THE COURT OF APPEAL
Neutral Citation Number: [2016] IECA 304
Birmingham J.
Mahon J.
Edwards J.
CA Record No 2016/98
P.F.
Applicant
V
The People at the Suit of the Director of Public Prosecutions
Respondent
Judgment delivered on the 6th day of October 2016 by Mr. Justice Edwards
1. This is an appeal from a decision of the High Court (Humphries J.) of the 15th February, 2015, refusing the applicant/appellant leave to seek judicial review.
2. So far as relevant, the reliefs sought before the High Court were as follows:-
(a) An injunction by way of application for judicial review restraining the further prosecution of the appellant in proceedings entitled: DPP v P.F., Bill No. DU 912/2013 in relation to the complainant H.P..
(b) An injunction by way of application for judicial review restraining the further prosecution of the applicant in proceedings entitled: DPP v P.F., Bill No. DU 919/2013 in relation to the complainant M.T.
(c) A declaration that in all the circumstances of the case, the court of trial had the jurisdiction, and should have exercised in favour of the applicant, to determine that the evidence of M.T. and H.P. was inadmissible.
(d) A declaration that in all the circumstances of the case, the court of trial had the jurisdiction, and should have exercised it in favour of the applicant, to determine that the manner in which the Director was proceeding amounted to an abuse of process and that she therefore had the jurisdiction to direct that the prosecution, as it related to M.T. and H.P., should proceed no further.
(e) A declaration that in all the circumstances of the case the court at trial had the jurisdiction and should have exercised it in favour of the applicant, to require the DPP to amend and lodge an alternative indictment that reflected the actual complaints made by M.T. and H.P.
(f) A stay on the proceedings
Background
3. The background to this application for judicial review is that the applicant/appellant P.F. is before the Dublin Circuit Court for trial on allegations of sexual assault. The trial relates to three complainants, two female H.P. and M.T. and one male F.K. However, the present judicial review proceedings are concerned only with the two female complainants.
4. In terms of the history of proceedings to date, the appellant first came before the courts on the 19th April, 2013. At that stage there were two charges relating to the first complainant H.P. and fourteen in relation to the second complainant M.T.. The charges relating to H.P. were alleged to have occurred between the 21st August, 1968 and the 8th June, 1972. The charges related to M.T were alleged to have occurred between the 1st March, 1974 and the 30th September, 1977. At a later stage further charges were brought in relation to the third complainant F.K. For completeness it might be noted that the allegations in relation to Mr. F.K. relate to a period between the 12th June, 1974 and the 11th June, 1981. It may be noted that the allegations of abuse relating to the two female complainants all related to activity in an orphanage run by a religious order.
5. The DPP directed trial on indictment and the trial commenced on the 9th July, 2015, before Her Honour Judge Codd. There had been earlier abortive listings. Shortly before the trial was due to start, the appellant’s legal team received a copy of the indictment. It contained 38 counts of which counts 1 and 2 related to H.P., counts 3 to 16 related to M.T. and the balance related to F.K.
6. So far as H.P. and M.T. are concerned, the dates referred to in the charges relevant to them reflected the contents of their statements as set out in the book of evidence. However, the indictment furnished changed the position in relation to dates in a very significant manner. In the case of M.T., the original charges covered the period March 1974 to September 1977 while the counts on the indictment dealt with the period 10th January, 1977 to the 31st October, 1977. In the case of H.P., the original charges covered the period 21st August, 1968 to the 6th June, 1972, whereas the indictment dealt with the period 1st June, 1974 to the 31st August, 1975.
7. In summary, Ms. H.P. in her statement in the book of evidence indicates that she was placed in an orphanage when she may have been seven years old, but she cannot be sure of that and that she was in that orphanage until she was aged about fourteen when she left and moved to England. She refers to abuse occurring when she had been resident at the convent for about a year or two, so she was not sure of her age, but that she had not yet reached puberty. She describes two incidents of abuse separated by some weeks which occurred in the dormitory and involved digital penetration under the bedclothes. Her date of birth is the 9th June, 1961.
8. In relation to M.T., in summary she gives her date of birth as the 23rd February, 1963 and says that she went to the orphanage when she was about ten or eleven years old. She describes the abuse commencing within a couple of weeks of her arrival at the home. She describes inappropriate fondling of her breast and genital area taking place in the dormitory. She describes an incident on a school excursion, perhaps to Bray and also an incident on her birthday, perhaps her thirteenth birthday or so. On this occasion the abuse occurred at a house in Inchicore close to where P.F. lived. She refers to incidents of self harm, including an occasion when she took 70 painkillers and drank a bottle of wine after her Inter Cert and was brought to St. Michael’s Hospital. She describes a particular incident, which she identifies as the worst, which occurred close to Christmas one year and involved actual penetration, with ejaculation occurring outside.
The approach of the trial judge in the Circuit Court
9. When the matter was listed for trial the accused was arraigned on one count only. At that stage the defence applied for certain rulings in the absence of the jury. In summary what was sought was that the judge would:-
1. Direct that the evidence of the complainants as set out in the statements in the book of evidence was inadmissible, because it referred to different dates to those that were now on the indictment.
2. Alternatively that the DPP would be directed to put before the Court an indictment that reflected the statements in the book of evidence or
3. That an order would be made stopping the trial in order to protect the process of the Court from abuse.
10. The applications were refused, though there were certainly indications that the Circuit Court judge was not wholly unsympathetic, but she felt that she did not have the jurisdiction to make the orders sought and she discharged the jury. The discharge was to facilitate an application for prohibition which the Circuit Court judge felt was the appropriate remedy.
The approach of the High Court judge
11. The High Court judge refers to counsel for the appellant as saying that what the complainants had said in their statement of evidence “cannot be true” and quotes the appellant as saying that he had established that the original dates were incorrect by reference to the fact that he had not been involved in the institution until 1974, but that his defence had now been “whipped away from us wholesale” The judge felt that while that may be unfortunate from a defence point of view that as a legal objection to the indictment it was wholly without substance. He felt that the Director was entitled and indeed required to have regard to the totality of the evidence and by reference to that to decide what the particulars of the offending behaviour to be charged should be. The judge referred to observations of Fennelly J. in The People (Director of Public Prosecutions) v Farrell [2010] IECCA 94 who had said:-
“It is well established in law that the precise date on which an offence took place is not of the essence of the offence unless it be a component of the offence itself which it can be.”
12. He saw that proposition as potentially fatal to the prohibition application in respect of which leave was being sought, and indeed potentially fatal to any submission to the Circuit Court judge that the prosecution must be stopped because of a mere inconsistency between the date given by a complainant and the indictment. He stressed that the fact that that might be so did not preclude an application at the end of the prosecution case contending that particular evidence was so unreliable that no reasonable jury could convict on the basis of it. The judge was of the view that there was no obligation on the respondent to frame an indictment by reference to dates given by a complainant, if the respondent is of the view that having regard to the evidence as a whole, that other dates should appear in the charges. The judge felt that the core issue at trial would be whether the sexual abuse alleged had in fact occurred and that the question of when it occurred was secondary. He observed that for counsel to dismiss the evidence of M.T. as something that “cannot be true” was to significantly underestimate the capacity of a jury to distinguish between the veracity of her recollection that the abuse had occurred and the accuracy of her recollection as to when it occurred. The High Court judge was of the view that the Circuit Court judge was clearly correct in refusing to direct that the evidence of the complainants was inadmissible. There was no precedent for an application of this kind before the trial had even commenced.
13. The High Court judge also felt that there were no arguable grounds for contending that the respondent should have been compelled to deliver an amended indictment, pointing out that what was sought was that the respondent should prepare an indictment which did not reflect the overall state of the evidence. Requiring her to produce such an indictment would be completely contrary to the requirement of fairness and accuracy that lay upon her as Director of Public Prosecutions. Such an order would also be likely to have the effect of completely derailing the trial and result in directed acquittal. It would deprive the prosecution of its legitimate entitlement to make the case that while the central recollection of the complainants could be relied upon, their recollection as to dates might not be accurate. In relation to the third defence application for an order to halt the trial in order to protect the processes of the court from abuse, the High Court judge was of the view that there was absolutely no basis whatever for such a claim.
14. The High Court judge then addressed the question of whether judicial review by way of prohibition was the appropriate mechanism to ventilate the applicant’s complaint. He reviewed many of the authorities in the area and felt that it was not possible to escape the conclusion that the law in relation to prohibition had significantly evolved. He referred to the fact that the Supreme Court had recently laid down that prohibition is an exceptional remedy. He felt that in the circumstances of the case the appropriate remedy lay in an application to the court of trial and not by way of prohibition in advance. His view was that, at trial, the appropriate stage at which to raise the issue as to the adequacy of the prosecution case in all its features was at the close of the prosecution case.
Grounds of appeal
15. The appellant has appealed on the following grounds:-
(a) That the trial judge erred in law and fact by applying the incorrect test in law for leave to apply for judicial review.
(b) The judge erred in law and fact in refusing to grant the appellant leave to apply.
(c) The judge erred in law and on the facts in failing to consider and take into account the views expressed by the trial judge that in order to address the potential unfairness to the appellant that the appropriate remedy was one of judicial review.
(d) That the judge erred in law and in fact in determining that the evidence of the complainant H.P. was admissible on the counts in the indictment lodged, in circumstances where the proposed evidence of sexual misconduct fell outside of the dates referred to in the specific counts on the indictment.
(e) That the judge erred in law and on the facts in determining that the dates the offences allegedly occurred was a peripheral issue in this criminal trial.
(f) That the judge erred in law and in fact in determining that an indictment need not reflect a period of time as referred to in a complainant’s statement of evidence.
(g) That the judge erred in law and in fact in finding that there was no arguable ground of abuse of process in relation to the actions of the DPP.
(h) That the judge erred in law and on the facts in failing to determine the issues of law and fact relating to the two complainants M.T. and H.P. separately.
(i) That the judge erred in law and in fact in failing to adequately deal with the declaratory reliefs sought by the applicant.
(j) That the judge erred in law and on the facts in determining that the evidence of M.T. was admissible in evidence notwithstanding the fact that the counts in the indictment represented a wholly contrived and incorrect version of her statement of evidence.
(k) The judge erred in law and in fact in finding that any unfairness to the appellant could be cured by way of an adjournment of the trial.
(l) That the judge erred in law and in fact in determining that any unfairness could be remedied by a severance order.
(m) That the judge erred in law and in fact in determining that any potential unfairness could be remedied within the trial process.
(n) That the judge erred in law and in fact in determining the application made on behalf of the appellant to the court of trial was made at an inappropriate and incorrect stage of the process.
(o) That the judge erred in law and in fact in finding that the change of dates as between the original charge sheets based on the statements of complaint and the indictment lodged did not constitute an unfairness on the applicant.
(p) That the judge erred in law in finding that the rights of an accused to a fair trial being a superior right to that of the community to proceed with the charge is no longer a complete statement of the competing interests involved.
(q) That the judge erred in law in finding that if the jury heard evidence of all three complainants and an acquittal was directed on one or two, that this would not cause prejudice to the applicant in relation to the remaining counts on the indictment.
Submissions
16. In the course of submissions the trial judge is criticised for not applying the light burden test of G v DPP [1994] 1 I.R. 374 and for reaching the conclusion that the matters canvassed were capable of being dealt with by the trial court which ignored the view of the Circuit Court judge which was:-
“In seeking to do justice to the complainants, the prosecution have potentially left open an injustice to the accused and they are very serious issues for any court of trial and it is a very fine balance that has to be established.”
17. The High Court is criticised for placing an inappropriate emphasis on the decision of O’Donnell J. in Byrne v. DPP [2010] IESC 54, which it is suggested did no more than provide an alternative method of dealing with issues raised by the trier of facts in summary trials which did not impact on criminal charges triable on indictment. The situation in relation to the second complainant is even starker. Her statement of complaint alleges incidents of abuse over a number of years, but the indictment shoehorns these into a finite period of nine months. The appellant submits that this was an entirely contrived version of events.
18. The appellant contends that the charges must bear some relationship to the evidence in the Book of Evidence, and that while the original charges arguably did so, the reformulated charges preferred on the indictment utterly failed to do so.
19. The respondent agrees that the charges must bear some relationship to the evidence in the Book of Evidence, but it is to the totality of the evidence and not merely to the statements of the complainants, which may contain errors as to matters of detail although given in good faith, particularly when a history is being given concerning a time when the complainant was very young and where it was very many years ago.
20. The respondent contends that the High Court judge was right not to allow leave both on the basis that the appellant had failed to demonstrate the appropriateness of relief by way of judicial review, and on the basis that he had failed to demonstrate an arguable case.
Discussion
21. In the case before the High Court judge the appellant sought leave to apply by way of judicial review for both injunctive and declaratory relief. He refused both for the reasons stated in his judgment.
22. To the extent that the relief sought was leave to apply for injunctive relief, it was with a view to seeking to have the appellant’s pending trial restrained from proceeding, in so far as it concerned charges relating to the complainants H.P. and M.T., respectively, due to what was alleged to be a fundamental, and the appellant believes incurable, potential unfairness in the proceedings as they were then, and indeed still are, constituted. The appellant believes that if the proceedings are allowed to proceed as they stand, his trial would be unfair and it would not be a trial in due course of law. That was and is his primary case.
23. To the extent that leave was also sought to apply for declaratory relief, it has been confirmed to this Court by counsel for the appellant that this was sought as a secondary or fall-back form of relief in case the High Court judge was not disposed to grant leave to apply for injunctive relief because he was of the view that it would in fact be possible for the appellant to obtain a fair trial through appropriate interventions by the trial judge. In circumstances where the appellant had already ventilated his concerns before the trial judge in the first instance, and had sought unsuccessfully to have the evidence of the complainants H.P. and M.T. ruled inadmissible, alternatively, to have the proceedings declared an abuse of the process and struck out or halted on that basis, alternatively, to have the trial judge direct that the prosecutor should recast her indictment, it was thought appropriate to seek declaratory relief clarifying the trial judges entitlement and jurisdiction to intervene appropriately by taking one of the suggested steps . The trial judge had declined to take any of the steps she had been asked to take believing that, having regard to the stage at which the case was at, where there had not even been an arraignment on the majority of the charges, much less a jury put in charge, she had no jurisdiction to do so in the circumstances of the case and ruling that the appellant should instead seek leave to apply for judicial review. The secondary or alterative leave was therefore being sought with a view to trying to obtain declarations that the trial judge had been wrong in her ruling and that she had in fact had had jurisdiction to take some or all of the steps that she had been asked to take by the appellant.
24. The appellant mounts a two prong attack on the High Court judge’s judgment and rulings. First he says that the High Court judge failed to apply the correct test for the determination of a leave application. Secondly the appellant says that if the High Court judge had in fact applied the right test he would have been sufficiently able to satisfy that test on the merits such as to entitle him to be granted leave to apply for either the injunctive relief that he was primarily seeking, or, if not, the declaratory relief that he was seeking in the alternative.
25. It is appropriate to remark at this point that even if this Court is persuaded that the High Court judge did not apply the correct test, such an error will not necessarily, and per se, result in the appeal being allowed. The appeal will only be allowed if it is manifest that, upon application of the correct test to the circumstances of the appellant’s case, he was in a position to sufficiently satisfy its requirements so as to entitle him to one or other of the alternative reliefs that he seeks.
26. Both sides in this appeal agree that the correct test was that enunciated by Finlay C.J. in G v Director of Public Prosecutions [1994] 1 IR 374 (at pp.377-378 of the report), where he set out a summary of matters which must be established by an applicant before leave can be granted:
a. That he has a sufficient interest in the matter to which the application relates;
b. That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review;
c. That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks;
d. That the application has been made promptly and in any event within the three months or six month time limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the time limit;
e. That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.
27. What the High Court judge in the present case in fact said concerning the test to be applied was the following (at paragraph 40 of his judgment) :
“40. It is clear from G. v. D.P.P. that the requirement at the leave stage that judicial review be an appropriate remedy is separate from the question of arguability. Whether or not the applicant meets the latter threshold, I am of the view, having regard to the foregoing case law, that he has not met the former threshold. The appropriate remedy lies in an application to the court of trial if unfairness can be shown and not by way of prohibition in advance, in the circumstances of this case.”
28. A close reading of this passage reveals that the High Court judge does not, in fact, espouse or suggest any alternative test to that commended in the G case. On the contrary, the High Court judge indicates an awareness of the requirements in G v Director of Public Prosecutions. He refers expressly to two of those requirements, namely the need for an applicant to demonstrate the appropriateness of the judicial review procedure (requirement “e.” in Finlay C.J.’s test), and the need to demonstrate arguability (requirement “c” in Finlay C.J’s test). Although he does not expressly allude to the other components listed by Finlay C.J., in G (i.e. requirements “a”, “b” and “d”, respectively), they were in no way controversial in the circumstances of this case, and it is unsurprising in the circumstances that the High Court judge did not feel it necessary to expressly allude to them.
29. In the circumstances, the appellant’s complaint would appear to be not that the High Court judge failed to identify the correct test, but rather that he failed to apply it. There are two aspects to this. First, he seemed to consider that, when it came to determining whether the applicant had demonstrated the appropriateness of the judicial review procedure, it was now the law that prohibition should only be granted in the event of a genuine risk of an “inevitably unfair trial”, rather than merely a risk to fairness which the trial judge can deal with. The appellant contends that that was to set the bar too high. Secondly, that although he was only required to examine the merits of the claim with reference to arguability, the High Court judge, in truth, treated and heard the application for leave as if it was the hearing of the application for judicial review.
30. To deal firstly with the appropriateness of judicial review requirement, I am satisfied that the High Court judge accurately reviewed recent developments in the jurisprudence of the superior courts with respect to when prohibition could and should be granted.
31. Assuming for the sake of argument that the Circuit Court judge was right in her view that she lacked, at that point in the proceedings, the necessary jurisdiction and power to vindicate the appellant’s right to a fair trial in due course of law, it did not necessarily follow that injunctive relief by way of judicial review was going to be the only effective remedy that could avail him. The High Court judge clearly considered that this was not so. The reticence and scruples exhibited by the Circuit Court judge were based on a concern the applications being made to her were premature. As she had put it:
“…the issue is whether it can be dealt with by way of a preliminary application such as this, which has been brought before the accused has been arraigned. What Ms. Biggs on behalf of the defence is essentially seeking is to exclude evidence when what she's really seeking is to prohibit the trial on the basis of an unfairness in terms of what she says is the selective nature in which the DPP has now elected to frame the indictment in terms of the dates and in what she effectively says has been a tailoring of the dates to fit and to effectively scupper the defence or pull the rug from under it in terms of defending the complaints — defending the allegations based on the complaints of the complainants.”
32. The Circuit Court judge had sought to justify her view that she had no jurisdiction, at that stage of the proceedings, to take any of the steps being urged upon her on the basis that she felt bound by the decision of the Supreme Court in The People (Director of Public Prosecutions) v P.O’C. [2006] 3 I.R.238 which had been opened to her in the course of argument. In The People (Director of Public Prosecutions) v P.O’C., which was clearly relevant and in point, it had been held that a trial court has no jurisdiction to hear a preliminary application at the commencement of the trial to quash an indictment on the grounds of delay and that the appropriate procedure was a separate application for judicial review. Crucially, however, the Supreme Court had also gone to state that, nevertheless, under its inherent power, the trial court retained at all times, irrespective of whether or not an application for judicial review was made, the jurisdiction to prevent the trial from proceeding if matters arose, or evidence was given, in the course of the trial which rendered the trial unfair. This jurisdiction could be exercised in the course of the trial, but not on a preliminary application at the commencement of the trial on the issue of delay.
33. The High Court judge felt that the Circuit Court judge was correct in her view that she had no jurisdiction, at that stage of the proceedings, to take any of the steps being urged upon her, and for my part I agree with him. The applications made by defence counsel were all prima facie premature and as such misconceived. The trial was not yet underway. The accused had not yet been arraigned on most of the counts on the indictment, and although a jury had been sworn to hear the case (on the basis of the accused being provisionally arraigned on one count only in the first instance, the jury had not been put in charge.
34. As the High Court judge correctly identified, there was nothing to stop the defence from seeking to ventilate the issues that they wished to ventilate within the four walls of the actual trial once it was underway. Relief by way of judicial review was not therefore going to be the only remedy available to the appellant, and it certainly did not represent the most appropriate means of proceeding. I am satisfied therefore that the High Court judge correctly applied the “G” test, in so far as it concerned the appropriateness of judicial review, to the appellant’s primary claim, namely his claim for injunctive relief.
35. In so far as the appellant was also seeking declaratory relief in the alternative, that would only have been potentially relevant if the High Court judge had been of the view that it could be tenably argued that the Circuit Court judge had in fact been incorrect in her ruling that she that she had no jurisdiction, at that stage of the proceedings, to take any of the steps being urged upon her. The High Court judge was clearly of the view that such a case could not have been made in the light of the decision in The People (Director of Public Prosecutions) v P.O’C. However, even if an arguable case could possibly have been advanced that the Circuit Court judge had been wrong to consider herself bound by P.O’C., on the basis perhaps that the circumstances of the present case are distinguishable in some material way from those in P.O’C., it still begs the question as to whether declaratory relief by way judicial review is the most appropriate means by which the appellant could seek to vindicate his rights. The Circuit Court judge had not sought to suggest that she was of the view that she would never at any stage have jurisdiction to take steps to ensure that the appellant would receive a fair trial. She was merely saying, again correctly in my view, that she had no such jurisdiction to do anything at that point in the proceedings. Accordingly, in circumstances where the applications to her were being made prematurely, and were merely being refused on that account, there was nothing to stop them being renewed at a more appropriate time once the actual trial was underway. Declaratory relief by way of judicial review was therefore neither required, nor appropriate.
36. I am therefore of the clear view that the High Court judge was correct in concluding that criterion “e” in the “G” test, i.e., the requirement to show the appropriateness of judicial review, was not satisfied by the appellant, and he was correct to refuse leave on either basis on that account alone.
37. Turning to arguability, although it is now somewhat moot in the light of the views just expressed, the case being made in effect is that only lip service was paid by the High Court judge to the notion that, at the leave stage, an applicant only needs to be able to demonstrate an arguable case in law on the facts as deposed to in his affidavit. The suggestion being made is that the High Court judge approached the arguability requirement as though the appellant bore a burden of persuasion at that stage of the proceedings, and that he makes it clear in his judgment that he had not been persuaded.
38. Counsel for the appellant places particular reliance on certain remarks by Denham J. in G v Director of Public Prosecutions [1994] 1 I.R. 374. Denham J. had described the standard for obtaining leave as “light” (at p 381), and had further observed (at p.382) that the aim of the “preliminary process of leave to apply for judicial review is to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial and unstateable cases proceeding and thus impeding public authorities unnecessarily”
39. It was therefore necessary for the High Court judge to consider, in the first instance, whether on any basis it could be argued that, absent restraint by injunction of the proposed criminal trial in its present form, it would be impossible for the appellant to get a fair trial. He was not required at that stage to be persuaded that the appellant would not actually receive a fair trial (or as he put it, of the inevitability of a fair trial), merely that the appellant could advance an arguable case in that regard.
40. While taking all of that on board, I have certain sympathy with the High Court judge in terms of his general approach to the arguability issue. It would have been impossible for him to form any view of arguability without embarking on at least some consideration of the merits of the case. Moreover, a case cannot easily be recognised as arguable if the propositions being advanced fly in the face of established law to the contrary. To be arguable in those circumstances the proponent would have to be in a position to contend that his situation was in some way distinguishable, alternatively that the law was unsound (either by reason of unconstitutionality of a relevant statute, or by reason of an applicable precedent having been wrongly decided and being capable of being departed from).
41. The High Court judge considered the merits of the appellant’s arguments and concluded that, having regard to well established legal principles, an arguable case could not in fact be made that the appellant would not in any circumstances be able to receive a fair trial. This was in the context of the appellant not seeking to contend that the established legal principles were unsound, or that his case was materially distinguishable such that they did not apply. On the basis that that was the High Court judge’s approach, it cannot justifiably be said that he approached the issue of arguability as though the appellant bore a burden of persuasion at that stage of the proceedings. Rather, he was merely concerned with examining whether, in the light of established legal principles, the case that appellant was seeking leave to advance in support of injunctive relief could be tenable on any basis, and he was clearly of the view that it could not.
42. While it may not strictly speaking be necessary to consider whether the High Court judge was in fact correct in that conclusion in circumstances where I have already indicated that, on other grounds, I consider that he was right to refuse leave, it may nevertheless be of assistance to the parties to do so in the unique circumstances of this case.
43. It is necessary to stand back a little and to examine a little more closely the procedural history of the present case.
44. The appellant is alleged to have committed 38 sexual offences in total against three complainants. Each complainant made a statement or statements to An Garda Síochána, which now forms part of a Book of Evidence. In those statements each complainant describes incidents of alleged sexual assault on them by the appellant that occurred when they were residents in an orphanage run by the Sisters of Mercy, or when they were residents at a house also run by the Sisters of Mercy and which was, in effect, a step down facility from the said orphanage. It is common case that, in terms of an overall general timeframe, the alleged offences, if indeed they were committed, occurred somewhere between 34 and 40 years ago.
45. As is not uncommon in historical sexual abuse cases involving complainants who were children or at most early teenagers at the time, and who have come forward to make complaints many years later, the statements of complaint are vague and imprecise in terms of locating the offending behaviour in date and time, and also, though to a somewhat lesser degree, in place; but they are quite specific in terms of the nature and type of abuse allegedly perpetrated, and by whom it was allegedly perpetrated.
46. Based on these statements of complaint the Director of Public Prosecutions decided to prosecute the appellant and, presumably at her direction, charges were framed and preferred which were intended to cover the then perceived timeframe over which each complainant was believed to have been the subject of abuse. It subsequently turned out when other evidence, and in particular a s. 6 certificate from the Sisters of Mercy confirming the dates when the complainants were resident in the facilities in question, and concerning when the appellant had been working there, had come to hand that the initially perceived timeframe was likely to have been incorrect, certainly in respect of the complaints of H.P. and M.T., Consequently the dates within which the offences involving those complainants were alleged to have occurred as specified in the original charges were also incorrect.
47. By this stage, a Book of Evidence had been prepared, and the appellant had been returned for trial to the Circuit Criminal Court. However, the indictment had not yet been filed as, almost invariably, this tends to be filed at a relatively late stage in the pre-trial proceedings. When the indictment was drafted, it contained counts based on the original charges but in which the bracketing dates within which the offences were alleged to have occurred had been adjusted to reflect the new understanding as to the timeframe.
48. Vehement objection was taken to this, and as the High Court judge correctly identified, several important legal principles became relevant.
49. One important such principle is that contained in s. 4(1) of the Criminal Justice (Administration) Act 1924, which provides:
“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
50. Another important such principle is that contained in s.4 M of the Criminal Procedure Act 1967, as substituted by the Criminal Justice Act 1999, which states:
51. Prima facie, there was nothing unlawful in the manner in which the indictment was preferred. The adjustment of the dates so as to modify the timeframe was necessary so as to give reasonable information as to the nature of the charge. Indeed, strictly speaking, as will be discussed in more detail later in this judgment, it was not necessary to specify any dates at all, although by convention it is usual to do so if that is possible on any basis. Moreover, the adjusted dates and new timeframe were clearly founded on an assessment of the information contained in the totality of the documentation served on the accused, including the s.6 certificate admittedly obtained and served rather late in the day.
52. Returning to the issue as to whether it was necessary to specify dates at all, the High Court correctly stated that dates are not of the essence of the offences with which the accused was charged. He cited Fennelly J.’s judgment to that effect in The People (Director of Public Prosecutions) v Farrell [2010] IECCA 94.
53. It is instructive to note that Archbold on Criminal Pleading, Evidence and Practice, 2014 edition (London, 2014), has this to say on the subject (at paras 1-204 and 1-205):
“Materiality of averment as to date and place
1-204 In R. v. Wallwork, ante, § 1-202, it was held that the lack of precision as to place in the particulars did not invalidate the indictment because the place of commission of the offence was not material to the charge.
Despite the old authorities to the effect that the date of the offence must be shown in the indictment it never seems to have been necessary for the date shown to be proved by the evidence unless time is of the essence of the offence.
In other cases, if the time stated were prior to the finding of the indictment, a variance between the indictment and evidence of the time when the offence was committed was not material: 2 Co Inst. 318; 3 Co. Inst. 230; Sir H. Vane's Case (1662) Kel.(J.) 16; R. v. Aylett, ante; R. v. Dossi ante. In Dossi it was held that a date specified in an indictment is not a material matter unless it is an essential part of the alleged offence; the defendant may be convicted although the jury finds that the offence was committed on a date other than that specified in the indictment. Amendment of the indictment is unnecessary, although it will be good practice to do so (provided there is no prejudice, post) where it is clear on the evidence that if the offence was committed at all it was committed on a day other than that specified.
1-205 The prosecution should not be allowed to depart from an allegation that an offence was committed on a particular day in reliance on the principle in Dossi if there is a risk that the defence been misled as to the allegation he has to answer or that he would be prejudiced in having to answer a less specific allegation: see Wright v. Nicholson, 54 Cr.App.R. 38, DC; R. v. Robson [1992] Crim.L.R. 655, CA.”
54. The last sentence in para 1-205 in the quotation just referred to represents the nub of the issue that the High Court judge was required to consider in terms of arguability. Although this was not a case in respect of which R v. Dossi would have been directly in point (it was not a case of the evidence as to dates given at a trial failing to match up with the indictment; rather it was a case of an indictment being preferred, which differed as to dates from those specified in the underlying charges, the adjustment having been made to reflect the timeframe as understood from the totality of the available evidence and not merely the complainants’ statements), the appellant’s case is nevertheless based on what might be called “the spirit” of the Dossi principle, namely that while an indictment or charge may be lawfully amended or substituted, it may only be changed or substituted providing the accused will not be irredeemably prejudiced.
55. The appellant here was, in effect, making the case to the High Court judge that he was going to be irredeemably prejudiced if the trial were to be allowed to proceed on foot of the indictment preferred. The High Court judge engaged with that, and considered having regard to established legal principles that it could not be tenably argued that nothing could be done to ameliorate the apprehended prejudice. As the High Court judge noted it was perfectly open to the appellant to ask the trial judge at the appropriate time in the trial to exclude evidence (if there was a basis for doing so); to withdraw the case from the jury on Galbraith principles (again if there was a basis for doing so); to discharge the jury and adjourn the case to allow the defence adequate time to prepare for the new case they were required to meet (again if there was a basis for doing so); or to abort the trial and direct separate trials in respect of the charges relating to a particular complainant or complainants (if there was a proper basis for doing so), amongst other possibilities.
56. The appellant’s case on prejudice was predicated on the circumstance that the prosecution had elected to try him on a single indictment containing counts relating to all three complainants, because they intended to rely on system evidence as part of their case. The appellant’s point was that even if he succeeded in having evidence excluded, or some of the counts withdrawn from the jury at a direction application, or some other measures taken with a view to ameliorating his prejudice, the jury would still have heard that he was alleged to have offended against three complainants, and that therefore he could not get a fair trial before such a jury. He was therefore of the belief that his concerns required to be addressed at the outset of the trial and not during the trial
57. In addressing this submission Humphries J stated:
“41. Ms. Biggs states that the reason why the application was made at the outset of the trial was to avoid prejudice to the applicant. It is submitted that if the jury had heard details of all three complainants, and if at a later stage, one of the complainants was essentially knocked out of the proceedings, severe prejudice would be caused to the applicant. While perhaps attractive at a superficial level, this approach does not withstand analysis. If prejudice is thereby caused, it is not irremediable because it can be cured either by appropriate directions, or by discharging the jury following a directed acquittal in relation to any individual aspect of any particular case. The possibility of prejudice is not a reason to make an application at the outset of a trial.”
58. I agree with this view, and do not consider that by his having expressed it, the High Court judge was approaching the matter as though the appellant had been required to persuade him rather than simply demonstrate arguability. For a proposition to be “arguable” it must be at least stateable or tenable having regard to established legal principles. What the appellant was putting forward was not, in my view, tenable having regard to established legal principles.
59. I am satisfied in the circumstances of the case that the appellant was therefore also not in a position to satisfy the arguability requirement for being granted leave to apply for judicial review.
60. I would therefore dismiss the appeal.
Birmingham J: I agree.
Mahon J: I also agree.
