Composition of Court: Denham J., Mc Guinness J., McMenamin J.
Judgment by: Denham J.
Status of Judgment: Approved
Appeal dismissed - affirm High Court Order
Mc Guinness J., McMenamin J.
- 16 -
THE SUPREME COURT
Appeal No: 273/2004
Denham J. McGuinness J. MacMenamin J.
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT delivered the 21st day of November, 2005 by Denham J.
1. The applicant in this case seeks to prohibit a trial in which he is the defendant. Such an application may only succeed in exceptional circumstances. The Constitution and the State, through legislation, have given to the Director of Public Prosecutions an independent role in determining whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having taken such a decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial.
In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.
It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial. This was described in Z. v. Director of Public Prosecutions  2 I.L.R.M. 481 at p. 498 by Finlay C.J. in the following terms:
“The principles of law applicable
This Court in the recent case of D. v. Director of Public Prosecutions 1 ILRM 435 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also was pre-trial publicity) he could not obtain a fair trial.
This was the standard of proof accepted as an onus by counsel on behalf of the applicant in this appeal. It was also accepted, as I understood his submission, by counsel on behalf of the respondent though the latter did draw to our attention certain decisions arrived at in other common law countries and in particular in Australia in which much emphasis was laid upon the balancing between the public requirement of the trial and conviction of guilty persons committing criminal offences and the requirement to try and ensure in some instance as expressed in those decisions ‘as far as practicable’ a fair trial. The three main decisions relied upon in this context were R. v. Glennon (1992) 173 CLR 592, Barton v. R. (1980) 147 CLR 75 and Jago v. District Court of New South Wales (1989) 168 CLR 23.
Even apart from what appears to be the submission of both sides in this case that we should follow our own judgments in the case of D. v. Director of Public Prosecutions I see no reason, on reconsidering the judgments and statements of principle which are unanimous in that case, to depart from them. Furthermore, insofar as the question of balance between the public right and interest to see the proper trial and conviction of persons guilty of criminal offences and the right of an individual to a fair trial under our constitutional provisions, I am satisfied that no mere statement about balancing would be correct. I would prefer to follow the statement contained in the judgment of Denham J in D. v. Director of Public Prosecutions where at p. 443, she stated as follows:
‘The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.
A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute.
If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.’
With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in the case of D. v. Director of Public Prosecutionsthat where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.” (Emphasis added)
It is this law which falls to be applied to the application of the applicant. 2. This is an appeal by D.C., the applicant/appellant, hereafter referred to as the applicant, from the judgment and order of the High Court (Ó Caoimh J.) delivered on the 18th day of May 2004 wherein the applicant was refused leave to apply for judicial review. The Director of Pubic Prosecutions, the respondent, is referred to as the respondent. 3. The applicant sought leave to apply for a number of reliefs including:
(i) An Order of Prohibition restraining the respondent from pursuing the prosecution entitled: "The People at the suit of the Director of Public Prosecutions v. D. C. " in respect of charges of sexually assaulting one L. H. on the 1st day of November, 2002, and further raping said L. H. on the 1st of November, 2002, as set out in Indictment Bill Number CC0026/03 presently pending before the Central Criminal Court.
(ii) An Injunction restraining the first named respondent from taking any further steps in the Central Criminal Court proceedings, the subject matter of the within judicial review proceedings.
(iii) A Declaration that the respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures with the result that the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.
(iv) A Declaration by way of Judicial Review that the applicant was entitled to be informed of the names of two persons known to the complainant and of very material consequence to the defence and that the said parties be made available to the applicant for the purpose of cross examination.
(v) A Declaration by way of Judicial Review that the said unidentified parties are material to the proper preparation of the applicant's defence to the charges contained upon the indictment on Bill Number CC0026/03 and that without such material information the applicant's defence will be prejudiced.
(vi) A Declaration that the failure and or inability to ascertain the identity of the said individuals amounts to an inability to seek out and preserve all material evidence relevant to the investigation of the alleged offences.
(vii) An Order staying the said prosecution pending the determination of the proceedings herein.
4. The grounds for such application in relation to theOrder of Prohibition, Injunction, and Declaration sought at (i), (ii) and (iii) were:
“That in conducting the prosecution the respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures in failing to seek out and make available witness statements or seeking to ascertain the identity of two specific parties and make same available to the defence with a probable bearing on the guilt or innocence of the applicant without delay or at all. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.”
Grounds for the application for a declaration sought at (iv) and (v) were:
“The decision of the respondent to proceed with the prosecution of the above mentioned case notwithstanding the fact the applicant’s legal representatives had specifically requested certain relevant and vital information by way of written request dated the 19th of January 2004 of the complainant in relation to the matter of two parties known and referred to by her but unidentified in the book of evidence was otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures and further by reason of the failure on the part of the relevant investigative authorities to seek out and/or to take statements from parties known to the complainant and with a probable bearing on the issue of the guilt or innocence of -the applicant. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.”
Grounds for the Declaration at (d)(vi) were:
(iii) The decision of the respondent to accept the refusal of the complainant to identify the two individuals without comment is inconsistent with the duties of An Garda Siochana and of the respondent herein to seek out and ascertain all material and evidence relevant to the investigation. In the premises the proposed trial is no longer a trial in due course of law.
5. On 18th May 2004 the High Courtrefused to grant the applicant leave on the basis that he had neither satisfied the threshold for the grant of leave set out in G. v. Director of Public Prosecutions  1 I.R. 374, nor any higher threshold which might be required of the applicant in circumstances where the application for leave was made on notice to the respondent. 6. The law in Ireland in relation to the standard of proof to be applied on an ex parte application for leave to grant judicial review has been well settled. In G. v. Director of Public Prosecutions  1 I.R. 374 Finlay C.J. stated at p. 377 – 378:
“It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the time limit. The Court, in my view, in considering this particular aspect of an application for liberty to institute proceedings by way of judicial review should, if possible, on the ex parte application, satisfy itself as to whether the requirement of promptness and of the time limit have been complied with, and if they have not been complied with, unless it is satisfied that it should extend the time, should refuse the application. If, however, an order refusing the application would not be appropriate unless the facts relied on to prove compliance with r. 21 (1) were subsequently not established, the Court should grant liberty to institute the proceedings if all other conditions are complied with, but should leave as a specific issue to the hearing, upon notice to the respondent, the question of compliance with the requirements of promptness and of the time limits.
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.
These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application.”
In the same case I described the process, at p. 381-2, as follows:
“The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts O. 84, r. 20 is light. The applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the applicant has such a stateable case.
This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar - to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstateable cases proceeding, and thus impeding public authorities unnecessarily.
Even though the ambit of judicial review has widened in recent years the kernel of the reason for this filtering process remains the same.
On the affidavit and statement filed in this case in this preliminary procedure it is clear that such a case has been established to meet this initial burden of proof.
This initial process was described by Lord Diplock in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd.  AC 617 at pp. 643 and 644 where he stated:-
‘The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’
I am satisfied that a like burden of proof applies in this jurisdiction, at the initial ex parte stage, as stated by Lord Diplock It is a preliminary filtering process for which the applicant is required to establish a prima facie case.”
This is the burden of proof which lies upon the applicant in the instant case.
Reference was made in the High Court to a different standard of proof in cases where the respondent is on notice of the application. However, I do not apply such an approach in this appeal. It appears to me that there is a real danger of developing a multiplicity of different approaches, that of G. v. Director of Public Prosecutions, the test applied in specific statutory schemes, and that governing the position where a respondent is on notice in a particular area of litigation. Not only may there be legal difficulties in identifying and applying each different standard, but such an approach would also take up further valuable court time. In voicing this opinion I note that in both Gorman v. Minister for the Environment  1 I.R. 306 and other cases cited reliance was placed on English case law. However, it appears to me that the appropriate law is that which has been well established in this jurisdiction based on G. v. The Director of Public Prosecutions. It is that standard which I apply to this application. 7. The applicant is the defendant in a Bill of Indictment pending in the Central Criminal Court. He is charged with the offences of sexual assault and rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and was returned for trial to the Central Criminal Court on 21st January, 2003. The matter was listed on the 10th April 2003, and a date was fixed for his trial on the 29th March, 2004. It was subsequently adjourned pending the completion of this application. A date has been fixed for trial for 5th December, 2005. The defendant indicates that he intends to plead not guilty at the trial. 8. At the core of the matters at issue is the applicant’s request for information about an alleged occasion of possible intimacy, not disclosed by the complainant, but referred to by a friend of hers, prosecution witness Ms. R. It is alleged that this took place between the complainant and an unidentified party from whom no statement has been sought or taken. The applicant submits that as a result of the refusal of the complainant to furnish the Garda Síochána and the prosecution, or the applicant and his legal representatives, with the requested information, he is significantly prejudiced in his ability to fully and properly instruct his legal representatives and it is contended that they cannot adequately or properly prepare his defence to the charges. 9. The information in issue arose from statements in the book of evidence. The facts appear to be that the complainant and her friend were going for a night out on Hallowe’en night 2002. Preparations started at the complainant’s home and as they got ready they drank a naggin of vodka with 7up. The complainant also had some Carlsberg beer. After midnight she and her companion Ms. R, left in a taxi and went to town. There they went to a pub and on to a night club. The complainant drank more beer. It is stated that it is unclear what they drank in the club. There they met two men, who were either doctors or medical students. They accepted an invitation to go back to an apartment owned by the two men. The first statement of the complainant describes the visit to the apartment as follows:
“At the apartment the four drank vodka mixed with fizzy water and honey. It was all they had. It wasn’t a full bottle but I think I had more to drink than the rest, I don’t know how much. I don’t remember the names of these two guys. I was very drunk at this stage. We stayed up drinking and dancing and I think it was about 8.00am – I can’t be too sure, it was getting bright anyway.”
Ms. R, a friend of the complainant, describes the visit in her statement as follows:
“. . . and arrived out there with them sometime around 4.00 a.m. to 4.30 a.m. There were just the four of us. We had a few drinks. We all drank vodka. Both of us drank a fair bit but we were not mad drunk. [L.] went to a bedroom separately with John for a while. I don’t know what happened between them. I remained in the sitting room with K. We snuggled but we did not sleep together. We watched the TV and talked and (L.) came in and out to us in the sitting room. Anytime I saw her in the sitting room she was fully clothed so I don’t think anything went on between them. She did not tell me anything about sleeping with him. I don’t think she did.”
10. On behalf of the applicant it was contended that the identity of the men in the flat is relevant for a number of reasons:
(i) There is a strong suggestion that the complainant may have been intimate with one of the individuals. If so this might support a suggestion that in drink the complainant has a tendency towards such intimacy. That is relevant to what occurred later at the green area in a public place where it is alleged the assault occurred.
(ii) Moreover if such intimacy did take place it raises other issues which go to the credibility of the complainant. The suggestion that she did not have underwear going out that night might not be true. The suggestion that she did not remember the names of the individuals also has a different connotation (particularly in light of recent events detailed below). The omission to say that she had gone to the bedroom with the young man may not have been a simple matter of recollection. The reason for her refusal to be examined genitally is another factor which merits consideration. If such omissions or conduct were deliberate and strategic then these are factors which go to credibility.
(iii) Further it is undoubtedly the case that these men would be in a position to offer useful material to piece together the events of the night, material which in one way or another, might reasonably have a bearing on the complainant's credibility.
11. On 18th December, 2003, an application was made to the Hon. Mr. Justice Carney to have the complainant deposed for the specific purpose of exploring the issues raised above. The application was resisted by the State which said that it was open to the applicant to write to them requesting the gardaí to interview the complainant in respect of the matter. The learned judge refused the application. 12. On the 19th January, 2004, a letter was written to the State requesting that the information be obtained. Ultimately members of the Garda Síochána interviewed the complainant and a statement was taken. In this later statement the complainant stated that she knows the identity of the two individuals. This appears to be at variance with her earlier statement. The complainant refuses to divulge any details of the individuals on the grounds that she does not believe this to be of any relevance. 13. The High Court held:
“I consider that it would have been an unwarranted intrusion on the part of the gardai to have asked the complainant about her prior sexual history or whether she had been intimate with anyone else on the night before the alleged incident concerning the applicant. I do not consider that the applicant has advanced even an arguable case in support of the contention that the gardai should have asked the complainant about what occurred with other men on the previous night and questioned her in relation to her prior sexual, history including what may have occurred the previous night.
The obligation on the gardai to seek out evidence was stated by Hardiman J. in Dunne v. Director of Public Prosecutions  2 LR 305 not to extend to any remote, theoretical or fanciful possibility. Ibelieve that the applicant's case is based on such a remote, theoretical or fanciful possibility. As stated by McCracken J in McKeown v. Judge of the Dublin Circuit Court (Unreported, Supreme Court, 9th April, 2003) at p. 9 “[t]here obviously are limits to the lengths to which the gardaí must go in either seeking out or preserving evidence." I believe that what has been suggested in the instant case goes beyond those limits.
I am particularly conscious of the provisions of s. 3 of the Criminal Law (Rape) Act, 1981 which provides, inter alia, as follows:-
‘(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than the accused’.”
The applicant has appealed to this Court on the grounds that the learned trial judge erred in law in failing to grant leave to apply for judicial review, in finding that it would be an unwarranted intrusion on the part of the Garda Síochána to have asked the complainant about her previous sexual history or whether she was intimate with anyone else before the alleged incident, in relying on s. 3 of the Criminal Law (Rape) Act, 1981 and in finding that the mischief the applicant complains of is something that can be adequately dealt with at the trial. 15. Ms. Isobel Kennedy S.C., counsel on behalf of the applicant, and Mr. Anthony Collins S.C., counsel on behalf of the respondent, presented written and oral submissions to the Court which were most helpful. Counsel agreed that the issue of consent is at the core of the case. On the facts it is contended that the credibility of the parties will be in issue also. Counsel for the applicant referred the Court to and relied upon Braddish v. The Director of Public Prosecutionsand His Honour Judge Haugh 3 IR 127 and Dunne v. The Director of Public Prosecutions 2 ILRM 241. 16. The basic concepts in Braddish and Dunnehave long been principles in the common law. In Murphy v. The Director of Public Prosecutions  I.L.R.M. 71 at p. 74 Lynch J. referred to and relied on Dillon v. O’Brien and Davies  20 L.R. I.R. 3000 where Palles CB stated at p. 317:
“But the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial.”
In Murphy v. Director of Public Prosecutions Lynch J. held that evidence relevant to guilt or innocence must, so far as is necessary and practicable, be kept until the conclusion of the trial; which principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence. Further, an accused must be afforded every reasonable opportunity to inspect all material evidence which is under the control and power of the prosecuting authority in order adequately to prepare his defence.
In Dunne v. Director of Public Prosecutions 2 ILRM 241 the applicant was charged with robbery of a petrol station. Part of the petrol station was covered by a video camera surveillance. On other occasions when robberies had occurred, relevant video tapes had been obtained by the Gardaí in previous investigations. In this case no video tapes of the robbery were given to or obtained by the investigating gardaí. The applicant sought an order of prohibition of his trial. McGuinness J. at p. 245, stated:
Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.”
I would adopt and apply this statement. It appears to me that this line of case law does not apply to the issue raised by the applicant. It is not a case of the Garda Síochána or the Director of Public Prosecutions losing an article or document. It is not a case of preserving an article or document.
In fact, at the applicant’s request the Garda Síochána sought a further statement of the complainant and the names of the two men. The complainant refused to identify the men. In such circumstances it may be enquired as to what further steps the Gardaí could have taken to compel the complainant to name the men. I cannot conceive of any. Thus the State has neither hindered nor refused assistance.
It is in this context that the applicant seeks a permanent prohibition of his trial. The applicant seeks a prohibition of the trial in relation to evidence over which the Director of Public Prosecutions has no control or power. While that would not be a determining factor if the evidence was material to the guilt or innocence of the accused, it is a factor in this case.
Further, the application is being made in a situation where the issue remains hypothetical in a number of ways referred to herein. 17. The alleged facts of the case are relevant. The prior events in the apartment of the two men were described in the statements of the complainant and the witness
Ms. R as set out above. After that visit they went to town to an early house and had some more drinks, vodka and Carlsberg beer. This was in the Chancery Inn on Inns Quay. When they went outside the complainant said that the fresh air hit her and she was really drunk. Her friend rang the complainant’s boyfriend and the two girls had an argument. It appears that they were both severely drunk. They went down a laneway and were joined by a man who it is alleged is the applicant. After the argument Ms. R left her friend in the company of the man. The complainant went to another public house and had a drink there with this man and another individual. They then went to two more public houses but were refused service. They went to another two licensed premises where they were served. Her next recollection is of waking in a room which it appears was in the home of the applicant. They were ordered out of the house. They left the house. They arrived on a green area in a public place. The complainant described what allegedly followed in the following terms:
“He got forceful then. I remember him pinning me down. I screamed as hard as I could, ‘Help me help me, somebody help me’. I didn’t see anyone else around. He pulled my trousers. I don’t know how but my trousers were down around my knees. I was on my back. He had one hand pulling my hair and my left shoulder and arm pinned me down. I was struggling. I had a scarf on, a long pink woollen scarf around my neck, and I remember him pulling at it pinning me down. I wasn’t wearing underwear under my trousers. I hadn’t any on leaving my house Thursday night. I struggled to break free and get up but he had me pinned down. He said if I didn’t shut up he was going to crush my skull. I think he mentioned using a rock. I shut up cos I knew he meant it. I was in total fear. He ripped my trousers down, there’s a button and zip on them. I was really frightened he said he was going to fuck me or something along those lines. I knew that he was going to do anyway coz he ripped my trousers. His trousers were open. I knew he was going to penetrate me or kill me. I tried to calm him down . . . I said to him ‘Why would you want to do that. We had such a nice day. You save (sic) my life and I love you for that. Please. Please’. I was trying this to calm him down, just to make him stop. I said he saved my life cost (sic) earlier walking down to C.P.’s I said I was going to jump into the river. I was upset and very drunk and he talked me out of it. I wasn’t being serious about jumping just very drunk. I think talking to him must have calmed him. He was like a madman, crazy. He was still on top of me, pinning me down. He stopped and looked at me I said ‘I love you, it going to be o.k.’ I think I said something like letting me satisfy him. I wanted to get up from under him so I just said this to let him think he could trust me. He must have (sic) lying on his back then. He still had a hold of my head, by my hair. I remember his trousers and underpants were down around the top of his thighs. I remember his penis was erect. I was still scared of him. I was moaning as if I was enjoying it, it was only to try and get him relaxed cos he still had a hold of my hair. I remember his penis in (sic) mouth. I cant understand or how it happened but I realised he hadn’t a hold of me and I jumped up and ran. He didn’t ejaculate.”
She then ran away. Witnesses said that while running she fell. She ran, on her own account, through a river and was met by a man called P.D. who is a witness in the case.
The alleged incident and its aftermath were witnessed by a number of people who have given statements and who may be witnesses in the case. Thus this is an unusual case in a category of cases where there are seldom witnesses to the event. Often in such cases it is just the word of one person against another. Further, the type of event described giving rise to the charges is entirely different to the visit by the complainant and Ms. R. to the flat, described earlier. 18. The policy of the law in relation to the sexual experience of a complainant is clear. If an accused, such as the applicant, pleads not guilty to a charge of rape then, except with the leave of the judge, no evidence may be adduced or no question asked in cross examination about any sexual experience of a complainant. Section 3 of the Criminal Law (Rape) Act, 1981 is clear and it states:
“(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused.
(2) ( a ) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.
( b ) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.
(3) If, notwithstanding that the judge has given leave in accordance with this section for any evidence to be adduced or question to be asked in cross-examination, it appears to the judge that any question asked or proposed to be asked (whether in the course of so adducing evidence or of cross-examination) in reliance on the leave which he has given is not or may not be such as may properly be asked in accordance with that leave, he may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section.
(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.”
Whether there is sufficient material for an application to be made to the trial judge pursuant to s. 3 of the Criminal Law (Rape) Act, 1981 is for the trial judge to decide. 19. Decision
In considering an application for prohibition a review court should not merely pick out an element and conclude that arising from it there is a possibility of an unfair trial. That is not the test. The test is, as stated in Z. V. Director of Public Prosecutions  2 I.L.R.M. 481, that of a serious risk of an unfair trial. The applicant here is applying on the basis of a hypothesis which might or might not happen. The alleged facts of the two events are dissimilar in circumstances and time. Whether any further basis for such an application pursuant to s. 3(1) (5) can be established is within the realm of the trial judge, in the context of the evidence adduced at trial, the cross examination, and the defence raised on behalf of the applicant. The applicant in this case has not raised an arguable case that there is a serious risk of an unfair trial.
The refusal of leave to apply for judicial review to the applicant will return the case to a position in which it is assumed that the trial judge will ensure a fair trial. An arguable case has not been established that that there is a serious risk that the applicant will not receive a fair trial.
The issues raised are matters for the trial judge. In particular issues going to consent, credibility, and the presence or absence of a witness, for example Ms. R, who is presently outside the jurisdiction and who has apparently indicated that she will neither attend the trial nor give evidence by video link, are matters for the trial judge.
In effect the applicant seeks to force the complainant, in advance of the trial, to name persons with whom she may or may not have been intimate at a time considerably prior to the actual events which are the subject-matter of the prosecution of the applicant by the Director of Public Prosecutions. To do this would be to introduce a back door to evade the policy laid down in statute, especially s. 3 of the Criminal Law (Rape) Act 1981.
The entire trial will be under the control of the trial judge, who has the duty to conduct a fair trial and who is able to make orders and directions in relation to all relevant matters as they arise. The fact that an application such as this has been brought prior to trial does not preclude the trial judge from dealing with any issues which may arise as the trial proceeds.
Consequently, I would affirm the decision of the High Court and dismiss the appeal of the applicant.