Judicial Review 217/2006

IpsofactoJ.com: International Cases [2008] Part 14 Case 12 [SCIre]


SUPREME COURT OF IRELAND

Coram

Director of Public Prosecutions

- vs -

P. D.

Hardiman J

Fennelly J

Kearns J

23 APRIL 2008


Judgment

Justice Hardiman

  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:-

  5. Prima facie the delay of approximately twenty or thirty years between the alleged offences and the pending trial is an inordinate lapse of time.

  6. 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.

  7. 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:-

  8. 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’.

  9. 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.

  10. No Island of Fact

  11. 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.

  12. 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:-

  13. .... 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.

  14. 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.

  15. 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.

  16. 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”.

  17. Circumstances of Disclosure

  18. 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.

  19. 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.”

  20. 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.

  21. 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:-

  22. 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.

  23. 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).

  24. 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.

  25. 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.)

  26. 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.

  27. 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.

  28. 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”.

  29. Psychologist’s Notes

  30. 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”.

  31. 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”.

  32. 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.”

  33. 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.

  34. 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.

  35. 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.

  36. 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’.

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

  38. 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.

  39. 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 ....

  40. 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.

    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?

  41. 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.

  42. 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.

  43. 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.

  44. 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.

  45. 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.

  46. Nature of Prejudice

  47. 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.

  48. 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.

  49. 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.

    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.

  50. 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.

  51. 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.

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

    1. That she diagnosed the complainant seeming to manifest Borderline Personality Disorder prior to the disclosures or the basis on which she did so.

    2. The basis on which she described him as “evangelising” others about therapy and the significance she attaches to this.

    3. The type of therapy about which he was “evangelising” and its attitude if any to child sexual abuse, recovered memory etc.

    4. 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?”

    5. 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.

    6. 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.

    7. 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”?

  53. 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.

  54. 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?

  55. 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.

  56. 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.

  57. 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.

  58. Applicable Principle

  59. 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.

    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]

    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.

  60. 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.

  61. 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.

  62. 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.

  63. Alternatives

  64. 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.

  65. 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.

  66. Overall time

  67. 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.

  68. 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.

  69. Prosecutorial Delay

  70. 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).

  71. 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.

  72. 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 _____ _____”.

  73. 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.

  74. 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.

  75. Conclusion

  76. 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.

    Justice Fennelly

  77. 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.

  78. 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.

  79. 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.

  80. 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.

  81. 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.

  82. 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.

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

  84. 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.

  85. 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.

  86. 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.

  87. 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.

  88. 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.

  89. 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.

  90. 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.

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

  92. 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.

  93. 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.

  94. 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.

  95. 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.

  96. 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.

    Summary of issues: the High Court judgment

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

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

  99. 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.”

  100. 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:

  101. .... 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.”

  102. 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.

  103. 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.

  104. 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.

  105. 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.

  106. 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.”

  107. 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.”

  108. 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.

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

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

    1. 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.

    2. 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?

    3. 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.

    4. 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 [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.

  111. 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.

  112. 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.”

  113. 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:

  114. 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.

  115. 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.

  116. 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.

  117. 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.

  118. 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.

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


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