Supreme Court dismisses appeal where prosecution delay and witness death did not prejudice fair trial rights.

THE SUPREME COURT

S.C. No. 64/05

Denham J.

Fennelly J.

Finnegan J.

BETWEEN

R.MCC.

APPELLANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT delivered on the 19th day of July, 2007 by FENNELLY J.

1. When this Court delivered its judgment on 31st July 2006 in H v Director of Public Prosecutions [2006] IESC 55, a number of cases

in the appeal pipeline were necessarily affected by the change in the law which that case involved. This is one of those cases. It is

an appeal from an order made in the High Court on 1st February 2005 refusing the Appellant’s application for judicial review by way of

prohibition restraining the Respondent from continuing with his prosecution for certain sexual offences. Quirke J in an ex tempore gave

his reasons for that order.

2. The application is based essentially on alleged delay combined with prejudice to the Appellant’s right to a fair trial by reason of the

death of a potential defence witness.

3. The appellant has been charged with eight counts of sexual assault alleged to have been committed against the complainant, who

is his daughter, on various dates between June 1, 1993 and December 31, 1995, and with one count of unlawful carnal knowledge

alleged to have been committed against the same complainant on a date unknown in 1993. The complainant was born on 9th June

1982. She was thus between eleven and thirteen years of age during the period of the alleged abuse.

4. The complainant first made a complaint to her first boyfriend about 1997, but asked him not to tell anyone. She told her mother in

the year 2000. Her mother reported the matter to social workers in the area of Dublin where she lived. On 3rd October 2000, the

social workers referred the matter in writing to the gardaí. After a number of unsuccessful attempts, a garda made contact with the

complainant on 11th November 2000. She indicated that she did not wish to make a formal complaint. On 2nd September 2001 she

sent a note to the garda to contact her. That garda (a male) and a female garda met the complainant and her mother at a Dublin

garda station. She made a formal complaint of the alleged sexual abuse against the Appellant on 18th October 2001. She told the

female garda that she wanted to do something about it, as the Appellant had become the father of a young child. She made further

statements in writing on 19th and 27th October 2001.

5. On 5th November 2001, the Appellant was arrested, detained and questioned pursuant to section 4 of the Criminal Justice Act,

1984. He was released without charge. The gardaí have explained on affidavit that it was considered important (as was directed by

the Director) and only fair to the Appellant to have a statement from the complainant’s first boyfriend referred to earlier. This proved

difficult, as that witness had moved to the country. When he was ultimately contacted, he made a statement on 1st February 2003.

On 8th May 2003, the gardaí received directions from the Director as to the charges to be preferred. The Appellant was arrested and

charged on 18th June 2003. He was sent forward for trial on 14th October 2003.

6. On 26th January 2004, the Appellant obtained leave to bring the present proceedings from de Valera J, who also made an order

extending the time.

7. The substantive hearing took place before Quirke J, who, as already stated, dismissed the application. That was prior to the

decision in H v Director of Public Prosecutions. Since that decision, there is no question of making a provisional assumption of the

truth of the allegations. It is unnecessary to discuss the admittedly mistaken reference in the High Court judgment to the delay in

reporting being “referable to [the Appellant’s] own conduct.” The presumption of innocence applies at all stages of the process.

8. The Court must now consider the case in the light of the law as explained in H v Director of Public Prosecutions.

9. The case for the Appellant is based entirely on the prejudice alleged to arise from one piece of alleged missing evidence. Although

the Appellant’s own affidavit was, to say the least, laconic on the point, the relevant piece of evidence emerges from his own

answers as recorded by the gardaí to questions put to him during the period of his detention. The Appellant told the gardaí that in

April or May 2001, he spoke to the complainant while he was in his car in O’Connell Street. The conversation took place in the

presence of the Appellant’s brother, Vincent, to whom I will refer by that name, who died in the month of August 2002. The alleged

conversation began with discussion concerning the Appellant’s right to see his grandchild (the complainant’s child). The Appellant then

asked her why she said “those things” about him. The complainant replied: “I know it’s not true, the mother keeps telling me to go to

the police or she’ll put me out of the flat…”

10. The gardaí asked the Appellant whether Vincent would be able to make a statement. The Appellant replied: “Yeah.” In fact,

Vincent did not make any statement, when approached by the gardaí. The gardaí have no notes of any interview with him.

11. Counsel points out that the Appellant referred to this matter, though very briefly and indirectly, in his grounding affidavit in these

proceedings, whereas the complainant made no reference to it in her own replying affidavit, while reiterating her complaints against

him. Consequently, the Appellant’s written submissions describe this evidence as “unchallenged.” Nonetheless, counsel argued at the

hearing of the appeal that it must be assumed that the complainant would deny this conversation at trial. It must be observed that

no application was made to cross-examine the complainant. The burden of proof was on the Appellant. Before the evidence of the

Appellant in respect of the alleged conversation could be described as “unchallenged,” he would have had to take some steps to

resolve this matter of fact in his favour.

12. The Appellant claims that the death of Vincent is likely to give rise to a real and serious risk that he will not have a fair trial. He

accepts that, following H v Director of Public Prosecutions, he cannot complain of the delay in making the complaint on its own, but

says that the lengthy delay of the complainant, combined with the prejudice above identified entitles him to the order sought.

13. The following is the dispositive passage from H v Director of Public Prosecutions:

“The Court’s judicial knowledge of these issues has been further expanded in the period since [an earlier] case.

Consequently there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are

no longer 'new factors'.

Therefore, the Court is satisfied that it is no longer necessary to establish such reasons for the delay. 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 would thus restate 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.”

14. Thus, there must be delay and prejudice and the prejudice alleged must be caused by the delay.

15. It is always necessary to recall, in these cases, that, as was stated by Denham J in D.C. v Director of Public Prosecutions [2005]

4 I.R. 281 at page 284, applications such as the present “may only succeed in exceptional circumstances.” She expanded on the

matter as follows:

“The Constitution and the State, through legislation, have given to the Director of Public Prosecutions an independent role

in determining whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having

taken such a decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the

applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the

constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial. In general

such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The

basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge.”

16. This and other authorities have consistently pointed to four key factors militating in favour of the exceptional character of the

jurisdiction to prohibit trials. Firstly, the people have the right and the courts a correlative duty to ensure that persons charged with

criminal offences are duly and properly tried. Secondly, the Director of Public Prosecutions, acting in the name of the people acts

independently in deciding who should be tried and for what offences and the courts should not lightly interfere with his exercise of

that power. Thirdly, the Constitution ordains that the proper forum for the trial of serious offences is the jury: jury trial is a central

plank of our legal and judicial system and the courts should not usurp that function. Fourthly, the courts will presume that criminal

trials will be conducted fairly, a principle which depends principally on the presumption of innocence, but which also rests upon a

range of other well-established protections of the rights of the accused.

17. In effect, the courts will interfere only when the applicant has discharged the burden of showing that he will, otherwise, be

subjected to a real risk of an unfair trial. The unfairness must be irremediable. To quote Finlay CJ in Z. v D.P.P [1994] 2 I.R. 476, 507,

the onus is as follows:

“… to establish a real risk of an unfair trial … necessarily and inevitably means an unfair trial which cannot be avoided by

appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be

an unavoidable unfairness of trial.”

18. In recalling these pronouncements, it is not to be forgotten that, in the hierarchy of rights, the right of the accused person to a

fair trial, in case of conflict, will prevail over that of the community to have cases prosecuted. (see judgment of Denham J in D v

Director of Public Prosecutions [1994] 2 I.R. 465). But the burden rests on the accused to show why it should prevail in the

circumstances of his particular case.

19. Accordingly, it is necessary to consider all the circumstances of the present case. The Appellant ascribes undue delay both to the

complainant and to the prosecution.

20. Firstly, I consider the delay by the complainant. While it is conceded that the delay in question cannot, on its own, justify an

order of prohibition, nonetheless, the Appellant must show that the complainant unduly and unreasonably delayed in making her

complainant, if he is to be able to rely on it in combination with the prejudice he alleges. The complainant was only thirteen years of

age when the last of the offences is alleged to have been committed. She made her first complaint to social workers when she was

still only eighteen. She did not wish to pursue a formal complaint at that time, but she followed up within the year and made formal

written complaints. It must also be recalled that the Appellant is her own father. She gave, as an explanation, for finally complaining,

the fact that her father now had a new child of his own. The Appellant does not suggest that the evidence of inhibition in complaining

was insufficient to justify the delay in reporting. The overall period of delay is, in reality, quite modest in comparison with very many

other cases which have come before the courts. Delays are often of the order of thirty years or more.

21. Secondly, I consider the delay by the prosecuting authorities, whether by the gardaí or the Director. I do not think the Appellant

has made out any case at all of delay by the prosecution. Counsel criticised the gardaí for telling the complainant, in November 2000,

that she could complain later. The complainant did not wish to make a formal complaint at that stage. The female garda gave her a

card with her name and contact number. Ten months later she used that contact. There is no basis for criticism of the gardaí for

these actions. They seem proper and reasonable. It was equally reasonable to seek out the complainant’s first boyfriend, which took

some thirteen months. Complaints made to third parties are frequently of great significance in sexual cases, not merely because they

may be admissible as “fresh complaints.” They may also cast light on reasons for delay. The Appellant claims in his written submissions

that no explanation has been offered for the delay between 1st February 2003 and 18th June 2003 when the Appellant was charged.

However, the file obviously had to be sent to the Director for his instructions. These were received on 8th May 2003. On 12th June,

when the gardaí called o the Appellant’s home, he was absent in Portugal. Thus, I think this short period is explained. Generally,

therefore, I can find no ground for criticising the prosecuting authorities for delay. There was none.

22. Finally, there are a number of real problems in attributing any prejudice to the periods of delay alleged. The complainant’s alleged

delay was from 1995 to 2001. The alleged important piece of evidence did not come into existence until almost the end of that period.

It is also far from clear that the Appellant can point to any real prejudice. The Appellant’s account of the conversation as given by

him to the gardaí can undoubtedly be brought out in the cross-examination of garda witnesses. It can also be put to the complainant.

The Appellant is entitled himself to give evidence of it. The absence of Vincent may not be prejudicial at all. It has never been

established that he would have verified the conversation. The Appellant himself took no steps to record Vincent’s recollection;

Vincent made no statement. It is simply unknown whether he would have backed up the Appellant’s account. Finally, the period

between the first arrest of the Appellant in November 2001 and Vincent’s death in August 2002 was such that there was no practical

likelihood of a trial taking place before the latter date. Counsel for the Appellant has suggested without expanding on the matter that

the prosecution could have had depositions taken which would have preserved the evidence of Vincent’s evidence and rendered it

admissible at trial. This procedure has not been explained. There would have had to be some reason, at the time, for taking such

steps in respect of that witness. None has been suggested.

23. However, the Appellant’s biggest problem is to link this alleged piece of lost evidence with any delay. I do not believe he can do

so. There was no causal link between the complainant’s alleged delay and the loss of this piece of evidence. There was no delay by

the prosecution. Therefore, I would dismiss the appeal and affirm the order of the High Court.