Supreme Court dismisses appeal against prohibition order due to prosecutorial delay and applicant's prejudice despite inherent jurisdiction considerations.

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Kearns J.

Appeal Number [172/2003]

JUDICIAL REVIEW

BETWEEN

M. O’ H.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 28th day of March, 2007

This is an appeal brought by the respondent from the order of the High Court (McKechnie J.) dated 28 February, 2003 whereby the

trial of the applicant was prohibited in respect of various sexual offences alleged to have occurred between July, 1981 and August,

1982. As appears from the comprehensive judgment delivered by McKechnie J., the order of prohibition was made on the grounds of

prosecutorial delay, although the learned trial judge also found that the applicant had been seriously prejudiced by the respondent’s

failure to make full disclosure either in accordance with law or on foot of an undertaking given in the case by him in that regard.

As the two matters are, to a large degree, overlapping, it is necessary to set out the factual background in some considerable detail.

The complainant is a woman who was born on 3rd August, 1967 and is thus aged 39 years. The applicant is a Franciscan priest who is

now aged some 70 years having been born on 29th January, 1937. The complainant lived in a country town and when she was 13

years old she was part of a choir in the local Franciscan church. She used to sing at the 12 o’clock mass each Sunday and the

applicant used to say the mass. They met after mass on one occasion and the following week she went to confession to the

applicant. He recognised her and asked her how things were. She talked about her father’s drinking, got upset, and he her took

around the screen, put her sitting on his knee and started to embrace and kiss her. He then locked the door and abused her sexually.

After this incident, the complainant alleges that she started to drink alcohol and drank continuously every weekend thereafter.

Further alleged sexual abuses occurred in a room at the front of the Friary. This abuse is alleged to have continued periodically until

she left the choir when she was fifteen years old. According to the complainant, the applicant also called round to the family home

and befriended her parents. She alleges that he abused her in the family home on occasions when her parents would be out. She did

not tell her parents because they held a high opinion of the applicant. On another occasion, the complainant alleges that the

applicant took her swimming to a local beach and there abused her again at a quiet part of the beach in the sand dunes. On another

occasion, while the applicant was recuperating from an operation, the complainant alleges that he asked her to go swimming in a pool

located at the venue where he was convalescing. She claimed that he tried to have intercourse with her in the swimming pool but she

pushed him away and left the pool.

The complainant had a nervous breakdown in 1989 when she was approximately 21. Her breakdown was precipitated by her disclosure

of the alleged abuse to her then boyfriend. At that time it seems she had both a drink problem and a skin disorder. She also suffered

from anorexia. Her boyfriend suggested that she report the matter but she was unwilling to do so at that stage. Eventually she

reported it to the Franciscan Friars in April, 1995 but only after her boyfriend had first reported it to them. Subsequently, she took

legal advice from solicitors in Dublin who advised her to report the abuse to the Garda Síochána which she did on the 21 September,

1995.

The complainant had been seeing a psychiatrist, Dr. B, at St Brigid’s hospital within the North Eastern Health Board area since 1985,

some four years before she divulged the fact of abuse to her boyfriend. She was treated as an inpatient in St Brigid’s hospital in 1985,

1989 and 1994 with complaints of a cyclothymic mood disorder accompanied by alcohol abuse and obsessive behaviour.

The applicant was out of the jurisdiction in 1995, but on his return he was interviewed by the gardaí on the 26 June, 1996. He

appeared, by way of summons, before the local District Court on three charges of indecent assault in June, 1997. Having been served

with a book of evidence, he was returned for trial on the 16th September, 1997 for the next sittings of the local Circuit Court

scheduled for the 7th October, 1997. Subsequent to his return for trial, he was arraigned on nine additional counts of indecent

assault ranging in dates from the 31st July, 1981 to 31st December, 1987.

His first trial date, namely, the 9th March, 1998 had to be vacated when it transpired that the presiding judge had formerly been a

solicitor in the same practice as the firm which represented the applicant in those criminal proceedings. Immediately prior to that

date, Messrs McCartan and Hogan solicitors, who were acting on behalf of the applicant, wrote to the local State solicitor on the

17th February, 1998 and requested sight of the psychiatric reports or records which Dr B had in his possession in relation to the

complainant. This request was refused and as a result the applicant sought and obtained leave of the High Court on the 25th May,

1998 to seek firstly, an order prohibiting the respondent from taking any further step in these criminal proceedings on the grounds of

delay in the institution of same and secondly, an order of mandamus directing the respondent to furnish the medical reports and

records which previously had been sought. On the 25th March, 1999 O’Sullivan J. delivered judgment in those judicial review

proceedings. He refused any relief on the grounds of delay up to that point but held in favour of the applicant on the issue of

documentation. The learned High Court judge noted that the complainant had given explicit written authority to the prosecuting

gardaí to procure relevant reports from her treating psychiatrist, Dr. B., and held that in such circumstances there was an obligation

on the respondent to procure same and to make them available to the applicant’s legal advisors. However, prior to making any order,

the court was satisfied to accept an undertaking given on behalf of the Director of Public Prosecutions that his office would obtain

and furnish the required reports and records.

However, it then transpired that Dr. B. was unwilling to hand over the records in relation to the complainant as he took the view it

would breach patient confidentiality. The matter was accordingly referred back to the High Court by the respondent on 27th July,

1999. On that date, O’Sullivan J. clarified that the intent of his judgment was that all such medical reports in the possession of Dr. B.

should be handed over.

On 8th October, 1999, those notes and records were made available to the applicant’s solicitors. Much of the material related to the

complainant’s history of depression and alcohol abuse. One note referred to her “obsessive thoughts of her childhood sexual abuse”

without mentioning the name of any alleged perpetrator. Amongst the documents handed over was a medical report from Dr B. dated

7th July, 1995 in which he recorded that the complainant experienced “two bouts of sexual abuse aged between 13 and 15 years and

again at 17 – 18 years. This was perpetrated by a priest.” Also handed over was a letter dated 16th July, 1994 from a social worker

attached to Drogheda Community Services Centre which was addressed to Dr B. and which stated:-

“I understand from the letter of referral that your main concern is with D’s ability to care adequately for her child. The

Social Work Service in the Community Services Centre is an adult centred service and we have no statutory responsibility

in issues of child care. I feel that this case is more appropriate to Community Care and I have referred D to Margaret

O’Sullivan who is a Social Worker with the Community Care team in Ballsgrove Health Centre, Drogheda.”

The date of this letter is important because a separate letter (the existence of which only became known at a later point) was sent

that same day by Mary McDonald to Margaret O’Sullivan which alluded to the fact that the complainant was from “an alcoholic

background and there are allegations of physical and sexual abuse within the extended family”.

The applicant’s solicitors took the view that this discovery, although extensive and running to more than sixty pages of clinical and

hospital notes and records, was incomplete. Firstly, there was a reference to certain discharge summaries which had not been

enclosed. Secondly, from certain documentation which was disclosed it could be reasonably be inferred that the North Eastern Health

Board could have further written material relevant to the complainant’s treatment. Thirdly, there was also a reference to

psychosexual evaluations having been carried out on the complainant by Dr B, but no report of any such evaluation appeared in the

notes as furnished.

The applicant’s solicitors continued to seek clarification of these matters in correspondence and reminders were sent to the State

solicitor in December, 1999 and in January 2000. At this point, the adjourned trial was scheduled to take place on 1st February, 2000.

On 19th January, 2000, the High Court directed the personal attendance before it of Dr. B. to enquire whether or not the direction of

the court given in March, 1999 had been complied with. Dr. B. attended in court on the 17th February, 2000 and gave evidence on

oath that all notes in his possession had been handed over. However, it then became clear that there were other documents in

existence, although not in Dr. B.’s possession, which had been created by doctors, nurses or other staff of St. Brigid’s which were

both potentially relevant and material.

On being requested to make an order for third party discovery against the Health Board in question, O’Sullivan J. took the view that in

the first instance such an application should be made in the court of trial. This duly occurred and an appropriate order was so made

by Judge Groarke on 21st March, 2000. On 26th September, 2000, the North Eastern Health Board filed an affidavit which on the

information then existing appeared to contain all relevant documents. The applicant was given to understand that the discovery

exercise was now complete.

The trial of the applicant commenced at Dundalk Circuit Court on 4th October, 2000. By reason of certain prejudicial statements made

by the complainant the jury was discharged and the further prosecution of the various offences was transferred to the Dublin Circuit

Court.

Prior to the making of that order, however, counsel on behalf of the applicant sought to cross-examine Dr. B. on extracts from the

victim’s notes and records he had previously produced. It quickly became apparent that many of the relevant entries had been made

by other doctors and nurses. Counsel on behalf of the respondent objected to the proposed cross-examination and this objection was

upheld by the trial judge who found that unless the individuals who had made the relevant entries were present to prove their notes,

such a cross-examination of Dr. B. was not permissible. The stance taken by the respondent is of importance because it provides an

explanation as to why the respondent thereafter both offered and assisted in efforts to track down those individuals and to seek

further information from the North Eastern Health Board. In the hearing before McKechnie J in the High Court, Garda McFadden was

asked by counsel:-

“Q. Did the State not take it upon itself in the course of appearances before the Circuit Criminal Court the job of locating

these witnesses and details in relation to them?

A. That is correct, yes”.

On 17th October, 2000, Messrs McCartan and Hogan wrote to the Chief State Solicitor enclosing by way of a schedule eight specified

extracts from the documentation in respect of which the identity and whereabouts of the authors was required. When no replies were

received, further reminders were sent on the 16th November and 30th November.

While the trial in Dublin was mentioned on the 24th November, 2000, it was adjourned from time to time thereafter as further enquiries

proceeded in relation to the documentation.

It was only in March, 2001, that the prosecuting garda, Garda McFadden, wrote to the administrator of the hospital where the

complainant had been treated seeking information as to where certain of the individuals who had made entries in hospital notes might

be at that time. On foot of replies received, the applicant’s solicitors were informed of the names of certain individuals but not of their

addresses or availability. On 7th June, 2001, the Chief State Solicitor’s office wrote to say that the various individuals had “long since

left Ireland and were uncontactable”.

However this statement was incorrect. By way of separate initiative, the applicant’s solicitors had written to the same hospital

administrator on the 2nd May, 2001 requesting as much information as possible about some of the individuals who had been identified.

By letters dated 16th May, 2001 and 24th May, 2001, the hospital administrator provided addresses for virtually all of the individuals

whose whereabouts were being sought, including in particular the work address of Mary McDonald.

When the matter was mentioned before Her Honour Judge Dunne (as she then was) on the 22nd June, 2001, Judge Dunne accepted

there had been no deliberate attempt to mislead the defence but acknowledged the importance of contacting Mary McDonald, and

suggested to both sides that they contact the Medical Council to see if it could trace medical witnesses, stating:-

“If the State wants to get the case on it is not unreasonable to carry out the type of enquiries that have been requested

and hopefully if that is done it will help to advance matters. May I also emphasise, Mr Colgan, in case anybody thinks I am

directing the State to act in a particular way (that while) I have made the suggestion about the Medical Council that

must not preclude any other reasonable enquiries that are made”

The need to make these further enquiries necessitated the further adjournment of the trial. On the 1st of November, 2001 the Chief

State Solicitor wrote to the applicant’s solicitors enclosing statements from six witnesses who attended the complainant while she

was a patient in St Brigid’s hospital under the care of Dr B. and who were responsible for making certain entries in the records.

Enquiries were said to be continuing in respect of other persons mentioned in the notes. In addition, however, though not referred to

in the letter, there was also sent a copy of a file entitled “Drogheda Community Services”. Crucially from a defence point of view,

this file contained a notation dated the 6th July 1994 in the following terms:-

“D. looks very tired. Violent headache over the weekend – says she would like to go into Rutland. She mentioned family

history of alcoholism – alleged physical abuse by Father - S. A. by uncle – discussed possibility of RCC.”

The reference to ‘S. A.’ was of great significance given that for the first time there was now a record indicating that the complainant

had made a prior allegation of sexual assault against an uncle. The reference to “RCC” that followed was a reference to the Rape

Crisis Centre. This was the first indication that the Centre had been involved in the complainant’s history.

Thus, although the applicant and his legal advisors had been led to believe that a complete disclosure had been made prior to the

applicant’s trial in the local Circuit Court, it now became apparent that the applicant had stood trial in circumstances where a

document containing information of very great significance and possible assistance to him in his defence had not been procured or

made available.

Arising out of the late disclosure of a separate allegation of sexual abuse by an ‘uncle’, the prosecuting Garda, Maureen McFadden,

decided to take a further statement from the complainant on the 27th November, 2001. In this statement the complainant said:-

“Further to my previous statements I wish to state that I was never sexually abused by my uncle. I used the term uncle

to cover up the fact that it was a priest Fr. X who was abusing me sexually and I was too ashamed to say it was a

priest. If the social worker thought that it was an uncle that was abusing me she would have acted accordingly.”

On the 28th November, 2001, the respondent applied to adjourn the applicant’s trial on the basis that the various witnesses who had

made entries in relation to the medical records of the complainant were not available to give evidence and that disclosure by the

State was still outstanding. Further, counsel for the respondent indicated that a further relevant file had been identified and was

being sought. In the circumstances, Judge Dunne vacated the trial date of 3rd December, 2001 and fixed a new trial date for the 6th

March, 2002.

The case was further adjourned on that date when counsel for the respondent indicated to the court that the State had now found

the missing file. The list of documents on the ‘missing file’ was set out in a letter dated 5th March from the State solicitor’s office.

The list referred to documents which had been previously furnished prior to discovery of the missing file. This naturally caused the

applicant’s solicitors to write further on the 12th March enquiring as follows:-

“If all of these documents were contained in the ‘missing file’, then it would seem that this file was never in fact missing

as we had been previously furnished with a substantial number of the documents which you furnished us in your letter of

the 5th of March.

Having regard to the entry in the documents furnished dated the 27th of June 1996, please furnish all records from the

Rape Crisis Centre in relation to the complainant.

Is it your intention to furnish us with a statement from Margaret Sullivan of her observations on ‘missing file’ now that it

has been found? We note that your counsel indicated to the court when this matter was last adjourned that it would be

the prosecution’s intention to identify the authors of the various notes on the missing file and to obtain statements from

them if possible.”

On the 20th March, 2002 the case was again in the judge’s list. On this date a copy of a fresh indictment was provided to the

defence. Judge Dunne observed that three previous trial dates had been vacated and then fixed 8th October, 2002 for the trial of the

action and marked the same peremptorily against the prosecution. The new indictment revealed that the prosecution now intended

proceeding only with counts 1-3 on the original indictment. By further letter dated 18th June, 2002 the Chief State Solicitor’s office

furnished a letter from the Rape Crisis Centre indicating that it had no records from the period requested by the State Solicitor’s

office.

A clear explanation for the missing file only became available when this matter was at hearing before McKechnie J. in the High Court

on the 23rd January, 2003. Garda McFadden gave evidence that the file had been removed from Ballsgrove Health Centre by a senior

social worker and was located ultimately in a safe in St Brigid’s Hospital. This information about the missing file was obtained by Garda

McFadden from social worker Margaret O’Sullivan. It appeared that a senior social worker had removed the file in September, 2000 but

had left his name on a tracer card in the filing system of the Health Centre. Garda McFadden gave evidence that she spoke with the

senior social worker in question, who declined to make any statement about this matter. Garda McFadden stated that she was unable

to explain why the file ultimately came to be recovered from a safe in St Brigid’s Hospital. Given that Dr. B. worked in St Brigid’s, the

witness was pressed as to why the file had not been found in the earlier searches. Garda McFadden replied that she had no power

over the North Eastern Health Board and how they carried out their business. However, beyond noting that the list of documents

stated to be on the missing file included a number of documents which had already been furnished to the applicant’s solicitors, there

is no evidence to suggest that the file had been hidden or concealed in some deliberate fashion, although it is curious indeed that the

tracer card records that the file was removed in September, 2000, being the time at which the North Eastern Health Board was

making its third party discovery.

On the 26th July, 2002 leave was obtained from the High Court (McKechnie J.) to bring the present judicial review proceedings. The

criminal trial has thus been further adjourned to await the outcome of those proceedings. However, from the history set out above, it

is apparent there were no less than sixteen occasions when this case was listed before the Circuit Court in Dublin and that at least

three trial dates had to be vacated. In addition, a trial of the applicant took place in October, 2000 at a time when the Drogheda

Community Services file and information therein about the alleged sexual assault on the complainant by her uncle should have been

available, as should the ‘missing file’ which was ultimately found in the safe at St. Brigid’s. It has never been suggested that had

searches been made with due diligence prior to that trial, they would nonetheless have failed to turn up the files in question.

Decision

In the course of the appeal Mr Rogers, senior counsel for the applicant, argued that that there had been blameworthy prosecutorial

delay in this case such as fully justified the decision of the learned High Court judge to make an order of prohibition, notably in

circumstances where a specific undertaking as to disclosure of documents had been given on behalf of the Director on the 25th

March, 1999. He also advanced an argument that what he characterised as the ‘total failure of disclosure’ in this case was such as to

warrant prohibition.

I am satisfied to rest my decision on the first of these grounds. I do so for the particular reason that disclosure in this case was the

subject matter of a specific undertaking which in time broadened into a more general undertaking to assist in procuring relevant

documentation. The case therefore is not one in which it is necessary or appropriate to delimit the scope of the duty of disclosure in

criminal cases in general, beyond affirming that the nature of that duty was fully set out by this Court in Ward (Director of Public

Prosecutions) v Special Criminal Court [1999] 1 IR 60. My judgment therefore will not, subject to one or two comments, revisit the

authorities dealing with the obligations of gardaí in the investigation of crime to “seek out and preserve all evidence” material to guilt

or innocence, such as Braddish v. Director of Public Prosecutions [2001] 3 IR 127, Director of Public Prosecutions v. Dunne [2002] 2

I.R. 305, Bowes and McGrath v. Director of Public Prosecutions [2003] 2 IR 25 and Scully v Director of Public Prosecutions [2003]

IEHC 92. In both Dunne and Scully however this Court stressed that there must be reasonable parameters on the obligation to seek

out and preserve evidence. There is no obligation on the prosecution to marshal a defence for a person accused of a criminal offence.

It should also be said that there is an independent obligation on the legal advisors of an accused to prepare his defence and to

pursue lines of inquiry themselves to that end.

However, with regard to the obligations on the prosecution, it was noted by the Court of Appeal in R. v. Brown (Winston) [1997] 3

WLR 447, that “the investigative process will also require an inquiry into material which may affect the credibility of potential Crown

witnesses” and in Director of Public Prosecutions v. Dunne this Court accepted as correct the 1997 United Kingdom code of practice

which provided that a proper police investigation will involve obtaining and retaining “material which may be relevant to their

investigation”. “Relevant material” in this context is described in para 2.1 of the code as including “material…that has some bearing on

any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is

incapable of having any impact on the case.”

It is common case that the material ultimately disclosed to the defence in this case had a direct relevance insofar as the credibility of

the complainant is concerned. The fact that a statement was sought and obtained from the complainant in November, 2001 by way

of purported explanation of an allegation of sexual assault ‘by her uncle’ in 1994 speaks for itself. The Court has been given no reason

why the file in which this note was contained was only discovered in November, 2001 or why another file in relation to the

complainant went missing and only eventually turned up in a safe at St Brigid’s hospital in March, 2002. The late disclosure of these

files is a matter of particular concern because the applicant stood trial in the year 2000 without being aware of the note which

contained the allegation made by the complainant against her uncle. The contents of that note were hugely significant in terms of

any cross-examination of the complainant. As McKechnie J. observed in the course of his judgment at para. 43:-

“had this trial proceeded to conclusion great injustice could have resulted and could have been caused to the accused

person”.

This is a case where counsel on behalf of the respondent gave an undertaking in March, 1999 to obtain and to furnish Dr B.’s medical

records on the complainant to the defence. In addition, Judge Groarke in the Circuit Court made an order in March, 2000 directing the

North Eastern Health Board to make third party discovery of all records in its possession. Further the complainant herself had at an

early stage consented to the release of her medical notes. The respondent, as noted in the judgment delivered by Fennelly J,

participated in this process and in my view assumed a responsibility in so doing. The trial in October, 2000 could not and did not begin

until the applicant had been given to understand by the respondent that everything relevant had been handed over. That this was

not the case was amply demonstrated in the events which followed.

Was there ‘blameworthy prosecutorial delay’ in this case? In my view there was, even if one altogether excludes from any calculation

the period up to and including the delivery of judgment by O’Sullivan J. in the earlier judicial review proceedings. One might also

exclude the period up to October, 1999 when Dr B. finally agreed to hand over his reports and records as the respondent can not be

faulted for the stance taken by Dr B. up to that point. Thereafter things went badly off the rails. Although the prosecution was in

possession of the third party discovery since September, 2000, no follow-up inquiries were made into the suggestion contained in the

letter of 16 July, 1994 (which seems to have been part of that discovery) that the complainant had been the victim of sexual abuse

“within the extended family”. Thus it was that a most important disclosure was not made until November, 2001 and further disclosure

was continuing into 2002. While part of the blame for this state of affairs is attributable to officers or agents of the North Eastern

Health Board, the latter may arguably be seen as an emanation of the State, notably where an approach has been adopted by the

respondent which may be seen as assumptive of overall responsibility for disclosure in the present case. From the applicant’s point of

view it makes little difference which of several State bodies is causing delay – he must endure the added stress which ensues,

including the distress of discovering that he stood trial without a crucial piece of evidence being made available to him. Furthermore it

must be remembered that his legal team were, at the urging of the respondent, restrained at trial from cross-examining Dr B. in

relation to any notes or records other than those he himself had written.

The law on prosecutorial delay has been considered in a number of cases, including P.P. v. Director of Public Prosecutions [2000] 1

I.R. 403, P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25, B.F. v. Director of Public Prosecutions [2001] 1 I.R. 656, Director of

Public Prosecutions v. Byrne [1994] 2 I.R. 236, P.M. v. Malone and others [2002] 2 I.R. 560 and, most recently, by this Court is P.M.

v. Director of Public Prosecutions [2006] IESC 22.

In P.C. v Director of Public Prosecutions [1999] 2 I.R. 25, Keane C.J. referred to the State (Healy) v. Donoghue [1976] I.R. 325 and

pointed out that in that case Gannon J. had construed Article 38.1 of the Constitution – which provides that no person shall be tried

in any criminal charge save in due course of law – as recognising the right of an accused person to a trial with reasonable expedition.

In P.P. v Director of Public Prosecutions [2000] 1 I.R. 403, Geoghegan J. stressed the obligation which lies on prosecuting authorities

to move expeditiously in recognition of those rights, particularly in old cases, stating (at p. 409):-

“It is not acceptable and, in my view, is a breach of a defendant's rights under Article 38.1 of the Constitution for the

prosecuting authorities to allow unnecessary delay to occur in a case such as this, involving sexual offences committed

many years ago. The necessarily delayed trial is most unfortunate, but it is wholly intolerable that it should be postponed

still further due to unnecessary delays on the part of the prosecuting authorities.”

While in that case, Geoghegan J. took the view that where blameworthy delay was found to exist in such cases, no additional actual

prejudice need to be proved, Keane C.J. adopted a different emphasis in P.M. v. Malone [2002] 2 I.R. 560, when he stated (at p.

581):-

“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a

result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial

proceeding at this stage. If this were a case in which it could be said that his ability to defend himself had been impaired

and, as a result, there was a real and substantial risk of an unfair trial then, as pointed out by Denham J. in D. v. Director

of Public Prosecutions [1994] 2 I.R. 465, the applicant's right to a fair trial would necessarily outweigh the community's

right to prosecute. Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused

unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the

scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and

inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of

criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent

of the delay.”

This Court in P.M. v. Director of Public Prosecutions [2006] IESC 22, expressed its preference for the approach indicated by Keane

C.J. when in the course of my judgment (with which the other members of the Court agreed) I stated:-

“… the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a

court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an

applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public

interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an

applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and

anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such

blameworthy delay, because if it is a short delay rather than one of substance, the mere fact that some blameworthy

delay took place should not of itself justify the prohibition of a trial.”

Needless to remark, the above list of factors should not be seen as exhaustive, given that each case turns on its own facts. An

additional factor stands out clearly in the instant case. That is the undertaking and approach adopted by the respondent in this case

to make full disclosure of the medical records and to assist in procuring same from a third party, namely, the North Eastern Health

Board. It was probably an approach adopted and broadened by reference to the objections which the prosecution itself had raised at

the trial in October, 2000. Having assumed this responsibility the respondent clearly did not comply with the obligation thereby arising

within a reasonable time. Having noted that the applicant’s solicitors had diligently pursued the process of endeavouring to identify

the authors of medical notes and records on their current whereabouts, the learned High Court judge noted that the reaction and

conduct of the respondent could not be measured in the same light. He noted from reading the correspondence that, throughout the

process, the respondent persistently failed to respond to letters and constant reminders were sent to his office in order to expedite

the process. By letter dated 7th June, 2001, the Chief Prosecution Solicitor stated in respect of the authors who had made notes and

entries that “these witnesses have long since left Ireland and are not contactable”. However, the administrator of St. Brigid’s Hospital

had entered into separate correspondence with the applicant’s solicitors and had by letter dated the 24th May, 2001 given an

address for each of the individuals in question. In my view there were ample grounds which enabled McKechnie J. come to the

conclusion that there had been a “wholly unacceptable response on the part of the respondent in dealing with the undertaking given

to O’Sullivan J. on the 25th March, 1999; in complying with its obligations to make full disclosure and in time; in discharging its

assumed responsibility and the responsibility placed upon him by Judge Dunne”.

While significant documentation was ultimately produced in March, 2002 and June, 2002, it was a lethargic process to say the least of

it. Indeed when the case was mentioned before Judge Dunne on the 22nd June, 2001 she was moved even then to observe:-

“The State appears to be going backwards in relation to this case as opposed to moving forwards in terms of what is

happening”.

It is fair to say that none of these delays were attributable to the applicant, and certainly not to his legal advisors who were pursuing

their correspondence relentlessly though with unsatisfactory results with the Chief Prosecution Solicitor. At para. 48 of his judgment

McKechnie J stated:-

“Not only in my opinion was the Director of Public Prosecutions responsible for the delay between March, 1998 and March,

2000 but he was also significantly responsible for the delays which occurred thereafter. In particular with regard to the

period from October 2000 to March 2002 and indeed to June 2002 the respondent failed to comprehensively address in

any reasonable time frame the continuing obligations which he still had not discharged. Moreover, significant

documentation was still being produced in November, 2001 in March, 2002 and in June, 2002. Indeed, I have to say that

even to the date of the leave application, I would have no confidence that full disclosure had in fact been achieved.”

The learned trial judge further noted that at least four trial dates had to be vacated on varying grounds all of which were the

responsibility of the prosecution. The first occurred on 1st February, 2000, when the issue of compliance with O’Sullivan J.’s order was

still outstanding. The case had to be adjourned on 26th June, 2001 because of the unavailability of prosecution witnesses. Equally, on

3rd December, 2001 the case was further adjourned when it was clear that the documentation was still very much incomplete. On 6th

March, 2002 the case could not proceed as the social worker’s file was only then being handed over and also because a new

indictment had to be prepared.

At para. 52 he stated:-

“…it seems to me that a serious issue arises under the heading of making full disclosure as to the scope of the Director of

Public Prosecution’s responsibility in obtaining the victim’s relevant medical notes and records. It will be recalled that in

November, 2001 statements from six nurses were furnished to the defence as well as a statement from Mary McDonald. In

addition the Drogheda Community Services file was disclosed. As was another file from the social worker in March, 2002.

Finally there was a letter from the Rape Crisis Centre received on or about the 18th June. All of these are highly relevant

pieces of documentation and one would have to be seriously concerned if the respondent’s duty to disclose did not

include an obligation in respect of these documents. Certainly as in this case where their relevance and materiality has

never been an issue or in dispute. One can only be grateful that the trial in October, 2000 did not proceed to a conviction

as it would have been a bleak day for justice if it had.”

In my view, there was full and adequate evidential basis for these findings of the learned trial judge.

It was forcefully argued on behalf of the respondent that the applicant, while he had asserted increased stress and anxiety by reason

of delay, had failed to swear an affidavit deposing to that fact. It was suggested that he therefore failed to meet the criterion

established in the case of P. M. v. Director of Public Prosecutions [2006] IESC 22.

In this regard, the learned trial judge found (at para. 53):-

“In my opinion such a conclusion is a reasonable inference from the facts and events above outlined”.

Having recently dispensed with the requirement for psychiatric evidence to explain complainant delay, I would regard it as a

retrograde step if in any case where heightened levels of stress and anxiety can reasonably be inferred as a matter of good common

sense from the factual history, that there should in addition be imposed upon an applicant seeking relief the obligation to furnish

psychiatric evidence in support of that contention. Nor should a failure to depose to additional distress or anxiety be a prerequisite to

relief if it is glaringly obvious from the facts, as in this case, that any reasonable person would have so suffered. For a man of the

applicant’s age to undergo a trial as he did in the year 2000, a trial which collapsed through a mishap, and then to discover that a

critical piece of information had not been made available prior to that trial, can only be seen as a particularly worrying and stressful

matter. Counsel for the respondent had argued before this Court that different people react in different ways to matters of this

nature, but I would have no hesitation in approving the course adopted by McKechnie J., namely, to draw an appropriate inference,

where it is reasonable to do so, on the facts of the particular case. In the context of the balancing exercise which the Court must

conduct I would in most instances prefer the application of an objective test to measure any assertion of increased anxiety or

distress by an applicant rather than a purely personal or subjective test. The latter approach in my view would simply open the door

to such claims in virtually every case. This is not to say that in an appropriate case an assertion of increased distress arising through

prosecutorial delay may not be buttressed by medical evidence.

Finally, and to the extent that any relief granted in this case has a discretionary element, I am also influenced by - though do not

decide this case by reference to - a number of cases where, following an order of certiorari in the High Court, the High Court has

nonetheless exercised its inherent jurisdiction to decline to remit the matter back for trial to the inferior court from which the case

had come on the basis that it would be unfair to do so in circumstances where the accused had ‘endured enough’.

Thus in Dineen v. District Justice Delap [1994] 2 I.R. 228, Morris J., having found that the conduct of a trial in the District Court was

totally unsatisfactory, declined to remit the matter back to the District Court “… in circumstances in which the accused had endured

hardship and the prosecution cannot be acquitted of all blame for what went wrong with the trial the appropriate step to take is not

to remit the matter for further hearing.”

These words were adopted by Morris J. from the judgment of Hederman J. in Sweeney v. District Judge Brophy [1993] 2 I.R. 202 when

he stated (at p. 211):-

“…the proper exercise of the Court's discretion would require that the matter should not be remitted to the District Court

in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for

some, at least, of what went wrong at the trial. I would, too, have taken into account the fact that the applicant has

spent a length of time in detention in respect of an alleged offence that was towards the lower end of the scale of minor

offences.”

That there exists such an inherent jurisdiction was expressly acknowledged by Finlay C.J. in Sheehan v O’Reilly [1993] I.L.R.M. 427 at

434. These cases highlight a concern, an understandable concern, albeit in a different area of judicial review, that a person who has

already been exposed to the criminal process should not be deprived of basic fairness when a court is called upon to decide if he

should be exposed to the criminal process on another occasion. This is particularly so where the prosecution have been at fault and

where an applicant has himself been at risk. Both of these latter considerations arise in the instant case when one considers the

circumstances surrounding the trial which took place in the year 2000. The prosecution was at least partly to blame for not procuring

the note going back to July, 1994. The applicant was very clearly at risk of being convicted in the absence of the information

contained in the note. I see no reason why the underlying principles in these certiorari cases should not, to some extent at least,

inform the exercise of the Court’s discretion in the present application though I do not base my conclusion on them.

I would dismiss the appeal.