Supreme Court allows appeal to prohibit trial due to impossibility of producing evidence from a specific desk.

THE SUPREME COURT

348/03

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN/

PL

Applicant/Appellant

and

HER HONOUR JUDGE BUTTIMER AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 20th day of December 2004

1. The facts of this case are set out fully in the judgment of Hardiman J. and I do not need to repeat them. I have had the benefit of

reading also the judgment of Fennelly J. and at p. 10 of his judgment he says the following:

“Hardiman J., in his judgment, concludes that the trial should be prohibited on the distinct ground that there is a real risk of an

unfair trial by reason of the impossibility of producing the desk behind which the offending conduct is alleged to have taken

place. In that respect, I agree with his judgment.”

2. I take the same view and I would, therefore, allow the appeal and substitute for the order of the High Court an order of prohibition

against the first-named respondent from proceeding with the trial and an injunction against the second-named respondent from taking

any further steps towards the prosecution of the applicant. I want to make it clear however that the view which I have taken is

based on that ground only. I do not find it necessary or desirable that I should form a definitive view on the other grounds for relief

though I do think it necessary to express some personal views on what to some extent are divergent opinions on the legal issues in

the two other judgments.

3. I believe that the view I have arrived at in relation to the “desk” issue is soundly based on the opinions expressed by this court in a

number of cases but in particular in PO’C v. DPP [2000] 3 I.R. 87. In that case, Keane C.J. in delivering the leading judgment

approached the question of whether the applicant in the case was responsible for the delay in reporting the offence, by presuming

guilt on his part but having arrived at a conclusion of culpability on that basis applied the presumption of innocence to the question of

whether there was a danger of an unfair trial by reason of some specific factual evidence which might have afforded a defence being

no longer available.

4. Although my colleagues Hardiman J. and Fennelly J. have expressed somewhat divergent views on the principles applicable to the

other issues in the case, I find myself in the invidious position of not being in complete agreement with either.

5. Hardiman J. seems to suggest that an applicant is entitled to have his trial injuncted merely because of an absence of an “island of

fact” or merely because there might have been a potential “island of fact” which was never explored. I do not think that the

jurisprudence of this court has as yet gone that far and I would not be prepared to endorse it or even consider it without a court of

five judges. Hardiman J. has expressed similar views in other cases to which he refers in his judgment. Those views do not appear to

have been expressly endorsed by a majority of the court and cannot therefore be regarded at the present time as forming part of the

jurisprudence of the court. I think that the “desk” is analogous to the “music room” in PO’C and that in each case there was an

actual proven island of fact as distinct from a potential island of fact which might have come to light if investigated.

6. It is clear also that Hardiman J. takes the view that if the evidence is mere assertion contradicted by a mere denial the case should

not go to trial. That may well be a tenable viewpoint but I do not believe that this court has ever held that to be the position. In an

unreported judgment of this court delivered by me and concurred with by Murray J. (as he then was) and Fennelly J. on the 19th

May, 2004 in the case of DD v. The Director of Public Prosecutions, I expressly approved of the following passage in the ex tempore

judgment of Kearns J. in the High Court.

“Equally, the island of fact which Mr. Gageby says existed by reference to the dormitory arrangements, I am not satisfied that

there is an island of fact such as was capable of being pursued in the way Mr. Gageby says it should have been. Accounts

available at this point in time seem to me to be equally consistent with either version of events. I do not think there is either

an island of fact or a demonstrable specific prejudice in this case in so far as the accused is concerned. I do accept, and it is

one of the great misfortunes of this kind of case, that there is inevitably a sense of a potential prejudice and general

prejudice, but essentially this case comes down to a credibility contest between the complainant and the accused. That

inevitably is the case across a spectrum of different cases. Notably and I took this as an example, in a rape situation where

the defence is consent, there are no other witnesses and it all hinges on essentially the resolution of a contest of that nature.

That, of itself, cannot be a ground for stopping a case, the fact that there is simply one person’s testimony against another.”

7. Cases of rape or sexual assault which are brought in good time may frequently involve a simple credibility contest between

complainant and accused because inevitably a great number of these offences are committed in some secret place and frequently in

the dark. Until the law was changed there was a safeguard, to some extent, at least against the danger of a false accusation. There

used to be the obligation on the part of the trial judge to instruct the jury that it would be dangerous to convict in the absence of

corroboration. That mandatory requirement is now gone but there is still a discretion left in a trial judge and, in my opinion, such a

warning should always be given as a matter of discretion in a one to one contest. Memory (I mean by this of course actual memory

and not so called “recovered memory”) is not a significant factor in prosecutions for sexual crimes. If a man has committed rape or a

sexual assault on another person I would have thought that he will normally remember it for the rest of his life. There may be

exceptional cases where memory comes into play, as for instance, where a teacher regularly sexually assaulted his pupils but would

not, after many years, remember the particular identity of a complainant as being one of his victims. But subject to that kind of

exception, the difficulties attached to a one to one contest in sexual crimes apply just as much or certainly nearly as much when the

trial is held shortly after the alleged event as when it is held many years later. For these reasons, I would reserve my position on any

widening of the so called “island of fact” principle over and above the situation where particular facts can be identified which if it

were possible to prove might lead to an acquittal. The music room is an obvious example.

8. I have the impression from reading the judgment of Fennelly J. that his views on these matters may coincide with mine. But there

are other parts of his judgment with which I would have some problems. He has expressed the view (with which I do agree) that

Keane J. (as he then was) in PC v. Director of Public Prosecutions [1999] 2 I.R. 25 was not postulating three different tests the first

being whether the trial should be prohibited on the ground of delay alone. While undoubtedly reasserting the power of the courts to

stop the trial on the grounds of delay alone this has always been postulated in my view as a kind of reserve power to be used for

exceptional reasons and in exceptional circumstances and it would be folly on the part of any court to indicate in advance the kind of

circumstances in which it would be applied. It would be something quite exceptional and was never intended to be the first of three

tests. What Keane J. enunciated was a twofold process. It is quite true that at p. 68 the following sentence appears in his judgment.

“The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it

has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired.”

9. I think, however, he was referring there to any criminal case whether sexual or non-sexual where having regard to the

constitutional guarantee of a trial “in due course of law” the delay may be such that a trial should not be allowed to proceed.

Although he uses the phrase “depending on the nature of the charges” I believe that the power of the court to prohibit a trial in

exceptional circumstances on the grounds of delay alone would not be confined to a situation where the nature of the charges led to

that being the only course of action if the constitutional guarantee was to be adhered to. I say that having regard to dicta in non-

sexual cases by Finlay C.J. and others and I will return to the matter later in the judgment.

10. Keane J. went on to say that “in other cases” (by that he meant, in my view, the normal run of cases), the first inquiry must be

as to what are the reasons for the delay and in a case such as a case of sexual assault where no blame can be attached to the

prosecuting authorities whether the court is satisfied as a matter of probability that “assuming the complaint to be truthful” the

delay in making it was referable to the accused’s own actions. If that is found to be the case it is necessary then to consider (this

time applying the presumption of innocence) whether the accused’s defence is prejudiced by the delay. I call that a twofold test and

I think that it has been generally accepted as representing the correct approach even though, as Fennelly J. points out certain

members of the court have expressed understandable disquiet at the idea of abandoning the presumption of innocence for any

purpose.

11. Where I depart from the views expressed by Fennelly J. is his emphasis on the so-called “special jurisprudence” applicable to

sexual cases. I find myself unable to agree with his view that the case law establishes that in a prosecution for sexual offences

prohibition can never be granted on the ground of delay alone. As I have already indicated, I am of opinion that that is a reserve

power to be exercised by a court in a rare but appropriate case in relation to any criminal prosecution whether sexual or non-sexual

where otherwise there would be a real and serious risk of an unfair trial or where in a more general sense the trial would not be “in

due course of law” as for instance where there has been an abuse of process or significant prosecutorial misbehaviour. At p. 67 of

the report Keane J. in his judgment makes an important observation.

“Clearly the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in

disregarding the delay, however inordinate, and allowing the trial to proceed.”

12. In my opinion, this sentence in particular contradicts the view expressed by Fennelly J. that a case of this kind may never be

stopped on the grounds of delay alone. While I do not think that as the case law has developed there is any divergence between the

views of Keane J. and Denham J., the latter being responsible for two very important and authoritative judgments in this area, the

terminology used in the respective judgments is different. I am not sure whether Denham J. was using the expression “special

jurisprudence” to which clearly Fennelly J. has attached considerable importance, as almost a term of art or whether it was merely

being used to express particular concepts. I think that the latter is the case. Otherwise, I am bound to confess that I have never

been happy with that phrase. There is a danger that its use will give rise to misconceptions in this area of the law.

13. As I see it, there is no statute of limitations applicable to indictable crime. Accordingly, in theory, a trial may take place a great

number of years after the alleged crime has been committed. In many instances this would be regarded as unobjectionable as, for

instance, in a murder case where the offence could not be proved against a particular person until the body was found many years

later and which then provided the evidence. Depending on the circumstances the alleged perpetrator would probably be put on trial.

The mere fact that one or two potential witnesses for the defence had died in the meantime would not necessarily prevent a trial

taking place. The court would have to balance the factors and determine whether prohibition would be reasonable or not. If on the

other hand a person had been burgled many years before and for some reason best known to himself never complained to the gardaí

and then did so many years later, a trial in that instance might be prohibited. It is worthwhile quoting again the well-known passage

from the judgment of Finlay C.J. in DPP v. Byrne [1994] 2 I.R. 236 at 245.

“I am driven to the further conclusion that, of necessity, instances may occur in which the delay between the date of the

alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity

for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established

either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s

capacity to defend himself would be impaired. This must lead of course, to a conclusion that, on an application to prohibit a

trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude

the issues which have to be determined.”

14. Byrne was a non-sexual case but those principles with which the other members of the court fully agreed even though on the

facts Finlay C.J. was in dissent, clearly were intended to apply to any criminal case. In the DD case cited above, I have expressed

views as to the interpretation of and the context of remarks of Finlay C.J. in relation to sexual cases in G v. The DPP [1994] 1 I.R. 374

and Hogan v. The President of the Circuit Court [1994] 2 I.R. 513. I do not think that the former Chief Justice was suggesting that

there was a “special jurisprudence” in relation to child sexual cases in the sense that that expression has sometimes since been used.

He was simply adverting to the fact that the prosecuting authorities could not be held to blame for any delay in bringing prosecutions

in those cases where the complainant was inhibited from reporting. Rightly or wrongly, I would, therefore, somewhat dissent from the

views of Fennelly J. in so far as they relate to a so called “special jurisprudence” or at least in so far as he uses that expression. At

p. 19 of his judgment he says the following:

“It is a striking fact, nonetheless, that, as this passage implies, the appellant may, in the context of the ‘special jurisprudence’

be required to accept the risk of an unfair trial.”

15. If true, that certainly would be a striking fact but I do not think that that is a necessary consequence of the case law relating to

sexual offences. If it could be proved in any case that there was a serious danger of an unfair trial such a trial would be injuncted. On

the other hand where an accused has been to blame for delay in his trial it would offend the public sense of justice to stop a trial in

advance on the grounds of such delay alone. In all of these judicial review applications to stop in advance trials for sexual offences

the Director of Public Prosecutions has already taken a view that there is a prima facie case. If there has been a long delay but no

actual prejudice can be proved the court will not normally prevent in advance such a trial if it is established, that if the facts are

true, the complainant was inhibited by the conduct of the accused from reporting the alleged crime earlier. There is obviously an

immediate clash of interests here. On the one hand if that is in fact the case, it would be unjust that the accused should escape trial.

It will normally be perfectly reasonable in those circumstances for the court to permit the trial to go ahead given that the trial judge

will always be at large in ensuring that the accused is not subjected to an unfair trial. On the other hand nobody should ever have to

undergo an unfair trial. But it may not be possible to form a judgment in advance as to whether a potential trial would be fair or unfair

and if in those circumstances the court balancing the relevant considerations takes the view that it should not injunct in advance of

the trial, it will then be for the trial judge to ensure as best he or she can that the trial is in fact fair. I do not think that sexual

offences are in a different category but they may necessarily involve different considerations.

16. This is all a far cry from the “desk argument”. It is on that ground that I would allow the appeal.