HC 245/04
THE HIGH COURT
JUDICIAL REVIEW
[2004 No. 267 JR]
BETWEEN
D.C.
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT 
JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 18th May, 2004.
	This is an application for leave to apply for judicial review for the relief of: 
(i) 	An order of prohibition restraining the respondent from pursuing the prosecution entitled: “The People at the suit of the Director of Public Prosecutions and [D.C.]” in respect of charges of sexually assaulting one L.H. on the 1st November, 2002 and further raping the said L.H. on the 1st November, 2002, as set out in bill of indictment number CC0026/03 presently pending before the Central Criminal Court. 
(ii) 	An injunction restraining the first named respondent from taking any further steps in the Central Criminal Court proceedings, the subject matter of the within judicial review proceedings.  
(iii) 	A declaration that the respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures with the result that the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights. 
(iv) 	A declaration by way of judicial review that the applicant was entitled to be informed of the names of two persons known to the complainant and of very material consequence to the defence and that the said parties be made available to the applicant for the purpose of cross-examination. 
(v) 	A declaration by way of judicial review that the said unidentified parties are material to the proper preparation of the applicant’s defence to the charges contained upon the bill of indictment number CC0026/03 and that without such material information the applicant’s defence will be prejudiced. 
(vi) 	A declaration that the failure and or inability to ascertain the identity of the said individuals amounts to an inability to seek out and preserve all material evidence relevant to the investigation of the alleged offences. 

The grounds upon which this relief is sought are as follows:
(i)	An order of prohibition, injunction, and declaration sought at (d) (i), (ii) and (iii) 
That in conducting the prosecution the first named respondent 
acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures in failing to seek out and make available witness statements or seeking to ascertain the identity of two specific parties and make same available to the defence with a probable bearing on the guilt or innocence of the applicant without delay or at all.  As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights. 
(ii) 	Declaration sought at (d) (iv) and (v) 
The decision of the respondent to proceed with the prosecution of the above mentioned case notwithstanding the fact the applicant’s legal representatives had specifically requested certain relevant and vital information by way of written request dated the 19th January, 2004 of the complainant in relation to the matter of two parties known and referred to, by her but unidentified in the book of evidence was otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures and further by reason of the failure on the part of the relevant investigative authorities to seek out and/or to take statements from parties known to the complainant and with a probable bearing on the issue of the guilt or innocence of the applicant.  As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights. 
Declaration at (d) (vi) 
(iii)	The decision of the respondent to accept the refusal of the complainant to identify the two individuals without comment is inconsistent with the duties of An Garda Síochána and of the respondent herein to seek out and ascertain all material and evidence relevant to the investigation.  In the premises the proposed trial is no longer a trial in due course of law. 
The application for leave is grounded upon an affidavit of the applicant and of his solicitor Áine Flynn.  
In his affidavit the applicant states inter alia that he is the defendant in relation to the said bill of indictment at present pending before the Central Criminal Court.  He indicates that he stands charged with offences of sexual assault and rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and was returned for trial to the Central Criminal Court on the 21st January, 2003.  He indicates that the matter was listed on the 10th April, 2003, whereupon a date for his trial was fixed for the 29th March, 2004.  He indicates his intention to plead not guilty in relation to this matter.
The applicant says that consent will be a central issue in the case.  He says, in this regard, given the particular surrounding circumstances of the case, principally though not exclusively, the consumption of a very considerable quantity of alcohol by all the parties on the night in question, and the occasion of possible intimacy, not disclosed by the complainant at any stage by her, but referred to by her friend, and at present unavailable prosecution witness [Ms. R.] with an unidentified party from whom no statement was either sought or taken, he instructed his solicitor to seek further information in relation to the persons identified in the statement of this witness as Kieran and John.  
The applicant says that his solicitor has written on a number of occasions to the respondent seeking to be provided with the said information.  He says that as a result of the statement of the complainant dated the 10th March, 2004, the position is that notwithstanding the fact that she knows who these persons are she is unwilling to provide this information.  The applicant says that as a result of the refusal of the complainant in this case to furnish to him and his legal representatives the requested necessary information he is significantly prejudiced in his ability to fully and properly instruct his representatives and it is contended that they cannot adequately or properly prepare his defence to the charges.  He says that as a result of this an application was made by his legal representatives on the 23rd March, 2004, (to the Central Criminal Court) and that his trial has now been adjourned and has gone into the next list to fix dates being the 29th March, 2004.  
Ms. Áine Flynn describes herself as a solicitor of Terence Lyons and Company, Solicitors.  She refers to the background to the charges by reference to statements contained in the book of evidence served upon the applicant.  She says that it appears from same that the two girls who are friends were going for a night out on Halloween night 2002.  Preparations for the night started at the complainant’s home.  As they got ready they drank a naggin of vodka with 7-Up.  The complainant also had some Carlsberg beer.  Around midnight they left in a taxi and went to town.  There they went to a pub and on to a nightclub.  The complainant drank more beer.  It is stated that it is unclear what was drunk in the club.  There they met two men, who were either doctors or perhaps medical students.  They accepted an invitation to go back to an apartment owned by the two men.  Ms. Flynn points out that the complainant in her statement describes the visit to the apartment in the following terms:
“At the apartment the four drank vodka mixed with fizzy water and honey.  It was all they had.  It wasn’t a full bottle but I think I had more to drink than the rest, I don’t know how much.  I don’t remember the names of these two guys.  I was very drunk at this stage.  We stayed up drinking and dancing and I think it was about 8.00am - I can’t be too sure, it was getting bright anyway.” 

Ms. Flynn indicates that the complainant’s friend recounts the visit in the following terms:
“…and arrived out there with them sometime around 4.00 a.m. to 4.30 a.m.  There were just the four of us.  We had a few drinks.  We all drank vodka.  Both of us drank a fair bit but we were not mad drunk.  [L.] went to a bedroom separately with John for a while.  I don’t know what happened between them.  I remained in the sitting room with Kieran.  We snuggled but we did not sleep together.  We watched the TV and talked and [L.] came in and out to us in the sitting room.  Anytime I saw her in the sitting room she was fully clothed so I don’t think anything went on between them.  She did not tell me anything about sleeping with him.  I don’t think she did.”
  
In her affidavit Ms. Flynn indicates that thereafter in town they went to an early house and had some more drinks, vodka and Carlsberg beer.  This was the Chancery Inn on Inns Quay.  When they went outside the complainant said that the fresh air hit her and that she was really drunk.  Her friend rang the complainant’s boyfriend and the two girls had an argument.  It would appear that they were both severely intoxicated at this stage.  They were down a laneway at this stage and they were joined by a man who is alleged to be the accused.  After the argument the complainant’s friend left her in the company of this man.  The complainant went to another public house and had a drink there with this man and another individual.  They then went to two more public houses but were refused service because she thinks she was too drunk.  They went to another two licensed premises where they were served.  The complainant’s next recollection is waking up in a room which it would appear is in the home of the accused, the applicant herein.  The applicant’s mother was very upset and ordered them out of the house.  
They left the house.  The complainant was “completely drunk”.  They were in a park.  The applicant wanted to go back to his house or to her house.  Ms. Flynn indicates that the following accounts are not meant to be exhaustive but to extract the essence of the case.  
“He got forceful then.  I remember him pining me down.  I screamed as hard as I could.  ‘Help me, help me, somebody help me.’  I didn’t see anyone else around.  He pulled my trousers.  I don’t know how but my trousers were down around my knees.  I was on my back.  He had one hand pulling my hair and my left shoulder and arm pinned down.  I was struggling.  I had a scarf on, a long pink woollen scarf around my neck, and I remember him pulling at it pinning me down.  I wasn’t wearing underwear under my trousers.  I hadn’t any one leaving my house Thursday night.  I struggled to break free and get up but he had me pinned down.  He said if I didn’t shut up he was going to crush my skull.  I think he mentioned using a rock.  I shut up coz I knew he meant it.  I was in total fear.  He ripped my trousers down, there’s a button and zip on them.  I was really frightened, he said he was going to fuck me or something along those lines.  I knew that he was going to do anyway coz he ripped my trousers.  His trousers were open.  I knew he was going to penetrate me or kill me.  I tried to calm him down. …I said to him ‘Why would you want to do that.  We had such a nice day.  You save (sic) my life and I love you for that.  Please. Please.’   I was trying this to calm him down, just to make him stop.  I said he saved my life cost (sic) when we were walking down to Charlie’s  Ps I said I was going to jump into the river.  I was upset and very drunk and he talked me out of it.  I wasn’t being serious about jumping just very drunk.  I think talking to him must have calmed him.  He was like a madman, crazy.  He was still on top of me, pinning me down.  He stopped and looked at me.  I said: ‘I love you, its going to be ok.’  I think I said something like letting me satisfy him.  I wanted to get up from under him so I just said this to let him think he could trust me.  He must have (sic) lying on his back then.  He still had a hold of my head, by my hair.  I remember his trousers and underpants were down around the top of his thighs.  I remembers his penis was erect.  I was still scared of him.  I was moaning as if I was enjoying it, it was only to try and get him relaxed coz he still had a hold of my hair.  I remember his penis in (sic) mouth.  I can’t understand or how it happened but I realised he hadn’t a hold of me and I jumped up and ran.  He didn’t ejaculate.”  

Ms. Flynn then indicates that the complainant ran away.  Witnesses said that while running she fell.  She ran on her own account through a river and was met there by a man called Donegan who is a witness in the case.
Ms. Flynn then refers to portions of the evidence of others witnesses contained in the book of evidence relating to the incident and its aftermath.  She also refers to the statement of Garda Deirdre Quinn.  In her statement Garda Quinn indicates inter alia as follows:
“L.H. agreed to accompany me back to Raheny Garda Station.  On arrival at the station, at approximately 5.00 p.m., I spoke to [L.H.]  She was very upset but was willing to tell me what had occurred.  [L.H.] called the male Stephen and said that she had met him earlier that morning.  She told me what happened.  At this point [L.H.] got very upset and insisted on speaking with her boyfriend [A.E.]”

Ms. Flynn indicates that from there the complainant went to the sexual assault unit at the Rotunda Hospital where she was examined by a doctor.  It is indicated by Ms. Flynn that the version offered at this juncture was materially different.  Ms. Flynn indicates, by reference to the statement of the doctor contained in the book of evidence, that the mood of the complainant was very erratic and that she refused to have genital or anal examinations.  She was angry and at other times laughing and crying.
In fact in the statement the doctor indicates; 
“On examination the patient appeared slightly intoxicated, possibly with alcoholic drink, and was upset and had emotional outbursts several times during the history-taking.  She was angry at times and cheerful and laughing at other times, she even wanted to go out of the Unit at one stage.”
He then refers to bruising on her body on both knees, he indicates that there were no other marks of injury on any of the other body surfaces.  Genital and anal examination were not allowed by the alleged victim.

Ms. Flynn says that from the matters referred to by her she believes that there are a number of issues in the case which are relevant both in terms of the factual background of what actually happened, as well as issues which relate to the complainant’s credibility and issues of law.  She identifies these to be:
(i) 	The complainant went on a long drinking binge commencing on the evening of October 31st and which continued uninterrupted up to the late afternoon of the next day when the events giving rise to these charges occurred. During this period it appears that the complainant did not eat or sleep. 
(ii) 	The complainant and her friend spent a number of hours in an apartment with two young men.  She told the gardaí that she did not remember the names of the two men.  During the night she was in a bedroom with one of the men for what appears to be a lengthy period. The complainant herself did not make any reference to this - the defence is reliant upon her friend for this information.  It is submitted that this omission may have potential significance, the complainant may not want it to be known that she was in a bedroom during the night in circumstances where intimacy may have occurred. 
(iii) 	The gardaí made no attempt to identify who these men were or to take statements from them. 
(iv)	The complainant says that she was very drunk at the time in the apartment but there is no independent verification of her state of mind.
(v)	At various stages during the event the complainant was argumentative and acting erratically.  She rowed with her friend and boyfriend (on the telephone) and threatened on a number of occasions to throw herself into the Liffey. 
(vi)	In the immediate aftermath of the event the complainant met a number of people.  To one she made an allegation of rape.  No such allegation was made to the others.  To one she said that she gave oral sex to the man and to the guard that she offered it. 
(vii)	In the police station she was upset and spoke to her boyfriend.  A short time later at the hospital she alleged that sexual contact had taken place under the threat of violence. 
It is contended by Ms. Flynn that the identity of the men in the flat is relevant for a number of reasons: 
(i)	There is a strong suggestion that the complainant may have been intimate with one of the individuals.  If so this might support a suggestion that in drink the complainant has a tendency towards such intimacy.  That is relevant to what occurred at the green. 
(ii)	Moreover if such intimacy did take place it raises other issues which go to the credibility of the complainant.  The suggestion that she did not have underwear going out that night might not be true.  The suggestion that she did not remember the names of the individuals also has a different connotation (particularly in light of recent events detailed below).  The omission to say that she had gone to the bedroom with the young man may not have been a simple matter of recollection. The reason for her refusal to be examined genitally is another factor which merits consideration.  If such omissions or conduct were deliberate and strategic then these are factors which go to credibility.
(iii)	Further it is undoubtedly the case that these men would be in a useful position to offer useful material to piece together the events of the night, material which in one way or another, might reasonably have a bearing on the complainant’s credibility. 
Ms. Flynn indicates that the potential of these individuals was realised by the defence and on the 18th December, 2003, an application was made to Mr. Justice Carney to have the complainant deposed for the specific purpose of exploring the issues raised above.  As there is no longer an absolute entitlement to depose a witness 
the basis for the deposition was explained to the Court.  The application was resisted by the State, who (sic) did say that it was open to the accused to write to them requesting the gardaí to interview the complainant in respect of the matter. The learned judge refused the application. 
	It is indicated that the suggestion made by the prosecution was adopted by the defence.  On the 19th January, 2004, a letter was written in explicit terms to the State.   Ms. Flynn indicates that ultimately the gardaí did interview the complainant and a statement was taken by them.  In the statement the complainant says that she knows the identity of the two individuals.  Ms. Flynn says this appears to be at variance with the earlier statement.  She indicates that the complainant is refusing to divulge any details on the grounds that she does not believe this to be of any relevance. 
	Ms. Flynn indicates that the matter was listed before the Central Criminal Court on the 23rd March, 2004, for legal argument.  It was indicated that it was intended to apply for an adjournment of the trial until such time as the State was in a position to furnish the information.  In the event the State could not provide the information.  Ms. Flynn indicates that it is accepted that the information cannot be coerced from a witness.  She indicates that it was argued that consequences would follow.  She indicates that there was a further factor.  The applicant was informed just before the application commenced that the only other witness, R, who could shed light on the matter was in Australia and it was not envisaged that she would be home for a year.  The prosecution did not regard her as an essential witness from their point of view and was proposing to proceed without her.  It was indicated that ultimately the presiding judge adjourned the hearing on the basis of the missing witness and advised the accused to bring a judicial review application promptly in respect of the other matter.  
	Ms. Flynn indicates that the factual issues give rise to legal difficulties which she identifies as follows:-
(i)	Preparation of defence.
She states that an issue arises as to whether it would be appropriate to cross-examine the complainant on her previous sexual history.  This cannot be done of right.  The permission of a trial judge has to be obtained.  Ms. Flynn indicates that she is advised that it is appropriate to have all the necessary information to ground such an application and both the identity and an account from these men is necessary for that.  She says that in addition she is advised that even if such material exists which would ground such an application it is necessary to consider very carefully whether or not to make the application.  She indicates that the very making of an application can sour a trial.  It can have an adverse effect as it is inevitably perceived as hostile by the complainant and a jury may not like it.  It is stated that the accused must instruct his legal advisers as to the course to be taken, but they in turn cannot advise properly without knowing much more about the background to the position.  It is stated in short they cannot advise and he cannot instruct. 
She indicates further that the statement of the men would provide useful guidance and potentially a resolution of the issues highlighted above relating to credibility.  She states that without knowing this information legal advisers cannot properly cross-examine.  She believes that the proper exercise of that right includes access to information which permits full preparation and excludes avenues which could damage a case.  She indicates that the information is necessary to properly exercise that right. 
(ii)	The trial 	
Ms. Flynn indicates that for the reasons set out the trial would be unsatisfactory if it were to proceed without the information. 

Submissions of counsel
	Mr. Michael O’Higgins S.C., counsel for the applicant, having traced the facts of this case, indicates that the issues arising on this application relate to the fact that the accused desires to identify who the two students are.  
Counsel submits that the issues arising on this application are, firstly, the entitlement of an accused person to prepare a defence to a charge and secondly, areas or subcategories including the defence in the best interests of an accused person having full instructions.  In this regard it is submitted that legal advisors should have as full a picture as possible before giving advice to a client.  Counsel submits that there is a strong suggestion that during the time the two girls spent in Swords the complainant may have been intimate with one of the men in the flat.  Counsel reiterates the points contained in the affidavit of Áine Flynn.  Counsel submits that the defence needs to know the identity of the two individuals such as to enable them to obtain a statement as to what happened in the room in question and it is submitted that there is a need for the lawyers to be fully informed.  It is submitted that this is necessary in the preparation of the defence case.  Secondly, it is submitted that there is a discrete area in the case which raises the issue of the credibility of the complainant.  In this regard counsel refers to the fact that in an early interview she stated that she didn’t know the names of the individuals concerned.  Now she says she does know them but does not want to reveal them.  
	With regard to the statement by the complainant that she was not wearing underwear on the night in question, counsel queries whether they were taken off in the flat and left there.  In this regard counsel queries whether the gardaí were told something untrue.  Counsel further refers to the fact that the complainant was reluctant to get involved in an examination of her genital area when seen in the hospital.  Counsel further refers to the uncontested fact that there was a significant consumption of intoxicating liquor on the occasion.  
	Counsel refers to the authorities of Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 and the subsequent case of Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305. 
	Counsel submits that, for certain, the evidence is available and that the evidence pertains to matters having a potential bearing on the guilt or innocence of the accused.  It is submitted that without the information sought there is a real risk that the trial of the accused will be unfair.  
	Counsel refers to a number of authorities including The State (D.  and D.)  v. Groarke [1990] 1 I.R. 305, O'Regan v. Director of Public Prosecutions [2000] 2 I.L.R.M. 68 and Geaney v. Director of Public Prosecutions [2000] 1 I.R. 412 and McGrory v. Electricity Supply Board (Unreported, Supreme Court, 24th July, 2003) in which Keane C.J. indicated at p. 13 of his judgment that the plaintiff, who sued for damages for personal injuries, by implication necessarily waives the right to privacy which he would otherwise enjoy in relation to his medical condition.  He states as follows:-
“The law must be in a position to ensure that he does not unfairly and ureasonably impede the defendant in the preparation of his defence by refusing to consent to a medical examination.  Similarly, the court must be able to ensure that the defendant has access to any relevant medical records and to obtain from the treating doctors any information they may have relevant to the plaintiff’s medical condition, although the plaintiff cannot be required to disclose medical reports in respect of which he is entitled to claim legal professional privilege”  
	Counsel submits that there is an analogy in the present case to the situation of the owner of a video refusing to release same to the gardaí.  
Counsel refers to the legal principals enunciated in Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 and in Dunne v. Director of Public Prosecutions [2002] 2. I.R. 305.  It is submitted that the gardaí have a duty to seek out relevant evidence.  It is submitted that in the instant case one is not concerned with lost evidence but potential evidence which is available.  It is submitted that the current situation relates to a refusal to deliver this evidence.  Counsel submits that this is evidence which is present.  It is submitted that the gardaí should have questioned all the people who were with the complainant on the night in question.  Counsel submits that their evidence has a potential to assist the applicant in his defence.  
	Counsel refers to the authority of Maguire v. Ardagh [2002] 1 I.R. 385 and submits that the Supreme Court recognised the right of a person to confront accusers.  Counsel refers to the case of the State (D. and D.)  v. Groarke [1990] 1 I.R. 305 and a portion of the judgment of  Finlay C.J.  at p. 310 where he stated, inter alia, as follows:-
“Furthermore, for a lawyer acting on behalf of the parents and therefore joining issue on the question of abuse, to be in a fully prepared position to cross-examine the witnesses dealing with such evidence, it would be necessary for him to have had, in good time before the trial, reports or summaries of the evidence which was to be given and, in addition, an examination of any video recording by him and by any medical witness he proposed to call”.
	Having referred to the various authorities cited, counsel submits that the matters sought to be addressed constitute matters of potential relevance especially if the individuals concerned can speak to relevant matters.  It is submitted that once it is established that such matters are relevant one cannot say that they should not be witnesses in the book of evidence.  Counsel submits that there is a duty on the gardaí to take statements from all who have relevant evidence to offer.  
	It is submitted by counsel for the Director of Public Prosecutions, Mr. Micheál O’Higgins, that the applicant has not established the relevance of the evidence at issue.  It is further submitted that even if such were established that counsel has not established an entitlement to an injunction being granted.  Counsel submits that these matters can be established at the trial.
	Counsel refers to the four matters postulated by counsel for the applicant namely:
(a)	the failure to obtain evidence
(b)	the relevance of the evidence 
(c)	the availability of the evidence 
(d)	the potential availability of same to establish the guilt or innocence of the applicant.

With regard to (a) - the failure to obtain evidence is submitted that the facts of the instant case differ fundamentally from those of Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 and Dunne v. Director of Public Prosecutions [2002] 2 I. R. 305.  Counsel refers to the fact that the gardaí in the instant case were given information and were told in the first place by the complainant that she did not know the names of the individuals concerned.  She has furthermore indicated an unwillingness to divulge the names of the individuals concerned.  The gardaí do not know the names of these two individuals.  It is submitted that the refusal on the part of the complainant to reveal the identity of the two individuals does not constitute any failure on the part of the Director of Public Prosecutions or of the Garda Síochána.
	Counsel refers to the judgment of McCracken J. in McKeown v. Judges of the Dublin Circuit Court (Unreported, Supreme Court, 9th April, 2003) in which the learned judge reviewed a number of authorities including those of Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 and Dunne v. Director of Public Prosecutions [2002] 2 I. R. 305 and the judgments of the Supreme Court in Bowes v. Director of Public Prosecutions and McGrath v. Director of Public Prosecutions (Unreported, Supreme Court, 6th February, 2003).  In the course of his judgment in that case McCracken J. stated at p.9, having referred to McGrath v. Director of Public Prosecutions: 
“It was strongly emphasised in the judgment in that case that the issue was not whether the gardaí were in some way at fault in either not finding or not retaining possible evidential material, but rather whether the gardaí’s failure, whether it be negligent or innocent, in some way prejudiced the applicant in conducting his defence.  I entirely agree with this approach.  The jurisdiction of the High Court to prohibit a trial is based on the basic and constitutional right of an accused to a fair trial.  It is the duty of the court to keep a reasonable balance between the obligation of the prosecution to present as strong a case as possible against wrong doers and the right of an accused to defend himself and in so doing, by all legal means, to attempt to show that there may be a reasonable doubt as to his guilt or innocence.  The gardaí are, or course, independent of both the Director of Public Prosecutions and the accused.  That they must act independently seems to me to be part of the foundation of our system of justice, and I have no doubt that there is an obligation on the gardaí to disclose to both the prosecution and the defence all matters which might be of assistance either to the prosecution or to the defence.  It should be noted that, in indictable offences such as this, it is for the Director of Public Prosecutions and not for the gardaí to decide what evidence will be used against an accused.” 
 He continued at p.10:-
“I fully accept that these principles must be tempered by the application of the concept of reasonableness.  There obviously are limits to the lengths to which the gardaí must go in either seeking out or preserving evidence.  To that extent each case must be judged on its own facts …”
	Having quoted this passage counsel submits that the issue is whether the claim for relevance is in the instant case remote or fanciful.  It is submitted by counsel that the claim for relevance of the evidence which is sought is remote.  
	The applicant, having moved ex parte to this Court, I directed that the papers in the application should be served on the Director of Public Prosecutions.  I did this to enable the Director of Public Prosecutions to provide assistance to the Court in its determination of the application of the applicant for leave for judicial Review.  Counsel for the Director of Public Prosecutions submits that having been put on notice that this Court should place a higher threshold on the applicant than that to establish an arguable case.  In this regard counsel refers to the High Court decision of Kelly J. in Gorman v. Minister for Environment [2001] 1 I.R. 306.  Counsel refers to the observations of Kelly J. expressed obiter in that case at p. 309 where he suggested that in a situation such as this, the obligation on an applicant is not merely to show an arguable case but a strong case.  
	Counsel further refers to the authorities of Halpin v. Wicklow County Council (Unreported, High Court, 15th March, 2001) and to P v. Minister for Justice [2002] 1 I.L.R.M. 16 and submits that these two cases give support for the observations of Kelly J. in Gorman v. Minister for the Environment [2001] 1 I.R. 306.  
	Counsel submits that this Court should apply a higher standard than that applying on an application ex parte on the basis that: 
1.	The Court has the benefit of detailed argument, 
2.	All relevant documents are open to the Court, 
3.	The Court is in as good a position to address the matter as in a substantial hearing.
Counsel submits that the instant case is an appropriate case in which to apply the higher threshold.  Counsel submits that the first issue that arises is whether the applicant has shown that the case being made is strong or one likely to succeed.  Counsel submits that the applicant fails on the application of this test.  
Having further referred to the judgment of the High Court in Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, 12th April, 2001), counsel submits that there is no rule of law to which the Director of Public Prosecutions can point to demand from a complainant that she provide information of the nature sought in this case.  Counsel submits that since the community has an entitlement to have criminal offences prosecuted it would be wrong in law to enjoin the Director of Public Prosecutions from further prosecuting the applicant.  Counsel concedes that the community’s right to have matters prosecuted is independent of the complainant’s right to have the wrong of which she complains investigated.  Counsel refers to the fact that criminal proceedings may continue notwithstanding a change of heart on the part of a complainant.  
Counsel submits that the analogy drawn by counsel for the applicant between the situation in the instant case and the situation addressed by the Supreme Court in McGrory v. Electricity Supply Board (Unreported, Supreme Court, 24th July, 2003) is misplaced.  It is submitted that the fact that a complainant may refuse to provide certain information in a criminal proceeding may not restrict the people’s right to have the offence prosecuted.  Counsel acknowledges that the community’s right to have matters prosecuted is subservient to an accused’s right to a fair trial.
Counsel submits that this Court must proceed on the presumption that any judge presiding over a criminal trial of the applicant would take all appropriate steps to see that the accused obtains a fair trial.  Counsel submits that the reluctance on the part of the complainant to give the information sought may be such as to damage her credibility.  Counsel submits by reference to the appropriate test as set down in D v. Director of Public Prosecutions [1994] 2 I.R. 465 and  Z v. Director of Public Prosecutions [1994] 2 I.R. 476 that the test is whether the applicant can show a real risk that he cannot obtain a fair trial, such risk which cannot be avoided by appropriate directions.  Counsel submits that there is a considerable onus on the applicant.  
Dealing with the alleged relevance of the evidence sought by the applicant in the instant case, counsel questions the relevance of same and refers to the fact that there is no indication that the two individuals concerned saw the alleged incident, giving rise to the prosecution of the applicant.  
	It is submitted that there is no indication that they can say anything about the incident concerning the applicant.  Counsel submits, by reference to the decision in Dunne v. Director of Public Prosecutions [2002] 2 I. R. 305, that the claim for relevance of the evidence sought in this case falls to be described as remote, theoretical or fanciful.  It is submitted that the claim for relevance is remote and tangential at best.  
	Counsel refers to the matters which Áine Flynn states in her affidavit to have been established as having a bearing in this case, including the drinking on the 31st October, and continuing into the following day, the time spent by the complainant in the apartment with two young men, and the other matters referred to by Ms. Flynn, and submits that these are matters which can be established from the witnesses named in the book of evidence, without the accused having to get into the witness box.  
Counsel refers to the matters raised by Ms. Flynn in her affidavit which it is claimed raise issues of credibility and reliability on the evidence of the complainant.  Counsel submits that these are all matters that might be addressed on a trial to a jury.  On this basis it is submitted that the applicant can canvass these matters at his trial.  Counsel submits that in all of the circumstances there is no good reason to restrain the trial of the applicant.  Counsel submits that the essential matters can be established without cross-examining the two men concerned.  Counsel submits that the denial to the applicant of the matters which he seeks in this application does not amount to a denial of the possibility of the accused mounting an effective defence to the charges against him.
	Counsel refers to the judgment of McCracken J. in McKeown v. Judges of the Dublin Circuit Court (Unreported, Supreme Court, 9th April, 2003) and to the judgment of Kearns J. in Scully v. Director of Public Prosecutions. (Unreported, High Court, 21st November, 2003).  Counsel submits that the duty identified by Hardiman J. in the case of Braddish v. Director of Public Prosecutions [2001] 3 I.R. 127 on the gardaí to preserve evidence must be considered realistically on the facts of each case.
	Counsel submits that the logic of the applicant’s argument in the instant case is such that in any rape case an accused would claim to be entitled to the prior history of the complainant before trial with the view to establishing the same point at the trial itself, if given leave to cross-examine a complainant on her prior sexual history.
	Counsel comments on the applicant’s case that the complainant’s prior sexual history is relevant to supporting the contention that she has a tendency to become intimate under the influence of alcohol.  It is submitted in the instant case that this case has not been made out on the evidence.
	In reply counsel for the applicant submits that the issue is whether what is being sought in the instant case is potentially relevant or not.  
	Counsel expresses concern in relation to the decision of this Court to put the Director of Public Prosecutions on notice of the application for leave for judicial review.  It is submitted that if a higher standard is to be applied by this Court that the applicant loses a procedural benefit with regard to the entitlement to obtain leave on the basis of establishing an arguable case.  Counsel concedes that no one can force the complainant to reveal the information sought.  Counsel takes issue with the contention of the Director of Public Prosecutions that the matters sought in this case are remote or fanciful.  Counsel submits that the real issue is whether there was intimacy in the bedroom between the complainant and one of the gentlemen concerned.  Counsel submits that there is a reasonable possibility that intimacy took place.  
	With reference to the statement by the complainant that she was not wearing underwear, it is submitted that what is at issue is the credibility of the complainant.  It is submitted that if a lie was told by the complainant in this regard that this cannot be referred to as a tangential matter.
Conclusion
	In the first place, at the stage when this application was moved ex parte before me, I directed the applicant to put the Director of Public Prosecutions on notice to enable the Director of Public Prosecutions to assist this Court in relation to the matters at issue on this application.  I am satisfied having regard to the views expressed obiter by Kelly J. in Gorman v. Minister for the Environment [2001] 1 I.R. 306 and to the authorities cited by him therein that a higher standard should apply than that of establishing an arguable case such as indicated in the authority of G. v. Director of Public Prosecutions [1994] 1 I.R. 374. In Gorman v. Minister for the Environment Kelly J. referred to the decision of Mass Energy Limited v Birmingham City Council [1994] Env. L.R. 298 . At pp. 307-8 Glidewell L.J. said:- 
“The second matter about which I think it right to express some views, is the proper approach of this Court to this application. When a judge sitting in the Crown Office List or when this Court on a renewed application is dealing with an ex parte application for leave to move for judicial review, if the judge or the court takes the view that the applicant has an arguable case, leave will normally be granted. But what is the position here?
First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us.... Thirdly, as I have already said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail - indeed in really quite minute detail in some instances - in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents. 
For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be - and the approach I intend to adopt will be - that we should grant leave only if we are satisfied that Mass Energy’s case is not merely arguable but is strong, that is to say, is likely to succeed.” 
This view was approved of by Keene J. in R. v Cotswold District Council ex p. Barrington Parish Council (1998) 75 P. C.R. 515. at p. 530, he said: 
“Before dealing with those issues, it is necessary to consider the proper test to be applied to the substantive merits on an application for leave in a case such as this. Reference has been made by the respondents to the Court of Appeal decision in Mass Energy Limited v Birmingham City Council . There Glidewell L.J. stated that, where there has been detailed evidence and substantial argument on an inter partes hearing, leave should not be granted merely because an arguable point has been shown, but only if the applicant shows a strong case which was likely to succeed: see page 308. As I indicated in ex p. Frost, that approach seems in principle to be as applicable at first instance hearing of a leave application as in renewed leave proceedings before the Court of Appeal....For my part, I would prefer to put it on the basis that where the court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the court is in a better 
position to judge the merits than is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to be given leave.” 

	Kelly J. observed as follows at p. 310:-
“That approach appears to me to make a great deal of sense and to make for a more economical use of court time than the application of the substantially lower standard of arguable case to a hearing of this sort. This question must however wait to be decided on another day and in another case where the issue can be fully debated.”
In P. v. Minister for Justice, Equality and Law Reform  [2002] 1 I.L.R.M. 16, Smyth J. approved the observations of Kelly J. in Gorman v. Minister for the Environment [2001] 1 I.R. 306.
I also approve the approach taken by the Court of Appeal in Mass Energy Limited v Birmingham City Council [1994] Env. L.R. 298.  This was the approach apparently applied by Smyth J. in P. v. Minister for Justice, Equality and Law Reform [2002] 1 I.L.R.M. 16.  On this basis I believe that the approach that I should take is to grant leave only if the applicant’s case is not merely arguable but is strong, that is to say, is likely to succeed.
At the heart of the applicant’s case is the assertion that “there is a strong suggestion that the complainant may have been intimate with one of the individuals”. However, this suggestion is not supported by R. and there is no other evidence to support same.  Accordingly, the applicant’s case is based entirely on supposition and speculation.
I consider that it would have been an unwarranted intrusion on the part of the gardaí to have asked the complainant about her prior sexual history or whether she had been intimate with anyone else on the night before the alleged incident concerning the applicant.  I do not consider that the applicant has advanced even an arguable case in support of the contention that the gardaí should have asked the complainant about what occurred with other men on the previous night and questioned her in relation to her prior sexual, history including what may have occurred the previous night.
The obligation on the gardaí to seek out evidence was stated by Hardiman J. in Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305 not to extend to any remote, theoretical or fanciful possibility.  I believe that the applicant’s case is based on such a remote, theoretical or fanciful possibility.  As stated by McCracken J in McKeown v. Judges of the Dublin Circuit Court (Unreported, Supreme Court, 9th April, 2003) at p. 9 [t]here obviously are limits to the lengths to which the gardaí must go in either seeking out or preserving evidence.”  I believe that what has been suggested in the instant case goes beyond those limits.
I am particularly conscious of the provisions of s. 3 of the Criminal Law (Rape) Act, 1981 which provides, inter alia, as follows:-
“(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused.”
In all the circumstances of this case I am not satisfied that the applicant has made out a case which is not merely arguable but is strong, that is to say, is likely to succeed.  Clearly the applicant must establish a case to the appropriate standard at this stage, that there is a real and serious risk that the proposed trial will be unfair by reason of the absence of the information now being sought.
If the applicant is returned for trial the trial judge will be in a position to assess the case and the evidence before him and to give all appropriate rulings and to indicate in the light of any ruling what questions any witness, including the complainant, is obliged to answer.
In all the circumstances I am not satisfied that the applicant has advanced a strong case or one likely to succeed if given leave by this Court.   I also doubt that the lower standard or threshold set down in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 of an “arguable case” has been met.  Accordingly, I refuse the applicant the leave sought.