Appeal dismissed; old sexual abuse case relief denied due to lack of delay or disclosure grounds.

[2006] IESC 19

THE SUPREME COURT

325/04

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between:

P.G.

Appellent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 29th day of March, 2006.

1. I agree that this appeal must be dismissed, for the reasons given by Mr. Justice Fennelly in the judgment he is about to deliver. In

my view the applicant has not been able to make any showing on the facts of the case which would entitle him to relief either on the

ground of delay or on the ground of inadequate disclosure. Nor, in my view, has he sufficiently used the procedures actually or

potentially open to him before seeking this relief. But there are aspects of the case on which I wish to reserve my position until a

suitable case arises for their disposition. These relate to disclosure.

2. A special jurisprudence has arisen in relation to old cases of alleged sexual abuse of children. As a result of this, prosecutions are

routinely permitted after a lapse of time such that it would make it quite impermissible to pursue any other form of litigation, civil or

criminal. In other types of case complaints so old would be regarded as beyond the reach of fair litigation.

3. It must be recognised that the decision to permit in certain circumstances the trial of very old cases carries with it a positive duty

to take steps to ensure, insofar as possible, that these cases can fairly be tried. Lapse of time undermines memory and often makes it

difficult or impossible to challenge the complainants account in any detailed way, or to find evidence with which to contradict him or

her. There may be many ways in which these difficulties can be addressed, which do not call for comment here. But, since the topic

of disclosure has arisen in a specific way I wish to state that I am not to be taken as agreeing with the director’s submission that

disclosure is always or primarily a matter for the trial judge. As the law stands, the elaborate procedures which have been provided

for discovery in civil cases do not apply to criminal cases. Furthermore, and despite the cogent recommendations of the Working

Group on the Jurisdiction of the Courts which reported in May, 2003, no provision has been made for the sort of preliminary hearing

before the trial judge on arraignment which might address these problems. Indeed, at present there is no certainty that the judge

presiding over the arraignment will be the eventual trial judge. Moreover, the Courts have had recent experience of disturbing cases

(including one case where a conviction leading to a sentence of life imprisonment was subsequently held to be a miscarriage of

justice) of grave shortcomings in disclosure. These included non disclosure of the fact that a Prosecution witness had previously made

a dubious allegation of rape against another party. (DPP v. Nora Wall, CCA, 16.12.05)

4. For these reasons I wish to make it clear that, in my view, at least unless and until a satisfactory provision for disclosure or

discovery in criminal cases comes into being, an applicant is, in a suitable case, entitled to raise the question of disclosure on judicial

review. In particular, it appears to me that an applicant in an old sex abuse case may be entitled to sight of all statements in the

nature of complaints or disclosures of alleged abuse. In many instances these will be the only “islands of fact” available to an

applicant. It will clearly be of the greatest importance to establish if there is consistency over time in the complaints made, or if they

evolved over time, and if so why.