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Supreme Court of Ireland Decisions
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Cite as:  4 IR 176,  IESC 5,  4 IR 76
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Judgment Title: P. O'C -v- DPP
Composition of Court: Denham J., Fennelly J., Finnegan J.
Judgment by: Finnegan J.
Status of Judgment: Approved
Appeal No. 140/2005
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Mr Justice Finnegan delivered on the 4th day of March 2008
By Order of the 7th July 2003 the respondent was granted leave to apply for judicial review the principal relief sought being an Order of Prohibition to restrain the Director of Public Prosecutions (“the Director”) from further proceeding with his prosecution on Bill No. CC121/98 in which it is alleged that the respondent on a date unknown between the 1st April 1982 and the 9th July 1982 both dates inclusive at a named primary school did assault one E, a female, contrary to common law as provided for in section 10 of the Criminal Law (Rape) Act 1981. The grounds upon which leave was granted are:
2 .Actual prejudice which is particularised as follows:
(a) Fr. D. who had charge of the school keys on non-school days is now deceased and which days include the 22nd May 1982 the date particularised by the complainant in one of her statements as being the date of the assault.
(b) Mr W. the school caretaker who would have knowledge of the keys for the school on the said date is now deceased.
(c) The absence of fellow athletes and/or the failure of such athletes to recall the events of Saturday the 22nd May 1982 after such a long period of time.
(d) The destruction of contemporaneous training diaries of the applicant and fellow athletes for training periods including the 22nd May 1982.
I am satisfied on the above facts that the applicant has discharged the onus of establishing that by reason of at minimum, presumptive prejudice (as that term has been explained in P.M. v Malone  2 IR 560), there is a serious risk of an unfair trial. It is therefore unnecessary to consider whether the applicant on the facts herein has established actual prejudice.”
2. The learned trial judge erred in law and in fact in holding that the right to an expeditious trial commenced on the date when the alleged offence was alleged to have taken place.
4. The learned trial judge erred in law and in fact in concluding that the reason the complainant did not make a complaint sooner was not due in whole or in part to the consequences of the sexual abuse perpetrated on her by the applicant.
5. The learned trial judge failed to give adequate weight to the expert evidence of the psychiatrist.
6. The learned trial judge failed to give adequate weight to the evidence of E. as deposed to in her affidavit sworn on the 10th February 2004.
7. The learned trial judge erred in law and in fact in concluding that the applicant had established presumptive prejudice in relation to the impairment of his defence.
8. The learned trial judge erred in law and in fact by concluding that the applicant had been prejudiced in his ability to defend the charge and/or that there was a real and substantial risk that he would face an unfair trial if the relief were not granted.
2. The learned trial judge erred in law and in fact in holding that the complainant delay was not due to the consequences of the alleged sexual abuse perpetrated on her by the respondent.
3. That the learned trial judge erred in law and in fact in concluding that the respondent had established presumptive prejudice and that there was actual prejudice.
In the indictment the offence is alleged to have taken place between the 1st day of April 1982 and 9th day of June 1982. Complaint was made on 12th June 1998. The respondent was charged on 15th July 1998. A book of evidence was served upon him on the 5th October 1998. The complainant was born on 17th July 1969 and at the date of the alleged offence was 12 years and 10 months of age.
As a result of the decision of this court in S.H v. Director of Public Prosecutions  3 IR 575, in general there is no necessity to hold an inquiry into, or to establish the reasons for, delay in the making of a complaint. The issue for the court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial save in only exceptional circumstances where it would be unfair or unjust to put an accused on trial.
The rationale for the judgment of the court in S.H. appears from the following passage at page 618 in the same:-
At issue in each case is the constitutional right to a fair trial. The Court has found that in reality the core enquiry is not so much the reason for a delay in making a complaint by a complainant but rather whether the accused will receive a fair trial or whether there is a real or serious risk of an unfair trial. In practice this has invariably been the essential and ultimate question for the Court. In other words it is the consequences of delay rather than the delay itself which has concerned the Court.
The Court approaches such cases with knowledge incrementally assimilated over the last decade in some of which different views were expressed as to how these issues should be approached. In such cases when information was presented concerning the reasons for the delay it was invariably a preliminary point to the ultimate and critical issue as to whether the accused could obtain a fair trial. In all events, having regard to the courts knowledge and insight into these cases it considers that there is no longer a necessity to enquire into the reason for a delay in making a complaint. In all the circumstances now prevailing such a preliminary issue is no longer necessary.
This particular case illustrates the extensive affidavits and oral evidence along with psychological and medical reports which have come before the Court for the purpose of explaining the reason for an elapse of time between the alleged offence and the making of a complaint. Yet, in the end, what concerns the court is whether an accused will receive a fair trial or whether there is a real or serious risk of an unfair trial.
These cases have come before the Court after a decision to prosecute has been made by the Director of Public Prosecutions. The Director is independent in the performance of his function. The decision to prosecute may be a complex decision involving the balancing of many factors.
Article 30 of the Constitution specifies that prosecutions for serious crimes ‘shall be prosecuted in the name of The People …’. This provision reflects the fact that the prosecution of serious crimes is vital to the public interest. The State can only initiate a prosecution when it is aware that a crime has been committed and there is sufficient evidence available to charge somebody with it. Once that happens the State has, in principle, a duty to prosecute. Although the bringing of a prosecution may undoubtedly be central to vindicating the rights or interests of a victim of a crime the interests of the People in bringing a prosecution is, in the interests of society as a whole, of wider importance. The fact that a person who is the victim of a serious crime is delayed in bringing the commission of that crime to the notice of the State authorities is not of itself a ground upon which the State should refuse to bring a prosecution or the courts to entertain one. In particular circumstances delay in reporting such a crime, because of its extent or in combination with other factual matters, may be considered to affect the credibility of a complainant. That could in general be a ground for prohibiting a trial proceeding. It is a matter in the first instance for the prosecuting authorities in deciding whether there is evidence of sufficient weight to warrant a charge being preferred. It is also the duty of the Director of Public Prosecutions, in exercising his independent functions with regard to the bringing of a prosecution, to consider whether, in all the circumstances, a fair trial can be afforded to an accused. This is an onerous and strict duty since, as some of the decisions of this Court demonstrate, there are circumstances in which the bringing of a prosecution in respect of offences that are alleged to have happened very many years ago would be to visit a serious injustice on the person accused of them. Where a prosecution is in fact brought following a complaint made after a long lapse of time since the alleged offence any issue concerning the credibility of a complainant by reason of a lengthy delay is a matter to be considered at the trial should the defence raise such an issue. There is no reason why the prosecution of serious offences involving sexual abuse of minors should be treated differently from other serious offences in this regard”.
The applicant relies on the following as constituting wholly exceptional circumstances. On the 5th October 1998 he was returned for trial in respect of charges against five complainants (A-E). On the 22nd February 1999 the trial was adjourned due to publicity. On 15th November 1999 the indictment was severed. Trial A commenced on the 15th November 1999 and the applicant was acquitted. Trial B commenced on the 24th January 2000 and the jury was discharged during the course of the trial. Trial C commenced on the 27th March 2000 and the applicant was convicted and sentenced to four years imprisonment. Trial B recommenced on the 22nd May 2000 and the applicant was convicted and sentenced to four years imprisonment with one year suspended. Trial D commenced on the 22nd June 2001 and the indictment was quashed. Trial E, the subject of this application for judicial review, was due to commence on the 10th June 2000 but was adjourned there being no judge available. On the 6th June 2003 the applicant was released from prison having served the sentences imposed upon him. Trial E was scheduled to commence on the 12th January 2004. The present judicial review application was taken on the 7th July 2003. It is submitted that if each of the trials had taken place in quick succession each trial judge would have had the opportunity to take into account the fact that the applicant was serving a term of imprisonment and this would avoid the imposition of a sentence which was excessive in all the circumstances. Should the applicant be convicted in Trial E the applicant would face a custodial sentence commencing ten years after the first return for trial and five years after serving a sentence arising out of the original indictment.
I am satisfied that these matters do not constitute wholly exceptional circumstances. They are relevant to the appropriate sentence to be imposed upon the applicant in the event that he is convicted but irrelevant to the fairness of his outstanding trial.
As to presumptive prejudice the learned trial judge considered that there was culpable delay on the part of E. The exercise of attributing and apportioning blame for delay is no longer appropriate. Where there has been delay in cases of this nature but no actual prejudice the court will not normally inhibit the trial proceeding. In P.L. v Buttimer  4 I.R.494 Geoghegan J. said:-
The respondent relies on four matters which, it is contended, amount to actual prejudice. Before considering each such circumstance it is necessary to consider the information contained in statements by the complainant and contained in the Book of Evidence as to the date and circumstances of the alleged offence. There are four relevant statements:-
(ii) Statement 9th July 1998. The correct date of the Confirmation is the 9th June 1982 and not the 22nd May 1982. The alleged offence occurred about two weeks before her Confirmation.
(iii) Statement 28th April 2002. This statement exhibited the complainant’s Confirmation Certificate which gives as the date of the same the 22nd May 1982.
(iv) Statement 11th September 2007. The complainant states that she had always believed she made her Confirmation on the 22ndMay 1982, her sister’s birthday. When she stated that she was confirmed on the 9th June 1982 she was aware that the school principal had informed the Gardai that this was in fact the date.
The respondent’s grounding affidavit was based on the premise that the alleged offence was committed on the 22nd May 1982 or perhaps the 5th June 1982. The offence is alleged to have taken place within the school and since the respondent was not a key holder he would, he deposes, have to have obtained a key from Fr. B. or Mr W. both now deceased. Further at that time he was in intense preparation for international athletic competition. He had attended an international athletics meeting in Paris on Saturday the 29th May 1982 and a further meeting in Brussels on the 5th June 1982. Other athletes who were involved in international competition at that time are unavailable or their whereabouts are unknown. He had spoken with one such athlete who had kept training diaries until he destroyed them some time during 1980 and which would have confirmed that the respondent was involved in training at Belfield UCD on the 22nd May 1982. Further he no longer has his own training diaries.
TR swore an affidavit on the application. He deposes that Fr. B. died in 2002. There were two locks on each door of the school, a Basta lock and a Chubb lock, the keys to which were kept in the Presbytery of the local parish. During 1982 it was Fr. T. who was involved in the running of the school and not Fr. B. Between 1981 and 1984 the key holder for the school was one Mr P. and he held both keys and a third key to activate and deactivate the alarm. It was his duty to open and close the school. Fr. T. and Mr T. are both alive. Mr W. had no role in the senior school and did not possess the Chubb key or a key to activate and deactivate the alarm: he did have the Basta key.
On the foregoing evidence the learned trial judge was not satisfied that the applicant had established any actual prejudice by reason of any issue relating to the keys, in short that he was not prejudiced by the non-availability of Fr. B. or Mr W. There was evidence to support this finding. In these circumstances considerable respect must be paid to the view of the learned and experienced High Court judge. However the evidence before the High Court was on affidavit and is also before this court and having considered the same I fully agree with the finding of the learned High Court judge.
As to the non-availability of the training diaries of the respondent and his fellow athlete the learned trial judge concluded that the respondent had been prejudiced by this in his ability to defend the charge against him. Her basis for so concluding was that the complainant was in delay after the middle or end of the 1980s and had complaint been made at that time the respondent would have been in a better position to remember and ascertain his movements on the Saturday on which the offence is alleged to have occurred. This must undoubtedly be so but whether the effect of this is such as to render the trial unfair I am satisfied that this is essentially a matter for the trial judge to be dealt with by him in the context of the evidence as a whole. In his grounding affidavit the respondent deals principally with the date the 22nd May 1982 and to a lesser extent the 6th June 1982 although by the date of the hearing before the High Court it was clear that the former was the date of the complainant’s Confirmation and that her evidence would be that the alleged offence was committed about two weeks before then: he does not deal with the two Saturdays which preceded the 22nd May 1982. However on his affidavit it is possible that he may have been training for his international commitments on either or both these Saturdays. He does not name the fellow athlete whom he consulted. Again the alleged assault took place on the Saturday morning and no information is forthcoming from the respondent as to the length of time or the time of day at which he would have been engaged in training and so incapable of committing the alleged offence. The onus rests on the respondent. A remote, fanciful, or purely theoretical form of prejudice is not sufficient to entitle him to relief: McFarlane v D.P.P.  1 I.R. 134. The facts in J.K. v The Director of Public Prosecutions Supreme Court 27th October 2006 McGuinness J. are not dissimilar to those in the present case. There the applicant relied on both complainant and prosecutorial delay as a result of which firstly it was impossible to trace the applicant’s work records which might have been relevant and secondly a person who could have been a material witness was then deceased and who might have been in a position to vouch the applicant’s whereabouts during the course of the evening in question. On the evening in question there was a family christening with a gathering of the family circle and so, it was held, unlikely that other witnesses as to the applicant’s behaviour on that occasion would not be available. In this case at an international training session there must have been more than the one other athlete in attendance. One would expect the national body governing international athletics to have records of the team members for the events to which the respondent refers and of whom enquiries could be made. The respondent does not disclose any enquiries made by him other than of one athlete.
In D.C. v D.P.P.  4 IR 281 at 283 Denham J said:
In general such a step is not necessary if 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.”
Having regard to my conclusion on the second and third grounds it is not necessary to consider the first ground relating to the lateness of the respondent’s application for leave to apply for judicial review.
I would allow the appeal and dismiss the application for judicial review.