These appear to be:

    Other Findings.

    The learned trial judge went on the find that there had been excessive and unexplained delay both by the complainant in making her complaint and by the authorities thereafter in charging the applicant. He held that:

    "The accumulate time (between complaint and charging) was twenty three months which followed earlier delay which meant that over ten years had elapsed between the date of the offences and the resulting charges in respect thereof. This investigation could not be described as wide ranging, complex or technical … a total period of twenty three months none of which could be attributed to the applicant, following upon as it did previous periods was in my view excessive and whether by itself or as a compounding factor also would lead me to grant the reliefs sought".

    The learned trial judge analysed the total delay which had occurred as follows:

    "Firstly the eight and a half years between October 1989 and April 1998 when the first statement was made to the gardai; secondly from that date until December, 1998 when Mr J. was arrested and questioned though not charged and thirdly from December, 1998 to March, 2000 when he was arrested and charged".

    The learned trial judge held that the applicant exercised no control, power or dominion over the complainant and did not act in any oppressive manner towards her. He considered the affidavit evidence of the complainant and the evidence on cross examination of a psychologist called on behalf of the plaintiff, as well as evidence of certain counselling which the complainant had undergone in the United Kingdom where she has long resided, in April and May of 1995. He held that:

    "I am of the view that as and from this time forward, she was and should be so treated as being in a position to make a complaint if she so wished … for reasons quite unrelated to [any psychological difficulties] she made an independent decision not to further progress this matter in a criminal way against the defendant … it therefore follows that I cannot attribute to the nature of these acts or to the conduct of the accused person any reasons which would render explicable the further three year period which elapsed before the complainant made her first complaint to the gardai in April, 1998".

    The learned trial judge also, however, held that although the delay was excessive it had not been demonstrated that the applicant was prejudiced by it and that there was no real or substantial risk of the applicant not receiving a fair trial. However, he granted the relief "on the basis that in my view the delay above identified constitutes a breach of the applicant's right to a trial with reasonable expedition. Such a right in my opinion can exist independently of any other right attaching to a trial in due course of law. However, if I am wrong in this and the true issue is whether or not such a trial, in accordance with Article 38, could be afforded the applicant, it would be my concluded view even now, that it could".

    Steps Taken Subsequent to the High Court Order

    The Director appealed to this court from the judgment and order of the learned trial judge, by notice of appeal dated the 20th March, 2002. Ten grounds in all were advanced in support of the appeal. Some of these related to the learned trial judge's findings of the length of the delay; that the delay had been unjustified; and that the delay was such as entitled the applicant to relief.

    Other grounds, which were most heavily relied upon at the hearing of this appeal, related to a different question. It was contended that the learned trial judge had been wrong to grant injunctive relief since he had found that the applicant could have a fair trial, wrong; to consider any question of delay on the part of the complainant, as opposed to the prosecuting authorities, in assessing the length of the delay; and wrong to grant relief in the absence of any finding that the delay had caused the applicant prejudice.

    On the 25th April, 2003 the Director served on the applicant's solicitor a copy of his written submissions for the hearing of this appeal. For reasons which will shortly become apparent, this prompted the applicant, now the respondent, by notice of motion dated the 2nd May, 2003 to apply for an enlargement of time in which to file a notice of intention to cross appeal. The proposed cross appeal sought to upset the learned trial judge's findings that the applicant had not been prejudiced; his failure to find there was presumptive prejudice; and his failure to find that the proven deficits in the sergeant's memory did not constitute prejudice.

    Decision on Application to Cross Appeal

    Prior to the opening of the appeal Mr Hartnett S.C. applied for leave to serve his notice of cross appeal. He said that it was only when the respondent had seen the appellant's written submissions, about ten days before the date fixed for the hearing of the appeal, that he realised the emphasis being placed on the "no prejudice" finding of the learned trial judge. He said that it appeared that the Director was attempting, at least in the alternative, to bring about a change in the present position in law in relation to delay cases, by submitting that no relief could be granted in the absence of demonstrated prejudice. This application was granted and both parties filed written submissions in relation to the issues raised on the cross appeal.

    Certain Submissions on Appeal

    In opening the appeal Mr McDonagh S.C. stated that his central submission was that, in relation to delay occurring before a complaint had been made to the authorities, a prosecution could be restrained only if a real risk of an unfair trial was demonstrated.

    He said that, if necessary, he would ask the court not to follow the judgment of Keane J. (as he then was) in P.C. v DPP [1999] IR 25, at pages 68 and 69. Alternatively, he would seek to distinguish that case on the basis that the passage in question was an exposition in the context of the right to an expeditious trial and that, on the authorities, such a right arose only after a complaint had been made.

    The passage which Mr McDonagh sought to distinguish, or wished the court not to follow, is this:

    "Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial; that after all is what is meant by the guarantee of a trial 'in due course of law'. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of an accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.

    If that stage has been reached, the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial".

    I would remark, in passing, that it appears from the report of P.C. that the applicant there was specifically alleging prejudice and in no sense confining himself to the allegation of denial of an expeditious trial.

    Mr. Hartnett S.C. for the applicant did not submit that the court should either distinguish or decline to follow the relevant passage. He relied on it.

    The passage in question has played a central role in subsequent cases dealing with the issue of delayed prosecutions. In these cases, Mr McDonagh S.C. conceded, it has been interpreted in a manner different to that for which he contends. The portion of it to which Mr McDonagh took greatest exception is this:

    "The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed even though it has not been demonstrated that the capacity of the accused to defend him of her will be impaired". (Emphasis added)

    This passage is quite unambiguous and, it seems to me, difficult to reinterpret as bearing anything other than its ordinary and natural meaning. Accordingly, Mr McDonagh found himself in the position of asking the court to depart from a recent and influential dictum, often cited in subsequent cases. The fact that, usually or perhaps invariably, such cases have actually been disposed of in terms of the third or prejudice based test (set out immediately after the passage just quoted) is not relevant for these purposes.

    That fact does, however, suggest that if Mr Hartnett S.C. is successful in setting aside the learned trial judge's finding that, in the circumstances of this case, no prejudice accrued to the applicant, it may be unnecessary to deal with Mr McDonagh far reaching submission. That submission would then become, for the purposes of this case, a moot.

    For this reason, and in keeping with the general principle of deciding authoritatively only such points as are required for the purpose of resolving a particular case it appears to me that the court should first address the issues raised on the cross appeal. Only if these are resolved in favour of the Director wills it becomes necessary to address the issues at the centre of the Director's appeal, which were advanced by Mr McDonagh S.C. in a conspicuously forthright and trenchant fashion.

    The Cross Appeal

    The learned trial judge's resolution of the conflicts arising on the starkly polarised versions of the events of 1990 in connection with these complaints has already been set out. It is indeed rare that an honest witness or party in any sort of litigation resiles so dramatically, and in the course of a single day, from a position which he has adopted in relation to apparently simple facts. What occurred here is not simply a failure of memory; it is a radical confusion between one event and another. It occurred over a period of time, approximately a decade, which is lengthy but by no means extreme by the standards of the lapses of time which one has seen in cases of this sort. And it occurred in a detective sergeant who, though retired, is by no means an old man. He had for upwards for thirty years been employed in an occupation in which the necessity for precision of recall and distinguishing between one case and one witness and another must have been borne in upon him almost daily. Still more disturbing is the fact that the confusion which affected him was so complete that, in good conscience, he swore that he was certain that the incorrect memory was correct. While the witness mentioned a medical condition, diabetes, its affect on memory was self-diagnosed and said in evidence to arise only when he had not taken nourishment, and to be temporary. It could not explain the confusions and distortions in the affidavit.

    Even more chilling is the fact that the true position emerged only out of skilful cross examination. The basis of this cross examination, however, was the fortuitous survival of a written statement in a discontinued case and of ten year old private letters. But for this there is every reason to believe that the detective sergeant's subjectively honest but radically mistaken evidence would have been accepted at face value. Indeed, the prosecution were in possession of the written statement but apparently failed to notice that it was inconsistent with the Sergeant's affidavit.

    These facts, in my view, graphically illustrate the acute dangers to the prospects of a trial in due course of law which are posed even by relatively moderate lapses of time. This case emphasises that, simply because we see not a few cases where the lapse of time is in the order of twenty or thirty years, we must not be misled into thinking that ten years, or even a much shorter period, is less potent in its effects on memory.

    In my judgment J O'C v DPP [2000] 3 IR 748 I surveyed a considerable number of cases, civil and criminal, where the effect of lapse of time on the memories of witnesses (whether parties or not) has been recognised, and some where it has been dramatically exemplified. Like them, this case illustrates the enduring truth of what was said by Powell J. of the United States Supreme Court in Barker v Wingo [1972] 407 US 514:

    "… The inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defence witnesses are unable accurately to recall events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown". (Emphasis added)

    It must also be said that if this applicant had not instituted the judicial review proceedings, but had proceeded to trial, the overwhelming likelihood is that the sergeant's error would never have been discovered. The sergeant was not himself a witness for the prosecution. Had he been called by the defendant he would have given the erroneous account of his dealings with him which he placed on affidavit in these proceedings and it would probably not have been possible to cross-examine him. If the defendant had sworn that the 1990 allegation had been investigated by the Detective Sergeant who, after such investigation, told him that he would hear no more about it, he would have in all probability have been disbelieved. And that would have had grave implication for his credibility on other issues.

    In JO'C I referred to DPP v. F (unreported Court of Criminal Appeal 2nd December, 1996), which I explored in that judgment in some detail. I said that I regarded that case as "a chilling example of the effect even of a relatively short lapse of time on the memories of witnesses". There, the lapse of time was less than two years. I would make the same observation about this case. In my view the lessons of such cases – that lapse of time can distort in a radical manner the memories even of trained and experienced people – must be appreciated. So must the chilling fact that this process can occur without leaving any trace so that the mistaken witness confidently and honestly asserts what is false, quite apart from forgetting what is true.

    Consequences of the decay of memory.

    It is not disputed on behalf of the Director that the Detective Sergeant was seriously and dramatically incorrect in his recollection. But it is trenchantly argued that this is a matter of no relevance at all in the assessment of whether there is a real risk of prejudice to the Defendant, and whether he can now obtain a fair trial. The Detective Garda is not a witness in the proposed trial. The conversation which, the learned trial judge has found, he had with the applicant and his wife in 1990 formed no part of the prosecution case. In any event, on the applicant's own evidence these conversations related at most to an allegation of indecent assault and can have no affect whatever on the more serious charge, that of rape. Serious and dramatic though the Detective Sergeant's confusion may be it is simply nothing to do with the prosecution case as it is to be presented, the Director contends.

    A starting point in the assessment of this contention must be the learned trial judge's findings, on the balance of probabilities, that the Sergeant's conversation with Mr. J., and the later conversation with Mr. and Mrs. J, did indeed relate to HMcC and that at the end of the second conversation the Sergeant informed him that he would not hear anymore about that matter. The learned trial judge also held that it was probable that, before having the conversation with Mr. J., the Sergeant had spoken to Mrs. McC, mother of the complainant.

    On the Sergeant's evidence before the Court, after his confusions had been acknowledged, he was quite unable to give any background or context to the interviews about HMcC's complaints, or complaints in relation to her, in 1990. The nearest he came to that was to say that he had a conversation at some point with Mrs. McC during which "she told me of her concerns about her daughter". This had been mentioned before. Asked to say when this occurred he said "I don't know when, we are talking about ten or eleven years ago". Since he was given evidence in 2001, that remark seems to suggest that the conversation took place in 1990 or 1991. If that conversation was the trigger for his calling in Mr. J. and later Mrs. J. as well, it would have to be in the early part of 1990. He said he could not recall what the concerns were. He said that she "mentioned about her daughter working in Mr. J's shop" but it appears that she had never worked there. He said that Mrs. McC had made no complaint of "ill doing" by Mr. J. but could not remember what she did say.

    There is no evidence that HMcC herself spoke at all to the Sergeant, much less made any complaint to him. Accordingly it appears, on the basis of the learned trial judge's findings, that the interview with Mr. J. was triggered by something which Mrs. McC said. According to Mrs. McC's statement of evidence her daughter had made a complaint of sexual assault by Mr. J. to her at Christmas time, 1989. Since the daughter made no complaint to the Sergeant at that time it would appear that the mother must have done so in order to account for the interview about this complainant at all. But the mother's statement is silent about this.

    Furthermore, it is the Sergeant's evidence that he made no note whatever either of whatever it was triggered the interviews or of the interviews themselves. This may not be surprising in view of the fact that in relation to the other complainant whom he said was alleging rape (though not formally, and not to him or any other garda) he made no note either. In her case he said that the allegations were made to him by the girl's father, who is now deceased, sometime prior to May 1990.

    The Sergeant also said that he was, at the time of the interviews with Mr. J., in possession of a written complaint alleging sexual assault. He subsequently had to agree that this was not true in relation to the other complainant because she made no complaint in writing until a later date. Accordingly, either the written statement is a figment of the Sergeant's imagination or there was, at the time of the interviews in May 1990, a written statement in existence about this case.

    I find it difficult to accept that the confusions, uncertainties and simple gaps in the Sergeant's evidence of are without relevance to the case against Mr. J. He is defending allegations of sexual assault and of rape originally alleged by the prosecution to have been first made to the authorities some nine years after their occurrence. A complaint was made, on the prosecution case, to the girl's mother about one incident of sexual assault only, within two or three months but no step was taken on foot of that other, perhaps, than a disclosure to the Sergeant all details of which are now lost. Looking at the case from the defence point of view, if the evidence of the complainant is to be challenged, it would seem more than desirable to contrast what she now says with a more nearly contemporaneous account. The Sergeant says that he spoke to Mr. J. about a complaint of sexual assault, but he believed it to be in relation to the other young lady and to be already some years old. Since he has been found to be wrong in this and since the conversation has been found to relate to Ms. McC, there is at the minimum a real possibility that an allegation of sexual assault in relation to Ms. McC was made to the Sergeant. Indeed, it is difficult to think why else he would have had the interviews with Mr. and Mrs. J. at all. A combination of the Sergeant's grave failure of memory and his omission to make any notes of the relevant conversations are the reasons for this loss of potentially useful evidence.

    Furthermore, and again on the basis of the finding that the 1990 interviews related to Ms. McC, it appears that the Sergeant took no steps to question the young lady or to have her questioned about the allegations communicated to him. If this had occurred, she either would or would not have made an allegation of rape. A failure to do this at that time would have been of obvious utility to the defence. On the other hand, if she had made such an allegation, it is hard to believe that there would not have been a medical examination especially in view of the complainant's statement that she had no previous sexual history. This might have been – it is impossible to say more – of very considerable significance.

    The learned trial judge has preferred the applicant's account of events in May 1990 to that given by the Sergeant. The applicant's account is that, while he cannot remember precise details of the interviews with the Sergeant, the latter asked to see both him and his wife about HMcC and specifically asked questions relating to the period September/October 1989. These questions related to the girl's attendance at the Js' house and whether she called uninvited. September and October 1989 are the dates when the alleged offences are said to have taken place, and visits by the girl to the Js' house is the alleged background to both offences charged. It seems very improbable that the questions would have focused on that particular time, and on the subject of the girl's visits to the house, unless something had been said to the Sergeant about some event alleged to have happened in that time period and at least partly in the Js' house.

    The learned trial judge has also found that the representation alleged by Mr. J. – that he would not hear anymore about the matter – was indeed made. He found, however, that the Sergeant had no authority to bind the prosecution authorities in saying so and that in any event this statement could not have related to the allegation of rape, because he did not know of it. With great respect to the learned trial judge, this seems to me to miss the substance of the point, which is factual and not legal. The Sergeant raised the question of the applicant's relationship with HMcC, and the circumstances of any visits by the latter to the J. house. Having done so he stated that Mr. J. would hear no more about the matter. Clearly, something must have occurred to induce in the Sergeant a state of mind in which he made that statement. This may possibly have related to some question of dates or times of visits to the house or it may have been some other factor which undermined the credibility of HMcC in his mind. Not only did he make the statement, but he refrained from taking any other further step in the matter. Unless one is to attribute complete irrationality to the Sergeant – which there is no basis for doing – it appears that whatever development caused him effectively to close the matter in his own mind, and communicate this closure to Mr. and Mrs. J., is now irretrievably lost. This cannot be said to be a matter of indifference or irrelevance to the defence.

    In summary:-

    (a) Something occurred to make the Sergeant question Mr. J., and later Mrs. J. as well, about the applicant's relationships with HMcC and about the circumstances of her visits to the applicant's house at the precise times to which the charges now standing against him relate. Realistically this can only be some form of allegation about the applicant's behaviour in relation to HMcC. The Sergeant made no note of it and cannot remember what it was. Instead, he continues to deny that the May 1990 conversations related to HMcC at all. The learned trial judge has held that he was incorrect in this.

    (b) Having held the interviews in May 1990 the Sergeant stated that the applicant would not hear anymore about the matter. The reason for his making this statement, equally, is irretrievably lost. It is impossible to imagine any explanation for this remark which would not be useful to the defence.

    (c) Presumably for the same reason the Sergeant took no steps further to investigate the matter. Presumably, the first such step would have been to interview HMcC or have her interviewed. The omission of this elementary step emphasises the conclusiveness with which, in the Sergeant's mind, whatever allegation had been made to him was negatived in some unspecified way.

    (d) If HMcC had been interviewed she either would or would not have made the additional allegation of indecent assault and the rape allegation. For the reasons discussed above either of these alternatives has manifest potential relevance to the defence.

    (e) The Sergeant's reasons, now irretrievably lost, for not taking the matter further either are, or are not, objectively reasonable and justifiable. If they are justifiable, this must be of utility to the defence. If they are not justifiable there would appear to have been a serious omission properly to investigate whatever allegation was made leading to the interviews (including if appropriate by seeking medical evidence) and generally to progress the matter within a reasonable time.

    The Sergeant's explanation.

    In evidence in the High Court, the Sergeant, though conceding grave errors and failure of memory, and failure to devote sufficient care and attention to his affidavit, continued to insist that the 1990 interviews related to the other complainant. He admitted that he had no written statement about that person, as he had sworn he had, and he said he had some conversations with the other complainant but he had no memory of these. He then for the first time alleged, however, that he had conducted the interview, not on the basis of a written statement as he first said, but on the basis of allegations made to him by the girl's now deceased father. In 1990, this girl was 23 years old so that "possibly", as he said, he should have interviewed her. He did not do so because her father told him that she was undecided as to whether she wanted to make a complaint. In fact she was at that time involved in a relationship with Mr. J. which continued for nearly eighteen months afterwards. The Sergeant said that the father's allegation extended to an accusation of rape: in his affidavit he had said "(the other complainant) had made a written complaint that the applicant had sexually assaulted her several years previously".

    This new account of events, to my mind, is improbable to anyone knowing the usual procedures of An Garda Síochána. That an allegation of rape would not be pursued even to the minimal extent of seeking the views of the person allegedly raped is inconceivable, unless one sees the Garda Sergeant as acting as the private agent of the girl's father. But the relevance of the Sergeant's explanation to the present application is this: it appears to render it virtually impossible for the applicant to explore at the proposed trial any of the matters discussed above and particularly the question of why the Sergeant closed down his investigation of whatever allegation was made in relation to HMcC, in May 1990. Any attempt to raise the question will, on the basis of the oral evidence in the High Court in this case, lead to the Sergeant giving the account that the May 1990 conversation related to another allegation of rape against the applicant. In fact, it transpired during the High Court hearing, there will be no prosecution in relation to the other complainant because she withdrew her complaint but this does not take from the prejudice which would result from the mention of the allegation. It accordingly appears to me that there is no tactically viable way in which the question of the 1990 allegation, and of the Sergeant's discontinuing proceedings on foot of it, can be agitated in a court of trial.

    Legal effect of the above findings.

    Once it has been established that, prior to the first interview in May 1990, the Sergeant had spoken to the mother of the complainant and that, in the words of the trial judge "it is probable that the issue of sexual contact between the applicant and complainant was raised…" the applicant is prima facie entitled to details of that complaint. The mother's information can only have come from the complainant. It is a matter of common experience that one of the most obvious modes of defence (especially in a case turning to a large extent on credibility and without forensic or other objective evidence) is to compare what the complainant says in court with his or her first allegation. In DPP v. GK (unreported Court of Criminal Appeal 6th June, 2002, the Court of Criminal Appeal considered whether the defendant in a retrial was entitled to the transcript of the evidence given at the first trial. Denham J., speaking for the Court, held that he was entitled to this and continued:-

    "Otherwise, the accused is precluded from confronting witnesses for the prosecution with inconsistencies in their evidence which only become manifest during the retrial. This is all the more so when the outcome of the prosecution is to a large extent dependent or whether or not the evidence of an alleged victim is accepted by the jury, or by the Court as the case may be. To withhold a transcript of the evidence given at the first trial from an accused person in such a case is tantamount to denying him or her the opportunity of exposing an unreliable witness for what he or she is, in that, in the absence of a capacity to compare evidence given at successive trials by the same witness (evidence which is hotly contested) the accused is, in effect, limited in his or her capacity to defend himself or herself, which offends all principles of justice as they are recognized in this jurisdiction".

    In my view, there is no rational basis for distinguishing between a previous statement made by a witness in a trial and a previous statement made in some other context. Of course, it would preferable if the statement in question were that of the complainant herself. But it is not the applicant's fault that no such statement was in fact taken. It would be extraordinary if he were to be denied acknowledgment of the prejudice to him from the absence of the first account given, albeit indirectly, to the Gardaí, when the reasons for not taking a statement from the complainant directly lie within the exclusive knowledge of the Detective Sergeant, who has forgotten them.

    In my judgment POC v. DPP [2000] 3 IR 87, I said:-

    "… Every effort must be made by both parties but particularly by the prosecution to try to avoid the situation where there is no island of fact, and where bare assertion can be counted only by bare denial. This must be done first in questioning the complainant: everything he or she says must be recorded, whether it forms part of the eventual formal statement or not, or whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time place or otherwise than they need to be, and any variation between an earlier and later account must be fully noted and disclosed".

    A fortiorari, similar reasoning must apply to the lost reason for suspending the investigation into the initial allegation about HMcC. This must have been a weighty one which had a significant effect in the Sergeant's mind. If, as one must assume, he was approaching the matter rationally, it must have related either to some impossibility or implausibility of time or place, or to some other feature adverse to the complainant's credibility. The statement to the effect that the applicant would hear no more about the matter was made immediately after his wife was asked various questions about the time and circumstances of the complainant's visit to their house. If these questions and the answers to them were not a significant part of the process leading to the decision to discontinue the investigation, it is hard to know why they were asked at all.

    One of the difficulties in dealing with this case is that, as the learned trial judge remarked, the evidential picture is incomplete and there is a great deal of vagueness about what happened and why it happened. This, however, is wholly due to the inexplicable failure of the Sergeant to take a statement from the alleged victim or any notes of what was said to him or of what he himself said and did in two separate very serious matters and to the gross decaying, and confusion, of his memory due to lapse of time. It might be said that the vagueness occasioned by these matters is such as makes it difficult to establish specific prejudice: I do not agree with this view for the reasons set out above. But even if that were so, the vagueness arises wholly from a near total ignoring of the evidence gathering responsibilities of the Gardaí as expounded by this Court for example in Dunne v. DPP [2002] 2 IR 305 and Braddish v. DPP [2001] 3 IR 127. The principles underlying these cases can be traced to Victorian times – see the judgment of Pallas C.B. in Dillon v. O'Brien and Davis (1887) 20 L.R. IR. 300.

    In most cases of this nature the reason for the bulk of the time elapsed between the alleged offence and the prosecution is that the complainant, for one reason or another, was unable or unwilling to make a complaint for a long period. This is not what happened here. The complainant made a complaint of what amounts to sexual assault to her mother before the end of the year 1989. The mother took this information, in some form, to the Gardaí in the person of the local Detective Sergeant. This must have occurred, at the latest, within 4½ months of the complaint first being made. The Sergeant discussed this matter with the applicant and later with his wife. He did this without having a statement from the complainant or without having spoken to her, or having her spoken to, at all. This was an obvious and elementary step to take and no reason is advanced for its omission. But despite this omission, he felt able to tell the applicant, after asking him and his wife and certain questions, that he would hear no more about it. These questions were apparently specific as to time and as to place.

    This sequence of events, in my view, makes the present case at least in part one of prosecutorial delay. It is quite true that the Sergeant was unaware of the rape allegation. His failure to find out what exactly the complainant had to say either deprived the complainant, then a school girl, of the opportunity to say what exactly she was complaining of or deprived the applicant, for the reasons given above, of the opportunity to make the powerful point that it was not then alleged that intercourse had occurred. Both sides, paradoxically, were deprived of any possibility of obtaining potentially vital medical evidence. The Sergeant's ignorance of the rape allegation is, at best from the prosecution point of view, the result of his unexplained failure to find out what the complainant had to say. At worst from the prosecution point of view, it may be that, even if he had taken this elementary step, no allegation of rape would have been made to him. However, it is now impossible to discover the true position and even if one proceeds on the assumption most favourable to the prosecution there has been an extraordinary delay in investigating the matter for which the applicant is not in any way responsible.

    The fact that there transpires to have been a significant measure of delay in investigating, as opposed to delay in making, a complaint, confirms me in the view that this case should be dealt with, if possible, on the basis of the cross-appeal. It is clear from Mr. McDonagh's submissions, summarized above, that they relate to cases of complainant delay. Indeed, his primary submission in distinguishing the passage which he cites from the judgment of the Chief Justice in P.C. is that, properly read, that passage applies only to prosecutorial delay. Accordingly it appears that this would not have been a suitable case for the Director to advance the novel propositions set out in the notice of appeal and written submissions summarized above, relating to cases of complainant delay.

    The test of whether there is a real risk of an unfair trial must involve the question of whether the applicant has been deprived of the reasonable possibility of evidence, or of a line of defence, which could be of significant importance. It seems to me that this has occurred in the present case and that lapse of time means that the investigative steps which could and should have been taken in 1990 cannot now be replicated.

    This, it seems to me, is the situation which I described in PO'C v. DPP [2000] 3 IR 249 at 277:-

    "If the case is to be tried at all, it must be tried on the evidence actually available and not on what the evidence might have been many years earlier. But the prejudice of which the accused complains relates precisely to the distinction between the two. If there is a real risk that he is prejudiced by this difference there is, I believe, a real risk of an unfair trial. The very fact that some specific evidence might reasonably have been available and useful to the defence is the most that can possibly be shown…".

    For these reasons I would allow the cross-appeal and find that the applicant has suffered prejudice due to lapse of time, and to the things which have occurred during the time elapsed in the absence of proper investigation at an earlier time. The most notable of these is the gross distortion of the Sergeant's memory with the results described above.

    It is accordingly unnecessary to consider the points raised by the Director in his appeal.

    I would therefore allow the cross appeal and albeit for somewhat different reasons, affirm the order of the learned trial judge. The issues on the appeal do not, accordingly, arise.

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