Supreme Court dismisses prosecution due to inordinate delay and loss of vital witness availability.

[2008] IESC 22

THE SUPREME COURT

JUDICIAL REVIEW

217/06

Hardiman J

Fennelly J.

Kearns J.

Between:

P.D.

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

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

1. For a period of time which cannot now be precisely fixed, approximately a quarter of a century ago, the complainant in this matter

was active as a male prostitute in Dublin. As such, he had sexual relations with “hundreds if not thousands of people”, according to

his evidence on cross-examination in the High Court. He appeared to become emotionally involved with some of these.

2. The complainant now makes six allegations of buggery against the applicant, together with eight allegations of indecent assault. All

of these are said to have taken place between the 1st June, 1982 and the 30th April, 1983, i.e. between 25 and 26 years ago. It

appears that, at the time to which the allegations relate, the complainant was functioning as a male prostitute. Although the offence

of buggery between consenting adult males was decriminalised in 1993, these allegations appear to relate to a decade before that

time, and the complainant alleges he was a child in law at the time of the offences.

3. The applicant/respondent (hereinafter referred to as the respondent), Mr. D. was arrested on these charges on 1st December,

1998 and has denied them both at that time and ever since.

4. These allegations are plainly old ones. The lapse of time between their alleged commission and the proposed trial is so great that,

in any other sort of case, it would itself preclude prosecution. As Denham J. said in B. v. Director of Public Prosecutions [1997] 3 I.R.

140 at p.193:-

“Prima facie the delay of approximately twenty or thirty years between the alleged offences and the pending trial is an

inordinate lapse of time.”

5. Much shorter periods have also been regarded as inordinate: in a non-sexual case a delay of three years was described as

“extreme” by Finlay C.J. in State (O’Connell) v. Fawsitt [1986] I,R. 362. In my judgment in J.O’C v. Director of Public Prosecutions

[2000] 3 I.R. 480 I discussed at some length the effect of such gross lapse of time on memory and on the ability to defend oneself;

the strong view taken of the risk of a miscarriage justice caused by delay of this order in the Irish authorities prior to the advent of

large scale complaints of child sexual abuse and some very disturbing examples of what has occurred when prosecutions have been

permitted to proceed after even a much less gross lapse of time. I do not propose to set this material out again here but I wish to be

taken as reiterating it. Subsequent cases have graphically illustrated the extraordinary effects of lapse of time of the memory even of

trained honest and impartial persons: see for example B.J. v. Director of Public Prosecutions [2003] 4 I.R. 525.

6. In P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25 at p.63 Denham J. observed that a trial after a long period without

corroborating or contradicting evidence is “in fact a trial of the credibility of the witnesses”. I agree with this. I would however

reiterate what I said on the subject in PO’C v. Director of Public Prosecutions [2000] 3 I.R. 87 at pp. 120 and 121:-

“The risks of such a contest are easy to underestimate. A plausible and sympathetic witness is not necessarily telling the

truth nor a furtive and cowed one lying. The very pressures of litigation of this sort, so deeply personal and perhaps

central to a complainant’s self worth on the one hand and so threatening of prolonged imprisonment, life long

stigmatisation and financial and familial catastrophe on the other, in themselves have the potential drastically to alter the

witnesses’ presentation and affect. To permit such prosecutions, in the absence of any scope for corroboration or

contradiction after one, two or more decades is to say the least to venture into unchartered territory where the normal

forensic safeguards are gravely attenuated. The process of the trial itself may be a life altering event for one or both

parties and their families, and rarely for the better. In these circumstances it appears to me that there is in each case a

point at which a trial in those circumstances ‘puts justice to the hazard’ so that the issue of guilt or innocence is ‘beyond

the reach of fair litigation’.”

7. Both of the phrases quoted at the end of the above passage are taken from the earlier cases about delay in civil litigation,

discussed in the case just cited.

No Island of Fact.

8. If a person, who is innocent, is confronted with an allegation of this sort, he can only hope to counteract it, in practical terms, if

he can show that the complainant has previously made false or improbable allegations of the same kind against himself or another

person or if he can contradict the complainant on some important matter of fact. This, I think, would be the universal experience of

those who have prosecuted or defended such cases. Perhaps because of the shock which civil society in general sustained from the

revelation of incidences of child abuse by improbable persons and in numbers much greater than might have been anticipated, the

fact is that the complainant in cases such as this attracts a considerable level of presumptive credence from judges and jurors. The

position of a person, who is innocent in fact, but whose defence can consist only of a bare denial (just as the complainants may

consist of an unsupported assertion) is very perilous for reasons I have explained in more detail in J.O’C., (above). This position has

been worsened by the removal of a former legal obligation to give a corroboration warning in such cases.

9. In Canada, a jurisdiction in which the large scale prosecution of child sex abuse cases relating to a remote period seems to have

commenced, the Ontario Court of Justice remarked in R. v. E.F.H [1994] Ont. CJ Lexis 140:-

“we are mindful of the fact that this type of case, perhaps more so than any other, carries with it the potential for a

serious miscarriage of justice.”

10. Against that background it is disturbing to note that there is in this case no “island of fact” as I have used the term in previous

cases. In the case as it originally appeared, there were two potential islands of fact: the first was the complainant’s allegation that

the respondent had taken him to a Sexually Transmitted Disease (S.T.D.) Clinic which was held in Sir Patrick Dun’s Hospital, Dublin, for

a check up and that he had told the doctor who dealt with him there that he was in a relationship with the respondent. Obviously the

facts of the visit to the clinic at Sir Patrick Dun’s, if they were capable of establishment, would either support and perhaps legally

corroborate the complainant’s account or, if resolved in the other way, have a grave effect on his credibility, especially in light of

certain observations made below. But it appears that the clinic has since closed. Certain of its records were transferred to St.

James’s Hospital, and they were there destroyed in a fire, apparently in or about 1998.

11. The respondent was apparently engaged in business at the relevant times and had considerable business documents and diaries

which might have enabled his whereabouts at a particular time to be pinpointed exactly. This is of limited value in the circumstances

of the case because the charges all relate to unspecified dates between other dates several months apart. But experience shows

that it is often possible in the cross-examination of a complainant, on deposition or otherwise, to get him to be much more specific

about dates than the prosecution’s statement of charges would suggest is possible. In any event, the respondent’s documents were

themselves destroyed in a fire also apparently having taken place in or about 1998.

12. It would appear that, these records being absent, there is no credible “island of fact” in the case. One must say this with some

caution because it is never possible to predict precisely how the complainant will put his case in evidence or of course what defence

the defendant will make. But looking at the case as it presently stands, I can see no “island of fact”.

Circumstances of Disclosure.

13. As mentioned above, the complainant was functioning as a male prostitute in the time when the offences are said to have

occurred. He had sexual connections with hundreds if not thousands of people in that time, according to his own evidence. It is,

therefore, a matter of some significance how out of all of these people he has come to make an allegation about the complainant

specifically, as one of only three named persons he complains of.

14. It appears from the papers that the complainant has a long and unfortunate history of family disharmony and of abuse at a very

early age (six or seven years old) by a priest. He was cross-examined on the affidavit he swore for the purpose of these present

proceedings in the High Court and a number of features emerged. One of these is that he has since written a text, sometimes referred

to as a book, of about 300 pages length about his life and experiences. This describes multiple street encounters in places such as

Parkgate Street, the Phoenix Park, Burgh Quay, Luke Street and elsewhere. He describes himself as having been “hooked on sex” at

that time. He was asked whether he was also proposing to make a film or documentary about his experiences to which he said: “At

the moment I am recording, yes.”

15. Subsequent to his alleged activities with the respondent in this case the complainant joined the Mormon Church and was later

ordained as a member of the “Aaronic Priesthood”. This occurred in 1985. He subsequently appears to have confided in a female friend

in the Mormon Church about his homosexual activities and it thus came to the attention of the church authorities. There was, he

said, some question of their convening a church court and perhaps expelling him from the church. He was introduced to a counsellor

and a psychologist by the church. At this time, there was no reference by him to the respondent. All this was taking place, it would

appear, the same time as the complainant was seeking treatment for alcoholism in Standhope Street and attending a counsellor in his

university, where he was a student. Counselling probably occurred up to 2002 and 2003. Probably, as a result of these contacts,

though it is unclear, the complainant made the acquaintance of a Ms. Claire Moran, psychologist. He appears to have been directly

referred to her by a social worker in the Adelaide Hospital where “I had been suicidal and I had ended up in the Meath Hospital A & E”.

These two hospitals are linked institutions.

16. The significance of Ms. Moran in the history of the case emerges clearly from the very first question the complainant was asked

by the respondent’s counsel in cross-examination. The question was:-

Q. “Why did you make a complaint about Mr. D. when you did?

A. After I had gone to therapy with a clinical psychologist, Ms. Claire Moran in Baggott Street Hospital, is when my story

started unfolding and then I decided to come forward and make a statement to the gardaí.”

17. Six or seven questions later he agreed that he did not really want to make a complaint against Mr. D. (day 1 page 5) but that Ms.

Moran was not so much encouraging him to come forward, as “She was telling you in affirmative terms that she could no longer see

you unless you made a complaint?” The complainant agreed that “That was true” (ibid).

18. A considerable issue in cross-examination was that the complainant had first made complaints about two persons and only much

later about the respondent. On this topic, and another significant one, (whether it was the respondent who had introduced him to

prostitution in the Phoenix Park), the complainant himself in cross-examination referred entirely to Ms. Moran. For example, in relation

to the sequence of allegations he said:-

“You will need to ask Claire Moran that.

I cannot speak for Claire Moran, I am not Claire Moran and I do not know where you are going”.

“But the sequence is the sequence as things unfold and that should be up to Ms. Moran to come before the court.”

19. In response to the court’s query as to the accuracy of the sequence of disclosures or allegations as appear from the available

material he said

“I do not know your Honour”. (All these citations are to be found between p.15 and p.18 of the transcript of the second

day of the cross-examination.)

20. It is an extraordinary feature of the case that neither Ms. Moran nor another psychologist, Mr. Gray, who appears to have treated

the complainant when she was unavailable are available to give evidence for either side. Gardaí say they do not know where they are.

There is in the papers a letter from Mr. Gray pointing that he was leaving the country on a specific date but no forwarding address

seems to have been sought for him. It is extraordinary that two persons, each practising a profession with requirements of

registration with a central authority have thus apparently dropped out of sight.

21. The learned High Court judge found in terms that the evidence of these two persons was relevant. The appellants in the present

application however have contested that and say that they are not relevant, or at least that no relevance has been demonstrated.

22. I have no doubt that Ms. Moran, at least, is highly relevant, to the point where, I believe, it would be unethical for the

prosecution not to call her if she were available. She is relevant for two reasons viz:-

(1) For the light she throws on the complainant’s state of mind at the time he first involved the respondent in his

somewhat lurid account of his life on the streets and

(2) The light she might throw on the precise circumstances of the disclosure and the making of a complaint to the gardaí.

In this connection the complainant himself said he felt he was “manipulated into court”.

Psychologist’s Notes.

23. When the complainant first presented for therapy on the 7th February of an unspecified year he felt that life was very bleak and

he could not bear it to continue as it was. He was not however “currently” suicidal. He said that he would prefer a female therapist

because he got too dependent on male therapists and became sexually involved with them. He had high hopes for therapy and had

signed up for a diploma of an unspecified kind but inferentially in some type of therapy related subject. He was, in Ms. Moran’s words

“evangelising” to others about therapy and “pressuring them to take the step too”.

24. Throughout the therapy he was telling the therapist about his relationship with somebody called Frank, which is generally

unsatisfactory as in “made up with Frank but still no relationship”. He said he wanted “to get his head sorted, and to tell Ms. Moran

the story of his life”.

25. On the 29th March he was assessed by Ms. Moran as “no insight, very insecure, risky (illegible)” and she noted to herself “need to

reassess what we’re doing”. On the 5th April, presumably the same year he told her that he had crashed a car while driving without

insurance, he said he “lives dangerously, deliberately - to see what power he has”. She added “This power scares him too”. She

noted that the complainant “has fantasy, unrealistic, solutions to his problems.”

26. The complainant stated that he had learnt that there was a price for emotions, everything can be bought. He related this to his

relationship with “Frank” whom he felt owed him emotionally - “But feels he (complainant) is owed financially.” Ms. Moran assessed

him as “extremely fatalistic - sees self as helpless victim”. She quoted him:-

“Someone has a voodoo doll on me.”

27. He admitted that he had been drinking when he crashed the car but that he “got out of paying for damage to other car by telling

his life story and getting hysterical”. At the end of this note Ms. Moran queried “BPD?”, which apparently stands for Borderline

Personality Disorder.

28. One week later, “Frank is back” but two weeks after that (25th April) “Frank told him it is over”. Ms. Moran noted:-

“Intense anger with Frank who is now evil and all bad and who deviously controls him. No insight to own part, all very

helpless, victim of circumstance, awards all power and control to external sources… owning no responsibility, no insight.”

29. It was apparently at the session after this (the handwritten date is unfortunately illegible) that he made what the psychologist

describes as a “disclosure re gay sex ring”. This related to when he was eight to eleven years of age. On the 30th May, the question

of reporting his allegations arose:-

“Discussed possibility of reporting/investigating sex ring chap - gave name etc. - happy for me to report, does not want

own name brought into it ‘not ready’.”

30. Ms. Moran’s note ends there apparently before any specific reference to the respondent.

31. There are further handwritten clinical notes recording a session (not apparently with Ms. Moran) on the 12th July there, referring

to another of his homosexual contacts (not the respondent). He said to the therapist:-

“Feels he has power to destroy _____’s career, and take everything from him”.

32. There are also notes which relate to the complainant’s account of his going to the gardaí. These, unlike the others, are

typewritten but the date suggests that the therapist may be Ms. Moran:-

“To see Bernard Owens (a detective garda) tomorrow to give evidence. Feeling very anxious and apprehensive about how

things would turn out. Said Bernard had told him it would be a liberating experience. (Complainant) fluctuates between

believing it will be dramatically healing and fearing it will annihilate him. Cautioned over too great an expectation re

disclosure - rather wait and see attitude”.

33. On the 1st August there is recorded:-

“Been feeling ‘gutted’ this week. Disclosure to Bernard Owens did no provide the emotional release he had hoped it would.

Took too many tablets on Friday night - was afraid of OD so went to police station in Blessington - said police helped him

but didn’t really understand his problem…

(Complainant) looking for affirmation that he is okay - sanity, therapy - reflected that he knew the answers - but he was

just looking for reassurance. Confirmed that he was okay and the sex abuse was not imagined.”

34. On the same day it was noted:-

“Angry re mandatory reporting - says he feels manipulated into court case. Fear of what will happen in court, asked me

what I would say, would I tell he was mad/unstable?”

35. In the light of the foregoing, it appears to me wholly unrealistic to say that it has not been demonstrated that prejudice arises to

the respondent from the absence of Ms. Moran or the other psychologist. These allegations relate to a period a quarter of a century

ago and came as a bolt from out of the blue to the respondent. The allegations were made in the course of therapy, to a therapist

not now available. They were made by a person who was, in the earlier stages of the same therapy, at varying times unhappy,

depressed, “gutted” and at the same time conscious of the feeling of power and ability to destroy a person’s life and career, albeit

another person. Moreover he was showing “intense anger” and had various beliefs for which the therapist noted he had no evidence.

His presentation and affect was such as that a psychologist diagnosed a Borderline Personality Disorder and gave an account of a

man who was clearly gravely emotionally labile. He showed an expressly noted tendency to play down his own responsibility for his

actions and to blame others and to seek “fantasy” solutions to his problems.

36. The disclosures led the therapist to write three separate letters which are amongst the papers of the 31st July, 1995, the 15th

January, 1996 and the 22nd January 1996, to another social worker. Neither of the first two letters makes any mention of the

respondent, though the first one goes into detail about allegations against another person. The third letter written more than five

months after the first one does contain allegations by the complainant against the respondent.

37. In the absence of Ms. Moran there is no explanation for the foregoing and no detail as to the precise circumstances of the

allegations against the respondent.

38. In these circumstances it appears to me that any competent lawyer engaged for the defence of the respondent would need to

ascertain the precise circumstances in which this complaint was made, and the details given at that time.

39. The foregoing must be viewed against the background that there is also no record available at this stage of the statements made

by the complainant to the two persons, a psychologist and a counsellor, to whom he was sent by the Church of the Latter Day

Saints. These predate by some years, at least, the “disclosures” i.e. allegations made to Ms. Moran and Mr. Gray. Equally, the

complainant’s own mother, to whom he complained only of the other two men mentioned above, is now sadly deceased.

Nature of Prejudice.

40. Where a case is very old as this one is, prejudice may arise from the lack of a single piece of evidence, because this absence may

deprive the defendant of the ability to do anything except deny the allegations. Experience of the prosecution and defence of these

cases have shown that that it is an extremely perilous position for a defendant to be in and has in fact led to wrongful convictions

some of which I have discussed in other cases. The reason for this is that the complainant is at large: what he says cannot be

checked by comparison with any provable fact. In J.O’C v. Director of Public Prosecutions [2000] 3 I.R. 478, I said at p.504:-

“The effect of documentary physical of forensic evidence, where it exists, is to provide some basis on which the part of

the case which depends on mere assertion can be assessed and tested. Inevitably there will be a certain number of

criminal cases, and far fewer civil ones, in which no such evidence exists. In such a case each side will naturally look to

the surrounding circumstances: the prosecution to see whether there is corroboration or at least evidence consistent

with the allegations being true, and the defence to see if there is material with which a complainant story can be

contradicted, even on a collateral matter, or his credibility challenged. Apart from the effect of lapse of time on the

memories of those principally involved, an interval of 20 or more years makes it difficult if not impossible to clarify the

surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the

parties can be correlated and tested. The element of hazard or chance which this state of affairs introduces into a trial

has been recognised for centuries. The more nearly a serious criminal trial consists of mere assertion countered by bare

denial, the less it resembles a forensic inquiry at all.”

41. It is sometimes stated, as it was in P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25 at p.63 that the lapse of time is

quoted as damaging to both parties. I do not agree with this, especially if it is intended to suggest that both parties are equally

damaged. It is contrary to actual experience of these trials where the prosecution case is often in fact strengthened since many

alleged victims may give clear evidence of the alleged offence but assert failure of memory due to lapse of time when asked about the

all important surrounding circumstances which are the only possible basis of an attempt to test the evidence. This applies with

particular force in relation to the circumstances in which the allegations against a particular person were first made. It can be seen in

this case, in the cross-examination which took place in the High Court, that the complainant’s immediate response, quoted above, to

questions relating to the sequence in which he involved this applicant in the serious allegations he makes, were immediately met by

him by an invocation of Ms. Moran, the psychologist, on the basis that he could not speak for her and that it was up to her to come

before the court. In other words, cross-examination on these questions will be futile.

42. It has been recognised in many cases, such as the Canadian one cited above R. v. E.F.H. that prosecutions after long periods of

delay carry a unique risk of miscarriage of justice. In some of the cases mentioned above I have drawn attention to specific instances

where, in Ireland, there have been apparent miscarriages of justice: these have never attracted comment or to my knowledge inquiry

from the prosecuting authorities who routinely defend the notion of prosecutions even after periods greater than those in question

here. But it is my firm view that there are inherent risks in such delay in prosecuting and that the authorities must do everything to

counteract such risks. Thus in P.O’C, cited above, it was said at p.112 that:-

“there is a duty on all parties concerned with cases such as this, and particularly on the gardaí by reason of their unique

investigative role, to take all possible steps to establish as many as possible the facts surrounding an allegation of sexual

abuse. If it is not possible to establish a particular relevant fact, this should be clearly stated no matter which party it

may favour.”

43. And also, at p.119 that:-

“every effort must be made by both parties but particularly the prosecution, to try to avoid a situation where there is no

island of fact and where bare assertion can be countered only by bare denial. This must be done first in questioning the

complainant: everything here he or she says must be recorded, whether it forms part of the eventual formal statement or

not, and whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time, place or

otherwise that they need to be, and any variation between an earlier and a later account must be fully noted and

disclosed.”

44. It is hard to overstate the importance of this last exercise. One of the few avenues of defence open to an innocent defendant is

to demonstrate that the complainant’s account has varied in significant ways over time. This depends on an honest and accurate

memory or record of the first allegations. It will clearly be significant if, for example, such early allegations fail to inculpate the

eventual defendant at all, or if they are related to an overall presentation which suggests some psychological condition or tendency

to fantasise on the part of the person making the allegations. This important, and in many cases unique, control of the accuracy or

reliability of what a complainant says will be lost if the person to whom these first allegations were made is unavailable or if their

memory has decayed due to lapse of time.

45. In the present instance no record or account of any useful sort exists of the first allegations to the psychologist and counsellor

whom the complainant met in the context of his membership of the Mormon Church.

46. By reason of the absence of Ms. Moran it will not be possible to establish:-

(a) That she diagnosed the complainant seeming to manifest Borderline Personality Disorder prior to the disclosures or the

basis on which she did so.

(b) The basis on which she described him as “evangelising” others about therapy and the significance she attaches to

this.

(c) The type of therapy about which he was “evangelising” and its attitude if any to child sexual abuse, recovered

memory etc.

(d) The extent if any to which the complainant had become dependent on regular therapy and the effect or likely effect

on him of a threat of discontinuance of therapy unless he made a statement to the gardaí. In this connection why did she

describe him as ‘feeling manipulated’ in a court case?”

(e) The reason for, and significance of, her noting that the complainant ‘has fantasy, unrealistic, solutions to his

problems’. Obviously, any propensity on the part of the complainant to engage in “fantasy” of any description is of great

significance to an innocent defendant charged with offences as old as these.

(f) The significance of the psychologist’s notation that, in relation to another of his sexual partners, the complainant was

conscious of his ability to destroy the man’s career and ‘take everything from him’. Coupled with the significance of the

account noted by her of the complainant’s crashing into another car while drunk and uninsured and ‘getting out of paying

for damage to the other car by telling his life story and getting hysterical’; to a lay man this might indicate a manipulative

attitude and an ability to use a history, real or imagined, of having been a victim of abuse, to avoid responsibility for

shortcomings of his own actions. It also suggests to me an ability to turn on and off his “victim status” and to “get

hysterical” at will.

(g) What is meant by the assertion that “my story unfolded” in or after therapy? Was he conscious of the alleged abuse

before therapy, insofar as Mr. D. is concerned, or is this a “recovered memory”?

47. Over and above these matters, which all seem of considerable significance to me, there is the question of the construction of the

notes themselves. In general, they appear to me to be written in a conscious pastiche or imitation of medical notes, for example using

medical symbols and abbreviations for such common terms as “male”, “female” and “with”. Consonant with this, the style is often

telegraphic and in particular personal pronouns are omitted making it difficult on a strictly grammatical construction to know who is

being referred to. This is on occasions important to the significance of the notes for example, the notation, in the notes of the 1st

August of the unspecified year “Confirmed that he was okay and the sex abuse was not imagined.” From the context I am inclined to

think that this was a reference to the therapist offering such confirmation and, if so, the question “why did she feel she had to assure

him that the sex abuse was not imagined?” obviously arises. On the other hand, if this is a suggestion, as is also grammatically

possible, that the complainant offered these confirmations the question arises of why he did so and whether the prospect that it was

imagined was raised by the therapist.

48. Over and above these matters, which arise from the notes, there is the question of omissions. The sequence of handwritten and

typewritten notes from which I have quoted do not extend to the making of any allegation against the complaint and neither do either

of the letters written by the therapist to which I have referred. Why is this? What, precisely, was the context of the eventual making

of allegations against the respondent? Why were they not noted or if noted where are the notes? Were these allegations made

before, or after, the therapist had threatened to discontinue therapy if he did not go to the gardaí? Was the allegation made to the

gardaí by any chance the first allegation made against the respondent?

49. If the respondent is convicted of these offences he will inevitably receive a long prison sentence and will suffer social disgrace of

a kind not generated by any other offence even for example murder or armed robbery. Depending on his circumstances and

occupation he may suffer social professional or financial ruin, and perhaps familial disaster.

50. At the same time, if the respondent, who is entitled to a presumption of innocence, defends these allegations he can only do so

by attacking the credibility and reliability of the complainant’s account.

51. I cannot see how, in the circumstances of this case, it could be contended by anyone with experience of the prosecution or

defence of these cases, that the matters set out above are irrelevant to such a challenge and its prospects of success.

Applicable Principle.

52. In my view, the appropriate approach to a case such as this where the applicant/respondent claims prejudice arising from lapse of

time is that set out in the judgment of Finlay C.J. in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at pp 506 and 507:-

“This Court in the recent case of D. v. Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the general

principle 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 by reason of

those circumstances (which in that case also were pre-trial publicity) that he could not obtain a fair trial.

53. This was the standard of proof accepted as the onus by counsel on behalf of the applicant in this appeal. It was also accepted,

as I understood his submission, by counsel on behalf of the respondent - though the latter did draw our attention certain (sic)

decisions arrived at in other common law countries and in particular in Australia, in which much emphasis was laid upon the balancing

between the public requirement of the trial and the conviction of guilty persons committing criminal offences and the requirement to

try and ensure in some instance as expressed in those decisions ‘as far as practicable’ a fair trial. [Finlay C.J. cited some of these

decisions and continued]

54. Even apart from what appears to be the submissions of both sides in this case that we should follow our own judgments in D. v.

Director of Public Prosecutions [1994] 2 I.R. 465, I see no reason on reconsidering the judgments and statements of principle which

are unanimous in that case to depart from them. Furthermore, insofar as the question of balance between the public right and

interest to see the proper trial and conviction of persons guilty of criminal offences and the right of an individual to a fair trial under

our constitutional provisions, I am satisfied that mere statement about balancing would be correct. I would prefer to follow the

statement contained in the judgment of Denham J. in D. v. Director of Public Prosecutions where at p.47 of the judgment she stated

as follows:-

‘The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a

hierarchy of constitutional rights it is a superior right’.”

55. This was a significant judgment because, as appears from the passage cited, the court declined to follow cases suggesting that

the defendant was entitled to a fair trial “as far as practicable” in the circumstances of a particular case. The defendant is entitled to

a fair trial, period. A real risk that he will not get one is sufficient to stop the trial at his suit: he does not have to demonstrate a

certainty of unfair prejudice, and this will be impossible to do in most cases. In the words of Blackmun J. of the United States

Supreme Court in Arizona v. Youngblood 448 U.S. 51 (1988) at p.61 “The Constitution requires that criminal defendants be provided

with a fair trial not merely ‘good faith’ try at a fair trial”. In this case, in my opinion, because of the disappearance of witnesses due

to lapse of time the case has simply passed beyond the point where it is capable of fair litigation. To hold this opinion is not to hold

that anyone is necessarily to blame for this state of affairs. It is simply to note what I believe to be an obvious fact: that this case

could at one time have been tried fairly and with some degree of equality between the parties, but that that time has gone.

56. It may be necessary to point out, for the benefit of any non-lawyer who may read these judgments, that the disclosure of

psychologists’ and other professionals’ notes, which the Director was bound to make, does not mean that the contents of those notes

can be proved in evidence by the defendant. Indeed, this court has recent experience of a case where very suggestive clinical notes

were disclosed but where the prosecution objected, as they were entitled to do, to the proof of those notes at the trial, the doctor

who had made them being absent and apparently untraceable.

57. I have already expressed surprise at the apparent complete disappearance of two persons who are by profession Clinical

Psychologists. I note the almost complete lack of detail in relation to the search for these people. By far the most important from the

point of view of a forthcoming trial is Ms. Claire Moran. It is of course possible that she has changed her name, on marriage or

otherwise. There is evidence in the papers that when she left Ireland she was going to the United Kingdom. It is also possible of

course that she abandoned psychology as a profession and never practised there. But this seems improbable. If she did not abandon

psychology she must have registered with the British Psychological Association or other such body. Moreover it is probable that she

would have been employed (if she sought employment as a psychologist), by the National Health Service or some Body connected

with that organisation. There is no evidence that any search was made in any of these sources. Nor is there any evidence that any

search has been made in the United Kingdom or elsewhere to cover the possibility that the lady may be unfortunately deceased or

that she married which might open the possibility of a further search under a new name. There is no suggestion of the involvement of

any policing body, national or international, in the search for her. Having regard to the great importance, as I see it, of her evidence,

I would expect some detail of efforts to locate her and would not accept a bald statement that she could not be found. Her

significance to the case is too great for that.

Alternatives.

58. In my view, the conclusion to which I have come about the relevance and, in the circumstances of this case, the centrality, of

the evidence of the missing witness can be demonstrated in another way. Looking at the case from the point of view of the

defendant, and presuming him, as we must, to be innocent, what alternative line of challenge to the complainant’s case might be

thought to be available on the papers before the court? It is of course possible that any number of things might happen: the

complainant might publish his “book” or release his film or documentary which might contradict his account in any number of ways. But

there is no actual evidence that he will do either of those things and certainly there is nothing of that sort available as far as the

papers before us show.

59. I have to say that I am aghast at the idea of trying the respondent in the absence of the missing evidence. The evidence is

missing due to lapse of time: it was all available at an earlier time. To proceed in its absence is a classic example of what Ó Dálaigh

C.J. in his judgment in In re Haughey [1971] I.R. 217 at p.264 called “clocha ceangailte agus madraí scaoilte” and a mockery of any

sort of principle of equality of arms as between the prosecution and the defence. The proposed trial will not, in my view, be a trial in

the course of law.

Overall time.

60. It is now proposed to put the respondent on trial between 25 and 26 years after the alleged offences. Having regard to the

decision of this court in S.H. v. Director of Public Prosecutions [2006] 3 I.R. 575, the contribution to this appalling lapse of time by

the complainant need not be here considered. On the authority of the same case, the presumption which formerly applied in cases

such as these, for certain purposes, that it should be assumed for those purposes that what the complainant said was true, and has

also been discontinued. Accordingly the case proceeds on the basis that the respondent is entitled to be presumed innocent of these

offences. The question of delay by the authorities once the complaint was made to them will be considered below. But the length of

time which these judicial review proceedings have themselves occupied must be a matter of grave concern. No serious or remotely

sustainable complaint of delay on the part of the applicant/respondent has been made. The fact is that he applied for leave to seek

judicial review on the 25th February, 2002. The High Court judgment, granting him relief, was delivered on the 3rd May, 2006, and the

appeal was heard in February 2008.

61. It is difficult to view that chronology as consonant with the obligations of the State as set out in the judgment of the European

Court of Human Rights in Barry v. Ireland (15 December, 2005, Application No. 18273/04) I can only say that if the State, as a matter

of policy, elects to prosecute very old cases such as this one it will have to make special arrangements for the disposal of such cases

and of the ancillary litigation to which they will inevitably give rise in a more expeditious fashion.

Prosecutorial Delay.

62. The complainant first contacted the gardaí and attended for interview on the 6th February, 1996. He made a formal statement of

complaint on the 8th June, 1996. He did this because in his own words he felt that Claire Moran “held a gun to his head” as he put it

on the second day of his cross-examination, (recorded at p.40 of the transcript).

63. The respondent was charged with these offences on the 27th October 1999, three years and four months after the complainant’s

statement was first taken and three years and eight months after the latter first approached the gardaí. In assessing this period it

must be borne in mind that the complaints related to a period already some fourteen years in the past at the time of his first

approach to the gardaí. It must also be remembered that there were dealings between Ms. Moran and Detective Garda Owens, the

garda first approached (and presumably the “Bernard” referred to in some of the clinical notes) whereas she was unavailable when

sought by Detective Garda O’Brien, who took over the investigation in late 1997. It may also help to understand the chronology to

note that the applicant moved for leave to seek judicial review in February, 2001, having been sent forward for trial in December of

the previous year.

64. Detective Garda O’Brien says that he took over the investigation in November, 1997. He says that the investigation was difficult

for a number of reasons one of which is “the scant detail available to the gardaí regarding identification of suspects and the medical

and psychological history of the complainant”. He chronicles that in the course of the investigation the complainant for reasons

unspecified changed his name to “Lorenzo _____ _____”.

65. I do not regard the period of delay between the complaint to the gardaí, procured as it was by Ms. Moran’s threat to discontinue

therapy, and the charging of the respondent almost four years later as explained by the affidavit of Detective Garda O’Brien or any

other affidavit on the part of the prosecutor. Nor can I see any substance in the latter’s complaint that the respondent did not cross-

examine the Detective Garda on his affidavit: in judicial review the evidence is primarily that provided on affidavit. There is no

obligation on a party who considers or is advised that the opponent’s affidavit is defective or inadequate to cross-examine the

deponent so as to give him an opportunity to comment on specific matters. This is in accordance with the principle that there is no

obligation on a party to cross-examine a witness who gives evidence viva voce. The fact is that the case against the respondent is

very substantially that outlined in the complainant’s statement and does not appear to have developed in any substantive fashion

over the period of more than three years between his complaint and the eventual charging of the respondent. But it was somewhere

during that period that Ms. Moran, for whatever reason, ceased to be available.

66. I would not at all dissent from the learned trial judge’s view that Garda O’Brien “worked continuously and assiduously on the

detailed investigation of the complaints made by [the complainant]”, after he became involved in the case. But this work did not in

any significant way develop the case against the respondent and seems to have been devoted to the complainant’s more general

allegations. These investigations seem to have run into the sand. In my view the existence of other allegations cannot excuse a delay

in the prosecution of the applicant for a period of over three years, especially since it was during that period that a vital witness

apparently disappeared.

Conclusion.

67. I consider that there has been inordinate prosecutorial delay and that during this period of delay a witness of importance ceased

to be available. I further consider that that witness’s absence carries a very significant risk of an unfair trial and accordingly I would

prohibit any further step being taken in the prosecution of the respondent.