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Cite as: [2007] IESC 12, [2007] 3 IR 299

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Judgment Title: O'H -v- DPP

Neutral Citation: [2007] IESC 12

Supreme Court Record Number: 172/03

High Court Record Number: 2002 438 JR

Date of Delivery: 28 March 2007

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Fennelly J., Kearns J.

Judgment by: Fennelly J.

Status of Judgment: Approved

Judgments by
Appeal allowed - set aside High Court Order
Murray C.J., Denham J.
Hardiman J.

Outcome: Allow And Set Aside


No. 172/03
Murray CJ
Denham J
Hardiman J
Fennelly J
Kearns J




JUDGMENT of MR JUSTICE FENNELLY delivered the 28th day of March, 2007.

1. This an appeal, by the Director of Public Prosecutions, from the judgment of the High Court (McKechnie J) date 28th February 2003, whereby he restrained the Director from further prosecuting the above-named Applicant in respect of charges for sexual offences allegedly committed in the early 1980’s. In order to avoid confusion, I will refer to the Appellant as the Director and to the Respondent as “the Applicant.”
2. This is, thus, yet another in the long line of cases concerning long-delayed prosecution for such offences. The Applicant had, however, failed, before O’Sullivan J, to prevent continuance of his prosecution on the ground of delay alone. The present is a second set of judicial review proceedings arising out of subsequent requests for disclosure or tracing of evidence and information by the prosecution.
3. McKechnie J held that there had been such delays by the prosecution in complying with what he held to have been its obligations to make full disclosure promptly as to amount to blameworthy delay. He held that those periods of delay were inordinate and inexcusable and could not be justified and that the rights of the applicant would be violated if he were to permit continuation of the Criminal proceedings against him.
4. Since the delivery of the High Court judgment in this case, the principles applicable to prosecutorial delay have been clarified by the unanimous judgment of this Court in PM v DPP [2006] 2 ILRM 361. Kearns J delivered that judgment. He cited with approval passages from the judgment of Keane C.J. in PM v Malone [2002] 2 IR 560.
5. The essence of the principles established in these cases is that culpable or blameworthy delay on the part of the prosecution does not, in itself, automatically give rise to an order preventing further prosecution. The Court should engage in a balancing operation. It should balance the public interest in prosecuting crime against the interests of the applicant. Where it is not established that there is a real risk that, due to delay, loss of evidence or the like, the applicant will not have a fair trial, the applicant is, nonetheless, entitled to rely on a number of matters outlined and considered in the case-law. One of these is any additional distress that the applicant has suffered as a result of the delay.
6. These matters will need fuller consideration in this judgment. It will be necessary to consider, in particular, whether the prosecuting authorities were, in fact, blameworthy in respect of their obligations of disclosure so as to contribute significantly to any delay. In addition, it will be necessary to consider whether an applicant, such as the Applicant in the present case, is required to place before the court evidence of any additional distress upon which he seeks to rely.

The Facts
7. The facts are outlined in great detail in the judgment of the learned trial judge. The following is a summary of the essential material.
8. The Applicant was originally charged with three counts of indecent assault contrary to common law as provided for in section 10 of the Criminal Law (Rape) Act, 1981. Those offences are alleged to have been committed between 31st July 1981 and 3rd August 1982 against the same female person who was born on 3rd August 1967. She was, therefore, approximately fifteen to sixteen years of age at the relevant times. The applicant was born in 1937. He is a priest. He has at all times denied the allegations in statements to gardaí, though he did not swear any affidavit either in the earlier judicial review proceedings heard by O’Sullivan J or in the current proceedings.
9. Subsequent to the return for trial six more charges of indecent assault, alleged to have been committed at later dates up to 1987, were added. These were later dropped by the prosecution and are now irrelevant.
10. The Applicant first learned of the complaints on or about 26th July 1995, when solicitors acting on behalf of the complainant wrote to the Applicant’s religious order. The complainant made a complaint to An Garda Síochána on 21st September 1995. The Applicant was charged before the District Court on 13th June 1997 and returned for trial on 16th September 1997. The matter was transferred to the Circuit Criminal Court sitting outside Dublin on 7th October 1997. A hearing date was fixed for 9th March 1998. This date had to be vacated due to a possible conflict of interest affecting the assigned Circuit Court judge. The trial was subsequently adjourned from time to time until, as will appear later, it commenced on 4th October 2000.
11. The Applicant on 25th May 1998 obtained leave to apply, by way of judicial review (the first proceedings), for an order of prohibition or alternatively an injunction restraining the DPP from taking any further steps in the criminal proceedings against him. The Applicant complained of the generally prejudicial effect of the delay and, in addition, claimed that there was a real risk that he would not have a fair trial, due to the loss or absence of evidence.
12. The trial was postponed pending determination of those proceedings.
13. In the same proceedings, the Applicant sought an order of mandamus directing the Director to furnish all reports and records of Dr Bereen which were within his procurement. Dr Bereen had treated the complainant since 1985. The application was made in a context where the complainant had given to the prosecuting garda specific permission to obtain her psychiatric reports from Dr Bereen. The Applicant maintained in those proceedings that fair procedures and natural justice required that these reports be made available to him.
14. O’Sullivan J, in a reserved judgment dated 25th March 1999, rejected the application for orders prohibiting further prosecution.
15. O’Sullivan J also considered the request for access to Dr Bereen’s report. The learned judge noted that Dr Bereen had sworn an affidavit outlining his treatment of the complainant. He concluded that “clearly the material contained in Dr Bereen’s reports may be of considerable relevance not to say assistance to the Applicant in the conduct of his defence.” The debate before O’Sullivan J concerned whether the prosecution should provide Dr Bereen’s reports to the defence or whether, as counsel for the Director contended, they should be sought by way of application for third-party discovery. This all took place prior to the decision of this Court in People(DPP) v Sweeney [2001] 4 IR 102 to the effect that the Rules of the Superior Courts regarding discovery do not apply in criminal proceedings. On the facts of the particular case, O’Sullivan J did not accept the argument that, since the prosecution did not have the relevant documents in their possession, they were under no obligation to hand them over. In view of the complainant’s authority to the garda, he considered that the latter was in a position to require Dr Bereen to hand over the reports and to furnish them to the Applicant. O’Sullivan J said that he was “prepared to make an order directing the [Director] to obtain the complainant’s psychiatric reports from Dr F.J. Bereen pursuant to the explicit authority to that effect given by the Complainant ……and to furnish copies thereof to the Applicant upon receipt.” However, upon the delivery of the judgment, counsel for the Director gave an undertaking in similar terms, and it was unnecessary to make an order. The order allowed liberty to apply.
16. It subsequently emerged that Dr Bereen was unwilling, on the ground of patient confidentiality, to make his reports on the complainant available. The matter was re-entered before O’Sullivan J, who explained to Dr Bereen, on 27th July 1999, that his medical reports should be handed over.
17. Correspondence took place thereafter between the State Solicitor and Dr Bereen with a view to complying with the undertaking given on the part of the Director. The latter wrote on 22nd September 1999 saying that, in his opinion, “it would be better to offer the clinical case notes to be perused by the appropriate people.” On that basis, he made his notes available to the State Solicitor. These, consisting of numerous documents encompassing a considerable number of years, were supplied to the Applicant’s solicitors on 7th October 1999. As Garda Maureen McFadden has sworn they took some time to assemble. They included more than sixty pages of clinical and other hospital notes and records. These disclosed that the complainant suffered from multiple psychological and psychiatric problems including depression and suicidal tendencies. These were principally associated with alcoholism. One note mentioned “obsessive thoughts of her childhood sexual abuse,” without mentioning any culprit. They also included Dr Bereen’s own report dated 7th July 1994 stating that she had experienced two periods of sexual abuse aged between 13 and 15 years and again at 17-18 years of age. It was stated that the perpetrator was a priest. One of the documents handed over at that time was a copy of a letter dated 16th July 1994 from Mary McDonald, Social Worker with Drogheda Community Services Centre addressed to Dr Bereen. It mentioned the complainant’s ability to cope with her child and suggested that it would be more appropriate to community care and that she had been referred to “Margaret O’Sullivan who is a social worker with the Community Care team” in a particular named Health Centre. Another letter of the same date will be mentioned later. It was not included in the disclosure made in October 1999.
18. On 13th December 1999, the Applicant’s solicitors wrote to the state solicitor about this material. That letter stated:

• The discovery material may be inadequate, “in that although reference is made …to a number of psychosexual evaluations carried out on the complainant we have not been furnished any notes which may have been taken by Dr Bereen in relation to his psychosexual evaluations……;
• It was also pointed out that the material disclosed that the complainant had been released in the care of workers presumed to be of the Eastern Health Board and that the latter Board might be in possession of documentation concerning the treatment of the complainant.

19. The solicitor asked, in respect of the first matter whether it was the case that psychosexual evaluations of the complainant had taken place though no notes had been kept and, in respect of the second, that the state solicitor obtain from the complainant a consent to the release of all documentation in the possession of the eastern Health Board concerning her treatment.
20. The solicitors for the Applicant considered that there were other relevant records in existence. They applied to O’Sullivan J on 19th January 2000. He directed that Dr Bereen attend to give evidence as to whether all medical records had been provided. On 17th February, Dr Bereen gave evidence and confirmed on oath that all records in his possession had been handed over. According to the grounding affidavit sworn in these proceedings on behalf of the Applicant, both he and the Court accepted that this was so.
21. The solicitor’s affidavit then states:

“…as there were records in relation to the Complainant in possession of the North Eastern Health Board which were not in the possession of Dr Bereen an application was made to [O’Sullivan J] to make an order directing the North Eastern Health Board to furnish such documentation but the Learned High Court Judge was of the view that this was a matter which should be properly done by way of Notice of Motion to the Third Party namely the North Eastern Health Board.”

22. An application for third-party discovery was, accordingly, made in the Circuit Court and an order was duly made on 21st March 2000. An affidavit was, in due course, sworn on behalf of the North Eastern Health Board on 26th September 2000.
23. According the affidavit of the Applicant’s solicitor, it, therefore, appeared as of that date, 26th September 2000, that all necessary documentation had in fact been furnished.
24. The trial of the Applicant commenced before His Honour Judge Groarke and a jury on 4th October 2000. The jury was discharged by reason of evidence given by the complainant, which the trial judge considered to have been prejudicial. It is not suggested that those events have any bearing on the present application.
25. However, certain aspects of the trial and matters connected loom large in the submissions made on behalf of the Applicant, as they did in the mind of the trial judge.
26. During the partial trial, counsel for the Applicant sought to rely, in cross-examination of Dr Bereen, on notes of various other medical personnel which had formed part of the medical records furnished by the State pursuant to the directions of the High Court. Counsel for the prosecution objected to such reliance unless the defence was in position to call the authors of the notes to prove their making. The trial judge, His Honour Judge Groarke, ruled in favour of the prosecution. But, of course, the trial was stopped and the jury discharged for other reasons.
27. The Applicant then applied successfully to have the retrial transferred to the Dublin Circuit Criminal Court.
28. The Applicant’s solicitors subsequently sought the assistance of the prosecution in tracing the various authors of the notes. This commenced with a letter of 17th October 2000, in which the Applicant’s solicitor stated that he would be obliged if the Chief State Solicitor would “make the relevant enquiries of Dr Bereen as to the whereabouts of these personnel and indicate whether they are available to prove the notes in question……” This correspondence continued until June of the following year. It was not suggested in this correspondence that the prosecution was under an obligation to assist the defence in tracking down witnesses, though the Chief State Solicitor’s office did in fact make inquiries and provided some information. Contemporaneously, the solicitor for the Applicant conducted his own inquiries with the North Eastern Health Board. That Board provided names and addresses of the authors of some of the notes. The solicitor wrote to a number of doctors at the addresses given. The trial was adjourned from time to time before the Dublin Circuit Criminal Court while these investigations were being pursued.
29. On 19th June 2001, the Applicant’s solicitors wrote further to the Chief State Solicitor concerning their efforts to trace the various witnesses they were seeking. In the course of that letter, there is a mention of a letter of 16th July 1994 to Margaret O’Sullivan from Mary McDonald containing the following statement:

"[the complainant ] is from an alcoholic background and there are allegations of physical and sexual abuse within the extended family.”
    30. The letter does not disclose when that copy letter had come into the possession of the solicitors. It was not, as already stated, included in the documents handed over by Dr Bereen in October 1999, although there was among those documents a letter of the same date from Ms McDonald to Dr Bereen, which is mentioned above. It seems that it can only have come from the discovery made by the North Eastern Health Board on 26th September 2000. No other possible source is mentioned in the grounding affidavit
    31. The trial was listed for 26th June 2001. On 22nd June a hearing took place in the Dublin Circuit Criminal Court, before Her Honour Judge Dunne, as she then was. Counsel for the Applicant applied for an adjournment of the trial, in part on the ground that full disclosure had not been made by the prosecution and in part based on the need to contact and summon defence witnesses. There was a lengthy debate about the steps that needed to be taken in order to get the case ready for trial. Counsel for the Applicant complained to the Circuit Court that the Applicant had been misled by the State, when, in a letter dated 7th June 2001, it had been alleged that that the authors of the relevant medical records had left Ireland and were not contactable. That letter was based, as seems to be accepted by the Applicant’s solicitor in his grounding affidavit, on a communication received from the gardaí dated 6th June 2001. It appears, on the other hand, that the solicitors for the Applicant had received letters dated 16th and 24h May 2001 from the North Eastern Health Board which set out the names and addresses of the authors of these medical records. Judge Dunne concentrated on advising on steps that should be taken by both parties in order to prepare for trial.
    32. As a result of these matters, the trial of the Applicant was adjourned. On 1st November 2001, the state furnished statements from the six witnesses who attended the complainant while she was a patient in a particular hospital under Dr Bereen’s care and who were the authors of the notes in question.
    33. In addition, there was attached to those statements a copy of a file entitled Drogheda Community Services. According to the Applicant’s solicitor it is crucial that this file contains a notation to the effect that the complainant had made a complaint of sexual abuse against her uncle. That note, dated 6th July 1994, reads, so far as relevant: “She mentioned family history of alcoholism – alleged physical abuse by father – S.A.[meaning sexual abuse] by uncle – discussed possibility of R.C.C.” And, furthermore, that “the said notation contains a reference to what appears to be the Rape Crisis Centre.”
    34. The grounding affidavit of the solicitor for the Applicant, seeking leave to apply for judicial review, like the submissions made on his behalf on the hearing of this appeal, attaches great importance to the fact that this particular document had not been available to the Applicant at the time of the incomplete trial which commenced in the Circuit Court on 4th October 2000. The deponent swears as follows:

    “The significance of this particular document was that notwithstanding the fact that discovery had been apparently complied with prior to the Applicant’s trial commencing in ……Circuit Court this document in fact was not in the possession of the Defence at the said trial. Accordingly, the Applicant herein had stood trial in circumstances where a document which would have been of significant assistance to him in his defence was not made available to him notwithstanding that it was in the procurement of the Applicant [the Director]. It appears therefore that despite the fact that the Respondent [the Director] had indicated to the Applicant that full disclosure of medical records had been made prior to the Trial in ……Circuit Court, documents containing a reference to the Complainant having made another allegation of sexual abuse had not been provided to the Defence. I am advised by Counsel and believe that this would have been of great significance and hugely relevant to the cross-examination of the Complainant.

    35. This disclosure led to further adjournment of the trial on the application of the Director. The solicitors for the Applicant wrote to the Chief State Solicitor on 4th February 2002, pointing out various alleged failures on the part of the prosecution and inviting the Applicant to withdraw the case. The Applicant replied on 19th February declining to do so. On 4th March 2002, the matter was listed for mention in the Circuit Criminal Court. Counsel for the prosecution stated that a further missing file had been found, that they needed time to furnish it to the Applicant and that it had been decided to proceed on foot only of counts 1, 2, and 3, i.e., those representing the original charges. Thus, a new indictment would be prepared. On 15th March 2002, the Chief State Solicitor’s office furnished a copy of the previously missing file. The Court has not been told of the significance of that file, if any. Judge Dunne noted that three previous trial dates had been vacated and fixed 8th October 2002 as the new trial date, marking it as peremptory against the prosecution.
    36. On 18th June 2002, the Chief State Solicitor’s office furnished a copy of a letter from the Dublin Rape Crisis Centre indicating that it had no records dating from the period requested by that office. The letter also stated that it was the policy of the centre that it would “neither acknowledge or deny that a person has attended at this centre.” Mr McCartan’s grounding affidavit suggests that it can be inferred that, had an inquiry been made at an earlier date, the centre might have had records in its possession concerning the complainant.

    The Proceedings
    37. On 26th June 2002, the Applicant applied for leave to apply for judicial review by way of an order of prohibition or alternatively an injunction restraining the Director from taking any further steps in the proceedings. Leave was granted by McKechnie J. The grounds were as follows:

    “that the Applicant failed to make appropriate and prompt discovery and/or failed to ensure that appropriate and prompt discovery was in fact made;
    that there had been considerable and inordinate delay on the part of the State in complying with its obligations to seek out and make available witnesses and written material;
    that the applicant’s right to a trial in due course of law and with reasonable expedition has been breached; and
    that by reason of the aforesaid delay Mr M. O’H. has been prejudiced and has suffered excessive pre-trial anxiety.”
      38. The application was grounded on the affidavit of Mr Noel McCartan, the solicitor for the Applicant. The reliefs sought are grounded, in particular, on the following concluding statements:

      “There has been considerable and inordinate delay on the part of the State in complying with its obligations. There was considerable delay on the part of the State and the North Eastern Health Board in the issues raised in correspondence. Furthermore, there was and is an absence of clarity in relation to the disclosure aspect of this particular case.”
        39. As already stated, the Applicant did not swear any affidavit. The allegation that the Applicant “has suffered excessive pre-trial anxiety,” though contained in the Statement of Grounds, is not supported by any averments in Mr McCartan’s affidavit.
        40. Other than the rather cryptic reference by Mr McCartan to “absence of clarity,” there is no statement that the disclosure by the prosecution is or, more precisely, at the date of the order granting leave, was insufficient.
        41. I do not think it is necessary to summarise at this point the opposite contentions of the Director, and contained in the affidavit sworn on his behalf by Garda Maureen McFadden. In essence it is contended that there was no culpable delay on the part of the Director.
        42. It is clear, I think, that the Applicant’s claim is based on prosecutorial delay. It is not contended at this time, other than in some uncertain way, that there is any specific outstanding information or evidence which has not been disclosed. Nor is it contended that the Applicant faces a real risk that he will not have a fair trial by reason of delay or the absence of any specific or identifiable piece of evidence. Apart from the fact that the application for an order preventing continuance of the proceedings was rejected by O’Sullivan J in 1999, leave to apply for judicial review was not granted on that ground.
        43. The application for judicial review was heard by McKechnie J and determined by him in favour of the Applicant in his judgment dated 28th February 2003. The learned trial judge approached the case on the assumption that, although this Court subsequently ruled that third-party discovery orders could not be made in criminal proceedings (see People (DPP) v Sweeney [2001] 4 IR 102), the order of 21st March 2000 made against the north Eastern Health Board should be treated as having been validly made. He referred to the duty of disclosure lying on the prosecution. (Ward v Special Criminal Court [1998] 2 I.L.R.M. 493; R. v Browne (Winston) [1998] AC 367)).
        44. He referred to the undertaking in lieu of an order given to O’Sullivan J in respect of Dr Bereen’s medical records and continued:

        “It is not correct to say in my view that by reason of these facts alone, the Director of Public Prosecutions had no further responsibility with regard to documentation or with regard to identification of certain persons or the tracing of certain witnesses. In my opinion apart altogether from the common law duty of disclosure, the Director of Public Prosecutions by reason of a combination of factors assumed such a responsibility. These factors include the correspondence passing between Messrs. McCartan and Hogan Solicitors and the Chief State Solicitor, the actions and conduct initiated by the respondent and carried out either by him or at his direction by others, the exchanges which occurred on several occasions in the Circuit Criminal Court when this case was in for mention and also by reason of certain directions which Judge Dunne gave during the course of such hearings.”
          45. This passage is central to the conclusion of the learned trial judge. In effect, he found that the Director, regardless of whether he had a duty to do so or not, had undertaken to assist the applicant in tracing the names and addresses and ascertaining the availability of the various authors of the medical and other notes handed over on foot of the undertaking to O’Sullivan J in 1999. His account of the facts commences with the letter of 17th October 2000, in which the Applicant’s solicitor stated that he would be obliged if the Chief State Solicitor would “make the relevant enquiries of Dr Bereen as to the whereabouts of these personnel and indicate whether they are available to prove the notes in question……” He then mentions that reminders had to be sent to the Chief State Solicitor on 16th and 30th November. Referring generally to this correspondence, the learned trial judge said:

          “In none of this correspondence can I see a position of disclaimer or such like or similar stance adopted by the Director of Public Prosecutions. I therefore see this documentation and the follow up on what was requested as being entirely consistent with the Director of Public Prosecutions assuming responsibility in his own right, of dealing with the issues raised by the defence.”
            46. In reaching this conclusion, the learned trial judge also placed reliance on the transcripts of a number of pre-trial hearings before Judge Dunne. At one point, he states that Judge Dunne on 22nd June 2001 “effectively directed the State to carry out the type of inquiry which evidently was still required.”

            47. He concluded:

            “I therefore conclude on the particular facts of this case and irrespective as to what the strict legal position might otherwise be, that by reason of the matters outlined above, Director of Public Prosecutions had a responsibility to identify the authors of the notes in question and to ascertain their whereabouts as well as having a continuing responsibility in terms of disclosing and making available all relevant documents to the defence in this case.”
              48. The learned trial judge reviewed the then state of the authorities on the issue of blameworthy or culpable prosecutorial delay. It must immediately be said that he did not have the benefit of the subsequent decision of this Court in PM v Director of Public Prosecutions [2006] 2 ILRM 361. That decision requires that the court, considering whether to prevent a prosecution on the ground of prosecutorial delay should balance relevant interests. I will refer to these later. He attached particular importance to the High Court judgment of Geoghegan J in P.P. v Director of Public Prosecutions [2000] 1 I.R. 403, where the learned judge stated at page 411:

              “I think that where there has been a long lapse of time, as in these prosecutions for sexual offences, between the alleged offences and the date of complaint to the guards, it is of paramount importance, if the accused's constitutional rights are to be protected that there is no blameworthy delay on the part of either the guards or the Director of Public Prosecutions. If there is such delay, the court should not allow the case to proceed and additional actual prejudice need not be proved.”(emphasis added)
                49. The learned trial judge also referred to the judgment of Keane C.J. in P.M. v Malone [2002] 2 IR 560, which mentioned the need for a balancing process before deciding to prohibit a trial.
                50. He then attributed blame to the prosecution in respect of a number of periods. They were as follows:

                • a period of two years between 17th February 1998, when the applicant’s solicitors first requested Dr Bereen’s notes and 17th February 2000, when O’Sullivan J accepted that the undertaking given to him had been complied with;
                • an unspecified period relating to the aborted trial on 4th October 2000 when, he held, great injustice would have been done if the trial had proceeded in the absence of the identification of medical personnel;
                • a period from 17th October 2000 through the correspondence with the Chief State Solicitor and the Health Board to March 2002; he held that the Director had failed to address, “in any reasonable time frame the continuing obligations which he still had not discharged.

                51. The learned trial judge ruled that the delays by the prosecution had been inordinate and inexcusable and that the rights of the applicant would be violated if he did not grant the order. He did not specify which rights of the applicant had been or would be infringed. In the curial part of his judgment, he did not mention any balancing process. In particular, he made no mention of any extra distress that the applicant might have suffered as a result of the prosecutorial delay which he found to have taken place.

                The Appeal
                52. The Director has made written submissions. In addition, Mr Maurice Gaffney, Senior Counsel, made succinct oral ones. Firstly, in respect of disclosure, he submits that the obligation of the prosecution is to produce such evidence as is in its possession and that there is no authority for the proposition that there is an obligation on the prosecution to pursue a line of inquiry that may lead to evidence that may assist the defence. Insofar as the prosecution does undertake inquiries the defendant should expect to allow reasonable time for that process. On the facts of this case, such inquiries as were made were made to facilitate and help and, in a sense as agent of the defence. It is submitted that there was no sufficient evidence to support the findings of the learned trial judge in respect of delay. Where the learned trial judge observes that the prosecution had not denied that the material sought by the defence was relevant, it pointed out that only the applicant could make a judgment on that.
                53. On the facts, the Director submits that the conduct of the applicant was, at all material times, consistent with a determination to use delay for which he was aware that the Director was not responsible as aground to seek prohibition.
                54. The Director relies especially on the decision of this Court in PM v Director of Public Prosecutions, cited above. Delay alone is not enough to prohibit a trial. The dictum of Geoghegan, cited by the learned trial judge is no longer good law. The applicant has not shown that he was prejudiced by the alleged prosecutorial delay. The right of the people of Ireland to prosecute outweighs any stress or anxiety that may have been suffered by the applicant, who has, in any event, sworn no affidavit. It would lead to great uncertainty if stress and anxiety were to be inferred in cases where there was no admissible evidence of any such state of mind.
                55. Counsel for the applicant, Mr John Rogers, Senior Counsel, fully supported the judgment of the learned trial judge. He referred to the chronology, set out above, in great detail. He attached especial importance to the fact that the applicant had undergone a trial at a time when, as he put it, there was no full or proper disclosure. This distinguishes the case from any others involving anxiety. It concerns the fundamental right to a fair trial. In any event, the order of the court granting leave sufficiently covered the fact that that the applicant had suffered anxiety.
                56. The Director had, in Mr Rogers’ submission, taken on responsibility for disclosure as from the date of the applicant’s solicitors’ letter of 13th December 1999.
                57. Having instituted the prosecution in 1997, the Director was aware of the fact that there was an issue regarding the psycho-sexual state of the complainant. Mr Rogers submitted that there was an obligation on the prosecution to conduct extensive inquiries via the Garda Síochána and should have conducted extensive searches of the files of social workers.

                58. This is a case of prosecutorial delay. The law has recently been comprehensively decided and explained in the judgment of Kearns J, with the agreement of a unanimous Court in PM v Director of Public Prosecutions. Kearns J approved a number of dicta of Keane C.J. in P.M. v Malone, cited above. I will first refer to that judgment. Firstly, the Chief Justice identified the principle, at page 572, as follows:

                “It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
                  That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.”
                    59. The Chief Justice proceeded to describe two of the types of prejudice, other than risk of an unfair trial, which might merit the stopping of a trial:

                    “The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus . The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.”
                      60. Finally, and most importantly, the Chief Justice, at page 581, mentioned the need for a balancing test:

                      “The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage. …………Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”

                      61. Kearns J, in PM v Malone, having reviewed and considered these dicta, proceeded:

                      “I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”
                        62. I will return to the question of the balancing test at a later point.
                        63. First, it seems to me that it is necessary to consider whether there was blameworthy delay on the part of the prosecution. I would have thought that, since O’Sullivan J, in his judgment dated 25th March 1999 rejected the applicant’s case for prohibition based on general delay, that any analysis of delay by the prosecution would have to commence from the date of that judgment. The learned trial judge, however, projected his findings back to 17th February 1998, when the applicant’s solicitors first requested Dr Bereen’s notes. On that basis, the total period of time which elapsed prior to the institution of the present judicial review proceedings was just over four years. From the date of the judgment of O’Sullivan J, it was just over three years. Clearly, the length of any delay is highly relevant.
                        64. The learned trial judge found that there had been prosecutorial delay for the period from 17th February 1998. However, the applicant applied for and obtained leave to apply for judicial review of the Director’s decision to continue the prosecution on 25th May 1998. The trial was accordingly postponed until the judgment of O’Sullivan J on 25th March 1999. Thus, the principal reason for delay during this period was the applicant’s own judicial review proceedings. Furthermore, it is not clear why the contention of the prosecution that it was not bound to hand over material which was not actually in its possession, even though held to be mistaken, constituted culpable behaviour. I dealt with the analogous problem of delay alleged by the prosecution in the conduct of judicial review proceedings in my judgment in TH v Director of Public Prosecutions (Unreported 25th July 2005). I there remarked: I do not think it right to scrutinise the various steps in the litigation with a view to assigning blame when a party unsuccessfully but bona fide takes or opposes a step in the procedure.” I do not think the prosecution was responsible for any culpable delay up to the date of delivery of the judgment of O’Sullivan J on 25th March 1999.
                        65. From the date of that judgment, the Director was, of course, responsible for the production to the defence of the medical records and notes of Dr Bereen. But was he in breach of that obligation? I do not think so. It was Dr Bereen who expressed doubts by reason of patient confidentiality. That matter was resolved at a further hearing before O’Sullivan J on 27th July 1999, but the Director was not at fault. I find it even more difficult to understand why the learned trial judge laid blame on the Director in respect of the period between the handing over of Dr Bereen’s records on 7th October 1999 and the final hearing before O’Sullivan J on 17th February 2000. The explanation for that period of delay was that the solicitors for the applicant, by a letter dated 13th December 1999, expressed doubts about the completeness of the records. This, in turn, led to a further hearing before O’Sullivan J on 17th February 2000. Dr Bereen attended and gave evidence that all his records had in fact been handed over. As the learned trial judge records at paragraph 7 of his judgment, O’Sullivan was satisfied with that evidence. The grounding affidavit in the present proceedings states that Dr Bereen “confirmed on oath that all the records which he had in his possession had been handed over and the Court accepted this evidence as did the Applicant.” I see no basis for the conclusion that the Director was to blame in respect of that period.
                        66. At that stage, therefore, the Director had fully complied with the obligation he had undertaken before O’Sullivan J on 25th March 1999. That obligation related only to Dr Bereen’s records. Although counsel for the applicant sought to persuade O’Sullivan J that there were other relevant records and asked him to make an order directing the North Eastern Health Board to furnish such documentation, that learned judge ruled that the proper procedure was for the applicant to apply in the court of trial, the Circuit Court, for an order for third party discovery against the Board. This was done in March 2000 and complied with in September 2000. Clearly, the Director bore no responsibility for this period. It expired very shortly before the trial on 4th October 2000. The grounding affidavit contains no suggestion or implication of any sort that either the Health Board or the Director was at fault during that period.
                        67. The solicitors for the applicant have not given any information regarding the discovery obtained from the Health Board. However, it is clear by inference, as I have said, that they already had in their possession, on that date, the letter of 16th July 1994 to Margaret O’Sullivan from Mary McDonald containing the statement that:[the complainant ] is from an alcoholic background and there are allegations of physical and sexual abuse within the extended family.”
                        68. I mention this because of the extraordinary emphasis placed by the learned trial judge on the hearing of 4th October 2000 and that, somehow, there was an event of great injustice. The applicant had access at that stage to all Dr Bereen’s medical records and to the discovery made by the Health Board. Insofar as there were other potentially relevant documents in existence, it has not been shown that they were in the possession of the Director. I cannot see that any fault can be attributed to the Director in respect of the period up to 4th October 2000.
                        69. Thereafter, fault has been attributed to the Director based on the finding that the Director undertook responsibility to the defence to identify the authors of the medical notes handed over by Dr Bereen, which the latter was unable to verify himself. The need for this material arose from the ruling of Judge Groarke that counsel for the applicant could not cross-examine Dr Bereen on the basis of those records, unless their authors were produced to prove them. That ruling may or may not have been correct. I express no opinion on the matter. It was certainly taken as being correct by Judge Dunne for the purpose of the various hearings before her. Its correctness has not been questioned in the High Court judgment. The only question which, therefore, arises is whether the Director thereafter undertook responsibility for those matters. Certainly, he did not do so at any time up to the end of December 2000. During that time the criticism levelled at him in that period concerns failure to respond to correspondence. In any event, I do not think it is possible to infer acceptance of responsibility from the mere failure to deny it.
                        70. Undoubtedly, extensive correspondence took place between the solicitors for the applicant and the Chief State Solicitor from about the end of 2000 to the early months of 2002, a period of just over a year. It is clear that the Chief State Solicitor agreed to assist the solicitors for the applicant in correspondence with the Health Board. I have referred to this correspondence and it would be tedious to repeat those references. As I have said, inconsistent information was provided by the Health Board respectively to the gardaí for transmission to the Chief State Solicitor and directly to the solicitors. This led counsel for the applicant to allege before Judge Dunne that the defence had been misled. Judge Dunne did not accept this characterization. At any rate, it is clear that the solicitors for the applicant corresponded directly with the Health Board and wrote directly to the various doctors at addresses furnished by the Health Board.
                        71. The Chief State Solicitor undoubtedly sought to help the solicitors for the applicant in the task of identifying the various doctors mentioned. It is also clear that, at a number of hearings before Judge Dunne, counsel for the prosecution agreed to help in various ways to get the case ready for trial. I have read this correspondence and the transcripts of Circuit Court hearings which have been relied on. I agree with Mr Gaffney that the Chief State Solicitor was endeavouring to assist the defence. I do not accept that such action amount to an agreement to undertake any form of legal duty to assist the defence to find and provide witnesses. I do not agree that Judge Dunne ever purported to make orders directing the prosecution to take any particular steps. Her concern at all times was to persuade both sides to prepare the case for hearing.
                        72. Among the exhibits in this case is a twenty-two page transcript of a hearing before Judge Dunne, principally concerned with the application of the applicant for an adjournment of the trial then fixed for 26th June 2001. I do not think it is open to the interpretation, placed upon it by the learned trial judge, that Judge Dunne “effectively directed the State to carry out the type of inquiry which evidently was still required.” At one point she said: “The State is not such a body as to be able to dictate one group to tell another group what they should be doing.” She gave as an example, a probation officer and later: “or doctor or whatever.” She commented severely on the failure on all sides to contact the Medical Council to obtain the addresses of the doctors and went on: “I do not understand why anybody can’t, someone in the Chief state Solicitor’s Office cannot ring up that number and I do not know why somebody in Mr McCartan’s office cannot advance matters in that way.” She forcefully rejected the contention of defence counsel that the Chief State Solicitor’s Office had sent a misleading letter. She said: “I do not think the State are trying to mislead anyone. I think it is more a case of being given misinformation which they are relying on.” In response to the same counsel’s request for a copy of a letter from an administrator for the North Eastern Health Board referred to in a report disclosed to Garda McFadden, she stated: “That is not an obligation of the State to furnish that……surely this is going a bit too far.” Counsel referred to the letter of 16th July 1994 from Mary McDonald (referred to in the applicant’s solicitors’ letter of 19th June 2001) and asked for clarification of what Ms MacDonald was going to do before the trial, stating: “We need the State to deal with this and they can deal with it voluntarily……or we will be coming back into Court seeking discovery in relation to what allegations she has made with other people in the extended family.” In the ensuing discussion, Judge Dune mentioned the need to see if the state could contact that person. It is clear that the matter had only been raised in a letter written on behalf of the applicant a mere three days earlier, 19th June. Nor can I see how the state could be expected to make discovery of allegations which might have been made by the complainant “with other people in the extended family." Counsel for the prosecution said that disclosure had been made insofar as “they have those records,” presumably referring to the State. He added: “if any other records exist they are either with Mary McDonald…(interrupted)…”
                        73. Assuming that the prosecution had accepted responsibility for carrying out further inquiries, as suggested and indeed as found by the learned trial judge, it is not at all clear how they are said to have been in breach. The discrepancies in the information provided by the Health Board respectively to the Chief State Solicitor and the defence has already been mentioned. For reasons already given, the prosecution were not to blame. From the hearing of 22nd June onwards, the prosecution continued with their efforts to assist the defence. It has not been explained how the prosecution were from that date guilty of blameworthy way. The learned trial judge did, of course, speak of inordinate and inexcusable delay. The total period from the aborted trial of 4th October 2000 to the provision of statements from the various authors of the medical notes was of the order of one year. The prosecution had not accepted any responsibility on any view until the end of 2000. They corresponded with the Health Board in the ensuing months. It has not been shown that this should have been done any more quickly.
                        74. The applicant has attached importance to the late discovery of a Drogheda Community Services file containing a notation suggesting that the complainant had been sexually abused by an uncle. It is not suggested, however, that this had been in the possession of the prosecution and not handed over or that the prosecution were even aware of it. Moreover, the material was not entirely novel. The defence were, as I have suggested, in possession of a letter dated 16th July 1994 containing an allegation of “sexual abuse within the extended family” since September 2000. Nor can I attach any significance to the reference to the Rape Crisis Centre. There is no evidence that the complainant had attended that Centre. The letter from the centre says that they had no records covering the relevant period and states, furthermore, that the centre had a policy of neither confirming nor denying that a person had attended the centre.
                        75. In short, I do not think the applicant has made out any case for prosecutorial delay.
                        76. Counsel for the Director has submitted that the actions of the applicant were consistent with a determination to use delay for which he was aware that the Director was not responsible as a ground to seek prohibition. In the absence of something more than the mere history of the case, I would not accept that the advisers were engaged in that type of tactical campaign. On the other hand, the applicant did not, at any stage, protest at the adjournments or insist that his trial be expedited. More generally, I would observe that there is a danger that tactical battles about disclosure in the trial court may be used in future as material for applications for judicial review. In my view the court of trial is the proper venue for such disputes. I am tempted to recall once again the desirability of instituting a mechanism for a preliminary or pre-trial hearing, whose adoption was recommended by the Working Group on the Jurisdiction of the Courts in its report of May 2003 on “The Criminal Jurisdiction of the Courts.” I think this was what Judge Dunne was endeavouring to provide at the various hearings over which she provided. She did not, however, have power, as she made clear, to give any directions or orders.
                        77. At this point I return to the question of the balancing test. It cannot be doubted, and it has been confirmed in several cases, that there is a strong and legitimate public interest in prosecuting cases of alleged sexual assault on minors. This is such a case. The complainant was about fifteen years of age at the time of the alleged offences. The applicant was thirty years her senior. The authorities show that it is necessary for an applicant to put something into the balance in his favour, if he is to persuade a court to stop his trial.
                        78. The only suggestion of anything to be put in the balance is contained in the order granting leave, which mentions that the applicant had “suffered excessive pre-trial anxiety.” There is, however, no evidence to support this allegation. I would have thought that, at the very least, the applicant would have sworn a short affidavit explaining or describing that anxiety or stress. Not only has he not done so, but his solicitor does not mention anything of the sort in his affidavit. I am far from saying that it is necessary to have psychiatric or psychological evidence of stress or anxiety. Whether anxiety or stress has been suffered is largely a matter of common sense. I merely say that some evidence is necessary. Here there is none. It is obvious that it is stressful for any individual to have to face criminal proceedings. Some distress is inevitable. There must be evidence of something more than normal, something extra caused by the alleged prosecutorial delay. On this ground, even if there were blameworthy prosecutorial delay, I would hold that the applicant has not established that his trial should be prevented.
                        79. For all these reasons, I would allow the appeal, set aside the order of the High Court and dismiss the application.

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