Supreme Court allows appeal to prohibit prosecution due to specific prejudice from witness absence despite long delay.

THE SUPREME COURT

Hardiman J.

Fennelly J.

Kearns J.

Between

P.D.

Applicant/Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of April, 2008.

1. This appeal falls into the category of what has come to be called sex-delay cases. It was decided by Quirke J in the High

Court in April 2006, that is before this Court delivered its decision on 31st July 2006 in S. H. v Director of Public

Prosecutions [2006] 3 I.R. 575. The learned judge found that the complainant’s delay in making the complaint had been

explained. Thus there was no breach of the respondent’s constitutional right to a trial with due expedition. Nonetheless, he

found that the respondent had established sufficient grounds of specific prejudice to the likely fairness of his trial to warrant

making an order prohibiting his continued prosecution. It is from that order that the appellant (whom I will refer to as the

Director) appeals. The Court is now concerned only with the alleged elements of specific prejudice.

2. The respondent is charged with fourteen offences: six of buggery contrary to section 61 of the Offences against the

Person Act, 1861; eight of indecent assault contrary to common law and to section 62 of the same Act. The dates assigned

to the alleged offences fall between various intervals from 1st April 1982 to 30th April 1983. The same male victim, one

K.C., later referred to also as the complainant, is named in each of the charges. All but one of the offences is alleged to have

been committed at an address in a Dublin suburb, where the respondent lived at the relevant dates, but where he no longer

lives.

3. The respondent was arrested and charged with the offences in 27th October 1999. He had been detained, questioned and

released without charge in 1st December 1998. The respondent denies all the charges. He was returned for trial at the

Dublin Circuit Criminal Court on 7th December 2001. On 25th February the High Court (McKechnie J) made an order

granting leave to apply for the relief sought in these proceedings.

4. Clearly, the respondent faces a criminal trial in relation to serious criminal offences approximately twenty five years after

the events. At the date of his return for trial, that interval already amounted to some eighteen to twenty years.

5. This Court does not now, in view of the S. H. decision, need to consider, as Quirke J did, the reasons for the delay by

K.C. in making his complaint.

6. K.C was born on 11the January 1969. It appears from his own statements that K.C had been subject to very serious

sexual abuse from male persons other than the respondent from a very young age.

7. Firstly, he alleged regular abuse from the age of about eight, by a man, P.J, then aged about nineteen, but now deceased.

8. Secondly, K.C. alleged serious and violent abuse on a regular basis by one R.W., at a dogs and cats home where he

worked as a volunteer when he was about 13 to 16 years of age. Both R.W. and the owner of the dogs and cats home, Mr

N. are now deceased.

9. In effect, K.C. says he engaged in promiscuous homosexual behaviour and acted as a male prostitute from his very early

teenage years. He says he met the respondent when he was about thirteen. He had regular sexual relations with him and acts

amounting to sexual abuse of the sort specified in the charges were committed against him over a two-year period.

10. About 1984, K.C. joined the Church of Jesus Christ of Latter Day Saints (the Mormons). He reported his sexual activity

to a church member. This led to an internal church inquiry and a threat that he might be expelled. Any records of these

proceedings which may formerly have existed have been destroyed.

11. Ultimately, K.C. came to be treated, between 1994 and 1996, by a clinical psychologist, Ms Clare Moran, in respect of

gender and sexuality issues. For her, as part of the therapeutic process, he prepared documents comprising in excess of 300

pages, representing a written account of incidents and events which had occurred in his life.

12. Ms Moran came to the view that she was ethically bound to report incidents of sexual abuse which came to her attention

during her professional work. She told K.C. that she would not continue his treatment, unless he reported the abuse to the

Gardaí.

13. During the hearing of the appeal in this Court, counsel provided to the Court copies of three letters written by Ms Moran

to Social Workers. On 31st July 1995, Ms Moran reported the complaints of K.C. against P.J. On 15th January 1996, she

reported those relating to R.W. In that letter, she also stated that K.C. was making a statement to the Gardaí, naming the

relevant garda as Garda Bernard Owen. On 22nd January 1996, Ms Moran, for the first time, reported the allegations of

sexual abuse made by K.C. against the respondent. She said that he had disclosed it to her on 16th January 1996.

14. K.C. first contacted the Gardaí by telephoning Detective Garda Bernard Owen in February 1996. On the 7th February,

1996, K.C. called, by appointment, to Harcourt Square Garda Station. He had a conversation with the Garda. He gave a

brief history of allegations of sexual abuse. He said that he was attending counselling and that he had attempted suicide. He

became traumatised at the meeting.

15. He phoned and called occasionally to the Garda unit over the ensuing months. He said he was not ready to make a

statement.

16. On the 8th June, 1996, he agreed to make a formal statement. Detective Garda Owen recorded the statement in writing.

K.C. signed it. In that statement he made complaints against three named men, including the respondent. Thereafter, K.C.

kept in regular contact with the Gardaí, but was concerned at the investigation being completed too fast, as he was still

attending counselling.

17. On 14th November, 1996, K.C. delivered to Detective Garda Owen the typed and handwritten documents, running to

more than three hundred pages, already mentioned which he had prepared for the psychologist.

18. Then there is a gap in the history. There is no account of what occurred between 14th November, 1996 and November

1997, when Detective Garda O’Brien was assigned to and took over the investigation and the file from Detective Garda

Owen. Detective Garda O’Brien contacted K.C. on 4th December 1997. On 12th December 1997, 18th December 1997,

27th February 1998, and 4th March 1998, K.C., made statements of complaint in writing to Detective Garda O’Brien at

Harcourt Square Garda Station. K.C. became upset at one of those meetings and could not continue. He was also

undergoing exams during that time.

19. As Detective Garda O’Brien summarises it, K.C., in the course of five statements taken between 8th June 1996 and 4th

March 1998, made allegations of sexual abuse against eight males, but was able to identify positively only three. Detective

Garda O’Brien sought medical records relating to K.C. from three different hospitals. He contacted a number of possible of

witnesses and interviewed each of the three named suspects.

20. I do not find it necessary to detail the garda investigation further, because there is no serious challenge (nor could there

be) to the finding by Quirke J that:

“Between December, 1997 and November, 1999 Detective Garda O’B. worked continuously and assiduously

on the detailed investigation of the complaints made by K.C.”

21. Summary of issues: the High Court judgment

As already stated, complainant delay can no longer be an issue, following the S. H. decision. The only possible issues are:

Whether there was prosecutorial delay and, if so, whether, on application of the balancing test laid down in

P.M. v Malone [2002] 2 I.R 560 and P.M. v Director of Public Prosecutions [2006] 3 I.R. 172, the Court

should prohibit the further prosecution of the respondent;

Whether, as found by the learned trial judge, as a result of the delay generally, the respondent faces a real

risk that his trial will be unfair, if it is not prohibited.

22. The learned trial judge examined both of these issues.

23. Quirke J noted that five years and six months had elapsed between June 1996, when K.C. first recorded in writing a

statement of complaint of sexual abuse against the respondent to Detective Garda Owen, and the date when the respondent

was returned for trial on 7th December, 2001. He noted a period of inaction between 14th November 1996 and December

1997. On the other hand he found that the investigating Garda had worked continuously and assiduously on the investigation

of the complaints between the latter date and November 1999, when the respondent was arrested and charged. In respect of

the further two years to the return for trial, he noted that the respondent did not allege delay of a culpable kind on the part

of the prosecuting authorities. That delay appeared, he thought, “to have been contributed to by difficulties involving the

disclosure of documents and other matters which arose between the parties and which delayed the return for trial.”

24. The learned trial judge took the view that there had “undoubtedly been unexplained and inordinate delay on the part of

the prosecuting authorities in investigating these offences and processing the prosecution of the applicant between the

15th November, 1996 and 4th December, 1997.” Nonetheless, he was not satisfied that:

“……the prosecutorial delay on this case comes within the category of “blameworthy” delay of the kind which

was identified by the High Court (Geoghegan J.) in P.P. v. Director of Public Prosecutions [2001] 1 I.R. 403

when the investigation was found to have been “conducted in a lackadaisical and slovenly fashion.””

25. Counsel for the respondent argues on the appeal that there was culpable prosecutorial delay for various periods, but

especially from 8th June 1996, when K.C. made his first written statement, until November 1997, when Detective Garda

O’Brien took over the investigation.

26. I do not agree. The Gardaí were dealing with an extremely difficult and complex case. It involved a network of sexual

abuse, a ring of abusers and the murky and sordid world of male prostitution. There is clear evidence that K.C. was in a

fragile state and was, at first, a reluctant complainant. It was only the threat of withdrawal of treatment by Ms Moran that

led him to complain at all. It took several statements to bring out the full story. He alleged sexual abuse against some eight

men, but could identify only three. He had been suicidal. He thought the investigation was going too fast. The submissions

of the respondent proceed from the assumption that the Gardaí had a sufficient case to prosecute, based on the first

statement. In my view, the prosecution cannot be blamed for investigating the matter much more completely, before

proceeding to arrest the respondent. I agree that the year from November 1996 to November 1997 is insufficiently

explained. At least some part of that time would, however, have to be allowed for investigation of the enormous volume of

material provided by K.C. at the beginning of the period. Generally, however, the Gardaí were right to conduct a full

investigation before arrest and charge. They would have been open to criticism, had they failed to do so.

27. Overall, therefore, I agree with the conclusion of the learned trial judge that the respondent has not discharged the

burden on him to prove that there was blameworthy prosecutorial delay, though I arrive at that conclusion with somewhat

less hesitation. Accordingly, the balancing test does not arise.

28. On the other hand, no balancing test arises, if the respondent can demonstrate that, as a result of the delay from 1983,

he faces a real and serious risk of an unfair trial. On that hypothesis, the constitutional right to a fair trial prevails over the

right of the public to have serious crime prosecuted.

29. The High Court ordered the prohibition of the continued prosecution of the respondent. The learned trial judge was

“satisfied that the applicant ha[d] established on the balance of probabilities that if his trial is allowed to proceed then

he may be exposed to a real and serious risk that he will not receive a fair trial.”

30. In order to reach this conclusion, Quirke J examined a number of pieces of evidence, whose absence might present

difficulties or disadvantages for the respondent in the conduct of his defence. He though that the unavailability of certain

evidence, to which I will refer later, “by itself, might not have resulted in specific prejudice to the applicant’s capacity to

defend himself sufficient to warrant a prohibition of his trial.

31. Nonetheless, he thought, that the:

“…… unavailability forms part of an overall matrix which additionally includes (a), the absence, through

unavailability of Clare Moran and Andrew Grey, (b), the nature and complexity of K.C.’s complaints and the

very large period of time during which he was abused by a variety of different adult males, (c),the fact that it

has not been established that any part of the delay was referable to the actions of the applicant and (d), a

period of unexplained prosecutorial delay.”

32. Clearly, Quirke J was correct in applying the test of “a real and serious risk that [the respondent] will not receive a

fair trial.”

33. I propose to consider briefly each of the principal items of allegedly unavailable evidence.

The complainant’s mother apparently made a statement to the prosecuting authorities reporting an account given to her

by the complainant that he was abused by two persons other than the applicant. Quirke J was clearly correct to reject

this complaint. K.C. made complaints against a number of people. The correspondence from Ms Moran shows that he

did not, at first, mention the respondent. That is, at best, material for cross-examination of K.C. It is difficult,

however, to envisage precisely the circumstances. If the defence were to seek to discredit K.C. in this manner, it might

have the effect of letting in other evidence of complaints. There is no prejudice.

Mr. N. was the owner of the Cats and Dogs home at relevant times but is now deceased. Quirke J correctly concluded

that “there are available a large number of witnesses who worked at the relevant time at the Cats and Dogs home,

who are available to the applicant and who can testify on the issue of access to that premises from time to time.”

No attempt has been made to show that Mr N could have given any relevant evidence. The respondent is not, in any

event, charged with the commission of any offence at the dogs and cats home. R.W. deceased admitted the offences,

when interviewed by the Gardaí. Without a great deal of speculation, it is not possible to imagine how the defence

would have been in a better position if Mr N had been available. Would it be put to K.C. that he had made an

allegation of abuse against R.W., but that Mr N. had not seen it?

J.H., who is alleged to have abused K.C., is also deceased. I fail entirely to understand how the availability of another

alleged abuser of the complainant could assist the defence of the respondent.

Two other pairs of people are now unavailable. “Bobby and Ted” are mentioned in a statement made by K.C. as

males to whom the respondent is alleged to have introduced K.C. for sex and in whose company the respondent is

alleged to have tried to pick up boys. “Dotty and Brian” are alleged to have been male prostitutes introduced by the

respondent. None of these people are alleged to have been involved in or present at the commission of the alleged

offences. Again, I fail to see how their presence could assist the defence in any way and the respondent’s affidavit

does not suggest any. He merely says that they “could have provided evidence to rebut or cast doubt on his

allegations.” Their introduction at the trial would be more likely to embarrass than assist the defence.

5. The most substantial complaint relates to the unavailability of Ms Clare Moran and another psychologist, who also

examined K.C. Surprisingly, the first, a professional psychologist, is said to have gone to the United Kingdom and now

to be untraceable. Quirke J summarised the position as follows:

“Clare Moran or Andrew Grey or both might have been called to testify on behalf of the

State if their evidence was deemed admissible. If they were not called to testify on behalf

of the State then they would have been available to testify on behalf of the applicant.

Clare Moran was the first person to whom the applicant made a detailed report of the

alleged abuse. Andrew Grey was the second.

What K.C. told Claire Moran and Andrew Grey during their early interviews with him

has considerable relevance to the offences alleged against the applicant.

The applicant will not be in a position to cross-examine either Claire Moran or Andrew

Grey or to call them to testify on his behalf.”

The learned judge accepted:

“Since Clare Moran and Andrew Grey were the psychologists to whom K.C. first

reported details of the abuse it is undeniable that their expert testimony, if available,

would be relevant to the issues to be determined at the trial. It is not now possible to

discover with any certainty whether their testimony would benefit the prosecuting

authorities or the applicant. They cannot now be contacted. They were however

available and would have been in a position to testify at the trial as late as 1996 and

probably for some time thereafter.”

6. The respondent’s grounding affidavit made the suggestion that no complaint had been made to either of these

people concerning him. We now know, from the correspondence handed in at the hearing, that this is not so. I here

make the assumption that the prosecution will not, at trial, seek to exclude this evidence on technical grounds. To do

so would be unfair. For what it is worth, he should be allowed to establish that K.C. did not mention the respondent

until 16th January 1996. The respondent has not demonstrated how, if they had been available, these witnesses could

otherwise have assisted.

7. K.C. has stated that the respondent took him, when he was thirteen years of age, to the Venereal Disease Clinic at

Sir Patrick Dun’s Hospital for examination. He describes this event in some detail in one of his statements. He was

tested for the presence of a number of sexually transmitted diseases and was given a card with a reference number.

However, K.C. never phoned the hospital for the results of the tests. The Clinic is now closed and the records, if any,

cannot be found. The respondent, in his affidavit, makes no suggestion as to how these records, if available could have

helped in his defence. If one infers that he denies ever attending the clinic, and he makes no such suggestion, the most

favourable result from the respondent’s point of view that could be expected from the records would be that there is

no record of the attendance of K.C. at the clinic. I can see that some attempt might be made to discredit K.C.’s

evidence and make some capital out of it. It does not, in my view, establish a real or serious risk of unfairness.

8. The respondent no longer lives at the house where all but one of the offences are alleged to have taken place. He

has made no attempt to show how this fact affects his defence. The same remark applies to his allegation that the

public toilets, where the only other offence is alleged to have been committed, have since been demolished. There

have been cases where the courts have prevented trials due to the absence of material physical evidence, such as a

door, a lock (PO'C v. Director of Public Prosecutions [2000] 3 I.R. 478 or a desk (P.L. v Judge Buttimer and

another [2004 4 I.R. 494]. On the other hand, the case of D v Director of Public Prosecutions [2004] IESC 33 (19

May 2004) demonstrates that even the total destruction of a school building where offending is alleged to have taken

place does not avail an applicant, unless he can point to some concrete piece of material evidence which might affect

his trial. The respondent does not satisfy the test

34. The respondent has referred to a number of other points of even smaller importance, for example to loss of all his

business records. He says these might have enabled him to establish his whereabouts and movements. However, he is

unable to show how any particular version of his whereabouts could have assisted him in resisting the evidence to be

presented against him. Each of the charges specifies a period of time rather than a particular date.

35. More generally, the respondent has not, to borrow the expression used by Hardiman J in his judgment in McFarlane v

Director of Public Prosecutions [2006] IESC 11, attempted to “engage in a specific way with the evidence actually

available so as to make the risk [of an unfair trial] apparent.”

36. Finlay C.J. in his judgment in Z v Director of Public Prosecutions [1994] 2 I.R. 476 at 506, laid down the burden to be

discharged by an applicant seeking the remedy of prohibition in a passage which has become definitive. He said that:

“the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that

circumstances have occurred which would render it unfair is that he should establish that there is a real risk

that by reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a

fair trial.”

37. He added, at page 507:

“…where one speaks of an onus to establish a real risk of an unfair trial it 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.”

38. In addition, it is a constant theme of the judgments 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 went on to explain:

“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.”

39. I turn then to the concluding remarks of Quirke J. He referred to “a matrix.” I do not think the” the nature and

complexity of K.C.’s complaints and the very large period of time during which he was abused by a variety of different

adult males” could be a ground, taken on its own, for prohibiting the trial. That is the very essence of criminal offending of

the type at issue. Quirke J combines this consideration with a number of other points, all of which I have considered. I do

not think any of these points carries any significant weight. For reasons already given, I do not think there was significant

unexplained prosecutorial delay, a matter also included in the “matrix.” The single period identified cannot have added

significantly to the effect of the totality of delay.

40. It seems clear that the single matter which most influenced the mind of the learned trial judge was the absence of Ms

Clare Moran and, to a lesser extent, Mr Grey. I can appreciate his concern. The judgment was given at a time when the

evidence of psychologists was a regular feature of judicial review proceedings of this sort. While the learned judge was

contemplating the effect of the absence of that evidence on the criminal trial, he may have been influenced by the fact that

such evidence was undoubtedly considered relevant at that time to whether a trial could proceed. The learned judge stated

that the evidence of the psychologists “would be relevant to the issues to be determined at the trial.” In my view, it would

be necessary to consider how it would be relevant. That has not been explained. In any event, for reasons already given, I

do not believe that the absence of this evidence is sufficient to justify prohibiting the trial.

41. I would allow the appeal and dismiss the application.