Supreme Court allows appeal where decades of delay renders trial of sexual assault case unduly hazardous and unfair.

[2005] IESC 43

THE SUPREME COURT

215/04

Hardiman J

Fennelly J.

McCracken J.

T.S.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE HARVEY KENNY

and DISTRICT JUDGE ALBERT O’DEA

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 22nd day of June, 2005.

1. I have had the opportunity of reading the judgment of McCracken J. in this appeal. I agree with it and with the order which he

proposes.

2. I should like to add a very few words by way of elucidation of my judgment in P.L. v. Her Honour Judge Buttimer (Supreme Court,

unreported, 20th December, 2004), referred to in the judgment of McCracken J. in this case. There, this Court granted relief on the

ground of a specific aspect of demonstrated prejudice. In addition (and therefore obiter), I invoked a portion of the judgment of

Keane J. (as he then was) in P.C. v. DPP [1999] 2 IR 25, at 68:

“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 person to defend himself or herself will be

impaired”.

3. As McCracken J. says in his judgment, the sentence quoted and others immediately preceding it have become known as “ ‘the first

test’ as laid down in that case, the second test being whether the delay can be traced to the actions of the accused and the third

being whether it can be shown that there was actual prejudice to the accused”.

4. In P.L., I continued:

In the circumstance of this case, I would in any event have been prepared to grant relief on the basis of the first test.

The case is a very old one. Apart from the question of the structure of the desk, there is no island of fact which can be

used either to contradict the complainant or to demonstrate prejudice. The applicant has sought to develop certain

islands of fact, but this has been countered by a retreat into vagueness. After so long a period, in the absence of any

corroborating or supporting evidence, after the failure by the authorities to discover any reliable third party accounts (and

I stress that one must presume that attempts to do so were made), I consider that a trial of this case would be unduly

hazardous and that the issue as to whether or not the applicant abused the complainant is simply beyond the reach of

fair litigation”.

5. Cases like this one, allegations of sexual abuse made after a long period of time, have perhaps predictably given rise to a great deal

of anxious legal debate, both here and in other jurisdictions. The principles of our courts approach, laid down in P.C. and subsequently

commented upon in many other cases, have involved the sort of compromise that is perhaps inescapable when two strong and

competing rights are in issue. The jurisprudence is not yet fully formed and, in some aspects, not easy to follow. McCracken J. points

out that there were three separate judgments in P.L.: that fact itself, as well as the detail of the judgments illustrates some of the

themes that have arisen in the case law to date.

6. In light of this, I would first like expressly to state my agreement with a number of observations made by McCracken J. in his

judgment. I entirely agree that:

“There is no doubt that, the longer the delay, the great the danger of prejudice and the more readily a court will infer

prejudice. However, that does not mean that in all cases an unfair trial would result”.

7. I also agree with McCracken J. that the examples he quotes from the judgment of Geoghegan J. in P.L. constitute circumstances in

which a trial might fairly be had even after the passage of many years, and I fully agree that there may be other such instances.

Perhaps more fundamentally, I entirely agree with McCracken J. when he says, having pointed out the manner in which lapse of time

compromises the prospects of a fair trial:

“However it must be remembered that time limits on prosecutions are primarily a matter for the legislature, which in its

wisdom has determined that there should be no time limits in the case of indictable offences. It is not for this court to

amend the law in any way in that regard, but only to uphold the constitutional right of the appellant to a fair trial.”

8. I wish secondly to emphasise that I would have applied the first test in the circumstances of P.L., not because some arbitrary

number of years had elapsed but because in the circumstances of that case, and apart from any demonstrated prejudice, a real and

serious risk of prejudice arose simply from the length of the time lapse combined with the absence of other sources of information.

9. It is not desirable in these cases to enter into a purely theoretical debate and I hope I have not done so. But I have been deeply

impressed, in light of the facts of some of the cases discussed in my judgment in P.L., by the proposition that, in certain cases at

least, it is the result of sheer chance and the vagaries of fortune that prejudice can be demonstrated at all. When lapse of time is

measured in decades, and perhaps even after shorter times as in B.J., one must not fail to consider that the final prejudice to accrue

may be that of not being able to demonstrate prejudice. Up to the present, most cases have been dealt with on the basis of the third

test in P.C., whether actual prejudice can be shown. But there will always be a number of cases, probably, one hopes a small number,

in which (to adapt a well known phrase) absence of evidence of prejudice is not evidence of its absence. It is that consideration, in

my view, which underlies the necessity to preserve what has become known as the first test in the judgment of Keane J. in P.C.