CA342 B.S. v Director of Public Prosecutions [2017] IECA 342 (20 March 2017)


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Irish Court of Appeal


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URL: http://www.bailii.org/ie/cases/IECA/2017/CA342.html
Cite as: [2017] IECA 342

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Judgment
Title:
B.S. v Director of Public Prosecutions
Neutral Citation:
[2017] IECA 342
Court of Appeal Record Number:
2016 523
High Court Record Number :
2016 89 JR
Date of Delivery:
20/03/2017
Court:
Court of Appeal
Composition of Court:
Peart J., Sheehan J., Hedigan J.
Judgment by:
Hedigan J.
Status:
Approved
Result:
Allow and set aside
Judgments by
Link to Judgment
Concurring
Dissenting
Sheehan J.
Peart J.
Hedigan J.
Hedigan J.
Peart J., Sheehan J.



THE COURT OF APPEAL
Neutral Citation Number: [2019] IECA 6

Appeal No. 2016/523


Peart J.
Sheehan J.
Hedigan J.

Between
B.S.
Applicant/Appellant
V

The Director of Public Prosecutions

Respondent


JUDGMENT of the Court delivered on the 20th day of March 2017 by Mr. Justice Sheehan

1. The appellant is a retired farm labourer in his early 60s who lives in sheltered housing in Co. Limerick.

2. He has been returned for trial on one count of rape which is alleged to have occurred on an unspecified date between 1st January, 1970 and 21st May, 1970 when the appellant/applicant was 16 years old and living with his uncle and grandfather. If convicted of this offence he could face a substantial prison sentence, the penalty for rape being life imprisonment.

3. The issue in the present appeal is whether or not the learned trial judge was right in holding that the appellant had failed to establish that there was a real risk of an unfair trial if the prosecution against him was allowed to continue.

Background
4. These proceedings arise following the taking of a statement from the complainant at Roxboro Road Garda Station on the 22nd February 2014 by Garda Elaine O' Neill in the presence of Garda Lesley Moloney and a member of the Rape Crisis Centre.

5. The complainant is a married woman living with her husband and family in Limerick. She grew up on her parents' dairy farm with her seven brothers and two sisters. She complains that on a date or dates unknown between January and May 1970 when she was seven years old and before she made her first communion she was raped by the appellant who she says was always around and was totally trusted. She states that the appellant lured her with sweets and money to a field away from the farm where he sexually assaulted her. She states that this happened a number of times and that she does not remember her parents being at home when these events occurred. She states that the other children were nearby or in the house playing but never in the same field or close by. She says that she told her mother what happened because she was in physical pain and that after that the appellant was gone. The complainant also states that she told a friend in boarding school what had happened, and her husband when she was going out with him. There are statements before this court by the complainant's late mother, an older sister, her husband and her school friend. The complainant's mother stated that she told her husband what her daughter had told her, and that he dismissed the appellant. She is now deceased. The complainant's sister made a statement to the gardaí on the 11th of March 2014 in the course of which she says that on one occasion when she was 12 or 12 and a half, the appellant kissed her on the lips. She says that on another occasion sometime after this, she was sexually assaulted by the appellant. She says no one else was around at the time and that her sister, the complainant, was the only person she ever told about this assault and that she only told her this ‘in the last few years'. The complainants' school friend has made a statement confirming that the appellant told her about being assaulted sexually when they were in boarding school. There is also a statement from the complainant's husband, who states that the complainant told him about these matters as far as he can remember after they got married.

6. The appellant denies that he raped or assaulted the complainant in any way. He denies that he ever looked after the children when their parents were not there as has been suggested by the complainant. He says that he ended working for her father on very good terms. He says that he was let go shortly after he had been discharged from Croom Hospital where he had been hospitalised for some time and at a time when there were bad things happening on the farm which resulted in the death of a number of animals.

The Affidavit Evidence
7. The application to the High Court for an order stopping the trial was grounded on the affidavit of the appellant, the affidavit of his solicitor Sarah Ryan. In the course of his affidavit the appellant says that he was contacted by a garda who he understands was Elaine O' Keefe on the 1st May 2014 and that he agreed to call into the garda station that day when he was interviewed. He was arrested and charged on the 17th September 2015 and served with a book of evidence on the 11th of December 2015.

8. The appellant sets out the circumstances in which he ceased working on the farm in para. 2 of his affidavit: ‘I worked for over two years for Mr. L until I reached the age of 17 years and I left on good terms. It is totally wrong to now make it look like I left, to make it anything to do with his daughter, UL. The gardai said to me that Mr. L let me go because of something I did to his daughter and this is completely untrue. Towards… the end of the time I was working with him, he had problems with a lot of his cows dying… I got sick and ended up in Croom Hospital. I was discharged from hospital and went back to tell Mr. L that I was ready to come back to work on the farm. I became unwell again that same night and Mr. L came to me a few days later and said I would be better off elsewhere looking for work. Mr. L said that he would deal with the piseogs himself. He had less animals and things were not the same then. He was nice to me and hoped that I did well working elsewhere. I have no doubt that if Mr. L was alive now, he would help to explain all of this'. At para. 3 he says that helping at the farm also at this time was a man called M H who knew everything that was going on at the farm and with the family. The appellant says that if M H was alive now, he has no doubt that he would be able to explain a lot and he would be able to defend himself. He states at para. 3: ‘I never looked after the children when I was there and I never went with UL as she claims… There was another man who also worked at the farm called M D H. He was not there as often as M H but also would confirm what I am saying'.

9. Sarah Ryan, solicitor for the appellant, who was first instructed by the appellant on the 17th of September 2015, states in her affidavit filed on his behalf that the appellants' ability to defend himself against the charge has been severely compromised in the particular circumstances of this case and says that she believes there is an inevitability of unfairness in the process set in train against him. She states at paragraph two of her affidavit: ‘I say that it is clear from the book of evidence that the appellant went voluntarily to the Garda station in Newcastle West in Co. Limerick on May 1st 2014 and was interviewed by Garda Elaine O' Keefe and William McElligott. The memorandum of interview indicates that the appellant was advised to consult with his solicitor and his response was ‘I have not contacted a solicitor. I have not got the money'. Looking at the written memorandum, no further advice in this regard seems to have been given to the appellant, and it is clear that he did not consult a solicitor prior to being interviewed. I am instructed that I am the first solicitor contacted by him. I note that in the interview, certain things were put to him that were allegedly said by persons not listed in the book of evidence and I have not yet been served with copies of any further documentation in this regard such as statements from other persons. That affidavit was sworn on the 9th of February 2016 and filed in the Central Office on the 11th of February 2016. The replying affidavit on behalf of the respondent was sworn by Garda Elaine O' Keefe on 28th May, 2016. She states at para. 3 of her affidavit: ‘I say believe and am advised that nothing has been raised by Mr. Sheehan in this application that entitles him to any relief. I am advised and believe that the two issues he raises in this regard, firstly as to the time that has passed since the alleged crime and secondly the unavailability as witnesses of the alleged victims' father NL, and two other men who I believe were workers on the farm and family friends do not entitle the applicant to an order stopping his trial. I am further advised that these issues the applicant raises in this application are more properly matters that fall to be addressed as part of the trial of the alleged offence'.

Judgement of the High Court
10. In the course of his concluding remarks, the trial judge stated; "It is asserted that the two deceased labourers would have been able to give evidence about how the farm worked but there is no evidence that they knew the reason for the termination of the applicants' employment. The alleged sexual abuse of the complainant had occurred in an isolated location away from the farmhouse in a field adjacent to the farm. It is not suggested that either of these witnesses would have anything of significance to say about these allegations other than of a most general nature". He further held that the issue as to whether the unavailability of the complainants' father to give evidence that the termination of his employment was due to his continuing bad health rather than the alleged sexual abuse of his daughter did not result in such prejudice to him as to give rise to a real or serious risk of an unfair trial. He further pointed out that it was not said that the complainants' father witnessed anything that would support the complainants' version of events. He further stated that the reality was that it could not be established whether or not the complainant's father would have supported the applicants' version of events.

11. In the course of his judgement, the trial judge stated that he was not satisfied that the applicant or his solicitors had exhausted all relevant avenues of inquiry "some of which may emerge from disclosure in respect of these events". It seems to me that this finding by the trial judge is somewhat unfair to the appellant's solicitor in the present proceedings. The obligation of full disclosure in a criminal trial rests on the prosecution. It is noteworthy that this disclosure was apparently only completed on 17th January, 2017 following repeated requests from the appellant's solicitor to have that disclosure delivered prior to the hearing of this appeal.

Submissions
12. Counsel for the appellant advances 8 grounds of appeal. These are:

      1. The learned Judge erred in law and fact in deciding that the Applicant/Appellant had not established prejudice such as to give rise to a real or serious risk of an unfair trial.

      2. The learned Judge erred in law and in fact in finding that the unavailability of the evidence of two deceased farm labourers, even if such evidence was to be considered ‘general' in nature, did not give rise to a real or serious risk of an unfair trial.

      3. The learned Judge erred in law and in fact in deciding that the unavailability of the evidence of the deceased father of the complainant was not such as to give rise to a real or serious risk of unfair trial.

      4. The learned Judge erred in law and in fact in finding that there was no real possibility that evidence helpful to the Applicant would have been forthcoming from the said deceased father.

      5. The learned Judge erred in law and in fact in attaching undue importance to his conclusion that the prosecution might not be able to pursue at trial the reason for the termination of the Applicant's employment by the said deceased father. The learned Judge failed to take into account that the Applicant himself may have had reason to pursue this issue, and was now hampered from doing so.

      6. The learned Judge erred in law and in fact in failing to give due weight to the age of the Applicant at the time of the alleged offending and the importance of all other evidence being available at trial to ensure the fairness of the trial.

      7. The learned Judge erred in law and on the facts in determining that any potential unfairness to the Applicant could be remedied by the trial judge.

      8. The learned Judge erred in law in refusing to grant an injunction in the particular circumstances set out an affidavit before him.

13. The respondent disputed each of these grounds of appeal maintaining that the trial judge's conclusions were correct in every respect. In particular counsel for the respondent relied on the judgement of this Court in M.S. v. The Director of Public Prosecutions [2015] IECA 3009 in which Hogan J. stated inter alia : ‘There has been a growing recognition at various levels throughout the criminal justice system that it requires something exceptional to justify the prohibition of a criminal trial especially if any potential unfairness to an accused is capable of being mitigated by appropriate rulings in the course of the trial.

Discussion
14. Delay in historic child sexual abuse cases is an issue that has occupied a considerable amount of judicial time in both the High Court and Supreme Court. As Professor O' Malley points out in Chapter 17 of the Criminal Process 2009: Thompson Reuters (Professional) Ireland Ltd. many judgements delivered between 1997 ( B v DPP [1997] 31. R) and the middle of 2006 (H v DPP (2006) 31. R) generated a significant and complex body of jurisprudence which often seems to reveal conflicting principles.

15. At 17.36 Professor O' Malley states :In the penultimate paragraph of its judgement in H v DPP the Supreme Court said: ‘The issue for a court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The Court does not exclude wholly exceptional circumstances where it would be unfair or unjust to put the accused on trial'. The conjunction of these two sentences suggests that, if the circumstances are sufficiently exceptional and compelling, a trial may be prohibited even if the applicant is unable to point to any specific factors demonstrating or indicating the risk of an unfair trial. The circumstances in which a trial may be prohibited on this residual ground will naturally be highly fact-specific. In P.T. v. DPP [2008] 1 IR 701 the Supreme Court stated at p. 708:

      "This is a test based on ‘wholly exceptional circumstances', which are essentially fact and thus previous cases are of limited value as precedents. It is necessary when analysing this aspect of the test to consider the particular facts of a case, and to determine whether it would be unfair or unjust to put that specific accused on trial in all the circumstances of the case."
16. In McFarlane v DPP [2006] IESC 11, Hardiman J. on behalf of the majority of the Supreme Court stated para. 24, " In order to demonstrate that risk (of an unfair trial) there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent… This is not a burdensome onus of proof: what is in question, after all, is the demonstration of a real risk, as opposed to an established certainty, or even probability of an unfair trial'.

17. Whether or not the appellant has sufficiently engaged with the evidence and established prejudice in accordance with the dicta of O' Malley J. in S.O'C v. The Director of Public Prosecutions & Ors ., the fact remains that the appellant is undoubtedly disadvantaged by not having the three deceased men available as potential witnesses to support his defence. This is particularly important in a case where credibility is likely to be the deciding factor. Again, while the complainant does not say she was present when the appellant ceased working for her father, a clear inference to be drawn from her statement is that the appellant was immediately dismissed because of what she had told her mother. The absence therefore of the complainant's father also disadvantages the appellant.

It is instructive to consider how fair trial rights have been viewed on the civil side. A review of these civil cases was carried out by Irvine J. in Maria Cassidy v the Provincialate [2015] IECA 74. In the course of her judgement, Irvine J. cited with approval the judgement of Henchy J. in O' Domhnaill v Merrick [1984] I.R.151 she stated at paragraph 31 of her judgement:

      "[…] the O'Domhnaill jurisdiction is most usually employed where, at the time the application to dismiss is brought, such a significant length of time has elapsed between the events giving rise to the claim and the likely trial date that the defendants can maintain that, regardless of the absence of blame of the part of the plaintiff for that delay, it would be unjust to ask to the defendant to defend the claim. The question most commonly considered by the court when exercising its O'Domhnaill jurisdiction is whether, by reason of the passage of time, there is a real or substantial risk of an unfair trial or an unjust result.
In the course of his judgment in the Merrick case Henchy J. stated at p. 158:
      "While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial."
18. This is a case in which a trial, if it proceeds, will now take place 47 years after the alleged events. This is not a situation in which statements were taken at or near the time of the alleged offence nor is it a situation in which the defendant is responsible for the delay. In I.I. v J.J . [2012] IEHC. Hogan J giving judgement stated that in cases where, by reason of the passage of time, the evidence available has become eroded to the point that a jury is left to choose between two different narratives advanced by a plaintiff and the defendant, there is a real risk that justice will be put to the hazard.

19. The appellant's solicitor is an experienced criminal lawyer who has sworn that the appellant's ability to defend himself against the charge in the book of evidence has been severely compromised and that there is an inevitability of unfairness in the process set in train against him. This averment needs to be factored into any assessment of all the particular circumstances of the case.

20. While it may be that the judgement of Hogan J. in M.S . which the respondent relies on in this appeal means that the prejudice complained of in this case has not reached the necessary threshold which would result in an obligation to halt the trial on that ground the question nevertheless does arise that if this were a civil case, would the appellant have established ‘moderate prejudice'? Ultimately the question that arises for civil and criminal cases is often the same one namely whether or not a fair trial is possible given the lengthy delay in a case. In O' Domhnaill v Merrick , Henchy J. was clearly saying that a fair trial was not possible when there was a 25 year delay. One might ask if fair trial rights do not require greater protection when personal liberty rather than property is at stake. In fact in a criminal trial, both can be at risk. The facts of the present case differ considerably from those in MS who was facing multiple charges in respect of multiple allegations by different complainants.

21. Ultimately the Supreme Court in H. also left it open to a trial judge in judicial review proceedings to halt a trial where it was unfair or unjust to proceed with that trial.

22. At the oral hearing before this Court Mr. Sexton S.C. placed emphasis on the fact that the charge which his client faces is alleged to have occurred when he was a minor and being a person who had not then reached full maturity. This is a specific fact to be taken into consideration. Another specific fact to be taken into consideration is the fact that both parents of the complainant are now deceased and a jury will not hear what steps if any the complainants' parents took following her alleged disclosure."

23. A further matter arose during the oral hearing. The appellant's solicitor in the course of her affidavit refers to the Garda interview with the appellant. When the investigating Garda raised the issue of the appellant being entitled to legal advice he replied that he could not afford a solicitor. Despite that being said by the appellant the Garda interview proceeded immediately. While counsel for the Director of Public Prosecutions submits that an unfair interview can be edited to ameliorate the unfairness this does not get over the difficulty that in this case the appellant seems to have been deprived of a fair interview process.

Conclusion
24. The appellant in this case has engaged with the evidence and his belief that the 3 deceased witnesses could have been of assistance to him goes beyond mere assertion. If he is not prejudiced according to the dicta of O'Malley J. in S. O'C v DPP [2014]IEHC 65 then he has at least established "moderate prejudice". Further, there is in my view inherent prejudice in a delay of what will now be 47 years if this trial is allowed to proceed. This is particularly so in a case that is wholly dependent on oral testimony of the complainant and the appellant. Two separate tests arise following the judgment in the H. case. With regard to the first test I hold that the appellant has established sufficient prejudice which gives rise to a real risk of an unfair trial which cannot be overcome by any delay warning.

25. Having considered all of the particular facts and circumstances of this case and looking at them cumulatively I hold that this case comes within the ‘wholly exceptional circumstances category' as a result of which it would be unfair and unjust to put this specific accused on trial. I therefore allow this appeal on the 2 separate grounds envisaged in ‘H' whereby a trial should be prohibited. Accordingly, I grant the application for an injunction restraining the Director of Public Prosecutions from proceeding further in this matter.

JUDGMENT delivered on the 20th day of March 2017 by

Mr. Justice Hedigan

1. This application is an appeal from the order and judgment of McDermott J. delivered on 7th October, 2016 in which he refused the appellant's application for an injunction by way of judicial review restraining the respondent from proceedings with a prosecution against him entitled "The People (at the suit of the Director of Public Prosecutions) v. B.S." (Bill CCDP 0131-2015). This case is currently listed for trial on 20th March next before the Central Criminal Court. The offence sought to be prosecuted is one of rape of a 7 year old girl on an unknown date between 1st January, 1970 and 21st May, 1970. The appellant was 16 years old at the time. The appellant brings the appeal on the following grounds:-

2. The complainant who is now a woman of 53 years was one of a large family and grew up on a farm. She complains that on a date or dates unknown between January and May, 1970, before she made her first communion, she was raped by the appellant who worked on her parents' farm as a farm labourer. She was 7 years old at the time. She says he was always around and was totally trusted. She states that he used to mind the children when their parents were away. She states that the appellant lured her with sweets and money to a field away from her home farm and assaulted her sexually. She said this happened on a number of occasions. She does not remember her parents being at home when these events happened. The other children were nearby or in the house playing but never in the same field or close-by. At some point she told her mother and after that as she put it, "he was gone" . There is before the court a statement by her mother, who is since deceased, to the effect that she told her husband what had happened and that he paid him his wages and dismissed him. There is also a statement from the complainant's older sister who states that the appellant on one occasion when she was 12 or 12½ kissed her on the lips. On another occasion sometime after, in the farthest field from the house, she states that she was sexually assaulted by the appellant. Nobody else was present or in the vicinity at that time. Her sister, the complainant, is the only person she ever told about this assault. She told her only in the last few years. There are also statements from a friend of the complainant from her schooldays stating that she told her in boarding school of the assault by the appellant. There is a further statement from the complainant's husband stating that she told him of this assault just after they got married.

3. The appellant denies that he assaulted the complainant. He also denies that he was dismissed for that reason. He denies that he ever looked after the children when their parents were not there. He says he was let go because there were a lot of bad things going on at the farm at the time. A number of animals had died, there had been accidents involving some of the children and he himself had some illness which required him to go into hospital. It was considered, he states, that there was some kind of curse or piseog on the farm. When he came out of hospital and returned to work, he was told by the complainant's father that he would be better off working somewhere else and was let go. That, he says, is why he was dismissed.

4. The case made for the appellant both in the High Court and before this Court is essentially that due to the death of three witnesses he will be unable to defend himself at trial. Two of these are other labourers who worked on the farm and the third is the complainant's father. He argues that the first two could give evidence that the appellant never went away with the complainant. They could also give evidence about how things were on the farm and what went on there. They might be able to corroborate that he never was left to look after the children. Generally they could as he puts it "explain a lot" . The complainant's father, he states, would confirm that he had not been dismissed for abusing the complainant. He could say that he had been dismissed because of a bad run of luck at the farm attributed to piseogs and the like. The appellant also argues that the trial judge did not give due weight to his age at the time of the alleged offence. He further argues that the judge erred in determining that any potential unfairness could be remedied by the trial judge.

5. The respondent argues that the judge applied the correct principles to determine the application. Ms. Brennan, for the respondent, argues that there is nothing other than a bare assertion that the three deceased witnesses could or would say anything favourable to the appellant's defence. By their very nature, sexual assaults are done secretively and the fact that two fellow workers might say they saw nothing would not advance matters very far for the appellant in his defence. No indication exists as to what they might say. The same, it is argued, goes for the father. There is nothing to indicate what evidence he would give. The appellant states he would say that the appellant was not dismissed for sexually abusing the complainant. However, there is before the Court a statement from the complainant's mother that effectively says that this was in fact why he was dismissed.

The applicable principles
6. The test an applicant must meet in order to prohibit the State from bringing a criminal charge to trial against him is a strict one. The court of judicial review must bear in mind that an accused person will be tried before a court established under the Constitution to exercise a criminal jurisdiction. It will be presided over by a judge sworn to do justice without fear or favour, affection or ill will. It must be presumed that such a judge will ensure that constitutional standards of fairness and justice will prevail and that all his rights to a fair trial will be vindicated. It is therefore only in the most exceptional circumstances that this Court will step in and prevent the criminal court from exercising its jurisdiction. McDermott J. summarised these principles at para. 14 of his judgment where he stated:-

      "The legal principles applicable are well settled. The test to be applied is whether the delay of 44 years in initiating these proceedings has resulted in such prejudice to the applicant as to give rise to a real or serious risk of an unfair trial. The length of time between the date of the alleged offence and the charging of the alleged offender is not determinative of the issue, nor is the complainant's delay in making a complaint to An Garda Síochána. The onus is on the applicant to establish that there is a real or serious risk of an unfair trial and the unfairness must be such that it cannot be avoided by appropriate rulings or directions in the course of the trial by the trial judge."
In this regard he relied upon Z. v. DPP [1994] 2 I.R. 471, D.C. v. DPP
[2005] 4 IR 281 and S.H. v. DPP [2006] I.R. 575.

7. This principle has been continuously upheld by the Supreme Court and by the Court of Appeal. In K. v. His Honour Judge Carroll Moran & Ors . [2010] IEHC 23 Charlton J. at para. 9 conveniently summarised the law in the following nine propositions:—

"(1) The High Court should be slow to interfere with a decision by the Director of Public Prosecutions that a prosecution should be brought. The proper forum for the adjudication of guilt in serious criminal cases is, under the Constitution, a trial by judge and jury; D.C. v. DPP [2005] 4 IR 281 at p. 284.

(2) It is to be presumed that an accused person facing a criminal trial will receive a trial in due course of law, one that is fair and abides by constitutional procedures. The trial judge is the primary party to uphold the relevant rights which are: the entitlement of the accused to a fair trial; the right of the community to have serious crime prosecuted; and the right of the victims of crime to have recourse to the forum of criminal trial where there is reasonable evidence and the trial can be fairly conducted; P. C. v. DPP [1999] 2 IR 25 at p. 77 and The People (DPP) v J.T. ( 1988 ) 3 Frewen 141 .

(3) The onus of proof is therefore on the accused, when taking judicial review as an applicant is to stop a criminal trial. That onus is discharged only where it is proved that there is a real risk of an unfair trial occurring. In this context, an unfair trial means one where any potential unfairness cannot be avoided by appropriate rulings and directions on the part of the trial Judge. The unfairness of the trial must therefore be unavoidable; Z. v. DPP [1994] 2 I.R. 476 at p. 506 - 507.

(4) In adjudicating on whether a real risk occurs that is unavoidable that an unfair trial will take place, the High Court on judicial review should bear in mind that a District Judge will warn himself or herself, and that a trial Judge will warn a jury that because of the elapse of time between the alleged occurrence of the facts giving rise to the charges, and the trial, that the accused will be handicapped by reason of the lack of precision in the presentation of the case, and the disappearance of evidence such as diaries, or potentially helpful witnesses, or by the normal failure of memory. This form of warning is now standard in all old sexual violence cases and a model form of the warning, not necessarily to be repeated in that form by all trial Judges, as articulated by Haugh J. is to be found in the decision of the Court of Criminal Appeal in The People (DPP) v. E.C. [2006] IECCA 69.

(5) The burden of a proof on an applicant in these cases is not discharged by merely making a general allegation of prejudice by reason of the years that have elapsed between the alleged events and the commencement of the criminal process. Rather, there is a burden on such an applicant to fully and actively engage with the facts of the particular case in order to demonstrate in a specific way how the risk of an unfair trial rises; C.K. v. DPP [2007] IESC 5 and McFarlene v. DPP [2007] 1 IR 134 at p. 144.

(6) Whereas previously the Supreme Court had focused upon an issue as to whether the victim could not reasonably have been expected to make a complaint of sexual violence against the accused, because of the dominion which he had exercised over her, the test now is whether the delay has resulted in prejudice to an accused so as to give rise to a real risk of an unfair trial; H. v. DPP [2006] 3 IR 575 at p. 622.

(7) Additionally, there can be circumstances, which are wholly exceptional, where it would be unfair or unjust to put an accused on trial. Relevant factors include a lengthy elapse of time, old age, the sudden emergence of extreme stress in consequence of the charges, and which are beyond that associated with the normal stress that a person will feel when facing a criminal charge and, lastly, severe ill health; P.T. v. DPP [2007] IESC 39.

(8) Previous cases, insofar as they are referred on the basis [of] facts that are advocated to be similar, are of limited value. The test as to whether a real risk of an unfair trial has been made out by an applicant, or that an applicant has established the wholly exceptional circumstances that had rendered unfair or unjust to put him on trial, are to be adjudicated in the light of all of the circumstances of the case; H. v. DPP [2006] 3 IR 575 at p. 621.

(9) I will attempt to apply these legal principles to my adjudication of the circumstances in this case. In doing so, I would simply comment, as a final observation on the law, that having read the relevant case law, it can be the case sometimes that circumstances such as extreme age or very poor health will be contributory factors to an applicant succeeding in making out that a real risk of an unavoidably fair trial is established. Old age and ill health can assist in establishing that there is prejudice by reason of a delay, since memory fails with time and the ability of an accused to instruct counsel with a view to mounting a defence can be, in extreme circumstances, undermined by those factors. Where extreme delay, old age and serious ill health are, of themselves, pleaded as a circumstance which would make it unfair or unjust to put a specific accused on trial then, in the absence of proven prejudice, those circumstances will indeed occur rarely; The People (DPP) v. P. T. [2007] IESC 39 and Sparrow v Minister for Agriculture, Food and Fisheries [2010] IESC 6."

8. Dealing with the case of missing witnesses, McDermott J. relied upon the principles set out in S.O'C v. DPP [2014] IEHC 65 where O'Malley J. stated as follows:—

      "65. … it seems to me that when an applicant seeks to establish that the absence of a specific witness or piece of evidence has caused prejudice, he or she must be in a position to point to, at least, a real possibility that the witness or evidence would have been of assistance to the defence. In other words, I do not believe that it is sufficient to point to a theoretical possibility that an unavailable witness might have had something to say that would contradict the complainant's account and that of other witnesses."
Thus it is not enough for an applicant to simply assert that three deceased persons would give evidence on his behalf in order to support his case for an injunction restraining his trial. He must be able to demonstrate a real possibility that they could have given evidence in support of him in his defence. There must exist something which raises the proposition from an assertion to a real possibility.

Application of these principles
9. In his judgment, McDermott J. clearly identified that the appellant's case was focused centrally on three witnesses who are deceased but whom he states would give evidence that could be helpful to his defence on this charge. He noted the existence of other statements taken in the case including from the complainant's siblings. No application was made by the appellant for discovery of these. The appellant, he stated, was not satisfied that these statements should be made available to the High Court hearing his application. The learned judge observed that it was appropriate in cases such as this that all relevant potential evidence and material should be before the Court. The Court should not be asked to restrain the appellant's trial on the basis of limited documentation and statements. I would readily adopt these comments. The court of judicial review exercises a discretionary remedy. It is thus appropriate that all relevant evidence should be before it when it is asked to injunct, as herein, the exercise by the Central Criminal Court of its jurisdiction to try the accused. All of the evidence before this Court should be considered by it as a part of the factual matrix of the application in order that it can fully assess the circumstances of the case. It is not the role of this Court to try the guilt or innocence of the appellant. That is the sole function of the Central Criminal Court. The admissibility of the evidence which is before this Court in that criminal trial will be determined by the trial judge at the trial. The role of the court in judicial review is to determine whether there exists a real risk of an unfair trial irremediable by any orders or directions of the trial judge.

10. Dealing with the evidence of the two labourers: The appellant has merely stated that the younger of these two men, might give evidence that would "explain a lot" and would help him defend himself. He says the other man, was not on the farm as often but would also, as he put it in his grounding affidavit at para. 3 "… confirm what I am saying" . In both these cases this assertion of the potential relevance of these two men does not rise above a theoretical possibility. The appellant does not know what evidence they would give. In any event, sexual offences, notably involving children, are invariably of a highly secretive nature. Thus the mere fact that neither of these two men saw anything would hardly advance the appellant's defence. Nothing appears to exist that would raise the assertion in respect of these two witnesses above the level of a theoretical possibility. As McDermott J. pointed out, they could only give evidence of a most general nature. As to the possibility of the complainant's father giving evidence helpful to the appellant concerning his dismissal, McDermott J. referred to the mother's evidence that immediately after the complainant told her she had been assaulted by the appellant, she had told her husband who then dismissed the appellant. Her statement before the Court in this appeal states that when told by her daughter what had happened "I just wanted to get rid of him straight away. I told my husband about what [ ] had said and then he paid him his week's wages and he left and never worked for us again" . In the light of this evidence it is highly improbable the father would give evidence that would be helpful to the defence.

11. It should be noted that there is also before the Court a statement of the complainant's older sister. She states therein that when she was 12 or 12 ½ years old she was sexually assaulted by the appellant in a similar fashion to the sexual assault described by the complainant.

12. In the light of the above facts and the applicable principles of law in respect of the prohibition or injunction of a criminal trial, I am satisfied that the High Court judge was entirely correct in refusing the application to injunct the trial of the appellant in the Central Criminal Court on the charges brought against him herein. I would dismiss the appeal.









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URL: http://www.bailii.org/ie/cases/IECA/2017/CA342.html