Supreme Court allows appeal against stay of rape trial, ruling prosecution role cannot be usurped by judge.

THE SUPREME COURT

[Supreme Court Appeal No: 154/2016]

[High Court Record No: Bill No. CCDP0092/2014]

Clarke C.J.

McKechnie J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

AND

D.H.

RESPONDENT

JUDGMENT of Ms. Justice O’Malley delivered the 17th day of July, 2018.

Introduction

1. This appeal raises, in the first instance, an issue as to the appellate jurisdiction of the Court of Appeal in relation to an order of the

Central Criminal Court staying a trial. The appellant (hereafter “the Director”) sought leave to appeal directly to this Court on the

basis of a belief that no appeal lies to the Court of Appeal against such a ruling.

2. The substantive issue in the case concerns the powers available to a judge who comes to a view that, while a directed acquittal

would not be appropriate, the state of the evidence is such as to make it unfair to the defence to proceed with the trial. The issue

arises on foot of an order of the Central Criminal Court (Murphy J.), staying the prosecution of four rape charges against the

respondent pending further investigation of the complainant’s evidence. The trial judge made the order of her own motion, having held

that the failure of the Director to resolve a perceived discrepancy in the material relating to the complaint, prior to the decision to

prosecute, had created a real risk of an unfair trial. However, she refused to direct an acquittal, holding that the evidence as given

by the complainant in the trial was sufficient to go to a jury.

3. The Director’s complaint relates to the finding of the trial judge that the prosecution was under a duty to clarify “serious

inconsistencies” in a witness’s statements before deciding to prosecute, where such inconsistencies might go to the reliability of that

witness’s evidence. The Director argues that this intervention by the trial judge, firstly, was not justified on the facts of the case

and, secondly, failed to respect the nature of the prosecution function and constituted an impermissible usurpation of the roles of

both the defence and the prosecution in the trial process.

4. Before setting out the facts giving rise to this dispute, it is necessary to point out that much of what follows was not adduced in

evidence before the jury. The trial judge’s concerns arose when certain documents came to her attention in the course of a voir dire.

The original focus of that process was on the contention advanced on behalf of the defence that the delay in the case had caused

irreparable prejudice to the accused. The material giving rise to the issue now before the court relates to the terms of complaints

made about the accused by the complainant to a social worker, at a time long before the charges were brought against him.

5. In trials involving sexual offences, complaints made at the first reasonable opportunity may be admissible at the instance of the

prosecution as evidence of the complainant’s consistency. The statements in issue here, whether entirely consistent with the

complainant’s oral evidence or not, would not have qualified under this principle as they were not made at the first reasonable

opportunity and would have been caught by the rule against hearsay or the rule against self-corroboration. It was, of course, at all

times open to the defence to introduce the material in cross-examination for the purpose of showing inconsistency on the part of the

complainant. However, to do so would in all likelihood have risked the introduction of evidence adverse to the accused.

Background Facts

6. Following a statement of complaint made by the complainant to the Gardaí in March, 2013 the respondent was arrested in

September, 2014 and charged with four counts of rape and two counts of sexual assault, alleged to have taken place in one of three

summers between 1987 and 1989 when the complainant was aged between nine and eleven.

7. The complainant had initially made allegations of abuse to an older sister in or about the month of April, 1992. The appropriate

state authority at the time, the Eastern Health Board (“the EHB”), was notified in late 1992, following a meeting of the complainant

with a psychologist. It was at this juncture that a social worker attached to the EHB Community Care Division, a Ms. Convery,

became involved in the matter.

8. Ms. Convery referred the complainant to St. Louise’s Unit in Crumlin, which at that time was a newly established unit specifically

dedicated to assessing and validating the occurrence of child sexual abuse. The referral letter stated that the complainant had

alleged that the respondent had put his penis into her “a few times”. It also stated that the complainant’s memories of the abuse

were “confused” and that she would like to get help so that she could remember exactly what had happened to her.

9. The complainant was interviewed in the unit in April, 1993 but, due to some reluctance on the part of her mother, no medical

examination was carried out. Nothing further occurred until the complainant herself, then aged 14, rang St. Louise’s in May, 1994.

This resulted in the production of a validation report, based largely on the notes and video of the April 1993 interview. The report

referred to the use by the complainant of the words “abuse”, “rape” and “sex”, and stated that the abuse detailed by the

complainant encompassed fondling of the genitals, penile genital contact and oral genital contact.

10. Following this assessment, it appears that a number of case conferences took place. Certain of the notes of these conferences

are the source of the trial judge’s concerns, and are set out in more detail below.

11. A formal notification of child abuse was sent by Ms. Convery to the superintendent of An Garda Síochána at Bray Garda Station in

June, 1995. However, the complainant (then aged 17) and her mother indicated that they did not wish to pursue the matter to court,

and no prosecution was brought at that time.

12. The complainant was subsequently approached by a detective garda in 2013 after another local woman had made a complaint

against the respondent. At that stage she made a statement in which she clearly stated that on four separate occasions at four

specified locations the accused had put his penis into her vagina, and that on two of those occasions he sexually assaulted her. The

allegations were investigated and a file was sent to the DPP. Ultimately a decision was made to charge the accused with four counts

of rape and two charges of sexual assault.

The trial

13. The trial took place over 14 days in November, 2016. The trial judge was informed by the parties that there was as an issue as to

delay in the case, and it was decided after some discussion that this issue would be determined by way of a voir dire, directed to the

question whether the trial should be stayed by reason of delay, after the substantive trial evidence was complete. The prosecution

case was, as far as the jury was concerned, completed after three days, at which point the Court embarked upon the voir dire. This

ran for nine days and included evidence from the complainant and from Ms. King, the author of the St. Louise’s validation report. Ms.

Convery was not available to give evidence in the trial and the defence had not previously requested that she be made available.

14. During the hearing the trial judge became concerned about two of the documents prepared by Ms. Convery in late 1994 and early

1995, in which there were two references to the complainant’s uncertainty as to whether or not sexual intercourse had in fact

occurred during any of the alleged incidents. The 1995 note also contained the line “although she thinks it probably did”. It is relevant

to stress that this issue was raised by the trial judge rather than by the defence. The complainant was not cross-examined (either

before the jury or in the voir dire) on the basis that she had made previous statements inconsistent with her sworn evidence as to

penetration. Ms. King was asked about a reference in the St. Louise’s notes to a conversation with the complainant’s mother,

indicating a view on Ms. Convery’s part that it was not possible to say exactly what had happened to the complainant, and that the

latter “needed to talk some more about it”. Ms. King’s evidence, looking at her own interview notes, was that she had not thought

that the complainant had any difficulty. The use of the term “penile genital contact” in the report covered both penetrative and non-

penetrative contact, and the complainant had alleged both. Her opinion was that rape had probably occurred, although she could not

be absolutely certain on the point.

15. The trial judge requested and heard submissions as to whether the evidence of earlier uncertainty on this aspect was relevant,

whether it should have been explored with the complainant and Ms. Convery before a decision was made to charge the respondent

with rape, and whether the evidence should be adduced before the jury.

16. It is relevant to note that the defence made a brief submission as to whether a directed acquittal on the basis of Galbraith criteria

would be appropriate. Reference was made to paragraph 22.147 of Walsh on Criminal Procedure 2nd ed., (Dublin, 2016) in relation to

inconsistencies in the prosecution case:

“If, however, the nature and extent of the inconsistencies are such as to render it unfair to proceed with the trial,

then the judge should stop the trial.”

17. Counsel submitted that this stage had been reached in the case. However, the trial judge intervened to say that she did not

consider that this principle was relevant, having regard to the clear evidence given by the complainant to the jury that penetrative

sex had occurred. When counsel referred to the evidence suggesting that she had been unclear in 1995, the trial judge pointed out

that he had not cross-examined on it.

18. In a considered ruling the trial judge determined that, on the evidence, there was no prosecutorial delay, culpable or otherwise.

Further, she was not persuaded that any possible prejudice had been suffered by the defendant due to the lapse of time, ruling that

he had “singularly failed” to discharge the burden of proof upon him on the issue. However, she remained concerned by what she

described as “the existence of unexamined, unexplored and uninvestigated evidence that at a period much closer to the events the

complainant was not sure that there had been sexual intercourse but merely thought that there had been”. The trial judge noted

that the Director’s office had been in possession of the EHB file and was aware of its contents, including the statements of Ms.

Convery, at the time the decision to prosecute was made. The problem, as the judge saw it, was that the evidence of earlier

uncertainty contrasted “strikingly” with the certainty found in the complainant’s statement to the Gardaí (and with her sworn

evidence). This, she felt, should have “raised a red flag” in the Director’s office, as raising a fair trial issue in the context of a historic

complaint. It should therefore have been further investigated, in keeping with the obligation imposed by the Director’s own guidelines

requiring prosecutors to consider the risk of unfair trials in cases involving delay.

19. The trial judge disagreed with the prosecution submission that the decision to prosecute was a matter for the Director and that

the exploration of the evidence was a matter for the defence, saying that the evidence might indicate that the complainant, while

truthful and honest, might not be reliable. In a case where there had been a long delay, the prosecution had a duty to explore it as a

matter of fairness both to the accused and to the complainant. It appeared that in reaching the decision to prosecute, the Director

had “failed to take proper account of all relevant evidence”. The judge referred to the decision of this Court in Director of Public

Prosecutions v. Gormley & Ors. [2014] 2 I.R. 591, where it was emphasised in the judgment of Clarke J. that the guarantee of

constitutional fairness applied to the investigative process.

20. It was also submitted by the prosecution that it had discharged its duty by making disclosure of the EHB file to the defence.

However, the judge “fundamentally” disagreed with this submission on a number of grounds, expressing her view as follows:

“1. Where the prosecution has evidence in its possession which suggests that there might be a risk of an unfair

trial the duty is on the prosecution to investigate that evidence.

2. While the evidence is contained in two pages of the 78 page disclosure, there is no guarantee that a defendant

would identify the evidence or perhaps appreciate its significance.

3. Even assuming that the defendant identifies the evidence and appreciates its significance, the evidence coming

as it does in the context of an investigation of alleged child sexual abuse by the Eastern Health Board, a defendant

might well feel hampered in his ability to explore the evidence without exposing himself to damaging evidence

about child sexual abuse.”

21. The judge also rejected as inadequate the submission on behalf of the prosecution that evidence of the complainant’s earlier

uncertainty could have been used by the defence to undermine her credibility on cross-examination if they chose to do so, stating

that she was “frankly appalled” by the suggestion.

“What it means is that the prosecution was willing to put the complainant in the witness box knowingly to have her

credibility attacked on the basis of evidence known to the prosecution and the defence but not to her and which

evidence had never been explored with her. That is unfair to a complainant and [is,] in the Court’s view, an

unacceptable practice.”

22. In response to a question from the judge whether this was relevant evidence that ought to be placed before the jury, the

prosecution had suggested that, if the defence wanted to explore any uncertainty, the complainant could be recalled for the purpose

of further cross-examination. Counsel for the defence had acknowledged but not accepted this proposal, arguing that it was an

avoidance of the duties of the Director to explore the matter properly. The trial judge agreed with this analysis, finding that the

obligation was on the prosecution to investigate. The defence would then be entitled to consider and evaluate the results of such an

investigation.

23. In her conclusion, the trial judge found that the prosecution had ignored relevant evidence of a serious and real risk of an unfair

trial. She therefore took the step of putting a stay on the four charges of rape “until such time as a proper evaluation of the

evidence of Ms. Convery and the complainant […] as to the position in 1994/1995 has been conducted”. However, the judge

considered that there was “clear and abundant evidence of at least a prima facie case” in relation to the charges of sexual assault

and these were returned to the list to fix a new trial date.

24. In response to submissions made on behalf of the Director on the following day, the trial judge made it clear that she had not

directed any particular course of action to be taken and specifically was not to be taken as directing further investigations. She was

not retaining seisin of the case, and it would not be for the court to supervise the Director’s office or to assess any further

investigation. It was a matter for the Director to decide what to do.

Submissions

25. On the first issue it is submitted by the Director that it does not have a right of appeal to the Court of Appeal against an order of

this nature, and therefore was compelled to seek a direct appeal to this Court under Article 34.5.4° of the Constitution. The Director

believes that such an order is not captured by the jurisdiction of the Court of Appeal in criminal matters under the new appellate

structure that now exists following the 33rd Amendment of the Constitution.

26. Counsel for the respondent agrees that both the prosecution and the defence have a right of appeal against the relevant order

made by the trial judge. However, he takes the position that as well as an appeal to the Supreme Court under Article 34.5.4° of the

Constitution, there is a right of appeal from this, or any, decision of the Central Criminal Court to the Court of Appeal in light of Article

34.4.1° of the Constitution.

27. On the second issue it is submitted on behalf of the Director that in considering whether to stay a criminal trial, once it has

commenced, the relevant test to be applied by the trial judge is the same test as that to be applied by the High Court in considering

whether or not to make an order of prohibition in respect of a criminal prosecution – that is, whether the accused has shown that

there is a real risk of an unfair trial that cannot be avoided by appropriate rulings and directions by the trial judge. There is, it is

contended, a constitutional and legal requirement that a trial should proceed unless and until the party who seeks to stay or prohibit

a trial has proved such a risk on the balance of probabilities.

28. On this question the respondent agrees that when considering whether to stay a criminal trial a trial judge is obliged to apply the

same test as would be appropriate in judicial review proceedings seeking to prevent a criminal trial from commencing. There is

however the difference that the trial judge has heard the evidence and is therefore in a better position to determine whether the

requisite degree of unfairness has been shown to exist. However, while it is accepted that in such judicial review proceedings the

onus would be on the party seeking the order, the respondent submits that the jurisdiction to stay a trial due to a risk of unfairness

may arise directly from the trial judge’s duty to act in accordance with Article 38 of the Constitution. In those circumstances the trial

judge should seek submissions from both the prosecution and defence and may require to hear evidence before making a ruling on the

matter.

29. On the third issue the Director says that she fully considered all available evidence, including the case notes of Ms. Convery,

before directing the charges of rape. She submits that in making the order to stay the prosecution pending further investigation the

trial judge exceeded her jurisdiction, and did not pay proper regard to the separation of powers insofar as that principle touches upon

her role as a judge, the role of the Director of Public Prosecutions as prosecutor and role of the Garda Síochána as investigators.

30. It is submitted that the duties of the prosecutor are fulfilled when all material which may undermine the credibility of a witness is

disclosed to the defence. Further, it is argued that the prosecution cannot be seen to have “coached” a witness. A perception of

coaching could arise were the prosecution to return to a witness for the purpose of asking why a third party might have recorded

them as saying something different on a separate occasion. It is submitted that it would be impossible, and arguably inappropriate, for

the investigator or prosecutor to seek to reconcile these differences in advance of trial.

31. While it is accepted that a direction to prosecute is subject to the obligation of fair procedures (see: Carlin v. DPP [2010] 3 I.R.

547), and is reviewable by the courts in limited circumstances (see, for example, Murphy v. Ireland [2014] 1 I.R. 198; State

(McCormack) v. Curran [1987] ILRM 225) the Director says that there was no suggestion that the decision to prosecute in this case

could be impugned on Murphy grounds, nor was there any suggestion of a want of fair procedures.

32. The respondent accepts that the decision whether to prosecute is one that rests solely with the Director and can be reviewed by

the courts only on limited grounds. Nonetheless it is submitted that it is incumbent on the Director to clarify serious inconsistencies in

respect of significant matters in statements of a proposed witness before the decision to prosecute is made. It is submitted that such

inconsistencies may pose a real risk of imposing an unfair trial on an accused, which cannot be remedied merely by making disclosure

of all inconsistent statements to the defendant’s legal representatives. Counsel argues that to hold otherwise would allow the Director

to knowingly disregard the possibility of unreliability in the statements of a witness.

The first issue – the jurisdiction of the Court of Appeal

33. It is necessary to start the discussion of this issue with a brief discussion of the jurisdiction of the Supreme Court and the Court

of Criminal Appeal prior to the establishment of the Court of Appeal.

34. In its original form Article 34.4.3° provided as follows:

3̊ The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such

decisions of other courts as may be prescribed by law.

35. This Court held in a number of cases that this provision was to be given its ordinary literal meaning – an appeal lay in all matters

save where excepted by law (see, for example, The State (Browne) v Feran [1967] I.R. 147). In The People (Director of Public

Prosecutions) v. O’Shea [1982] I.R. 384 the provision was held by a majority of the Court to permit, in principle, a prosecution appeal

against an acquittal in the Central Criminal Court. The defence had relied upon the long-standing common law rule that no such

appeal could lie, and upon the specific provision made in the Criminal Procedure Act 1967 for a “without prejudice” appeal by the

prosecution against a verdict of acquittal by direction. O’Higgins C.J. observed that pre-existing laws and legal principles could not

“alter, restrict or qualify” the plain words used in the Constitution, and, furthermore, that any legislative provision intended to

regulate the court’s appellate jurisdiction by subtraction had to do so in express terms.

36. Section 11 of the Criminal Procedure Act 1993 abolished the right to appeal to the Supreme Court “from a decision of the Central

Criminal Court”. As noted by Hogan and Whyte in JM Kelly: The Irish Constitution, 4th Ed., (Dublin, 2003) the breadth of this

exception was such that it appeared to cover not only verdicts but also ancillary rulings made by the trial judge before or during the

trial. Section 44 of the Courts and Courts Officers Act 1995 would have had the effect of limiting the ouster of the right of appeal to

decisions to acquit, but this latter provision was never brought into force. Both s.11 of the Act of 1993 and s.44 of the Act of 1995

were repealed by the Court of Appeal Act 2014.

37. Prior to the 33rd Amendment to the Constitution appeals in criminal matters dealt with in the Central Criminal Court and the Circuit

Criminal Court went to the Court of Criminal Appeal. That Court was the creation of the legislature, rather than the Constitution, and

its jurisdiction was undoubtedly limited to the statutory provisions relating to appeals against verdicts and sentences. It had no role in

respect of preliminary, intermediate or ancillary orders of trial courts save where such were relevant to the consideration of the

substantive appeal.

38. Article 34.4.1° describes the appellate jurisdiction of the new Court in the following terms:

“4.1 The Court of Appeal shall –

(i) save as otherwise provided by this Article, and

(ii) with such exceptions and subject to such regulations as may be prescribed by law, have appellate

jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such

decisions of other courts as may be prescribed by law.”

39. Thus, so far as the High Court (or the High Court sitting as the Central Criminal Court) is concerned, the Constitution makes the

same provision for the jurisdiction of the Court of Appeal as it previously did for the Supreme Court.

40. Section 8 of the Court of Appeal Act 2014 inserted a new provision, s.7A, into the Courts (Supplemental Provisions) Act 1961.

This stipulates in subs. (1) that the Court of Appeal is a superior court of record with “such appellate jurisdiction as is prescribed by

the Constitution”. Section 7A(2) provides that, subject to certain exceptions not relevant here,

“…, there shall be vested in the Court of Appeal all appellate jurisdiction which was, immediately before the

establishment day, vested in or capable of being exercised by the Supreme Court”.

41. In similar wording, subs. (3) provides that, subject to transitional measures not in issue here,

“…there shall be vested in the Court of Appeal all jurisdiction which was, immediately before the establishment

day, vested in or capable of being exercised by the Court of Criminal Appeal.”

42. The establishment day was the 28th October, 2014.

43. The analysis adopted by the Director is that immediately before the establishment day the Supreme Court did not have jurisdiction

to hear appeals directly from the Central Criminal Court. It therefore had no jurisdiction in that regard that was either vested in it, or

capable of being exercised by it, on the establishment day, and therefore no such jurisdiction was vested in the new Court of Appeal.

Meanwhile, the Court of Criminal Appeal had enjoyed jurisdiction only in respect of appeals relating to verdict and/or sentence. That

Court could not have heard an appeal against an order such as that made in the instant case, and therefore s.7A (3) of the Act of

1961 did not operate to confer such a jurisdiction on the Court of Appeal.

Conclusion on the issue of jurisdiction

44. In my view the Director’s analysis is misconceived. The terms of Article 34 are clear – the Court of Appeal has jurisdiction in

respect of all decisions of the High Court, save where such jurisdiction is excluded or regulated by law. That is precisely the language

that led this Court to find that there was a right of appeal in the circumstances of O’Shea. There is at present no equivalent to the

exclusion created by the legislature in s.11 of the Act of 1993. The jurisdiction created by the Constitution cannot be limited save by

clear and express language. No such limitation is to be found in the legislation enacted in 2014 which, indeed, repealed the previously-

existing exclusion found in the Act of 1993. The purpose of s.7A is clearly to ensure that the jurisdiction of the Supreme Court and

Court of Criminal Appeal in criminal matters, previously provided for by statute, would be exercisable by the new Court of Appeal. It

cannot be read as a limitation of the constitutionally-conferred jurisdiction.

45. In those circumstances I would hold that the Director had a right to appeal to the Court of Appeal against the order of the trial

judge in this case. That does not, of course, mean that a “leap-frog” appeal directly to this Court is not possible in such

circumstances, provided that the constitutional criteria are met.

Ordering a stay in a criminal trial

46. The exercise of the power to stay a criminal trial is undoubtedly part of the range of orders available to a trial judge. In The

Director of Public Prosecutions v. P. O’C. [2006] 3 I.R. 238 this Court made it clear in the sole judgment (Denham J.) that a trial court

has a general and inherent power to protect its process from abuse. That power includes the power to safeguard an accused person

from “oppression or prejudice” in the course of a trial, and is retained even in cases where judicial review has been previously sought

and refused. As Denham J said:

“Thus, in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the

process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from

proceeding.”

47. Where a pre-trial application is made for judicial review relief in the form of prohibition or an injunction, the court must necessarily

engage in a degree of speculation. The test to be applied is well-established – whether the applicant has established a real and

unavoidable risk of an unfair trial. The requirement that the risk be “unavoidable” means that it cannot be avoided by appropriate

rulings in the trial. It seems to me that the same logic must apply to the power of a trial judge to prevent the trial from proceeding –

that is, that it is available if it is the only means of preventing unfairness. The reason why this responsibility is left to the trial judge is

because a stage may arrive in the trial when the issue is no longer a question of speculation or risk assessment – the trial judge has

heard the evidence and is in a position to determine whether the trial is fair.

48. In my view, an issue giving rise to a permanent stay must be such that the trial judge reaches a conclusion, not only that the

trial at hearing cannot proceed fairly, but that no fair trial could be held at any stage thereafter. Obviously, there will be many

situations where a step falling short of such an order will be appropriate. For example, it may happen that inadmissible and prejudicial

evidence is adduced in front of the jury. In those circumstances it is a matter for the trial judge to assess whether a warning to the

jury will suffice, or whether the discharge of the jury followed by an adjournment is required. There is no hard and fast rule for the

multiplicity of factual scenarios that may arise in a trial, but the point to be stressed is that a permanent stay can only be justified

where the unfairness is incapable of rectification in the trial process.

49. In this case the trial judge did not consider that a permanent stay would be warranted. The issue is whether she was entitled to

impose a stay conditioned on the taking of an investigatory step, where the Director had previously decided that such a step was

unnecessary or undesirable. The ruling made by the judge does not go further than that – it should be emphasised that, while she

made critical comments about the decision to prosecute on the basis of the evidence as it stood, she did not find that the decision

was legally invalid.

50. In considering the lawfulness of the type of conditional stay ordered in the instant case, I think it helpful to review some aspects

of the roles played by parties in a criminal trial, as well as the potential significance of inconsistent prosecution evidence.

The role of the judge

51. In The People (DPP) v O’Shea (referred to above) Henchy J. dissented on the substantive issue as to the right of appeal against

an acquittal. However, his judgment includes the following valuable description of the roles of the trial judge and jury with which no

issue could be taken:

“This important personal right, commonly referred to as the right to trial by jury, is indicated in Article 38, s.5, to

be a right to a trial with a jury, presumably to make clear (as did Article 72 of the Constitution of 1922) that what

was being delineated was essentially a right to the evolved and evolving common-law trial by jury, that is to say, a

trial before a judge and jury in which the judge would preside, ensure that all conditions necessary for a fair and

proper trial of that nature are complied with, decide all matters deemed to be matters of law, and direct the jury

as to the legal principles and rules they are to observe and apply; and in which the jury, constituted in a manner

calculated to ensure the achievement of the proper exercise of their functions, would be the arbiters, under the

governance of the judge, of all disputed issues of fact and, in particular, the issue of guilt or innocence.”

The role of the Director of Public Prosecutions

52. It is clear from the authorities that the independence of the Director of Public Prosecutions in the performance of his or her

functions, including the decision to initiate a prosecution, is to be respected by the courts. As Keane C.J. said in Eviston v Director of

Public Prosecutions [2002] 3 I.R. 260:

“…both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions

exclusively assigned…to the respondent under the Constitution and the relevant statutory provisions.”

53. Similarly, in M.K. v Groarke [2002] IESC 51 Denham J. said:

“The decision as to whether or not to prosecute the applicant is a matter for the Director of Public Prosecutions.

The Director of Public Prosecutions is independent in the performance of his functions: s.2(5) of the Prosecution of

Offences Act, 1974. The decision to prosecute may be a complex decision involving the balancing of many factors.

As was stated in the Annual Report of the Director of Public Prosecutions 2000, the office of the Director of Public

Prosecutions seeks to provide on behalf of the people of Ireland a prosecution service which is independent, fair

and effective. It is not for this or any court to assume the burden of that office.”

54. This is not to say that the exercise of the prosecutorial discretion in making the decision to prosecute is unreviewable. For

example, there are a number of authorities dealing with a situation where the Director changes his or her mind as to whether or not to

bring charges. Eviston was one such, where this Court held that the Director’s decision to prosecute, after previously intimating that

no charge would be brought, amounted to an unfair procedure on the facts of the case. In a decision to the contrary effect, Carlin v

The Director of Public Prosecutions [2010] 3 I.R. 547, the applicant was unsuccessful in judicial review proceedings with the Court

confirming that the Director was entitled to review his earlier decision. There was no evidence that he had been actuated by improper

motives or had abdicated his functions. However, it was stressed that the Director remained subject to the law and the Constitution,

and was not exempt from the requirements of fair procedures.

55. At p. 550 of the report Denham J. said:

“The respondent is an important independent office in the State and independent in the performance of his

functions: Prosecution of Offences Act 1974. A clear policy of non-intervention by the courts in the exercise of the

discretion of the prosecutor, except in particular circumstances, has been stated in cases over the last few

decades…

It is essential that the respondent remain independent. However, he is subject to the constitutional requirement of

fair procedures. While the fair procedures appropriate at the investigation stage of a prosecution are not

equivalent to those at trial in a court of law, the process requires to be constitutionally firm.”

56. In cases concerning a change of mind, an applicant for judicial review must show a prima facie case of mala fides; or evidence

from which it could be inferred that the Director has abdicated his or her functions, or has otherwise been improperly motivated. The

Director cannot be called upon to explain his or her decision to prosecute, or to give reasons for that decision, or to disclose the

sources of the information upon which it is based. The reasons for this position relate partly to public policy. There is also a

straightforward explanation – as O’Flaherty J. put it in H. v. The Director of Public Prosecutions [1994] 2 I.R. 589:

“In deciding whether to bring or not to bring a prosecution, the Director is not settling any question or dispute or

deciding rights or liabilities; he is simply making a decision on whether it is appropriate to initiate a prosecution. If

he does, it is afterwards for the courts to decide whether a conviction may be sustained.”

57. However, there are other categories of case where there is no requirement to show anything approaching bad faith on the part of

the Director. Prohibition has been granted on grounds that may have nothing to do with the Director, as in cases where it is

established that irreparable prejudice has been caused by delay or the loss of evidence. In other cases, an order restraining a

prosecution has been granted because a breach of fair procedures on the part of the investigating gardaí has prejudiced the defence

– an example would be the deliberate destruction of evidence. Thus, in Murphy v Director of Public Prosecutions [1989] I.L.R.M. 71 an

injunction was granted where the gardai had disposed of a car despite being informed by the defence that they wished to have it

forensically examined.

58. Of course, once the prosecution has been initiated, the conduct of the case is subject to the jurisdiction of the court. The

prosecution may, for example, be directed in appropriate circumstances to make a particular witness or particular evidence available.

The power to make such directions is part of the jurisdiction of a trial judge to ensure a fair trial.

59. There can be little doubt about the jurisdiction of a trial judge to stay proceedings should it come to light that a decision to

prosecute was malicious or otherwise constituted an abuse of the court’s process. Similarly, if it is demonstrated in the course of the

trial that irreparable prejudice has been caused to the defence by delay or by the loss or destruction of evidence there is no doubt

but that the trial must be brought to an end. I have some doubt as to whether the concept of the stay would be considered

appropriate in such circumstances, and the normal practice would be to direct an acquittal. In any event, the point is that an order

bringing the proceedings to an end in such circumstances would be an exercise of the judge’s functions and could not be construed

as an interference with the prosecutorial role.

60. The question whether the trial judge may order a temporary or conditional stay, and if so in what circumstances, does not appear

to have been authoritatively considered. This may be because it is not a concept that is frequently utilised. One could envisage a

situation where, for example, an accused person falls ill. The trial judge might well discharge the jury and direct that the matter was

not to proceed until the accused was well enough to stand trial. The word “stay” would probably not be used, with the participants

more likely to describe what has happened as a discharge and adjournment. Perhaps more to the point, the matter would remain in

the court list rather than being required to be re-entered for the purpose of lifting a stay.

61. Assuming that such a power exists, its exercise must depend on the facts of the case. It seems to me that it should be utilised

only where no other order is appropriate. The reason for that is the restriction it places on the right of the Director to prosecute and

the interests of both parties in obtaining a final verdict.

Counsel for the defence

62. Subject to instructions and to any relevant professional ethical considerations, the conduct of the defence is in the hands of the

legal representatives of the accused. A trial judge may on occasion be surprised or sceptical about a decision made on behalf of the

defence. However, it must always be borne in mind that, very probably, counsel has more information about the factual background

to a case than the judge. Whether to cross-examine or not in relation to a particular matter can be a difficult decision, but it is one

for counsel to make in the light of his or her knowledge of the potential consequences that may arise on the facts of the case and

having regard to the rules of evidence. The trial judge must respect that responsibility, and be slow to assume that the decision has

not been made with full and proper consideration.

63. For the same reason, I must respectfully disagree with the trial judge’s suggestion that counsel might easily miss the significance

of two pages in disclosure material amounting to 78 pages. It is the responsibility of the legal representatives for the accused to

assess such material properly and make decisions on the conduct of the case accordingly. In any event the volume of disclosure in

this case was small by the standards of many cases these days. Counsel for the defence have been known to complain to trial judges

on occasion about being expected to digest large quantities of late disclosure but this was not one of those cases.

64. It is worth noting the criteria for quashing a conviction in those exceptional circumstances where an appellate court finds that the

conduct of the appellant’s defence was seriously inadequate. In The People (Director of Public Prosecutions) v McDonagh [2001] 3

I.R. 411 Keane C.J. observed that a trial in which the defence was conducted “with such a degree of incompetence or disregard of

the accused’s interests as to create a serious risk of a miscarriage of justice” could not be regarded as a trial in “due course of law”

as required by Article 38.1 of the Constitution. However, the fact that the defence representatives had committed what might

properly be regarded as an error would not, of itself, be sufficient to justify setting aside a verdict. Keane C.J. referred with approval

to the analysis of the English Court of Appeal in R. v. Clinton [1993] 1 W.L.R. 1181, where it was said that it was necessary to assess

the effect of the error on the trial and the verdict. He went on:

“It was also said, in that case, that the circumstances in which a court is entitled to set aside the verdict of a jury

when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the

preparations for the trial, must of necessity be ‘extremely rare’. In particular, where counsel has fully discussed

the case with his or her client, and has made careful and considered decisions as to how best the defence should

be conducted in his or her client’s interests, an appellate court should not intervene simply because it appears

that counsel might have been mistaken in the view he took….It was however held that, exceptionally, where the

decision in question was taken either in defiance of or without proper instructions or when all the ‘promptings of

reason and good sense’ pointed the other way, it might be open to an appellate court to set aside the verdict.”

65. There is no suggestion from any party, or from the trial judge, in the instant case that counsel representing the respondent acted

other than competently, conscientiously and in accordance with his instructions. I refer to the authorities on this aspect merely to

point out that counsel’s conduct of the case could not, by any stretch, have been considered to have led to the risk of a miscarriage

of justice. It was his decision that there should be no cross-examination on the inconsistencies between the complainant’s

statements. That this was indeed a decision, and not an oversight, can fairly be inferred from the fact that the complainant was

cross-examined at length both before the jury and in the voir dire without reference to the issue; that counsel did not wish her to be

recalled for cross-examination on it; and that counsel did not demur in this Court when counsel for the Director went through, in some

detail, the evidence that might have become admissible had such a cross-examination taken place. That material included statements

by the complainant, to persons other than Ms. Convery, that could have been seen as strengthening the credibility of her sworn

evidence.

66. The question then arises as to whether the trial judge was justified in taking the view that, notwithstanding counsel’s decision,

the absence of clarification had created a risk of an unfair trial.

The effect of inconsistencies in the prosecution case

67. Again, it must be pointed out that the material in controversy in this case was not adduced before the jury by either party.

However, I think it useful to examine briefly the related question whether inconsistencies in the prosecution case as presented to a

jury are necessarily fatal. This is an issue that most frequently arises in the context of an application for a direction at the close of

the prosecution case, on the basis of the well-known test set out in the following passage from the judgment of Lord Lane CJ in R. v.

Galbraith [1981] 1 W.L.R. 1039:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged

has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The

difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent

weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the

conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not

properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the

prosecution case is such that its strength or weakness depends on the view to be taken of a witness’s reliability,

or other matters which are generally speaking within the province of the jury and where on one possible view of

the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty,

then the judge should allow the matter to be tried by the jury.”

68. This test has been approved and consistently applied in this jurisdiction. For example, in The People (Director of Public

Prosecutions) v M. (Unreported, Court of Criminal Appeal, 15th February, 2001) the Court referred to Galbraith and dealt with the

question of inconsistencies in evidence as follows:

“If there was no evidence that an element of the crime alleged had been committed, the situation would be clear.

The judge would have to stop the trial. However, that is not the situation here. If a judge comes to the conclusion

that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict

it is his duty to stop the trial. However, that is not the case here. Here there is lengthy evidence from the

complainant in which there are some inconsistencies. These inconsistencies are matters which go to the issues of

reliability and credibility and thus, in the circumstances, are solely matters for the jury…These are matters

quintessentially for the jury to decide. However, if the inconsistencies were such as to render it unfair to proceed

with the trial then the judge in the exercise of his or her discretion should stop the trial.”

69. It is well established that a jury is entitled to accept the evidence of one prosecution witness and reject the evidence of another.

Similarly, where one witness has been inconsistent, the jury may nonetheless act rationally in choosing to act on the part of that

witness’s evidence that appears reliable. The existence of discrepancies would not, in itself, justify an appellate court in interfering

with a finding as to credibility – see, for example, The People (Director of Public Prosecutions) v McGing (1989) 3 Frewen 18.

70. An example to the contrary effect is the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v

M. (Unreported, Court of Criminal Appeal, 10th July, 1998). In that case there was an allegation of habitual abuse over a period of

time. Only two instances were referred to specifically. The Court of Appeal found that the inconsistencies between the evidence and

the prior statements of the complainant were such as to give rise to a doubt as to whether those incidents happened at all. The

inconsistencies did not stop there, and the Court held that the application for a direction should have been allowed on all counts.

71. It may be noted that the sentence from Walsh on Criminal Procedure relied upon by the defence in the application for a direction

in this case (quoted at paragraph 16 above) is part of the following passage:

“Mere inconsistencies in the evidence of the key prosecution witness, for example, will not necessarily result in a

direction of no case to answer where the prosecution case rests on that witness. The essential issue to be

considered by the judge is whether ‘on one possible view of the facts there is evidence upon which a jury could

properly come to the conclusion that the defendant is guilty’. He must be careful not to usurp the function of the

jury in this matter by making the determination himself. Ultimately, it is for the jury to decide whether such

inconsistencies as there are in the witness’s testimony render him an unreliable witness. If, however, the nature

and extent of the inconsistencies are such as to render it unfair to proceed with the trial then the judge should

stop the trial. For this to happen, however, it would seem that there would have to be a doubt whether the crime

was committed at all or at least an absolute conflict in the prosecution evidence which could not be resolved.”

72. In my view this is a correct statement of the law.

Discussion

73. It may be helpful to summarise the state of affairs as of the time when the trial judge made her ruling.

74. The complainant had given her evidence and been cross-examined before the jury. Defence counsel had decided not to put it to

her that she had been reported by Ms. Convery as having, at a time in the past, expressed doubts as to penetration. Had counsel

decided otherwise, there was a risk, firstly, that her own explanation could have strengthened her credibility in the eyes of the jury.

It would also have brought to their attention the fact that she had made a complaint many years earlier than might otherwise have

seemed to them to be the case. There was a further risk that other damaging evidence, concerning other complaints made by her at

a relatively early time, could have become admissible. Counsel’s decision was made in full knowledge of those other matters and of the

disclosure material including the notes in question. Had the trial proceeded and ended in conviction, it does not seem likely that an

appeal on the basis of the decision not to cross-examine would have been successful.

75. The trial judge considered, correctly in my view, that a direction was not appropriate on any charge having regard to the clear

evidence given by the complainant. Had the trial proceeded, and the accused been convicted, it would not have been a good ground

of appeal to argue that the material not cross-examined upon, and therefore not put before the jury, was so inconsistent with the

sworn evidence as to make the verdict unsafe.

76. However, the trial judge was nonetheless concerned that the complainant’s evidence was potentially unreliable. She considered it

reasonable for the defence to avoid cross-examination on the issue because of the risks involved. She further considered that a

complainant should not be cross-examined on such matters without having been given some indication by the prosecution or

investigating gardaí that they might arise. It was a matter for the Director to clarify before bringing charges or, at least, before the

trial could proceed any further.

77. It seems to me that the trial judge erred in this analysis.

78. There is always the possibility in cases such as this that memories become impaired, and (as in any case) that honest witnesses

will be unconscious of that impairment. In any case where a witness has made more than one statement, it is common for

inconsistencies to be found. That is something that might legitimately be said to go to reliability or credibility (which are, of course, to

be assessed by the jury). However, it is an issue best left to the defence to explore and, as the authorities discussed above

demonstrate, the mere fact that inconsistencies are found does not of itself entitle the defence to a direction. If counsel decides, for

good reason, to leave a particular issue alone, a trial judge should be extremely wary of second-guessing him or her. It is always likely

that counsel knows more about the potential consequences of following a particular line than the judge does.

79. Whether further questioning by investigating gardaí, with a view to clarifying inconsistencies in the evidence, could constitute

“coaching” is a matter best left to be assessed on the facts of any given case.

80. In my view the trial judge should not have given so little weight in her reasoning to the fact that the defence might have avoided

the issue for fear of the consequences. Those consequences, such as they are, arise from the operation of the rules of evidence, and

in the absence of any challenge resulting in a finding that the rules themselves create the risk of an unfair trial (whether in general or

in a particular case) the defence must abide by them. The rules of evidence, labyrinthine as they may sometimes appear, generally

serve useful purposes. They do not create a particular obligation on the prosecution either to save the defence from the

consequences of a rash decision, made in circumstances of full and proper disclosure, or to relieve them from having to make the

decision in the first place.

81. In this case, the operation of the rules of evidence protected the accused from the introduction of certain potential evidence

capable of strengthening the prosecution case. Cross-examination of the complainant on the perceived inconsistencies could have led

to the admission of that evidence. I cannot see that such a result, if it were to come about, could be described as an unfairness to

him.

82. The order made by the trial judge in this case was extremely unusual. There is no question but that it reflected her intention to

fulfil her duty in ensuring the fairness of the trial. However, having regard to the considerations discussed above I have come to the

conclusion that, on the facts of the case, it was not a necessary or appropriate order. I think it desirable to add that in principle I

consider that an order of this nature should be made only in exceptional circumstances. The problem here, as I see it, is with the fact

that in making the order the court intervened in the prosecutorial role to the extent of directing the prosecution authorities to carry

out a “proper” evaluation of the evidence, and restraining them from proceeding further until that was done. This, I think, was

contrary to the authorities discussed above and to the principle that the assessment of the evidence for the purpose of the decision

to prosecute is a matter for the Director of Public Prosecutions. The fact that the judge did not envisage a further supervisory role for

the court in subsequently determining whether or not such a “proper” evaluation had taken place does not alter the fact that she

had, in effect, exercised a degree of control over the investigatory process and the initiation of the prosecution that was not

warranted by authority. It may be that such an intervention might be necessitated in very unusual circumstances, of a sort I do not

think it would be helpful to attempt to categorise, but I cannot see that any of the features of this trial required it.

83. I do not wish to be understood here as in any way diminishing the role of a trial judge in assessing the viability of the prosecution

case on an application for a direction or in the exercise of the overarching function of ensuring fairness in the trial. However, where

the perception of unfairness arises from a view that the parties should have investigated or handled the evidence differently, or that

the operation of the rules of evidence may be creating an unfairness, it is I think incumbent on the trial judge to recall that different

roles are being performed in the trial process and that the judge’s role does not involve substituting his or her judgment for that of

the prosecution and defence.

84. In the circumstances I would allow the appeal and grant an order lifting the stay imposed by the trial judge.