2005 IEHC 428
THE HIGH COURT
Record No. 2002/438JR
BETWEEN:
M.O'H.
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT of Mr . Justice William M. McKechnie delivered on the 28th day of February, 2003
- By order dated the 26th July, 2002, the applicant in the above entitled judicial review proceedings, obtained leave from this Court to seek an order restraining the respondent from taking any further step in the criminal prosecution of the said applicant on the charges then standing against him. The grounds upon which this relief was sought can be summarised as follows:
(a) that the respondent failed to make appropriate and prompt discovery and/or failed to ensure that appropriate and prompt discovery was in fact made,
(b) that there had been considerable and inordinate delay on the part of the State in complying with its obligations to seek out and make available witnesses and written material,
(c) that the applicant's right to a trial in due course of law and with reasonable expedition has been breached, and
(d) that by reason of the aforesaid delay Mr. M.O'H, has been prejudiced and has suffered excessive pre-trial anxiety.
- In the statement of opposition the Director of Public Prosecutions asserts that by the 7th October, 1999 he had fully complied with any obligations imposed upon him as a result of an order of this Court made on the 25th March, 1999, secondly, that he had no obligation to ensure that third parties complied with an order for discovery made on the 21st March, 2000, thirdly, that the applicant himself was responsible for delays which followed upon his successful application to have his trial transferred from the Dundalk Circuit Criminal Court to the Dublin Circuit Criminal Court, fourthly, that the applicant, through his legal advisors, was substantially in delay in waiting until the 17th October, 2000 before taking any steps to identify and locate the authors of certain medical notes and records whom he ought to have known would be necessary before reliance could be placed on the said notes and records as respectively made by them, and finally by vacating a trial date of the 26th June, 2001 the said Mr. M.O'H. must also bear responsibility for any delay resulting therefrom.
Overall it is therefore claimed that the Director of Public Prosecutions was not in any way responsible for the delays which occurred in this case and that where fault was to be attributable it had to be assigned to the applicant himself.
- The factual background and chronology of events in this case can best be ascertained from a combined consideration of the affidavits and the exhibits and in particular the exhibits containing the relevant correspondence. Though the result is a somewhat lengthy recitation of this background, nevertheless in the circumstances I do not see how this can be avoided.
- On the 26th July, 1995 the applicant first became aware that allegations of a sexual nature were being made against him by the complainant, a Ms. D.C., when a solicitor's letter outlining such allegations was sent on her behalf to the religious order of which M.O'H. was a member. That was followed by a formal complaint to the Gardaí on the 21st September, 1995. On his return to this jurisdiction, the applicant was interviewed by the Gardaí on the 26th June, 1996 and appeared, by way of summons, before Drogheda District Court on three charges in June of 1997. Having been served with a Book of Evidence, he was on the 16th of September returned for trial, to the next sittings of Dundalk Circuit Criminal Court scheduled for the 7th October, 1997. The original three charges against him were allegations of indecent assault which allegedly had occurred between the 31st July, 1981 and the 3rd August, 1982. Subsequent to his return for trial he was arraigned on nine counts of indecent assault ranging in dates from the 31st July, 1981 to 31st December, 1987. His first trial date, namely, the 9th March, 1998 had to be vacated when it transpired that the presiding judge had formerly been a solicitor in the same practice as the firm who represented him in those criminal proceedings.
- Immediately prior to that date Messrs. McCartan and Hogan Solicitors, who were acting on behalf of the applicant, wrote to the local State Solicitor on the 17th day of February, 1998 and requested certain documents from a hospital at which the victim had previously been treated. This request was refused and as a result Mr. M. O'H obtained leave from this Court on the 25th May, 1998 to seek firstly, an order prohibiting the respondent from taking any further step in these criminal proceedings on the grounds of delay in the institution of such proceedings and secondly, an order of mandamus directing the Director of Public Prosecutions to furnish the medical reports and records which previously had been sought. On the 25th March, 1999 O'Sullivan J. delivered judgment in those judicial review proceedings. He refused any relief on the grounds of delay but held with the applicant on the issue of documentation. The learned High Court judge was quite satisfied that since the complainant had given explicit written authority to the prosecuting Gardaí to procure the relevant reports and records from her treating psychiatrist, Dr. B. there was an obligation on the respondent to so do. Immediately prior however, to making an order in these terms, the court was satisfied to accept an undertaking, to the same effect, given on behalf of the Director of Public Prosecutions. On being requested, in such circumstances to furnish the required reports and records, the said Dr. B expressed an unwillingness to breach patient confidentiality with the result that the matter was referred back to the High Court by the Director of Public Prosecutions on 27th July, 1999. On that date the learned High Court judge made it abundantly clear that the intent of his judgment was to the effect that all such medical reports in the possession of Dr. B should be handed over.
- In October of that year Messrs. McCartan and Hogan received copies of such notes and records. However it became clear on an examination thereof that the same were incomplete. Accordingly, on the 13th December, 1999 this firm of solicitors wrote to the State Solicitor and pointed out that the furnished material was defective. This appeared to be so in at least three respects. Firstly, there was a reference to certain discharge summaries which had not been enclosed (see para. 9 of Mr. McCartan's affidavit), secondly, from certain documentation disclosed it could reasonably be inferred that the Eastern Health Board could have had written material relevant to the complainant's treatment and thirdly, there was also a reference to a psychosexual evaluation having been carried out but once again there was no record of this evaluation in the notes as furnished. Accordingly, clarification of these matters was sought as well as the consent of the complainant to enable the Health Board to release such documents.
Reminders were sent in December, 1999 and in January 2000. On 11th of that month the State Solicitor replied by indicating that in his opinion the documentation as sought was outside the High Court order and warned that the Director of Public Prosecutions would oppose any attempt to adjourn the hearing of these charges which was then scheduled for 1st February, 2000.
- On 19th January, on the matter being re-entered, the High Court directed the personal attendance of Dr. B in order to inquire as to whether or not the previous direction of that court given as far back as March, 1999 had been complied with. On 17th February, he so appeared and on oath gave evidence which satisfied the learned High Court judge. However, it became clear that although not in Dr. B's possession, there were other documents in existence, having been created by a hospital within the aforesaid Health Board, which documents, at least potentially were both relevant and material. On being requested to make an order for third party discovery against the Health Board in question O'Sullivan J. took the view that in the first instance such an application ought to be made in the court of trial. This occurred and an appropriate order was so made by Judge Groarke on 21st March, 2000. On 26th September, 2000, the Health Board filed an affidavit which on the information then existing appeared to contain all relevant documents.
- The trial of Mr. M.O'H commenced at Dundalk Circuit Court on 4th October, 2000. By reason of prejudicial statements having been made by the injured party, the jury was discharged and the further prosecution of these offences was transferred to the Dublin Circuit Criminal Court. Prior to that happening however counsel on behalf of the accused person sought to cross-examine Dr. B, on extracts from the victim's notes and records previously produced. It transpired however that many of the relevant entries had been made by other doctors and nurses, and accordingly, on objection been made, the trial judge upheld the Director of Public Prosecution's view that unless such other individuals were present to prove such notes then that line of cross-examination of Dr. B was not permissible. That led to an immediate and practical problem for the defence. It was one firstly, of trying to identify such persons as the authors of such notes, some of which were dated as far back as 1986, and secondly, of ascertaining their whereabouts in order to inquire as to whether or not they would, or would be in a position to attend court and verify their notes as evidently that was now an evidential precondition to their use. These individuals were at the relevant time employed by the said Health Board.
- On 17th October, 2000, Messrs McCartan and Hogan wrote to the Chief State Solicitor and having set out the background, as outlined above, enclosed by way of a schedule eight specified extracts from the documentation in respect of which the identity of the authors was required. In addition details as to their present whereabouts and an indication of whether or not they would be available to prove such notes was also requested. On 16th and 30th November, reminders were sent and on 8th December, the Chief State Solicitor responded by saying that the extract as previously furnished to him was incomplete. Whatever omissions that might have existed were corrected by Messrs. McCartan and Hogan on 19th December.
In the meantime the criminal proceedings were adjourned from time to time with the accused person still awaiting arraignment on the retrial.
Incidentally it should be said that the relevance and materiality of this documentation has never been disputed.
- In furtherance of the information as sought, the prosecuting Gardaí in early March, 2001 wrote to the administrator of the hospital in question and received a response on 27th March. That was communicated to Messrs McCartan and Hogan on 4th April but from an examination of the response it was clear that whilst the administrator, Mr. APM, had been in a position to identify some, though not all, of the authors of the notes in question, his said letter of 27th March however, did not give any indication as to where these individuals might be at that time or as to their current whereabouts. This latter information was again sought by Messrs McCartan and Hogan who in their letter of 5th April, also pointed out that Judge Dunne, who was in charge of the Dublin Circuit Court list, had directed that all outstanding matters between the parties should be resolved prior to the next arraignment date, which was then scheduled for 24th April.
- By way of an initiative, separate from that being pursued by the Director of Public Prosecutions, Messrs McCartan and Hogan wrote to the same administrator on 2nd May, 2001 and having referred to his earlier letter of 27th March, which had been addressed to the Gardaí, requested as much information as possible about some of the individuals whom he had identified. The response, on 16th May, was to give further details in respect of inter alia four individuals who were numbered 1, 5, 6 and 7 in the schedule. There was however no indication as to their then current whereabouts (except Dr. Thachil) or any forwarding addresses in respect of them. Having been again asked to supply this information the said administrator on 24th May, 2001 gave an address for each of the individuals in question. As a result on 1st June Messrs McCartan and Hogan wrote to each of these individuals at the respective addresses as given and inquired as to their availability for his client's criminal trial. Included amongst those to whom the solicitors wrote was a M. MacD who was a probation and welfare officer and who had been the author of quite an important letter dated 16th July, 1994. Apart from one doctor who replied to this letter, no further responses had been received up to the date of Messrs. McCartan and Hogan's next letter to the Chief State Solicitor which was on 19th June, 2001.
- Immediately prior to receiving the administrator's first response Messrs McCartan and Hogan wrote to the Chief State Solicitor on 14th May, 2001 and referred to exchanges which had occurred in court on 24th April. It was claimed by them that counsel on behalf of the Director of Public Prosecutions had said that the author of these notes were all junior doctors and were no longer available to give evidence and may well have left the country. Moreover, it was also claimed that this said counsel stated that Dr. B was after all, a competent witness to deal with the entire medical records as he was the chief psychiatrist who had dealt with the victim. As this latter point ran contrary to the objection taken by the Director of Public Prosecutions on the first trial which was held on 4th October, 2000 clarification of the respondent's position was sought.
A new trial date of the 26th June, 2001 was at that time then in place.
- Matters now become a good deal more confusing. Side by side with the inquiries which the applicant's solicitors were conducting with regard to the identity and whereabouts of the authors of these notes, the Chief State Solicitor, though the person of the prosecuting garda was also making similar inquiries. This said garda, who had been the recipient of the administrator's letter dated the 27th of March, 2001 (see para. 10 above), wrote to her sergeant on 6th June, 2001 and pointed out that the same administrator, Mr. APM, had again examined all the records which were available to him and as a result had informed the said garda:-
"That he has no knowledge of the whereabouts of the doctors in question. There are no forwarding addresses available on file at the hospital. Mr. APM was of the opinion that the doctors may well have travelled abroad after their training."
That letter formed the basis of a communication by the Chief State Solicitor to Messrs. McCartan and Hogan dated 7th June, 2001 in which it is said that "[t]hese witnesses have long since left Ireland and are not contactable." It was also pointed out that whilst Dr. B was in the position to tender expert testimony regarding the psychiatric condition of the victim, he was not however in a position to prove medical notes or records made by third parties. Finally the applicant's solicitor was put on notice that two important state witnesses would not be available for the then anticipated forthcoming trial.
- On receipt of this letter Messrs. McCartan and Hogan Solicitors immediately noticed the serious discrepancies between what the administrator had informed them, by way of direct correspondence, and what, according to the correspondence from the State, the same administrator had informed the prosecuting garda. An explanation was requested. In addition, in their letter of the 19th June, 2001 they pointed out that apart from one doctor making his whereabouts known to the applicant's solicitors none of the others, who were also written on 1st June, had made a response. In particular the absence of communication from the probation and welfare officer, one
M. MacD. was of major concern given the existence of a referral letter written by her on 16th July, 1994 in which she recorded that the victim was "from an alcoholic background and there are allegations of physical and sexual abuse within the extended family". This information was potentially of great relevance to the defence and accordingly, identifying the whereabouts of the author of this letter was essential. It was also suggested that by reason of its obligation to make full disclosure the State should also be anxious to fully explore these allegations. By reason all of these matters the said solicitors indicated that the trial could not proceed as intended on 26th June, 2001.
- On 22nd June, 2001 an application on behalf of the accused person was made to Judge Dunne to have the trial date of 26th June vacated. Prior to setting out what happened on that occasion, it would I think be helpful to outline this case's previous history before Judge Dunne. This matter was mentioned on the 24th November, 2000 and on 18th December, 2000. On the 30th January, 2001 counsel on behalf of the accused person gave a brief history to the court of the circumstances in which it became essential for the defence to be able to rely on these notes and hence the importance of identifying the authors and their present whereabouts. A submission was made by counsel that if the State raised no objection to the notes being produced in evidence then the trial could proceed but otherwise the defence was looking to the State to locate the authors of these notes. The State sought on adjournment to obtain counsel's opinion on the points at issue. The case was further adjourned for this purpose on the 27th February, 2001. The position of the Director of Public Prosecutions was clarified on the 20th March, 2001, when it indicated to Judge Dunne that he would not admit the notes. He went on to inform her that he was attempting to identify the names of the authors and when available would pass these on to the defence. He could not however comment on their possible availability. The case was further adjourned as the State indicated that all such names should be available within two weeks. On the 3rd April it was adjourned to the 24th April as by that date the administrator's letter of the 27th March was at hand, (see para. 10 above). On the 24th April the learned judge was given the information contained in this said letter and was told on behalf of the Director of Public Prosecutions "…. they are doctors who were in junior doctor roles assisting the Health Board the doctors qualified as I understand it and they have since left and gone on and our last instructions would be to the effect that they are almost certainly overseas. We have no idea where they are. From the State's perspective Dr. B. who is a psychologist with the Health Board has been treating the injured party in this case from 1994 intermittently up until the present day and is available and he is, in our submission, so far as they wish to call any expert medical evidence he is the appropriate person, obviously he is not in a position to discuss the case with them but he is available for them if they wish to call him."
Given this information a trial date of 26th June, 2001 was set. There then followed the events which I have previously outlined, which events lead us onto the next application which was made on the 22nd of June, 2001.
- This was the eighth or ninth occasion upon which this case had been mentioned before the learned Circuit Court judge. When moving this application counsel on behalf of the applicant further outlined the history of the case, opened the relevant correspondence and made submissions on the issues of disclosure, discovery and the authors of these notes as potential witnesses. Submissions were also made by counsel on behalf of the Director of Public Prosecutions. A good deal of discussion was taken up with the identity of the authors and their present whereabouts. This included the said probation and welfare officer whose letter dated 16th July is referred to above. Agreeing to further adjourn, the trial judge made a number of observations which are relevant: she said
"it is clear that the complainant in this case cannot be cross-examined without the author of a particular note becomes present that is the position. Therefore reasonable efforts have to be carried out to locate the particular individuals who are responsible for taking notes that is the first thing. …. I accept that the enquiries and investigation in relation to the location of these people have not as yet being concluded and do not appear to be at a stage where one is saying that X Y and Z will not be and are not available. The truth of the matter is that nobody knows where these people are, as you pointed out." (See pages 12 & 13 of the transcript).
The learned judge then suggested various information sources which might bear fruit and in the context of the letter of 16th July, 1994 from the probation and welfare officer, whom earlier she had acknowledged as an essential witness for the trial, the judge at p. 18 of the transcript continued "Without wishing to prolong whatever proceedings are going to take place before this trial comes on for hearing despite clearing it up, we need the State to deal with this and they can deal with it in two ways … it may not be that she made those and it may come from another member of the family, one talks about the extended family one does not know what that means that is important that you should be able to see if the State can locate M. MacD and communicate with her and to clarify from the State's point of view whether there is a matter which has been dealt with in that context which would be of relevance to these people. If that is relevant to these proceedings and has not been disclosed then the State has not complied properly with its obligations with regard to disclosure …"
At p. 21 of the transcript there is a recorded exchange between the judge and counsel, for both parties, and then at p. 22 Judge Dunne said "That is clear that this matter is not ready it is not going to be ready for a considerable period of time. If the State wants to get the case on it is not unreasonable to carry out the type of enquiries that have been requested and hopefully if that is done it may be possible to advance matters. May I also emphasis Mr. Colgan (counsel for the prosecution) in case anyone thinks I am directing the State to act in a particular way I have made the suggestion about the Medical Council that must not preclude any other reasonable enquiries that are made."
- The learned judge in the first part of the passage as quoted was dealing with the position of the probation and welfare officer and in the second part with the position of the other authors of the documents, which it will be recalled were identified by way of a schedule sent to the Chief State Solicitor as far back as 17th October, 2000. With regard to the said M. MacD the learned judge had previously set out what was in her mind namely the first step was to locate the said Ms. McD, the second was to ask her what she was referring to by reference to the said letter dated 16th July, 1994 and thirdly, to inquire if there was any more documentary evidence touching on the content of this letter and if so what was its nature and where could it be found. Only then was it possible to test its relevance to the criminal trial. If however the said statement related to a member of her immediate family it was the learned judge's view that the same would have relevance and clearly should have been disclosed.
The reference to the "medical council" in the passage above mentioned, related to a suggestion previously made by the said judge that this entity could be a fruitful source of information in identifying at least some of the authors to the notes in question.
On the above basis the matter was, on 26th June, adjourned to the 3rd December, as now being the new trial date.
- By letters dated 28th August, the 10th October, and 5th November, Messrs McCartan and Hogan Solicitors wrote to the Chief State Solicitor and expressed its disappointment and surprise at not having received from the respondent the information as suggested by Judge Dunne in her said direction dated 22nd June, 2001. It was pointed out that the defence was seriously disadvantaged by the failure of the State to so act.
- On 1st November, the Chief State Solicitor replied by enclosing a statement from the said probation and welfare officer and also statements from six nurses who dealt with the victim in 1990. Some of these had been the authors of some of the notes in question. Enquiries were said to be continuing in respect of other persons mentioned in the notes. In addition however, though not referred to in the letter, there was also sent a copy of a file entitled "Drogheda Community Services." Crucially from a defence point of view this file contained a notation dated the 6/7/1994 to the effect that the victim had made a complaint of physical abuse against her father and sexual abuse against her uncle and there was also a reference to what appeared to be the rape crisis centre. On 15th November Messrs McCartan and Hogan Solicitors were informed that two state witnesses would not be available for the trial on 3rd December. In addition it was indicated that a social worker M O'S failed to locate a further file which apparently existed in respect of the said injured party.
On 21st November, Messrs McCartan and Hogan Solicitors wrote a substantive reply to the State's letter which it had dispatched on 1st November. Firstly, they sought information as to whether or not M. MacD and the six nurses whose statements had been furnished, were intended to be called as prosecution witnesses at the forthcoming trial or whether it was the prosecution's intention to simply offer them as witnesses to the defence. Secondly, having expressed surprise at the disclosure for the first time of the Drogheda Community Services file, the identity of the author who made the above entries was requested; thirdly, the Director of Public Prosecutions was asked to specify whether or not any further files were still outstanding; fourthly, the up to date position was sought in respect of "the rest of the persons mentioned in the notes" and finally the importance from the defence point of view of having the file which at that stage the social worker still could not locate, was heavily stressed.
On the 22nd of November, 2001, Judge Dunne was told that some prosecution witnesses may not be available for the 3rd of December. Counsel on behalf of the Director of Public Prosecutions also informed her that an "order for disclosure" made by her in this matter had been complied with by the respondent but that arising therefrom further enquiries from the defence had been raised and these were now being attended to. On the 28th November the learned Circuit Court Judge was informed, that for certainty there would be several prosecution witnesses unavailable for the 3rd of December. In addition, she was told of a further file on the complainant which should have been wasn't with the "Drogheda Community Services" file, and that the respondent was now trying to track that down. Because of a combination of these matters the prosecution sought an adjournment. And so the 6th March, 2002, was set as a new trial date.
- Reminders were sent to the Chief State Solicitors office on 20th December, 2001 and 15th January, 2002. In the last mentioned letter the urgency of a comprehensive and immediate reply to the letter dated 21st November was critically emphasised.
By a reply, dated the 15th January, some of the queries previously raised were responded to. In addition a statement from the injured party was enclosed in which she denied that she had ever been sexually abused by her uncle and said that she used this term to cover up the fact that it was a priest, namely the applicant, who was in fact sexually abusing her. On the 21st February, 2002 Judge Dunne was once again asked to vacate the trial date of the 6th March. The defence wanted to apply for a stay, presumably on the further prosecution of the case on the grounds of delay, whilst the Director of Public Prosecutions had a number of witnesses unavailable. Counsel for the respondent also told the court:-
"other witnesses are coming on stream either on documents or discovery and statements are being taken which I am trying to furnish to the defence in respect of that … it is a case where the documentation keeps turning up and I say that the prosecution team are doing their best to get the documents to the defence. That is the position at the moment in respect of the witnesses."
The court was also told that the missing file of the social worker may not now, after all, be missing. Thought describing it as "a very undesirable situation" the learned judge adjourned the matter once more and listed it for mention only on the 4th March, 2002.
- The case was further adjourned on 4th March as, on that date, counsel for the respondent indicated to the court that the State had found the missing file which they had been searching for and required time to furnish the same to Messrs. McCartan and Hogan Solicitors. In addition a new indictment was necessary as the respondent had directed that the prosecution should proceed with counts 1, 2, and 3 on the existing indictment only. Time was required to deal with both of these matters and hence further adjournment to the 20th March.
- In a letter dated 5th March, 2002 the Chief State Solicitor's office furnished what was in effect the contents of a file which previously had been missing and which apparently had by then been located by the social worker. On 12th March, further information was sought on this file. Also based on the aforesaid reference in the Drogheda Community Services file, to the "RCC", the Director of Public Prosecutions was requested to furnish all records from the Rape Crisis Centre with regard to the said victim. On 20th March, when the case was next in the judge's list, the defence was furnished with a copy of the new indictment and having observed that three previous trial dates had been vacated, Judge Dunne fixed 8th October, 2002 for the trial of this action and marked the same peremptorily against the prosecution.
- On 18th June, 2002, the Chief State Solicitor furnished to the applicant's solicitors a copy of a letter from the Rape Crisis Centre dated 13th June, 2002. In this said letter it was indicated that no records existed for the period of the review under request which request was apparently only made by the respondent on 10th June, 2002.
- On 26th July, 2002 leave from this court was obtained by the applicant in order to mount these judicial review proceedings. The criminal trial has therefore been adjourned from time to time to await the outcome of these proceedings.
- In addition to the affidavit evidence in this case there was also oral evidence given by the prosecuting garda. In her testimony she confirmed that her role, as she saw it, was simply to record what the complainant had said rather than to ask questions of her which might elicit further information. She could not recall ever asking the victim as to whether or not she had reported the alleged sexual abuse to any third party as for example Dr. B, or her probation officer, the Health Board, or the Rape Crisis Centre or indeed to any other person in authority. There was no reference to the Rape Crisis Centre in the statement obtained by this garda, who was also the person who dealt with the inquiries made to the administrator, above mentioned, and who reported thereon to her immediate superior in June 2001. She agreed that whilst the delay in identifying the authors of the notes and records was not the responsibility of the applicant nevertheless she asserted that he had never sought a speedy trial and had never complained to the Circuit Court Judge of the various applications made by the Director of Public Prosecutions to have the case adjourned from time to time. Overall this garda believed that there was no delay in this case which could be attributable to the respondent.
- Against this background Mr. Hartnett S.C. submits, on behalf of the applicant, that the Director of Public Prosecutions has failed to comply adequately or in time with the undertaken given on his behalf to this court on 25th March, 1999. He says that it was only on 17th February, 2000, that O'Sullivan J. was satisfied that the undertaking as given had been complied with. Secondly, he claims that following the order for discovery made in the Circuit Court on the 21st March, 2000, the respondent effectively assumed or undertook the responsibility of ensuring compliance therewith. There was he said a total failure on the part of the Director of Public Prosecutions to adequately or in time fulfil his obligations thereunder with the result that relevant material was still being sent to the accused person in June 2002. This failure on the respondent's part meant that the case was listed before the Circuit Court in Dublin on at least 16 occasions and that at least three trial dates had to be vacated. As a result it was submitted that by reason of the Director of Public Prosecution's failure with regard to discovery and or disclosure the applicant has been deprived of his right to a trial with reasonable expedition, there being no justifiable grounds for the inordinate and excusable delay which has occurred. Furthermore, it is said that by reason of this passage of time coupled with the events above described the accused person suffered anxiety and distress and is no longer in a position to obtain a trial in accordance with fair procedures. For these reasons the relief sought should be granted.
- In support of these submissions counsel has referred to a number of authorities including P.P. v. Director of Public Prosecutions [2000] 1 IR 403, PM v. Malone and the D.P.P., (Unreported, Supreme Court, 7th June, 2002), V.D. and J.O.F. v. Director of Public Prosecutions, (Unreported, High Court, 23rd November, 2001), AW v. Director of Public Prosecutions, (Unreported, High Court, 23rd November, 2001), and PC v. Director of Public Prosecutions, (Unreported, High Court, 22nd February, 2002).
- Mr. Gaffney S.C. on behalf of the Director of Public Prosecutions submits that following The People (D.P.P.) v. Sweeney [2001] 4 IR 102 Judge Groarke had no jurisdiction to make the third party order for discovery which he purported to do on 21st March, 2000. Secondly, he said that in any event the respondent to that motion, namely the North Eastern Health Board, had fully complied with the said order when it furnished its affidavit on 26th September, 2000. Even however if that should be incorrect, it was his view that the respondent had no duty or responsibility arising out of this order. Furthermore whatever documents the Health Board had, were not in the possession, custody or power of the respondent and the Supreme Court's decision in Johnston v. Church of Scientology [2001] 1 IR 682 was referred to in this regard. Thirdly, he claimed that whilst the respondent assisted the applicant in helping him to identify the authors of the notes of question and their whereabouts, nonetheless the D.P.P. had no legal obligation to so do. Moreover the applicant's failure to take any steps to identify such persons between 8th October, 1999, when he received the notes and records from Dr. B., and 17th October, 2000, being Messrs McCartan and Hogan first letter in this regard, was due to a misapprehension on his part as to the law of evidence and therefore he must bear responsibility for this period. Furthermore, it is denied in an overall way that there has been any delay on the part of the Director of Public Prosecutions in this case.
In addition to the cases cited on behalf of the applicant, Counsel for the Prosecution also referred to The State (O'Connell) v. Fawsitt, [1986] I.R. 362, and to the D.P.P. v.. Byrne [1994] 2 I.R. 236.
In conclusion it is claimed that there was no breach of the applicant's right to a trial with reasonable expedition and no failure on the respondent's part to comply, insofar as he was obliged to so do, with any obligations undertaken by him with regard to discovery or with regard to disclosure.
- Prior to October, 2001, there was a general belief that both the Circuit Criminal Court and the Central Criminal Court had jurisdiction to make an order for non party discovery in criminal cases. Consequently, it was not uncommon for such applications to be successfully made. There was therefore, at the relevant time, nothing unusual about the order which the learned Circuit Court judge made on 21st March, 2000. On 9th October, 2001, the Supreme Court gave judgment in the The People D.P.P.) v. Sweeney [2001] 4 IR 102. Speaking for the court, Geoghegan J., having reviewed in considerable detail the history of discovery in both civil and criminal cases, came to the conclusion that the Central Criminal Court had no jurisdiction to make such an order for discovery in proceedings standing before it. This view of the law was re-affirmed by a five person Supreme Court in D.H. v. His Honour Groarke & Ors (Unreported, Supreme Court, 31st July, 2002), which judgment also made it clear the principles enunciated in People (D.P.P.) v. Sweeney, equally applied to the Circuit Court when exercising its criminal jurisdiction. Therefore it is now evident that as and from the 9th October, 2001, no further orders of such a nature could be made.
- However as is evident from the dates above given the order of Judge Groarke, made in the criminal trial of the applicant, predated The People (D.P.P.) v. Sweeney [2001] 4 IR 102 by approximately 18 months and it should also be noted that neither the third party to whom the order was addressed or the Director of Public Prosecutions sought to challenge or review that order. All parties in fact proceeded on the basis that this was at that time a valid order. Consequently, I do not believe that it would be either fair or proper for this court to accept the D.P.P.s submission which in effect was that for the purpose of these judicial review proceedings one should disregard the Circuit Court order on the basis that it was made without jurisdiction. I believe that such a course would be fundamentally at variance with justice and would run directly contrary to both the factual and legal position which all persons felt themselves to be legitimately part of and bound by. Furthermore, not having expressly so said I doubt strongly that the decision in Sweeney would demand such a conclusion. Therefore I propose to consider the issues in this case on the basis that the order as made in March, 2000 was a valid order.
- Apart altogether from the issue of discovery there is in existence a duty of disclosure, apparently grounded in the common law, upon the prosecution as that term is understood in its widest sense. This duty has been commented upon and referred to in several cases in both this and in the neighbouring jurisdiction. In Ward v. Special Criminal Court [1998] 2 I.L.R.M. 493, O'Flaherty J. at p. 500 of the report referred to the obligation of the prosecution to produce any relevant statements of persons who may be in a position to give material evidence which it has and if it did not wish to call any such particular person to make that individual available as a witness for the defence.
- In R. v. Browne (Winston) [1998] AC 367, Lord Hope of Craighead at p. 374 to 375 said:-
"The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor of Gosforth C.J. observed in Reg v. Keane [1994] I W.L.R. 746 (750) the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence….[t]he statement which the police had obtained … supported his alibi. This was information in the hands of the prosecutor which might have assisted the defence case on an issue of fact which was relevant to the plaintiff's guilt or innocence.
In R. v. Ward (Judith) … the court adopted the words of Lawton L.J. in R. v. Hennesy (Timothy)… where he said:-
'those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence':
The court went on to observe:
'We would emphasise that 'all relevant evidence of help to the accused' is not limited to evidence which will obviously advance the accused's case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led."
I have taken the above extract from the judgment of O'Sullivan J, in the earlier judicial review proceedings (see para. 5 above) and is one which I respectfully adopt for the purpose of the judgment.
- With regard to the question of documentation for the purpose of the applicant's criminal trial I accept that O'Sullivan J., in the earlier said proceedings, was prepared to make an order compelling the respondent to obtain from and through Dr. B. the medical notes and records which were in his possession, power or procurement relative to his treatment or attendance on the complainant. That the learned judge did not do so is irrelevant given the undertaking as volunteered by the Director of Public Prosecutions. Accordingly, the respondent's obligations in this regard can be treated as if such an order had in fact been made.
- It is quite true to say that the objection taken by the prosecution during the course of the applicant's first trial, was successfully upheld by the trial judge and that the order of the Circuit Court judge made on the 21st March, 2000, was not directed towards the Director of Public Prosecutions. However what is not correct to say in my view is that by reason of these facts, alone, the Director of Public Prosecutions had no further responsibility with regard to documentation or with regard to the identification of certain persons or the tracing of certain witnesses. In my opinion apart altogether from the common law duty of disclosure, the Director of Public Prosecutions by reason of a combination of factors assumed such a responsibility. These factors include the correspondence passing between Messrs. McCartan and Hogan Solicitors and the Chief State Solicitor, the actions and conduct initiated by the respondent and carried out either by him or at his direction by others, the exchanges which occurred on several occasions in the Circuit Criminal Court when this case was in for hearing or mention and also by reason of certain directions which Judge Dunne gave during the course of such hearings.
- Immediately following the aborted first trial Messrs. McCartan and Hogan wrote to the Chief State Solicitor and having referred to the objection which was upheld by Judge Groarke, indicated that it was now imperative for the defence to attempt to locate the authors of such medical notes. They asked that relevant inquiries be made of Dr. B as to the whereabouts of those persons and if they would be available to prove the notes at any forthcoming retrial. A schedule of the relevant extracts to help in this process was enclosed. On 16th November and 30th November, 2000, reminders were sent to the Chief State Solicitor who was specifically asked about his capacity to assist and to whom it was stated that if he was unwilling to do so Messrs. McCartan & Hogan would take further instructions. On the 8th and 17th December, 2000, further correspondence took place between the respective solicitors.
All of these letters, which effectively initiated this line of correspondence, and indeed many others, are referred to above in considerable detail as are the subsequent steps, actions and inquiries which directly followed. From these events it is clear that the Director of Public Prosecutions, acting on foot of what was asked of him, evidentially communicated with the prosecuting garda who in turn contacted the hospital administrator. The resulting information, albeit erroneous, was then passed onto the defence.
In none of this correspondence can I see a position of disclaimer or such like or similar stance adopted by the Director of Public Prosecutions. I therefore see this documentation and the follow up on what was requested as being entirely consistent with the Director of Public Prosecutions assuming a responsibility in his own right, of dealing with the issues as raised by the defence. Whilst it could not be said, at least initially that his involvement was to relieve the applicant's solicitors of their responsibility, nevertheless as time went on it became quite clear, to the express knowledge and acquiescence of the respondent, that the defence became progressively more reliant upon him with regard to this question of documentation/witnesses.
That the Director of Public Prosecutions was so willing is not altogether that surprising. His overriding interest must have been to get the case to trial. But of course only when the duty upon him had been satisfied and when fair procedures had been observed. Therefore in the circumstances which had occurred, the defence if they could not use the victim's medical notes and records, could at least argue that the trial ought not to proceed. It was accordingly very much in the Director of Public Prosecution's interest, to have the issues of documents and witnesses resolved.
- This view is I think fully supported by a consideration of the transcript of the various hearings which took place before Judge Dunne. On 20th March, 2001, the Director of Public Prosecutions effectively undertook to identify the authors of those notes. On 3rd April he indicated that this was being done and on 24th April, informed the court of the result. On the 22nd June, the learned Circuit Court judge effectively directed the State to carry out the type of inquiry which evidently was still required at that stage. On both the 22nd and 28th November, 2001, counsel on behalf of the Director of Public Prosecutions referred to what he described as orders for disclosure having been made by the said Circuit Court judge. On 21st February it was said on behalf of the Director of Public Prosecutions that other witnesses were still coming on stream with regard to documents or discovery and that statements were been taken from them.
Apart from a suggestion made but not pursued on 2nd March, 2001, that the Director of Public Prosecutions could not be compelled to pursue the inquiries sought of him on behalf of the accused person, I cannot identify in any of the transcripts of the multiple hearings which took place, any real objection taken or advanced by the Director of Public Prosecutions which would have the effect of either reserving his position or of relieving him of any responsibility in this regard. Indeed the remarks made on his behalf on most of those occasions, but in particular on the 20/3/01: 22/6/81: 22/11/01: 28/11/01 for the 2/12/02, coupled with his actions and activities, are in my view once more entirely consistent with the assuming by him of responsibility in this respect.
I therefore conclude on the particular facts of this case and irrespective as to what the strict legal position might otherwise be, that by reason of the matters outlined above, the Director of Public Prosecutions had a responsibility to identify the authors of the notes in question and to ascertain their whereabouts as well as having a continuing responsibility in terms of disclosing and making available all relevant documents to the defence in this case.
- In P.P. v. The D.P.P. [2000] 1 IR 403 the High Court considered the issue of what might be referred to as prosecutorial delay. Having quoted a passage from the judgment of Keane J. as he then was, in PC v. D.P.P. [1999] 2 I.R. 45 Geoghegan J. at p. 409 of the report said "[i]t is clear from this passage that Keane J. is impliedly acknowledging that different principles may apply to blameworthy delay on the part of the prosecuting authorities. Counsel for the applicant argues that there was such delay in this case. I think that counsel for the applicant is clearly correct. It is not acceptable and in my view, is a breach of the defendants rights under Article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this, involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate, but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the prosecuting authorities. I am using this expression "prosecuting authorities" to cover the Director of Public Prosecutions and the Garda Síochána."
At p. 411 of the report the learned judge continued "I think that where there has been a long lapse of time, as in these prosecutions for sexual offences, between the alleged offences and the date of complaint to the guards, it is of paramount importance, if the accused's constitutional rights are to be protected that there is no blameworthy delay on the part of either the guards or the Director of Public Prosecutions. If there is such delay, the court should not allow the case to proceed and additional actual prejudice need not be proved. This point is not really covered by the Supreme Court decision in B. v. D.P.P. [1997] 3 I.R. 140 and P.C. v. D.P.P. [1999] 2 IR 25 and, therefore, to some extent it is uncertain what the correct legal position is. But, in my view, a constitutional right has been clearly infringed and therefore the trial should not be permitted to proceed."
- The same judge, this time giving the judgment of the Supreme Court in B.F. v. D.P.P., (Unreported, Supreme Court, , 22nd February, 2001), once more dealt with the issue of delay subsequent to the institution of proceedings. Having cited two passages from the judgment of Finlay C.J. in D.P.P. v. Byrne [1994] 2 I.R. 236 Mr. Justice Geoghegan at p. 16 of the judgment said:-
"I take the view that where there is culpable delay on the part of the State authorities, then having regard to all of the circumstances of the case, the delay itself may entitle the accused to an order preventing the trial irrespective of whether there is actual or presumed prejudice.
In P.C. v. D.P.P. [1999] 2 IR 25 a decision also of the Supreme Court, Keane J. in his judgment said following at p. 68:
'Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a fair trial in 'due course of law'. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first enquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own action."
In that passage Keane J. (as he then was) also recognises that there may be cases, depending on the circumstances, where a trial should not be allowed to proceed on the grounds of delay even though prejudice has not been established.
In this connection counsel for the applicant have referred to a High Court judgment of mine, delivered the 5th October, 1999 in the case of P.P. v. D.P.P. [2000] 1 IR 403. In that case I held that where there was quite clearly culpable delay on the part of the garda authorities in relation to the prosecution of sexual offences which had occurred a long time previously, the trial ought to be prohibited even of prejudice was not proved. It seemed to me that in these cases of sexual offences committed along a number of years previously it was particularly incumbent upon the State authorities not to contribute to further delay. I took the view that that was circumstance where the delay should lead to prohibition notwithstanding absence of prejudice. The decision was not appealed to the Supreme Court."
- P.M. v. Malone & Others [2002] 2 IR 560 was a decision also referred to by the parties. In that case there were, as identified by Keane C.J. when giving the judgment of the Supreme Court, two unusual features, namely the relative similarity in ages between the complainant and the accused person who was her brother, and secondly, the delay in the institution of the proceedings was not solely due to the inaction of the complainant. The Chief Justice, in his judgment, reviewed many of the relevant authorities on the issue of what was termed the discreet constitutional right to a trial with reasonable expedition. Having identified the specific factors which that right was established to protect, the Chief Justice then looked at several matters which are not of direct relevance to this case. He went on, however, to point out that where there was a violation of an accused person's right to a trial with reasonable expedition but that the grounds upon which such a conclusion was reached, could not be said to result in an incapacity on the accused to defend himself at a criminal trial, then the court must engage in a balancing process before deciding whether or not to prohibit that trial. On the facts in P.M. v. Malone, the decision was in favour of issuing an order of prohibition.
- In this case the accused person was originally charged with offences which allegedly had taken place between July, 1981 and August, 1982, a period of between twenty and twenty one years prior to leave being granted in those judicial review proceedings. In the subsequent indictment the latest offence was alleged to have occurred between April, 1987 and December, 1987 a period of approximately 14 to 15 years prior to the said order granting leave. The first complaint to the gardaí was made on 21st September, 1995, by which time the complainant was aged 28 with the accused person being approximately 30 years older than her. Notwithstanding these time frames however, there is no issue in this case on delay in making the complaint as that was the subject matter of the aforesaid decision of O'Sullivan J. who evidently held that the time period was both justified and explained. Therefore, the lapse of time between the dates of the alleged offences and the complaint being made i.e. September 1995, are not, on the grounds of delay, a matter for this judgment. This does not mean however that this period is devoid of importance. On the contrary, it is quite an important factual matter in the history to this challenge and is part of the background against which the respondent's actions and conduct must be judged.
- Having been interviewed in June, 1996 the accused first appeared before Drogheda District Court on 13th June, 1997, and hadn't been returned for trial obtained a trial date in Dundalk circuit court on 9th march 1998. There is no room for complaint with regard to any of these dates.
- Immediately prior to that first trial date Messrs. McCartan and Hogan solicitors sought certain documents from the State Solicitor through their letter dated 17th February, 1998. O'Sullivan J. found that the State's refusal to supply such documents was not justified, which finding lead to the Director of Public Prosecutions undertaking of the 25th March, 1999, which is referred to above. Compliance with this order became therefore the full responsibility of the Director of Public Prosecutions, with it being in my view meaningless to advance any argument as to whether this process was truly a discovery process or was part of an obligation to make full disclosure or otherwise. An undertaking was given to the court and in so doing it must be assumed that the respondent would be in a position to comply with the resulting obligation within a reasonable time. That however did not occur. The matter had to be referred back to the High Court on 27th July, 1999 when O'Sullivan J. indicated that Dr. B. had to fully comply with the request made of him. When eventually the documents were handed over it became clear on the face of them that at least potentially the same were incomplete and defective. Ultimately O'Sullivan J. had to direct the personal attendance of Dr. B, which took place on 17th February, 2000. It was only then that the High Court judge was satisfied that his judgment, given on 27th March, 1999, had been complied with. A period therefore of two years passed between the initial request made in February, 1998 and the end of this particular process. In my view, there is no doubt whatsoever but that the applicant was perfectly justified in seeking these documents and that he was in no way responsible for this two year period. Given the stance adopted by the respondent and in light of the undertaking given by him, I am of the view, notwithstanding the involvement of Dr. B. that the Director of Public Prosecutions must assume legal responsibility for this period.
- Following O'Sullivan J.'s ruling, made in February, 2000, that any application for third party discovery ought to be made to the court of trial, the applicant wasted no time in moving such application and in obtaining such an order from Judge Groarke on 21st March, 2000. In purported compliance therewith, documents were furnished to Messrs. McCartan & Hogan Solicitors on 26th September of that year. The trial of the accused person then commenced on 4th October, 2000. It was aborted for the reasons previously given but not before the crucial issue of identifying the medical personnel, had been raised. In view of what later transpired it seems to me that had this trial proceeded to a conclusion, great injustice could have resulted and could have been caused to the accused person. As is evident from other sections of this judgment, much documentation of considerable significance had yet to be obtained, produced and indeed, at least in part, even identified. Disregarding for a moment the question of legal responsibility in respect of this documentation, its production and availability was, in my view crucial, as otherwise it is difficult, if not impossible to see how justice could be done and how any trial of the applicant on the charges standing against him could be said to have been conducted with due process.
- In any event the letter dated 17th October, 2000, from Messrs. McCartan & Hogan triggered a process which in some detail has been outlined above and in respect of which for the reasons previously given the respondent in my view assumed a responsibility therefor. That process was diligently pursued by the applicant's solicitors whose commitment to identifying the authors of the medical notes and records, and their current whereabouts, is fully demonstrated by their persistent and almost aggressive method of sending letters and reminders, of seeking information and answers and of demanding explanations which the ongoing situation clearly justified.
- The corresponding reaction of the respondent could not in any way be measured in the same light. Firstly, a period of almost seven weeks elapsed before the Chief State Solicitor replied to the initial letter request dated 17th October, 2000. Secondly, it would appear that the investigating gardaí did not make contact with the Health Board until 6th March, 2001. Thirdly, it must have been evident that the administrator's letter dated 27th March, 2001, was incomplete inter alia by not furnishing any forwarding addresses with the result that the gave concerns of the defence were not in any meaningful way truly addressed. Fourthly, there remained an absence of any explanation for the major conflict between what apparently the administrator told the investigating gardaí, (as evidenced by her memo to her superior made in June, 2001) and the information which the same administrator furnished to Messrs. McCartan & Hogan in his letters dated 16th May and 24th May both of the same year. Whilst there is no suggestion of any impropriety in the manner in which this gardaí carried out her function or as to her bona fides in the way in which she reported thereon, nevertheless the fact is that, for this purpose as an agent of the Director of Public Prosecutions, the information obtained from her was palpably incorrect. Whilst it must be said that, in light of the knowledge which Messrs. McCartan & Hogan separately acquired, this incorrect information had no direct detrimental effect on the applicant's rights, nevertheless, in other circumstances this could have been a source of another potential injustice to the accused person.
- The identity of the individuals in question and to their availability at any forthcoming trial were not in any way matters peripheral or secondary to the question of fair procedures. As above stated, the Welfare and Probation Officer was the author of a letter dated 16th July, 1994, which clearly stated that the victim "was from an alcoholic background and their allegations of physical and sexual abuse within the extended family." Quite evidently this was a matter of considerable interest to the defence and rightly so in my view became a matter of high priority to explore. Therefore the applicant was wholly within his rights in pursuing this line of inquiry as he did.
- Arising out of the conflicting information which was then at hand, Messrs. McCartan & Hogan Solicitors wrote to the Chief State Solicitor on 19th June, 2001 and raised with him the significant concerns which they still had about the identity of the said authors and their whereabouts. Nothing was heard back by way of any substantive response until 1st November, 2001, a period of well over four and a half months. This notwithstanding what Judge Dunne had said on 22nd June and notwithstanding the imminence of the new trial date namely the 3rd December, 2001. On 1st November the defence was given statements from six nurses who dealt with the victim in 1990, and though not referred to in the covering letter accompanying such statements, a copy of what is referred to above as the Drogheda Community Services file was also enclosed. This was the first occasion on which Messrs. McCartan & Hogan were even aware of the existence of this file was also enclosed. This therefore added a significant new dimension to full disclosure. It will be recalled, as set forth at para. 19 of this judgment, that this file included a note of a visit by the victim on 6th July, 1994, wherein it is recorded that she complained of physical abuse by her father and sexual abuse by her uncle. In addition mention was made of the R.C.C. which is a reference to the Rape Crisis Centre. With absolute justification the defence sought further information arising out of these disclosures. On 28th November it emerged, at one of the Circuit Court hearings, that there was yet another file on the victim which the Social Worker could not, at that point in time locate. On 15th January, 2002, again after a delay of about seven weeks, the Chief Prosecution Solicitor furnished to the defence some of the information which it requested. On 4th March it was indicated that the missing file had by then been located. A new indictment was served on 20th March and as late as 18th June, 2002, documents were still being sought and handed over. These included the letter from the Rape Crisis Centre of 13th June, 2002.
- In my view the above demonstrates a wholly unacceptable response on the part of the respondent in dealing with the undertaking given to O'Sullivan J. on 25th March, 1999; in complying with its obligations to make full disclosure and in time; in discharging its assumed responsibility and the responsibility placed upon him by Judge Dunne. Not only in my opinion was the Director of Public Prosecutions responsible for the delay between March 1998 and March 2000 but he was also significantly responsible for the delays which occurred thereafter. In particular with regard to the period from October, 2000 to March, 2002 and indeed to June, 2002 the respondent failed to comprehensively address in any reasonable time frame the continuing obligations which he still had not discharged. Moreover, significant documentation was still being produced in November, 2001 in March, 2002 and in June, 2002. Indeed, I have to say that even to the date of the leave application, I would have no confidence that full disclosure had in fact been achieved.
- The applicant in my opinion is totally innocent of any blame or culpability for the periods above mentioned. The only criticism made of him is that he should have anticipated the ruling of Judge Groarke on the Director of Public Prosecutions objection which was made on 4th October, 2000. It is said that he should have moved earlier in order to seek to identify the authors of the notes in question. As a result of his failure to do so, he must be held responsible for the time lapse between the date upon which he received the relevant documentation and his first movement thereon, which occurred on 17th October, 2000. In my view it would be unreasonable for this court to apportion blame on the applicant in this regard. In my opinion the view adopted by his legal advisors in believing, albeit erroneously, that they could cross- examine on the victim's medical notes and records without having the authors present to prove the same, is not such as would justify this court in holding the applicant responsible for this delay. I therefore conclude that he is not legally responsible for any delays which have occurred in this case, since the complaint was first made back in July of 1995.
- There is another significant aspect on this question of delay. The first trial date namely 9th March, 1998, had to be vacated because apparently the presiding judge was formerly a member of the solicitor's firm who was acting for the applicant. This obviously was an unfortunate occurrence but not the responsibility of either party to this litigation. However, since then at least four trial dates had to be vacated on varying grounds all of which were the responsibility of the Prosecution. The first occurred on 1st February, 2000, when the issue of compliance with O'Sullivan J.'s order was still outstanding. The case had to be adjourned on 26th June, 2001, because of the unavailability of prosecution witnesses. Equally so on 3rd December of that year when several witnesses were not likewise available, and when also it was clear that the documentation was still very much incomplete. On 6th March, 2002, the case could not proceed as the social worker's file was only then being handed over and also because a new indictment had to be prepared. In all therefore, several adjournments of the actual trial of this case had to be granted on varying grounds all of which were the responsibility of the respondent.
- In P.P. v. D.P.P. [2000] 1 IR 403 Geoghegan J. pointed out that where there had been a long lapse of time between the commission of the alleged offence and the first complaint of the victim to the Gardaí, it was imperative in such circumstances that there should be no unnecessary delays on the part of the prosecuting authorities once proceedings had been instituted against an accused person. That view was repeated by the same judge when giving the judgment of the Supreme Court in B.F. v. D.P.P. (Unreported, Supreme Court, 22nd February, 2001). In applying those principles to the facts of this case and in light of the existence of the undoubted constitutional right of an accused person to a trial with reasonable expedition, it seems to me that the periods of delay above identified are inordinate and inexcusable and cannot be justified. In these circumstances I believe that rights of the applicant would be violated if I was to permit a continuation of the criminal proceedings against him. Accordingly, on these grounds I will grant the reliefs sought.
- In addition however there is also the issue of the Director of Public Prosecution's responsibility to make full disclosure in accordance with the principles of law which have been quoted at paragraphs 31 and 32 of this judgment. As previously pointed out, and disregarding for a moment the issue of discovery and the issue of assuming responsibility pursuant to the order of Judge Groarke made in March 2000, it seems to me that a serious issue arises under the heading of making full disclosure as to the scope of the Director of Public Prosecution's responsibility, in obtaining the victim's relevant medical notes and records. It will be recalled that in November, 2001 statements from six nurses were furnished to the defence as well as a statement from M. MacD. In addition the Drogheda Community Services file was disclosed. As was another file from the social worker in March 2002. Finally there was the letter from the Rape Crisis Centre received on or about the 18th June. All of these are highly relevant pieces of documentation and one would have to be seriously concerned if the respondent's duty to disclose did not include an obligation in respect of these documents. Certainly as in this case where their relevance and materiality has never been in issue or in dispute. One can only be grateful that the trial in October, 2000 did not proceed to a conviction as it would have been a bleak day for justice if it had. Whilst it is strictly not necessary to offer any concluded opinion on this point, nevertheless, I would be inclined to the view that in principle there is such a duty on the Director of Public Prosecutions whilst in practice the scope of that duty will of course depend, in each case on the relevant circumstances.
- In addition, it has also being submitted that the applicant has been subjected to unnecessary stress and anxiety as a result of the delays above mentioned, which matters it is claimed have also violated his right to a trial with reasonable expedition. In my opinion such a conclusion is a reasonable inference from the facts and events above outlined.
- Against the conclusion above reached, I also ought to consider the rights of the accused person to a trial with reasonable expedition and to be protected from stress and anxiety caused by or resulting from any unnecessary and inordinate delay against the competing right of the Director of Public Prosecutions on behalf of the people to prosecute to finality the accused person on the charges standing against him. On the facts of this case and in all the circumstances I would be of the view, that the greater right of protection is the right of the applicant and accordingly, the relief sought will issue.
Approved by: McKechnie J.
