Supreme Court dismisses appeal where applicant failed to prove real risk of unfair trial due to prosecution delay.

THE SUPREME COURT

[S.C. No: 067 of 2004]

Denham J.

Geoghegan J.

Fennelly J.

BETWEEN/

B.J.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGE THOMAS BALLAGH

NOTICE PARTY

Judgment delivered the 1st day of May 2007 by Denham J.

1. The issues in this appeal relate to the lapse of time prior to the proposed trial of B.J., the applicant/appellant, hereinafter referred

to as 'the applicant', who is currently before the District Court on charges of rape, of unlawful carnal knowledge of a girl under fifteen

years of age, and of indecent assault, allegedly committed against one complainant, between the 1st January, 1979, and the 3rd

June, 1983. The applicant has sought an order prohibiting his trial.

2. This is an appeal by the applicant from the order and judgment of the High Court (Ó Caoimh J.) made on the 19th day of December,

2003, refusing the application to prohibit the trial.

3. The history of this judicial review application commenced with the order of the High Court (Smyth J.) made on the 21st February,

2000, when the applicant was given leave to apply by way of an application for judicial review for an order of prohibition or injunction

prohibiting the Director of Public Prosecutions from proceeding in the criminal prosecution pending in the District Court entitled 'The

Director of Public Prosecutions v. B.J'. The criminal prosecution was stayed pending the outcome of these proceedings.

4. The grounds for review were:-

(i) That the delay in the institution of the proceedings has prejudiced the applicant; is unfair and unjust to the applicant

and has violated the applicant's right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution;

(ii) That there has been an unjustifiable delay by the prosecution authorities in the preparation, initiation and prosecution

of the proceedings against the applicant which is unfair and unjust to him and has violated his right to a criminal trial in

due course of law pursuant to provisions of the aforesaid Article of the Constitution.

5. On the 19th December, 2003, the High Court refused the application. There were three principal issues before the High Court.

(i) A very considerable part of the judgment of the High Court related to the reasons for the delay, and reference was

made to case law which has now been superseded. In essence the learned trial judge held that the applicant bore

responsibility for the delay because of the nature of the offences.

(ii) The learned High Court judge considered the issue of prosecutorial delay and held:

"Dealing with the issue of prosecutorial delay, I am satisfied that such delay as is referred to is essentially the delay

relating to the confusion on the part of the prosecuting Garda, Detective Garda O'Connor, in relation to the

directions that had issued from the Director of Public Prosecutions. It is clear that this has resulted in some delay in

the instant case and that this is at most a period of twelve months. I am satisfied that, while this is a delay for

which the applicant bears no responsibility, the same has been explained and has not been the result of any general

lack of attention to furthering the prosecution in the case. Detective Garda O'Connor, has with some frankness

indicated that he must bear some responsibility for the delay in question. I am, however, satisfied that the delay,

such as it is, is not such as to render the applicant's trial unfair or to entitle him to the relief which he seeks. In this

regard I am satisfied on the authority of McKenna v. Presiding Judge of the Dublin Circuit Court and the Director of

Public Prosecutions (High Court, Kelly, J., 14th January, 2000), affirmed by the Supreme Court, 7th December, 2000,

that even where there has been some gross or inordinate delay that the same does not of itself give rise to the

court intervening to stop a trial proceeding. I am satisfied that the circumstances of the instant case can be clearly

contrasted with the facts of the case of P.P. v. Director of Public Prosecutions [2000] 1 I.R. 403 where there was a

clear delay occasioned by the Gardaí in relation to their failure to address the investigation of the charges in that

particular case."

(iii) The High Court addressed the issue of prejudice, as follows:-

"With regard to the issue of prejudice, I am satisfied that the facts put forward on the part of the applicant to

show prejudice, are such that the absence of the persons identified by him are unlikely as such to give rise to the

clear absence of material evidence in the prosecution against him. The involvement of the persons concerned can

at best have been peripheral in the overall picture, insofar as the abuse alleged is in this case, as in most other

cases, alleged to have taken place in private. This is not a case of an isolated event where crucial evidence is

absent in relation to same. The allegation is one of continual sexual abuse perpetrated on the complainant when she

was a child. In this regard I am satisfied that such difficulties as might be occasioned by the absence of these

witnesses falls very far short of showing that it is such as to give rise to a real and substantial risk that the

applicant will not obtain a fair trial. I am prepared to accept as a general probability that the passage of time,

together with the absence of some evidence relating to the surrounding physical circumstances, is such as to give

rise to a situation where some greater difficulty may be encountered by the applicant in defending the charges in

question. I am satisfied, however, that a judge conducting a trial of the applicant can give appropriate directions to

a jury such as to minimise any limited prejudice that may exist in this regard. I am satisfied, in conclusion, that any

prejudice that may have been occasioned by reason of the passage of time, is not such as to give rise to a real or

substantial risk that the applicant cannot obtain a fair trial in the circumstances. In light of this conclusion I am

satisfied that I must refuse the applicant the relief which he seeks."

6. The applicant has filed a notice of appeal, with twelve grounds of appeal. The initial grounds relate to the reasons for the delay -

which aspect of the law has been clarified by this Court in H. v. Director of Public Prosecutions [2006] I.E.S.C. 55. The second major

ground of appeal relates to prosecutorial delay. And, thirdly, the applicant has claimed prejudice.

7. The basic facts of the case are that the applicant is accused of committing sexual offences against C.M., between the 1st of

January, 1979 and the 30th of June, 1983, when she was aged between 12 and 16 years of age. The complainant worked on a part-

time basis for the applicant in his shop and the offences are alleged to have taken place after work. The applicant denies the

charges.

The complainant made a statement of complaint to the Gardaí on the 12th of September, 1997 and the applicant was arrested and

questioned in relation to the complaint on the 29th of September, 1997. On the 16th of October, 1998, the applicant was again

arrested and was charged with eleven charges of unlawful carnal knowledge and nineteen charges of indecent assault during the

above-mentioned time span. On the 19th of February, the prosecution applied for and was granted permission to amend the charges

with regard to the specificity of the place of the alleged offences, the locus having been demolished. A Book of Evidence was served

on the 5th day of March, 1999.

These charges were withdrawn on the 19th of November, 1999 and forty-nine fresh sample charges were laid, relating to dates from

1st January, 1979, to the 30th June, 1983. These comprise ten charges of rape contrary to s. 48 of the Offences Against the Person

Act, 1861, eight charges of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape)

Act, 1981, eleven charges of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law Amendment Act, 1935, and twenty

charges of indecent assault contrary to common law and s. 6 of the Criminal Law Amendment Act, 1935, during the above-mentioned

time span. A new Book of Evidence was served on the 11th of February, 2000. No new statements of evidence were included in this

new Book.

8. Written and oral submission were made on behalf of the applicant and the Director of Public Prosecutions.

9. Reasons for the delay

A considerable portion of the judgment of the High court related to the reasons for the delay by the complainant in making the

complaint. Evidence of a psychotherapist was considered carefully, as was the evidence given by the Garda Síochána. The applicable

law has been developed since the decision of the High Court in this case. However, applying the then law, the High Court accepted

the evidence of the psychotherapist and held that there was a reason for the delay.

This aspect of the case is no longer a relevant issue and, correctly, was not pursued in this Court on appeal. Since H. v. Director of

Public Prosecutions [2006] I.E.S.C. 55 it is accepted that having regard to the Court's knowledge and insight into these cases there is

no longer a necessity to inquire into the reason for a delay in making a complaint. The issue for the Court is whether the delay has

resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court restated the test as:

"The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial,

or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of

the case."

Thus no issue arises on this appeal as to the reasons for complainant delay.

10. Fact

Insofar as there was a dispute between the applicant and the Garda as to what was stated to him in 1991, the learned trial judge

heard oral evidence and reached a conclusion based on it. He accepted, as more probably true, the Garda version of the events.

Given this finding of fact, based on oral evidence, and the jurisprudence of this Court, see Hay v. O'Grady [1992] 1 I.R. 210, I would

not interfere with the determination of the High Court. Indeed, this aspect of the appeal was not advanced by counsel for the

applicant.

11. Prosecutorial delay

While the written submissions addressed the issue of prosecutorial delay, correctly, in my view, it was not pressed on the oral

submissions. In general, it was submitted that the delay in preparing a Book of Evidence, despite the fact that all relevant statements

were in the hands of the Garda Síochána, is unacceptable given the age of the alleged offences. Further, it was stated that the

Director of Public Prosecutions contributed to the delay, which delay was wholly avoidable. In particular, it was submitted that the

applicant was not charged until the 16th of October, 1998, some thirteen months after the making of the complaint. It was further

submitted that there was a delay of five months in the preparation of the Book of Evidence relating to those charges. In November,

1999, the charges were withdrawn and new charges preferred (twenty-seven months after the statement of complaint). A further

delay of three months ensued, after which a new Book of Evidence was served, which did not contain any new statements of

evidence. It was these facts upon which the applicant relied.

The law on prosecutorial delay has been restated recently by this Court. In P.M. v. The Director of Public Prosecutions [2006]

I.E.S.C. 22, Kearns J., with whom Murray C.J., Denham J., Hardiman J., and Geoghegan J. concurred, set out the test to be applied to

the issue of prosecutorial delay as:

"In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been

established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests

protected by the right to expeditious trial must also be shown to have been so interfered with such as would entitle the

applicant to relief."

In this case the applicant failed to establish blameworthy prosecutorial delay, and I would affirm the judgment of the High Court.

Consequently it was not necessary to take the next step to see if any interest protected by the right to an expeditious trial has been

interfered with.

12. Prejudice

The only significant issue raised on this appeal is that of prejudice. It was submitted that there is real prejudice to the applicant as

four witnesses who would be crucial to the defence of the proceedings have died. These are:

(a) Ms. S., who leased the shop, who lived on the premises, who was in and out of the shop regularly. The applicant

deposed that she was always present in the shop at the close of business. As the complainant has alleged that she was

abused at closing up time the applicant submits he is now deprived of this relevant witness.

(b) D.F., a shopkeeper from the shop opposite to the shop in question, who assisted in mounting the security grills most

evenings, and who called regularly to see Ms. S.. It was not put to the applicant that this was not so in cross-

examination.

(c) The complainant's father who called regularly to the shop and who remained friendly with the applicant until his death.

(d) The applicant's father-in-law who lived with the applicant and his wife and who cared for their children. It was

submitted that he could have refuted the complainant's allegation that she babysat regularly for the applicant's children.

I would dismiss this ground of appeal also. Of the four alleged witnesses only two have any significance: Ms. S. and D.F. However,

there has been no engagement with the facts by the applicant. As was pointed out by Hardiman J. in McFarlane v. Director of Public

Prosecutions [2006] I.E.S.C. 11 at p 11:-

"In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the

evidence actually available so as to make the risk apparent. A failure to do this was the basis of the failure of the

applicant in Scully [2005] 1 IR 242. This is not a burdensome onus of proof: what is in question, after all, is the

demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial. The

applicant has not so much failed to meet the requisite standard of proof as failed to address the issue in any

meaningful way. To say this is not to criticise the applicant's advisers: it may be that the point has been put as far

as it can be."

In this case there has been no explanation as to how Mr. S. would have been able to give evidence to assist the applicant. Similarly,

in relation to D.F., there is no sufficient explanation as to the facts, his case was not sufficiently advanced. It is not for this Court to

speculate as to what the situation might be. The nature of the type of offence in issue is that it occurs in private and in secret. The

applicant has raised no specific point of fact which could raise a specific concern as to his trial, let alone made the case so as to give

rise to a real risk of an unfair trial. On this issue I would affirm the judgment of the High Court, specifically the determination:

"The involvement of the persons concerned can at best have been peripheral in the overall picture, insofar as the abuse

alleged is in this case, as in most other cases, alleged to have taken place in private."

The other two alleged witnesses who are deceased do not ground the applicant's case either. It is an unfortunate fact that in many

cases complainant's male relations remain friendly with abusers, this is usually done in ignorance of the abuse, which remains a secret.

In case after case children have given evidence of abusers who were family friends or relations, who were regular callers to their

home, and who were accepted by the family, but who groomed the children to keep 'our little secret'.

The facts have not established any case as to the locus. There was no real engagement with the layout of premises, no dispute as to

the description of the shops or the locations.

A person engaging in illicit sex with a young person will do it in private. Thus at the core of such cases are issues as to the credibility

of a complainant and an accused. The Court is alert to the difficulties of old cases, where prosecutions occur after many years.

However, the issues relating to those dangers are best met by the rulings and directions of a trial judge, who has the opportunity to

see and hear the evidence, and who will guard against an unfair trial.

Nothing raised by the applicant has shown any error by the learned High Court judge in this case, in his refusal to prohibit the trial.

The case advanced on behalf of the applicant did not meet the burden of proof necessary to prohibit his trial. Issues touched upon in

this application remain matters which may be raised at this trial.

Conclusion

For the reasons given, in all the circumstances of this case, I would dismiss the appeal and affirm the order of the High Court refusing

the application.