Neutral Citation [2016] IEHC 548
THE HIGH COURT
JUDICIAL REVIEW
[2016 No. 89 J.R.]
BETWEEN
B. S.
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT of Mr. Justice McDermott delivered on the 7th of October, 2016
1. The applicant seeks an injunction by way of judicial review restraining the respondent from proceeding with the prosecution entitled “The People (at the suit of the Director of Public Prosecutions) and B.S.” (Bill No. CCDPO131/2015) presently pending before the Central Criminal Court.
2. An indictment has yet to be filed in the case. The applicant was returned for trial on a single charge that on a date unknown between 1st January, 1970 and 21st May, 1970 he raped the complainant A.B. contrary to s. 4 of the Offences against the Person Act 1861. The applicant claims that there is a real risk that he would be the subject of an unfair trial since in excess of 45 years has elapsed between the date of the alleged offence and the date when he was charged. In particular, it is claimed that important witnesses relevant to his defence are now dead. The applicant denies that he committed the alleged offence. The complainant alleges that when she was seven to eight years old, before she made her holy communion, the appellant, then a farm labourer on her father’s farm, raped her. She claims that this occurred repeatedly in an isolated field on a neighbour’s land adjacent to her family’s farm. She states that she was lured to the field by the applicant by offers of sweets and small amounts of money. She alleges that it happened many times “over the few months”. The time frame set out in the charge is limited to the period from January to May, 1970.
3. The claimant was born in 1963. The applicant was born on 29th May, 1953 and was approximately sixteen to seventeen years old at the time of the alleged offence. While the applicant faces a single charge of rape, it is clear that the prosecution intends to proceed on the basis that the charge is representative of multiple occasions of rape that occurred during the five month period. It is not clear from the book of evidence why the particular period of January to May, 1970 was chosen but this may be related to the date of the complainant’s first Holy Communion.
4. The complainant alleges that the applicant took the opportunity to carry out these rapes when he was left to mind the children. In her statement contained in the book of evidence, she states:
“I can remember my parents going to mass and leaving (the applicant) to mind us. My parents would take some of the children and leave the younger ones behind. The children who had their communion made were normally taken to mass. I can remember feeling that my parents were at mass. There were other occasions when he would have been minding us, a funeral or wedding or some reason. I know I had not made my communion when this had happened. I know it happened a number of times and feel it lasted for a few months.”
5. She did not believe that her parents were at home when it happened. She had two sisters and five brothers but if any of them were at home she believed they were nearby or in the house or playing. They were never in the field with her and the applicant. She also alleges that he warned her not to tell anyone.
6. In her statement, the complainant also outlines how she informed her mother of the abuse shortly after its occurrence. She states:
“I remember my mother having her hands on her head and being horrified. I remember being told to go to another room or play and after this (the applicant) was gone.”
7. She claims that she told a number of other people about the alleged abuse in subsequent years. When she was twelve she attended a boarding school. She befriended M.L. who, in a statement included in the book of evidence, describes what she was told about the alleged sexual abuse in second or third year. She also informed her present husband about it in the mid-1980s. He also describes this in a statement contained in the book of evidence. Before Christmas 2013 the complainant received counselling for approximately five weeks following which she was advised and went to the rape crisis centre which she continues to attend.
8. The complainant made a statement of complaint to Garda Elaine O’Keeffe on 22nd February, 2014.
9. The applicant attended voluntarily at a Garda Station on 1st May, 2014 and was interviewed in respect of these allegations. It is clear from the transcript of the interview set out in the book of evidence that the Gardaí had other statements in their possession from the applicant’s sister and her mother. He denied the allegations. He also challenges the sequence of events set out in the mother’s statement that the complainant told her about the allegations about which she then told her husband who, as a result, dismissed the applicant from his employment because of what he had done. The applicant denies that he was dismissed for this reason. He also denies a suggestion in the complainant’s mother’s statement that he used to mind the children if the parents were at mass or ill.
10. The applicant was then charged with the alleged offence on 17th September, 2015 and the book of evidence was served on 11th December, 2015. Disclosure has not been completed in this case and it is clear from the transcript of the interview contained in the book of evidence that at least two other statements with some relevance to the case exist. In addition, the court was informed that other statements were taken during the investigation from some of the complainant’s siblings. It is likely that the later revelations made to M.L. and the complainant’s husband would be challenged as inadmissible during the course of a criminal trial. The two statements referred to in the course of interview do not appear in the book of evidence. Any issue relating to the admissibility of evidence contained in M.L.’s statement or that of the complainant’s husband, or other statements made but yet to be disclosed, are matters for the trial judge. In a case of this kind, full disclosure should be made at the earliest stage and there is no reason, given the limited number of statements made in this case, that it should not have been made at the time of the return for trial.
11. The applicant claims that he is at real risk of an unfair trial because of the death of three relevant witnesses namely:
(a) M.H., a farm labourer was employed at the time on the farm;
(b) M.D.H. another labourer employed at the farm; and
(c) The complainant’s late father, (the applicant’s employer).
The relevance of what they might have said is set out at paras. 2 and 3 of the applicant’s affidavit sworn on the 9th February, 2016. The applicant states that he was employed on the farm for approximately two years from the age of sixteen. His main work was to help milk the cows twice a day. He states:
“I worked for over two years (there) … until I reached in or about the age of seventeen years and I left on good terms. It is totally wrong to now make it look like I left because of anything to do with his daughter …the Gardaí said to me that (his employer) let me go because of something I did to his daughter and this is completely untrue. I ended working for (him) on very good terms and I remained friendly with him and after I left he even gave me trees for firewood and some stones. Towards the end of the time that I was working for him he had problems with a lot of his cows dying. (He) sold his bull at a market and was paid for the bull. The bull died a short time later, and (he) was required to return the money to the purchaser. It was said at the time that what was happening on the farm with the livestock getting sick and dying was because of piseogs, which people said was almost like a curse put on (him). Eggs were found in hay that was for the cows. There was a belief that to break eggs found in hay would bring bad luck to the farmer. The eggs in the hay were broken in the second year that I was there and the cows started to die. As well as that, many of the … family were knocked out with illnesses and through accidents, such as two of the children being injured in an incident with a tractor, and then I got sick and ended up in … hospital. I was discharged from hospital and went back to tell (his employer) that I was ready to come back and work on the farm. I became unwell again that same night and (his employer) came to me a few days later and said that I would be better off looking elsewhere for work. (He) 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 (he) was alive now he would help explain all of this.”
12. The applicant also states that the late M.H. was a farm labourer who worked on the farm three or four times a week and knew what was going on there and with the family. He claimed that this man got on very well with his employer and that if he were alive “he would be able to explain a lot and would help me to defend myself”. The late M.D.H. was another farm labourer who also helped around the farm but not as often as M.H. The applicant states that he never looked after the children while he was there and never went away with the complainant on her own as she claims. He says he worked extremely hard on the farm and that the two deceased witnesses would confirm what he was saying. During the course of his employment he lived at home with his grandfather and uncle and used to cycle to work early in the morning.
13. The court inquired about the existence of other statements in the case and was informed that a number had been taken from the complainant’s siblings. Two statements not included in the book of evidence had been referred to in the course of the interview of the applicant. No application was made for discovery by the applicant during these proceedings. The applicant was not satisfied that these statements should be made available to the court in the course of the hearing. It is appropriate in cases of this kind that efforts be made by both parties to ensure that all relevant potential evidence and material should be made available to the court and that the parties should take such steps as are necessary and open to them to ensure that this occurs. Such material will, of course, inevitably be available to both sides during the course of any trial but it is unsatisfactory that this Court should be asked to restrain the applicant’s trial on the basis of limited documentation and statements.
Legal principles
14. 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 (see Z. v. D.P.P [1994] 2 I.R. 471, D.C. v. D.P.P. [2005] 4 IR 281 and S.H. v. D.P.P. [2006] I.R. 575).
Conclusion
15. The alleged relevance of the deceased witnesses’ possible testimony is central to this application. 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 applicant’s employment. The alleged sexual abuse of the complainant occurred in an isolated location away from the farm house 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.
16. The complainant’s father, if alive, could have made a statement in relation to the reason for the termination of the applicant’s employment. The sequence of events alleged by the complainant is that she told her mother about the abuse who then informed her father who, as a result, dismissed the applicant. It is agreed that the applicant’s employment was terminated when he was approximately 17 years old. The complainant said that after she told her mother “(the applicant) was gone”. However, a more precise proposition was put to the applicant in the course of interview when it was suggested to him that he was let go because of what he had done to the complainant. He denied this. The court was informed that the complainant’s mother was also deceased but this is not set out in the affidavits nor is it part of the grounds upon which relief is sought. The applicant said that his late employer, if available, could have confirmed his account of how he left his employment; that he left against a background of occurrences on the farm which involved the loss of animals, unhealthy stock and accidents in which the children had been injured together with bouts of ill-health within the family. He himself became unwell and had a relapse when he returned to work after which his employer thought that it would be best if he left his employment. There was no underlying rational reason that could be identified by his employer or others for these unfortunate events on the farm. The merits of the case are not for this Court. The fact that the farmer may have ascribed his run of bad luck to piseogs and reasons rooted in superstition and/ or folklore is not to be too readily dismissed. It is all too easy to disregard the effect and force of such ideas or a person’s perception of events which are otherwise unexplained or inexplicable 45 years or more ago. The real issue is whether the unavailability of his employer to give evidence that termination of his employment was due to his continuing bad health rather than the alleged sexual abuse of his daughter results in such prejudice to him as to give rise to a real or serious risk of an unfair trial.
17. The evidence against the applicant is that of the complainant. There is no independent corroborative evidence. There is only the applicant’s denial that can be put in evidence against the complainant’s evidence. He denied the allegations when interviewed. Forty-five years later the true reason for the termination of his employment has emerged as an issue in the statements made by the complainant and her deceased mother. The applicant claims that his deceased employer would have supported his version of events and that he did not dismiss him for abusing his daughter but for the reason and in the circumstances set out in the applicant’s affidavit and related to his employer’s concern for his health.
18. I am not satisfied that this issue is one which the prosecution will inevitably or could possibly pursue at trial. It is dependent on statements from two persons who were not present at the time of dismissal one of whom is dead. There is a clear difficulty concerning the admissibility of this material and the question of what inferences it is permissible to derive from it, even if proffered in an admissible form, concerning the guilt of the applicant. These are matters for the trial judge.
19. The complainant’s father terminated the applicant’s employment face to face and his unavailability gives rise to a possible difficulty in establishing the reason for his dismissal. However, it must be recalled that it is not said that the complainant’s father witnessed anything that would support the complainant’s version of events. If he dismissed the applicant because of his daughter’s allegations, this would only confirm that a complaint had been made to somebody, perhaps the complainant’s mother (now deceased). There is no suggestion that the complainant made any complaint directly to her father. Even if the applicant was dismissed because of illness and the complainant’s father could support this, it does not detract from the complainant’s claim that she made a complaint to her deceased mother who made a statement stating that she received it. Her mother’s evidence as to what she did thereafter or what she told her husband is also unavailable: it cannot be adduced. On the evidence available in these proceedings, apart from the applicant’s belief, there is no other evidence to suggest that there is a real possibility that the suggested evidence would have been forthcoming from the complainant’s father. Furthermore, the court has been informed that a number of the complainant’s siblings who were present at the time and were of varying ages made statements. To date, these statements have not been furnished to the applicant and no attempt has been made by the applicant to make any enquiries with these potential witnesses as to their recollection, if any, concerning the events the subject matter of the charges or surrounding his departure from the farm.
20. This case falls to be addressed on the basis of the principles set out in S.Ó’C v. Director of Public Prosecutions [2014] IEHC 65 in which O’Malley J. stated:
“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.”
The judge was addressing an allegation of prejudice said to arise by reason of the loss of notes by a consultant psychiatrist and his subsequent death. The question was whether there was a real possibility that the missing material and evidence that might have been given by the late consultant would reveal a material inconsistency between the complainant’s allegations and what she told the consultant. There was no suggestion of any inconsistency in the many accounts given to others in that case and consequently, there was nothing in the evidence to suggest the existence of a material inconsistency in the lost materials or evidence as a realistic possibility. In this instance the issue concerns the reason for the applicant’s dismissal. The complainant does not purport to give evidence of the reason for the dismissal but her mother clearly implies that the applicant left his employment when she told her husband of the allegation who then confronted him. The admissibility of this evidence is to be determined in the court of trial. The applicant refutes this and sets out on affidavit the circumstances and reason for his departure which he claims could have been corroborated by his employer if he were alive.
21. The respondent submits that absent any evidence by way of prior oral or written statement by the complainant’s father in support of the applicant’s case, it has not been established that this evidence would have been available. The only source of this evidence is the applicant himself. There is no evidence as to when the complainant’s father died. The reality is that it cannot be established whether the complainant’s father would or would not have supported the applicant’s version of events though undoubtedly, his employment was terminated when he was about 17 years old. In the absence of any other evidence I am not satisfied that there is a real possibility that this evidence would have been forthcoming from the deceased. Therefore, I am not satisfied that the applicant has established prejudice such as to give rise to a real or serious risk of an unfair trial. As already stated, I am not satisfied that the applicant or his solicitors have exhausted all relevant avenues of inquiry, some of which may emerge from disclosure in respect of these events. I am satisfied that this application must be refused.
22. In reaching this decision, the court is mindful of the jurisdiction vested in the trial judge to exercise his/her inherent power to protect the court’s process from abuse including a duty to safe-guard an accused person from oppression or prejudice during the course of a trial. In particular, Denham J. (as she then was) stated in The People (Director of Public Prosecutions) v. P. O’C. [2006] 3 IR 238 at 246:
“… It must be stressed that whether such an application for judicial review is granted or not, and even if such an application results in a refusal to grant an injunction or prohibition, the trial court retains its inherent power to protect its process and to make such orders as are necessary during the course of the trial. This includes orders arising from evidence or issues relating to delay.”
(see also p. 248).
The trial judge will also give appropriate directions to the jury in respect of the issue of delay, the status of any admissible complaint and any other relevant issue.
23. The trial will be stopped by direction of the trial judge if during its course he/she perceives a real or serious risk of unfair trial or that its continuation would be oppressive to the accused. In that context if, following disclosure and/or further enquiries made by the applicant’s solicitors, additional material emerges relevant to the occurrence of the alleged offence, the credibility of the complainant or the dismissal of the applicant, which indicates that the unavailability of any or all of the three deceased witnesses constitutes such prejudice as gives rise to a real or serious risk of an unfair trial, further application may be made to the trial judge during the course of the trial to stop it. However, on the evidence available in these proceedings I am not satisfied that the applicant has established the grounds advanced for the relief sought.
