O'H -v- DPP [2007] IESC 12 (28 March 2007)

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Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'H -v- DPP [2007] IESC 12 (28 March 2007)
URL: http://www.bailii.org/ie/cases/IESC/2007/S12.html
Cite as: [2007] 3 IR 299, [2007] IESC 12

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Judgment Title: O'H -v- DPP

Neutral Citation: [2007] IESC 12

Supreme Court Record Number: 172/03

High Court Record Number: 2002 438 JR

Date of Delivery: 28 March 2007

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Fennelly J., Kearns J.

Judgment by: Fennelly J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Fennelly J.	Appeal allowed - set aside High Court Order	Murray C.J., Denham J.
Kearns J.		Hardiman J.

Outcome: Allow And Set Aside

THE SUPREME COURT

No. 172/03
Murray CJ
Denham J
Hardiman J
Fennelly J
Kearns J

BETWEEN/

O'H

Applicant/Respondent

and
THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

JUDGMENT of MR JUSTICE FENNELLY delivered the 28th day of March, 2007.

1. This an appeal, by the Director of Public Prosecutions, from the judgment of the High Court (McKechnie J) date 28th February 2003, whereby he restrained the Director from further prosecuting the above-named Applicant in respect of charges for sexual offences allegedly committed in the early 1980’s. In order to avoid confusion, I will refer to the Appellant as the Director and to the Respondent as “the Applicant.”
2. This is, thus, yet another in the long line of cases concerning long-delayed prosecution for such offences. The Applicant had, however, failed, before O’Sullivan J, to prevent continuance of his prosecution on the ground of delay alone. The present is a second set of judicial review proceedings arising out of subsequent requests for disclosure or tracing of evidence and information by the prosecution.
3. McKechnie J held that there had been such delays by the prosecution in complying with what he held to have been its obligations to make full disclosure promptly as to amount to blameworthy delay. He held that those periods of delay were inordinate and inexcusable and could not be justified and that the rights of the applicant would be violated if he were to permit continuation of the Criminal proceedings against him.
4. Since the delivery of the High Court judgment in this case, the principles applicable to prosecutorial delay have been clarified by the unanimous judgment of this Court in PM v DPP [2006] 2 ILRM 361. Kearns J delivered that judgment. He cited with approval passages from the judgment of Keane C.J. in PM v Malone [2002] 2 IR 560.
5. The essence of the principles established in these cases is that culpable or blameworthy delay on the part of the prosecution does not, in itself, automatically give rise to an order preventing further prosecution. The Court should engage in a balancing operation. It should balance the public interest in prosecuting crime against the interests of the applicant. Where it is not established that there is a real risk that, due to delay, loss of evidence or the like, the applicant will not have a fair trial, the applicant is, nonetheless, entitled to rely on a number of matters outlined and considered in the case-law. One of these is any additional distress that the applicant has suffered as a result of the delay.
6. These matters will need fuller consideration in this judgment. It will be necessary to consider, in particular, whether the prosecuting authorities were, in fact, blameworthy in respect of their obligations of disclosure so as to contribute significantly to any delay. In addition, it will be necessary to consider whether an applicant, such as the Applicant in the present case, is required to place before the court evidence of any additional distress upon which he seeks to rely.

The Facts
7. The facts are outlined in great detail in the judgment of the learned trial judge. The following is a summary of the essential material.
8. The Applicant was originally charged with three counts of indecent assault contrary to common law as provided for in section 10 of the Criminal Law (Rape) Act, 1981. Those offences are alleged to have been committed between 31st July 1981 and 3rd August 1982 against the same female person who was born on 3rd August 1967. She was, therefore, approximately fifteen to sixteen years of age at the relevant times. The applicant was born in 1937. He is a priest. He has at all times denied the allegations in statements to gardaí, though he did not swear any affidavit either in the earlier judicial review proceedings heard by O’Sullivan J or in the current proceedings.
9. Subsequent to the return for trial six more charges of indecent assault, alleged to have been committed at later dates up to 1987, were added. These were later dropped by the prosecution and are now irrelevant.
10. The Applicant first learned of the complaints on or about 26th July 1995, when solicitors acting on behalf of the complainant wrote to the Applicant’s religious order. The complainant made a complaint to An Garda Síochána on 21st September 1995. The Applicant was charged before the District Court on 13th June 1997 and returned for trial on 16th September 1997. The matter was transferred to the Circuit Criminal Court sitting outside Dublin on 7th October 1997. A hearing date was fixed for 9th March 1998. This date had to be vacated due to a possible conflict of interest affecting the assigned Circuit Court judge. The trial was subsequently adjourned from time to time until, as will appear later, it commenced on 4th October 2000.
11. The Applicant on 25th May 1998 obtained leave to apply, by way of judicial review (the first proceedings), for an order of prohibition or alternatively an injunction restraining the DPP from taking any further steps in the criminal proceedings against him. The Applicant complained of the generally prejudicial effect of the delay and, in addition, claimed that there was a real risk that he would not have a fair trial, due to the loss or absence of evidence.
12. The trial was postponed pending determination of those proceedings.
13. In the same proceedings, the Applicant sought an order of mandamus directing the Director to furnish all reports and records of Dr Bereen which were within his procurement. Dr Bereen had treated the complainant since 1985. The application was made in a context where the complainant had given to the prosecuting garda specific permission to obtain her psychiatric reports from Dr Bereen. The Applicant maintained in those proceedings that fair procedures and natural justice required that these reports be made available to him.
14. O’Sullivan J, in a reserved judgment dated 25th March 1999, rejected the application for orders prohibiting further prosecution.
15. O’Sullivan J also considered the request for access to Dr Bereen’s report. The learned judge noted that Dr Bereen had sworn an affidavit outlining his treatment of the complainant. He concluded that “clearly the material contained in Dr Bereen’s reports may be of considerable relevance not to say assistance to the Applicant in the conduct of his defence.” The debate before O’Sullivan J concerned whether the prosecution should provide Dr Bereen’s reports to the defence or whether, as counsel for the Director contended, they should be sought by way of application for third-party discovery. This all took place prior to the decision of this Court in People(DPP) v Sweeney [2001] 4 IR 102 to the effect that the Rules of the Superior Courts regarding discovery do not apply in criminal proceedings. On the facts of the particular case, O’Sullivan J did not accept the argument that, since the prosecution did not have the relevant documents in their possession, they were under no obligation to hand them over. In view of the complainant’s authority to the garda, he considered that the latter was in a position to require Dr Bereen to hand over the reports and to furnish them to the Applicant. O’Sullivan J said that he was “prepared to make an order directing the [Director] to obtain the complainant’s psychiatric reports from Dr F.J. Bereen pursuant to the explicit authority to that effect given by the Complainant ……and to furnish copies thereof to the Applicant upon receipt.” However, upon the delivery of the judgment, counsel for the Director gave an undertaking in similar terms, and it was unnecessary to make an order. The order allowed liberty to apply.
16. It subsequently emerged that Dr Bereen was unwilling, on the ground of patient confidentiality, to make his reports on the complainant available. The matter was re-entered before O’Sullivan J, who explained to Dr Bereen, on 27th July 1999, that his medical reports should be handed over.
17. Correspondence took place thereafter between the State Solicitor and Dr Bereen with a view to complying with the undertaking given on the part of the Director. The latter wrote on 22nd September 1999 saying that, in his opinion, “it would be better to offer the clinical case notes to be perused by the appropriate people.” On that basis, he made his notes available to the State Solicitor. These, consisting of numerous documents encompassing a considerable number of years, were supplied to the Applicant’s solicitors on 7th October 1999. As Garda Maureen McFadden has sworn they took some time to assemble. They included more than sixty pages of clinical and other hospital notes and records. These disclosed that the complainant suffered from multiple psychological and psychiatric problems including depression and suicidal tendencies. These were principally associated with alcoholism. One note mentioned “obsessive thoughts of her childhood sexual abuse,” without mentioning any culprit. They also included Dr Bereen’s own report dated 7th July 1994 stating that she had experienced two periods of sexual abuse aged between 13 and 15 years and again at 17-18 years of age. It was stated that the perpetrator was a priest. One of the documents handed over at that time was a copy of a letter dated 16th July 1994 from Mary McDonald, Social Worker with Drogheda Community Services Centre addressed to Dr Bereen. It mentioned the complainant’s ability to cope with her child and suggested that it would be more appropriate to community care and that she had been referred to “Margaret O’Sullivan who is a social worker with the Community Care team” in a particular named Health Centre. Another letter of the same date will be mentioned later. It was not included in the disclosure made in October 1999.
18. On 13th December 1999, the Applicant’s solicitors wrote to the state solicitor about this material. That letter stated:

• The discovery material may be inadequate, “in that although reference is made …to a number of psychosexual evaluations carried out on the complainant we have not been furnished any notes which may have been taken by Dr Bereen in relation to his psychosexual evaluations……;
• It was also pointed out that the material disclosed that the complainant had been released in the care of workers presumed to be of the Eastern Health Board and that the latter Board might be in possession of documentation concerning the treatment of the complainant.

19. The solicitor asked, in respect of the first matter whether it was the case that psychosexual evaluations of the complainant had taken place though no notes had been kept and, in respect of the second, that the state solicitor obtain from the complainant a consent to the release of all documentation in the possession of the eastern Health Board concerning her treatment.
20. The solicitors for the Applicant considered that there were other relevant records in existence. They applied to O’Sullivan J on 19th January 2000. He directed that Dr Bereen attend to give evidence as to whether all medical records had been provided. On 17th February, Dr Bereen gave evidence and confirmed on oath that all records in his possession had been handed over. According to the grounding affidavit sworn in these proceedings on behalf of the Applicant, both he and the Court accepted that this was so.
21. The solicitor’s affidavit then states:

“…as there were records in relation to the Complainant in possession of the North Eastern Health Board which were not in the possession of Dr Bereen an application was made to [O’Sullivan J] to make an order directing the North Eastern Health Board to furnish such documentation but the Learned High Court Judge was of the view that this was a matter which should be properly done by way of Notice of Motion to the Third Party namely the North Eastern Health Board.”

22. An application for third-party discovery was, accordingly, made in the Circuit Court and an order was duly made on 21st March 2000. An affidavit was, in due course, sworn on behalf of the North Eastern Health Board on 26th September 2000.
23. According the affidavit of the Applicant’s solicitor, it, therefore, appeared as of that date, 26th September 2000, that all necessary documentation had in fact been furnished.
24. The trial of the Applicant commenced before His Honour Judge Groarke and a jury on 4th October 2000. The jury was discharged by reason of evidence given by the complainant, which the trial judge considered to have been prejudicial. It is not suggested that those events have any bearing on the present application.
25. However, certain aspects of the trial and matters connected loom large in the submissions made on behalf of the Applicant, as they did in the mind of the trial judge.
26. During the partial trial, counsel for the Applicant sought to rely, in cross-examination of Dr Bereen, on notes of various other medical personnel which had formed part of the medical records furnished by the State pursuant to the directions of the High Court. Counsel for the prosecution objected to such reliance unless the defence was in position to call the authors of the notes to prove their making. The trial judge, His Honour Judge Groarke, ruled in favour of the prosecution. But, of course, the trial was stopped and the jury discharged for other reasons.
27. The Applicant then applied successfully to have the retrial transferred to the Dublin Circuit Criminal Court.
28. The Applicant’s solicitors subsequently sought the assistance of the prosecution in tracing the various authors of the notes. This commenced with a letter of 17th October 2000, in which the Applicant’s solicitor stated that he would be obliged if the Chief State Solicitor would “make the relevant enquiries of Dr Bereen as to the whereabouts of these personnel and indicate whether they are available to prove the notes in question……” This correspondence continued until June of the following year. It was not suggested in this correspondence that the prosecution was under an obligation to assist the defence in tracking down witnesses, though the Chief State Solicitor’s office did in fact make inquiries and provided some information. Contemporaneously, the solicitor for the Applicant conducted his own inquiries with the North Eastern Health Board. That Board provided names and addresses of the authors of some of the notes. The solicitor wrote to a number of doctors at the addresses given. The trial was adjourned from time to time before the Dublin Circuit Criminal Court while these investigations were being pursued.
29. On 19th June 2001, the Applicant’s solicitors wrote further to the Chief State Solicitor concerning their efforts to trace the various witnesses they were seeking. In the course of that letter, there is a mention of a letter of 16th July 1994 to Margaret O’Sullivan from Mary McDonald containing the following statement:

"[the complainant ] is from an alcoholic background and there are allegations of physical and sexual abuse within the extended family.”

30. The letter does not disclose when that copy letter had come into the possession of the solicitors. It was not, as already stated, included in the documents handed over by Dr Bereen in October 1999, although there was among those documents a letter of the same date from Ms McDonald to Dr Bereen, which is mentioned above. It seems that it can only have come from the discovery made by the North Eastern Health Board on 26th September 2000. No other possible source is mentioned in the grounding affidavit
31. The trial was listed for 26th June 2001. On 22nd June a hearing took place in the Dublin Circuit Criminal Court, before Her Honour Judge Dunne, as she then was. Counsel for the Applicant applied for an adjournment of the trial, in part on the ground that full disclosure had not been made by the prosecution and in part based on the need to contact and summon defence witnesses. There was a lengthy debate about the steps that needed to be taken in order to get the case ready for trial. Counsel for the Applicant complained to the Circuit Court that the Applicant had been misled by the State, when, in a letter dated 7th June 2001, it had been alleged that that the authors of the relevant medical records had left Ireland and were not contactable. That letter was based, as seems to be accepted by the Applicant’s solicitor in his grounding affidavit, on a communication received from the gardaí dated 6th June 2001. It appears, on the other hand, that the solicitors for the Applicant had received letters dated 16th and 24h May 2001 from the North Eastern Health Board which set out the names and addresses of the authors of these medical records. Judge Dunne concentrated on advising on steps that should be taken by both parties in order to prepare for trial.
32. As a result of these matters, the trial of the Applicant was adjourned. On 1st November 2001, the state furnished statements from the six witnesses who attended the complainant while she was a patient in a particular hospital under Dr Bereen’s care and who were the authors of the notes in question.
33. In addition, there was attached to those statements a copy of a file entitled Drogheda Community Services. According to the Applicant’s solicitor it is crucial that this file contains a notation to the effect that the complainant had made a complaint of sexual abuse against her uncle. That note, dated 6th July 1994, reads, so far as relevant: “She mentioned family history of alcoholism – alleged physical abuse by father – S.A.[meaning sexual abuse] by uncle – discussed possibility of R.C.C.” And, furthermore, that “the said notation contains a reference to what appears to be the Rape Crisis Centre.”
34. The grounding affidavit of the solicitor for the Applicant, seeking leave to apply for judicial review, like the submissions made on his behalf on the hearing of this appeal, attaches great importance to the fact that this particular document had not been available to the Applicant at the time of the incomplete trial which commenced in the Circuit Court on 4th October 2000. The deponent swears as follows:

“The significance of this particular document was that notwithstanding the fact that discovery had been apparently complied with prior to the Applicant’s trial commencing in ……Circuit Court this document in fact was not in the possession of the Defence at the said trial. Accordingly, the Applicant herein had stood trial in circumstances where a document which would have been of significant assistance to him in his defence was not made available to him notwithstanding that it was in the procurement of the Applicant [the Director]. It appears therefore that despite the fact that the Respondent [the Director] had indicated to the Applicant that full disclosure of medical records had been made prior to the Trial in ……Circuit Court, documents containing a reference to the Complainant having made another allegation of sexual abuse had not been provided to the Defence. I am advised by Counsel and believe that this would have been of great significance and hugely relevant to the cross-examination of the Complainant.

35. This disclosure led to further adjournment of the trial on the application of the Director. The solicitors for the Applicant wrote to the Chief State Solicitor on 4th February 2002, pointing out various alleged failures on the part of the prosecution and inviting the Applicant to withdraw the case. The Applicant replied on 19th February declining to do so. On 4th March 2002, the matter was listed for mention in the Circuit Criminal Court. Counsel for the prosecution stated that a further missing file had been found, that they needed time to furnish it to the Applicant and that it had been decided to proceed on foot only of counts 1, 2, and 3, i.e., those representing the original charges. Thus, a new indictment would be prepared. On 15th March 2002, the Chief State Solicitor’s office furnished a copy of the previously missing file. The Court has not been told of the significance of that file, if any. Judge Dunne noted that three previous trial dates had been vacated and fixed 8th October 2002 as the new trial date, marking it as peremptory against the prosecution.
36. On 18th June 2002, the Chief State Solicitor’s office furnished a copy of a letter from the Dublin Rape Crisis Centre indicating that it had no records dating from the period requested by that office. The letter also stated that it was the policy of the centre that it would “neither acknowledge or deny that a person has attended at this centre.” Mr McCartan’s grounding affidavit suggests that it can be inferred that, had an inquiry been made at an earlier date, the centre might have had records in its possession concerning the complainant.

The Proceedings
37. On 26th June 2002, the Applicant applied for leave to apply for judicial review by way of an order of prohibition or alternatively an injunction restraining the Director from taking any further steps in the proceedings. Leave was granted by McKechnie J. The grounds were as follows:

“that the Applicant failed to make appropriate and prompt discovery and/or failed to ensure that appropriate and prompt discovery was in fact made;
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;
that the applicant’s right to a trial in due course of law and with reasonable expedition has been breached; and
that by reason of the aforesaid delay Mr M. O’H. has been prejudiced and has suffered excessive pre-trial anxiety.”

38. The application was grounded on the affidavit of Mr Noel McCartan, the solicitor for the Applicant. The reliefs sought are grounded, in particular, on the following concluding statements:

“There has been considerable and inordinate delay on the part of the State in complying with its obligations. There was considerable delay on the part of the State and the North Eastern Health Board in the issues raised in correspondence. Furthermore, there was and is an absence of clarity in relation to the disclosure aspect of this particular case.”

39. As already stated, the Applicant did not swear any affidavit. The allegation that the Applicant “has suffered excessive pre-trial anxiety,” though contained in the Statement of Grounds, is not supported by any averments in Mr McCartan’s affidavit.
40. Other than the rather cryptic reference by Mr McCartan to “absence of clarity,” there is no statement that the disclosure by the prosecution is or, more precisely, at the date of the order granting leave, was insufficient.
41. I do not think it is necessary to summarise at this point the opposite contentions of the Director, and contained in the affidavit sworn on his behalf by Garda Maureen McFadden. In essence it is contended that there was no culpable delay on the part of the Director.
42. It is clear, I think, that the Applicant’s claim is based on prosecutorial delay. It is not contended at this time, other than in some uncertain way, that there is any specific outstanding information or evidence which has not been disclosed. Nor is it contended that the Applicant faces a real risk that he will not have a fair trial by reason of delay or the absence of any specific or identifiable piece of evidence. Apart from the fact that the application for an order preventing continuance of the proceedings was rejected by O’Sullivan J in 1999, leave to apply for judicial review was not granted on that ground.
43. The application for judicial review was heard by McKechnie J and determined by him in favour of the Applicant in his judgment dated 28th February 2003. The learned trial judge approached the case on the assumption that, although this Court subsequently ruled that third-party discovery orders could not be made in criminal proceedings (see People (DPP) v Sweeney [2001] 4 IR 102), the order of 21st March 2000 made against the north Eastern Health Board should be treated as having been validly made. He referred to the duty of disclosure lying on the prosecution. (Ward v Special Criminal Court [1998] 2 I.L.R.M. 493; R. v Browne (Winston) [1998] AC 367)).
44. He referred to the undertaking in lieu of an order given to O’Sullivan J in respect of Dr Bereen’s medical records and continued:

“It is not correct to say in my view that by reason of these facts alone, the Director of Public Prosecutions had no further responsibility with regard to documentation or with regard to 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 mention and also by reason of certain directions which Judge Dunne gave during the course of such hearings.”

45. This passage is central to the conclusion of the learned trial judge. In effect, he found that the Director, regardless of whether he had a duty to do so or not, had undertaken to assist the applicant in tracing the names and addresses and ascertaining the availability of the various authors of the medical and other notes handed over on foot of the undertaking to O’Sullivan J in 1999. His account of the facts commences with the letter of 17th October 2000, in which the Applicant’s solicitor stated that he would be obliged if the Chief State Solicitor would “make the relevant enquiries of Dr Bereen as to the whereabouts of these personnel and indicate whether they are available to prove the notes in question……” He then mentions that reminders had to be sent to the Chief State Solicitor on 16th and 30th November. Referring generally to this correspondence, the learned trial judge said:

“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 responsibility in his own right, of dealing with the issues raised by the defence.”

46. In reaching this conclusion, the learned trial judge also placed reliance on the transcripts of a number of pre-trial hearings before Judge Dunne. At one point, he states that Judge Dunne on 22nd June 2001 “effectively directed the State to carry out the type of inquiry which evidently was still required.”

47. He concluded:

“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, 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.”

48. The learned trial judge reviewed the then state of the authorities on the issue of blameworthy or culpable prosecutorial delay. It must immediately be said that he did not have the benefit of the subsequent decision of this Court in PM v Director of Public Prosecutions [2006] 2 ILRM 361. That decision requires that the court, considering whether to prevent a prosecution on the ground of prosecutorial delay should balance relevant interests. I will refer to these later. He attached particular importance to the High Court judgment of Geoghegan J in P.P. v Director of Public Prosecutions [2000] 1 IR 403, where the learned judge stated at page 411:

“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.”(emphasis added)

49. The learned trial judge also referred to the judgment of Keane C.J. in P.M. v Malone [2002] 2 IR 560, which mentioned the need for a balancing process before deciding to prohibit a trial.
50. He then attributed blame to the prosecution in respect of a number of periods. They were as follows:

• a period of two years between 17th February 1998, when the applicant’s solicitors first requested Dr Bereen’s notes and 17th February 2000, when O’Sullivan J accepted that the undertaking given to him had been complied with;
• an unspecified period relating to the aborted trial on 4th October 2000 when, he held, great injustice would have been done if the trial had proceeded in the absence of the identification of medical personnel;
• a period from 17th October 2000 through the correspondence with the Chief State Solicitor and the Health Board to March 2002; he held that the Director had failed to address, “in any reasonable time frame the continuing obligations which he still had not discharged.

51. The learned trial judge ruled that the delays by the prosecution had been inordinate and inexcusable and that the rights of the applicant would be violated if he did not grant the order. He did not specify which rights of the applicant had been or would be infringed. In the curial part of his judgment, he did not mention any balancing process. In particular, he made no mention of any extra distress that the applicant might have suffered as a result of the prosecutorial delay which he found to have taken place.

The Appeal
52. The Director has made written submissions. In addition, Mr Maurice Gaffney, Senior Counsel, made succinct oral ones. Firstly, in respect of disclosure, he submits that the obligation of the prosecution is to produce such evidence as is in its possession and that there is no authority for the proposition that there is an obligation on the prosecution to pursue a line of inquiry that may lead to evidence that may assist the defence. Insofar as the prosecution does undertake inquiries the defendant should expect to allow reasonable time for that process. On the facts of this case, such inquiries as were made were made to facilitate and help and, in a sense as agent of the defence. It is submitted that there was no sufficient evidence to support the findings of the learned trial judge in respect of delay. Where the learned trial judge observes that the prosecution had not denied that the material sought by the defence was relevant, it pointed out that only the applicant could make a judgment on that.
53. On the facts, the Director submits that the conduct of the applicant was, at all material times, consistent with a determination to use delay for which he was aware that the Director was not responsible as aground to seek prohibition.
54. The Director relies especially on the decision of this Court in PM v Director of Public Prosecutions, cited above. Delay alone is not enough to prohibit a trial. The dictum of Geoghegan, cited by the learned trial judge is no longer good law. The applicant has not shown that he was prejudiced by the alleged prosecutorial delay. The right of the people of Ireland to prosecute outweighs any stress or anxiety that may have been suffered by the applicant, who has, in any event, sworn no affidavit. It would lead to great uncertainty if stress and anxiety were to be inferred in cases where there was no admissible evidence of any such state of mind.
55. Counsel for the applicant, Mr John Rogers, Senior Counsel, fully supported the judgment of the learned trial judge. He referred to the chronology, set out above, in great detail. He attached especial importance to the fact that the applicant had undergone a trial at a time when, as he put it, there was no full or proper disclosure. This distinguishes the case from any others involving anxiety. It concerns the fundamental right to a fair trial. In any event, the order of the court granting leave sufficiently covered the fact that that the applicant had suffered anxiety.
56. The Director had, in Mr Rogers’ submission, taken on responsibility for disclosure as from the date of the applicant’s solicitors’ letter of 13th December 1999.
57. Having instituted the prosecution in 1997, the Director was aware of the fact that there was an issue regarding the psycho-sexual state of the complainant. Mr Rogers submitted that there was an obligation on the prosecution to conduct extensive inquiries via the Garda Síochána and should have conducted extensive searches of the files of social workers.

Conclusion
58. This is a case of prosecutorial delay. The law has recently been comprehensively decided and explained in the judgment of Kearns J, with the agreement of a unanimous Court in PM v Director of Public Prosecutions. Kearns J approved a number of dicta of Keane C.J. in P.M. v Malone, cited above. I will first refer to that judgment. Firstly, the Chief Justice identified the principle, at page 572, as follows:

“It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.

That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.”

59. The Chief Justice proceeded to describe two of the types of prejudice, other than risk of an unfair trial, which might merit the stopping of a trial:

“The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus . The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.”

60. Finally, and most importantly, the Chief Justice, at page 581, mentioned the need for a balancing test:

“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage. …………Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”

61. Kearns J, in PM v Malone, having reviewed and considered these dicta, proceeded:

“I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”

62. I will return to the question of the balancing test at a later point.
63. First, it seems to me that it is necessary to consider whether there was blameworthy delay on the part of the prosecution. I would have thought that, since O’Sullivan J, in his judgment dated 25th March 1999 rejected the applicant’s case for prohibition based on general delay, that any analysis of delay by the prosecution would have to commence from the date of that judgment. The learned trial judge, however, projected his findings back to 17th February 1998, when the applicant’s solicitors first requested Dr Bereen’s notes. On that basis, the total period of time which elapsed prior to the institution of the present judicial review proceedings was just over four years. From the date of the judgment of O’Sullivan J, it was just over three years. Clearly, the length of any delay is highly relevant.
64. The learned trial judge found that there had been prosecutorial delay for the period from 17th February 1998. However, the applicant applied for and obtained leave to apply for judicial review of the Director’s decision to continue the prosecution on 25th May 1998. The trial was accordingly postponed until the judgment of O’Sullivan J on 25th March 1999. Thus, the principal reason for delay during this period was the applicant’s own judicial review proceedings. Furthermore, it is not clear why the contention of the prosecution that it was not bound to hand over material which was not actually in its possession, even though held to be mistaken, constituted culpable behaviour. I dealt with the analogous problem of delay alleged by the prosecution in the conduct of judicial review proceedings in my judgment in TH v Director of Public Prosecutions (Unreported 25th July 2005). I there remarked: I do not think it right to scrutinise the various steps in the litigation with a view to assigning blame when a party unsuccessfully but bona fide takes or opposes a step in the procedure.” I do not think the prosecution was responsible for any culpable delay up to the date of delivery of the judgment of O’Sullivan J on 25th March 1999.
65. From the date of that judgment, the Director was, of course, responsible for the production to the defence of the medical records and notes of Dr Bereen. But was he in breach of that obligation? I do not think so. It was Dr Bereen who expressed doubts by reason of patient confidentiality. That matter was resolved at a further hearing before O’Sullivan J on 27th July 1999, but the Director was not at fault. I find it even more difficult to understand why the learned trial judge laid blame on the Director in respect of the period between the handing over of Dr Bereen’s records on 7th October 1999 and the final hearing before O’Sullivan J on 17th February 2000. The explanation for that period of delay was that the solicitors for the applicant, by a letter dated 13th December 1999, expressed doubts about the completeness of the records. This, in turn, led to a further hearing before O’Sullivan J on 17th February 2000. Dr Bereen attended and gave evidence that all his records had in fact been handed over. As the learned trial judge records at paragraph 7 of his judgment, O’Sullivan was satisfied with that evidence. The grounding affidavit in the present proceedings states that Dr Bereen “confirmed on oath that all the records which he had in his possession had been handed over and the Court accepted this evidence as did the Applicant.” I see no basis for the conclusion that the Director was to blame in respect of that period.
66. At that stage, therefore, the Director had fully complied with the obligation he had undertaken before O’Sullivan J on 25th March 1999. That obligation related only to Dr Bereen’s records. Although counsel for the applicant sought to persuade O’Sullivan J that there were other relevant records and asked him to make an order directing the North Eastern Health Board to furnish such documentation, that learned judge ruled that the proper procedure was for the applicant to apply in the court of trial, the Circuit Court, for an order for third party discovery against the Board. This was done in March 2000 and complied with in September 2000. Clearly, the Director bore no responsibility for this period. It expired very shortly before the trial on 4th October 2000. The grounding affidavit contains no suggestion or implication of any sort that either the Health Board or the Director was at fault during that period.
67. The solicitors for the applicant have not given any information regarding the discovery obtained from the Health Board. However, it is clear by inference, as I have said, that they already had in their possession, on that date, the letter of 16th July 1994 to Margaret O’Sullivan from Mary McDonald containing the statement that:“[the complainant ] is from an alcoholic background and there are allegations of physical and sexual abuse within the extended family.”
68. I mention this because of the extraordinary emphasis placed by the learned trial judge on the hearing of 4th October 2000 and that, somehow, there was an event of great injustice. The applicant had access at that stage to all Dr Bereen’s medical records and to the discovery made by the Health Board. Insofar as there were other potentially relevant documents in existence, it has not been shown that they were in the possession of the Director. I cannot see that any fault can be attributed to the Director in respect of the period up to 4th October 2000.
69. Thereafter, fault has been attributed to the Director based on the finding that the Director undertook responsibility to the defence to identify the authors of the medical notes handed over by Dr Bereen, which the latter was unable to verify himself. The need for this material arose from the ruling of Judge Groarke that counsel for the applicant could not cross-examine Dr Bereen on the basis of those records, unless their authors were produced to prove them. That ruling may or may not have been correct. I express no opinion on the matter. It was certainly taken as being correct by Judge Dunne for the purpose of the various hearings before her. Its correctness has not been questioned in the High Court judgment. The only question which, therefore, arises is whether the Director thereafter undertook responsibility for those matters. Certainly, he did not do so at any time up to the end of December 2000. During that time the criticism levelled at him in that period concerns failure to respond to correspondence. In any event, I do not think it is possible to infer acceptance of responsibility from the mere failure to deny it.
70. Undoubtedly, extensive correspondence took place between the solicitors for the applicant and the Chief State Solicitor from about the end of 2000 to the early months of 2002, a period of just over a year. It is clear that the Chief State Solicitor agreed to assist the solicitors for the applicant in correspondence with the Health Board. I have referred to this correspondence and it would be tedious to repeat those references. As I have said, inconsistent information was provided by the Health Board respectively to the gardaí for transmission to the Chief State Solicitor and directly to the solicitors. This led counsel for the applicant to allege before Judge Dunne that the defence had been misled. Judge Dunne did not accept this characterization. At any rate, it is clear that the solicitors for the applicant corresponded directly with the Health Board and wrote directly to the various doctors at addresses furnished by the Health Board.
71. The Chief State Solicitor undoubtedly sought to help the solicitors for the applicant in the task of identifying the various doctors mentioned. It is also clear that, at a number of hearings before Judge Dunne, counsel for the prosecution agreed to help in various ways to get the case ready for trial. I have read this correspondence and the transcripts of Circuit Court hearings which have been relied on. I agree with Mr Gaffney that the Chief State Solicitor was endeavouring to assist the defence. I do not accept that such action amount to an agreement to undertake any form of legal duty to assist the defence to find and provide witnesses. I do not agree that Judge Dunne ever purported to make orders directing the prosecution to take any particular steps. Her concern at all times was to persuade both sides to prepare the case for hearing.
72. Among the exhibits in this case is a twenty-two page transcript of a hearing before Judge Dunne, principally concerned with the application of the applicant for an adjournment of the trial then fixed for 26th June 2001. I do not think it is open to the interpretation, placed upon it by the learned trial judge, that Judge Dunne “effectively directed the State to carry out the type of inquiry which evidently was still required.” At one point she said: “The State is not such a body as to be able to dictate one group to tell another group what they should be doing.” She gave as an example, a probation officer and later: “or doctor or whatever.” She commented severely on the failure on all sides to contact the Medical Council to obtain the addresses of the doctors and went on: “I do not understand why anybody can’t, someone in the Chief state Solicitor’s Office cannot ring up that number and I do not know why somebody in Mr McCartan’s office cannot advance matters in that way.” She forcefully rejected the contention of defence counsel that the Chief State Solicitor’s Office had sent a misleading letter. She said: “I do not think the State are trying to mislead anyone. I think it is more a case of being given misinformation which they are relying on.” In response to the same counsel’s request for a copy of a letter from an administrator for the North Eastern Health Board referred to in a report disclosed to Garda McFadden, she stated: “That is not an obligation of the State to furnish that……surely this is going a bit too far.” Counsel referred to the letter of 16th July 1994 from Mary McDonald (referred to in the applicant’s solicitors’ letter of 19th June 2001) and asked for clarification of what Ms MacDonald was going to do before the trial, stating: “We need the State to deal with this and they can deal with it voluntarily……or we will be coming back into Court seeking discovery in relation to what allegations she has made with other people in the extended family.” In the ensuing discussion, Judge Dune mentioned the need to see if the state could contact that person. It is clear that the matter had only been raised in a letter written on behalf of the applicant a mere three days earlier, 19th June. Nor can I see how the state could be expected to make discovery of allegations which might have been made by the complainant “with other people in the extended family." Counsel for the prosecution said that disclosure had been made insofar as “they have those records,” presumably referring to the State. He added: “if any other records exist they are either with Mary McDonald…(interrupted)…”
73. Assuming that the prosecution had accepted responsibility for carrying out further inquiries, as suggested and indeed as found by the learned trial judge, it is not at all clear how they are said to have been in breach. The discrepancies in the information provided by the Health Board respectively to the Chief State Solicitor and the defence has already been mentioned. For reasons already given, the prosecution were not to blame. From the hearing of 22nd June onwards, the prosecution continued with their efforts to assist the defence. It has not been explained how the prosecution were from that date guilty of blameworthy way. The learned trial judge did, of course, speak of inordinate and inexcusable delay. The total period from the aborted trial of 4th October 2000 to the provision of statements from the various authors of the medical notes was of the order of one year. The prosecution had not accepted any responsibility on any view until the end of 2000. They corresponded with the Health Board in the ensuing months. It has not been shown that this should have been done any more quickly.
74. The applicant has attached importance to the late discovery of a Drogheda Community Services file containing a notation suggesting that the complainant had been sexually abused by an uncle. It is not suggested, however, that this had been in the possession of the prosecution and not handed over or that the prosecution were even aware of it. Moreover, the material was not entirely novel. The defence were, as I have suggested, in possession of a letter dated 16th July 1994 containing an allegation of “sexual abuse within the extended family” since September 2000. Nor can I attach any significance to the reference to the Rape Crisis Centre. There is no evidence that the complainant had attended that Centre. The letter from the centre says that they had no records covering the relevant period and states, furthermore, that the centre had a policy of neither confirming nor denying that a person had attended the centre.
75. In short, I do not think the applicant has made out any case for prosecutorial delay.
76. Counsel for the Director has submitted that the actions of the applicant were consistent with a determination to use delay for which he was aware that the Director was not responsible as a ground to seek prohibition. In the absence of something more than the mere history of the case, I would not accept that the advisers were engaged in that type of tactical campaign. On the other hand, the applicant did not, at any stage, protest at the adjournments or insist that his trial be expedited. More generally, I would observe that there is a danger that tactical battles about disclosure in the trial court may be used in future as material for applications for judicial review. In my view the court of trial is the proper venue for such disputes. I am tempted to recall once again the desirability of instituting a mechanism for a preliminary or pre-trial hearing, whose adoption was recommended by the Working Group on the Jurisdiction of the Courts in its report of May 2003 on “The Criminal Jurisdiction of the Courts.” I think this was what Judge Dunne was endeavouring to provide at the various hearings over which she provided. She did not, however, have power, as she made clear, to give any directions or orders.
77. At this point I return to the question of the balancing test. It cannot be doubted, and it has been confirmed in several cases, that there is a strong and legitimate public interest in prosecuting cases of alleged sexual assault on minors. This is such a case. The complainant was about fifteen years of age at the time of the alleged offences. The applicant was thirty years her senior. The authorities show that it is necessary for an applicant to put something into the balance in his favour, if he is to persuade a court to stop his trial.
78. The only suggestion of anything to be put in the balance is contained in the order granting leave, which mentions that the applicant had “suffered excessive pre-trial anxiety.” There is, however, no evidence to support this allegation. I would have thought that, at the very least, the applicant would have sworn a short affidavit explaining or describing that anxiety or stress. Not only has he not done so, but his solicitor does not mention anything of the sort in his affidavit. I am far from saying that it is necessary to have psychiatric or psychological evidence of stress or anxiety. Whether anxiety or stress has been suffered is largely a matter of common sense. I merely say that some evidence is necessary. Here there is none. It is obvious that it is stressful for any individual to have to face criminal proceedings. Some distress is inevitable. There must be evidence of something more than normal, something extra caused by the alleged prosecutorial delay. On this ground, even if there were blameworthy prosecutorial delay, I would hold that the applicant has not established that his trial should be prevented.
79. For all these reasons, I would allow the appeal, set aside the order of the High Court and dismiss the application.

JUDGMENT of Mr. Justice Kearns delivered the 28th day of March, 2007
This is an appeal brought by the respondent from the order of the High Court (McKechnie J.) dated 28 February, 2003 whereby the trial of the applicant was prohibited in respect of various sexual offences alleged to have occurred between July, 1981 and August, 1982. As appears from the comprehensive judgment delivered by McKechnie J., the order of prohibition was made on the grounds of prosecutorial delay, although the learned trial judge also found that the applicant had been seriously prejudiced by the respondent’s failure to make full disclosure either in accordance with law or on foot of an undertaking given in the case by him in that regard.
As the two matters are, to a large degree, overlapping, it is necessary to set out the factual background in some considerable detail.
The complainant is a woman who was born on 3rd August, 1967 and is thus aged 39 years. The applicant is a Franciscan priest who is now aged some 70 years having been born on 29th January, 1937. The complainant lived in a country town and when she was 13 years old she was part of a choir in the local Franciscan church. She used to sing at the 12 o’clock mass each Sunday and the applicant used to say the mass. They met after mass on one occasion and the following week she went to confession to the applicant. He recognised her and asked her how things were. She talked about her father’s drinking, got upset, and he her took around the screen, put her sitting on his knee and started to embrace and kiss her. He then locked the door and abused her sexually.
After this incident, the complainant alleges that she started to drink alcohol and drank continuously every weekend thereafter. Further alleged sexual abuses occurred in a room at the front of the Friary. This abuse is alleged to have continued periodically until she left the choir when she was fifteen years old. According to the complainant, the applicant also called round to the family home and befriended her parents. She alleges that he abused her in the family home on occasions when her parents would be out. She did not tell her parents because they held a high opinion of the applicant. On another occasion, the complainant alleges that the applicant took her swimming to a local beach and there abused her again at a quiet part of the beach in the sand dunes. On another occasion, while the applicant was recuperating from an operation, the complainant alleges that he asked her to go swimming in a pool located at the venue where he was convalescing. She claimed that he tried to have intercourse with her in the swimming pool but she pushed him away and left the pool.
The complainant had a nervous breakdown in 1989 when she was approximately 21. Her breakdown was precipitated by her disclosure of the alleged abuse to her then boyfriend. At that time it seems she had both a drink problem and a skin disorder. She also suffered from anorexia. Her boyfriend suggested that she report the matter but she was unwilling to do so at that stage. Eventually she reported it to the Franciscan Friars in April, 1995 but only after her boyfriend had first reported it to them. Subsequently, she took legal advice from solicitors in Dublin who advised her to report the abuse to the Garda Síochána which she did on the 21 September, 1995.
The complainant had been seeing a psychiatrist, Dr. B, at St Brigid’s hospital within the North Eastern Health Board area since 1985, some four years before she divulged the fact of abuse to her boyfriend. She was treated as an inpatient in St Brigid’s hospital in 1985, 1989 and 1994 with complaints of a cyclothymic mood disorder accompanied by alcohol abuse and obsessive behaviour.
The applicant was out of the jurisdiction in 1995, but on his return he was interviewed by the gardaí on the 26 June, 1996. He appeared, by way of summons, before the local District Court on three charges of indecent assault in June, 1997. Having been served with a book of evidence, he was returned for trial on the 16th September, 1997 for the next sittings of the local Circuit Court scheduled for the 7th October, 1997. Subsequent to his return for trial, he was arraigned on nine additional 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 which represented the applicant 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 February, 1998 and requested sight of the psychiatric reports or records which Dr B had in his possession in relation to the complainant. This request was refused and as a result the applicant sought and obtained leave of the High 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 same and secondly, an order of mandamus directing the respondent 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 up to that point but held in favour of the applicant on the issue of documentation. The learned High Court judge noted that the complainant had given explicit written authority to the prosecuting gardaí to procure relevant reports from her treating psychiatrist, Dr. B., and held that in such circumstances there was an obligation on the respondent to procure same and to make them available to the applicant’s legal advisors. However, prior to making any order, the court was satisfied to accept an undertaking given on behalf of the Director of Public Prosecutions that his office would obtain and furnish the required reports and records.
However, it then transpired that Dr. B. was unwilling to hand over the records in relation to the complainant as he took the view it would breach patient confidentiality. The matter was accordingly referred back to the High Court by the respondent on 27th July, 1999. On that date, O’Sullivan J. clarified that the intent of his judgment was that all such medical reports in the possession of Dr. B. should be handed over.
On 8th October, 1999, those notes and records were made available to the applicant’s solicitors. Much of the material related to the complainant’s history of depression and alcohol abuse. One note referred to her “obsessive thoughts of her childhood sexual abuse” without mentioning the name of any alleged perpetrator. Amongst the documents handed over was a medical report from Dr B. dated 7th July, 1995 in which he recorded that the complainant experienced “two bouts of sexual abuse aged between 13 and 15 years and again at 17 – 18 years. This was perpetrated by a priest.” Also handed over was a letter dated 16th July, 1994 from a social worker attached to Drogheda Community Services Centre which was addressed to Dr B. and which stated:-

“I understand from the letter of referral that your main concern is with D’s ability to care adequately for her child. The Social Work Service in the Community Services Centre is an adult centred service and we have no statutory responsibility in issues of child care. I feel that this case is more appropriate to Community Care and I have referred D to Margaret O’Sullivan who is a Social Worker with the Community Care team in Ballsgrove Health Centre, Drogheda.”

The date of this letter is important because a separate letter (the existence of which only became known at a later point) was sent that same day by Mary McDonald to Margaret O’Sullivan which alluded to the fact that the complainant was from “an alcoholic background and there are allegations of physical and sexual abuse within the extended family”.
The applicant’s solicitors took the view that this discovery, although extensive and running to more than sixty pages of clinical and hospital notes and records, was incomplete. Firstly, there was a reference to certain discharge summaries which had not been enclosed. Secondly, from certain documentation which was disclosed it could be reasonably be inferred that the North Eastern Health Board could have further written material relevant to the complainant’s treatment. Thirdly, there was also a reference to psychosexual evaluations having been carried out on the complainant by Dr B, but no report of any such evaluation appeared in the notes as furnished.
The applicant’s solicitors continued to seek clarification of these matters in correspondence and reminders were sent to the State solicitor in December, 1999 and in January 2000. At this point, the adjourned trial was scheduled to take place on 1st February, 2000.
On 19th January, 2000, the High Court directed the personal attendance before it of Dr. B. to enquire whether or not the direction of the court given in March, 1999 had been complied with. Dr. B. attended in court on the 17th February, 2000 and gave evidence on oath that all notes in his possession had been handed over. However, it then became clear that there were other documents in existence, although not in Dr. B.’s possession, which had been created by doctors, nurses or other staff of St. Brigid’s which were both potentially 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 should be made in the court of trial. This duly occurred and an appropriate order was so made by Judge Groarke on 21st March, 2000. On 26th September, 2000, the North Eastern Health Board filed an affidavit which on the information then existing appeared to contain all relevant documents. The applicant was given to understand that the discovery exercise was now complete.
The trial of the applicant commenced at Dundalk Circuit Court on 4th October, 2000. By reason of certain prejudicial statements made by the complainant the jury was discharged and the further prosecution of the various offences was transferred to the Dublin Circuit Court.
Prior to the making of that order, however, counsel on behalf of the applicant sought to cross-examine Dr. B. on extracts from the victim’s notes and records he had previously produced. It quickly became apparent that many of the relevant entries had been made by other doctors and nurses. Counsel on behalf of the respondent objected to the proposed cross-examination and this objection was upheld by the trial judge who found that unless the individuals who had made the relevant entries were present to prove their notes, such a cross-examination of Dr. B. was not permissible. The stance taken by the respondent is of importance because it provides an explanation as to why the respondent thereafter both offered and assisted in efforts to track down those individuals and to seek further information from the North Eastern Health Board. In the hearing before McKechnie J in the High Court, Garda McFadden was asked by counsel:-

“Q. Did the State not take it upon itself in the course of appearances before the Circuit Criminal Court the job of locating these witnesses and details in relation to them?

A. That is correct, yes”.

On 17th October, 2000, Messrs McCartan and Hogan wrote to the Chief State Solicitor enclosing by way of a schedule eight specified extracts from the documentation in respect of which the identity and whereabouts of the authors was required. When no replies were received, further reminders were sent on the 16th November and 30th November.
While the trial in Dublin was mentioned on the 24th November, 2000, it was adjourned from time to time thereafter as further enquiries proceeded in relation to the documentation.
It was only in March, 2001, that the prosecuting garda, Garda McFadden, wrote to the administrator of the hospital where the complainant had been treated seeking information as to where certain of the individuals who had made entries in hospital notes might be at that time. On foot of replies received, the applicant’s solicitors were informed of the names of certain individuals but not of their addresses or availability. On 7th June, 2001, the Chief State Solicitor’s office wrote to say that the various individuals had “long since left Ireland and were uncontactable”.
However this statement was incorrect. By way of separate initiative, the applicant’s solicitors had written to the same hospital administrator on the 2nd May, 2001 requesting as much information as possible about some of the individuals who had been identified. By letters dated 16th May, 2001 and 24th May, 2001, the hospital administrator provided addresses for virtually all of the individuals whose whereabouts were being sought, including in particular the work address of Mary McDonald.
When the matter was mentioned before Her Honour Judge Dunne (as she then was) on the 22nd June, 2001, Judge Dunne accepted there had been no deliberate attempt to mislead the defence but acknowledged the importance of contacting Mary McDonald, and suggested to both sides that they contact the Medical Council to see if it could trace medical witnesses, stating:-

“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 will help to advance matters. May I also emphasise, Mr Colgan, in case anybody thinks I am directing the State to act in a particular way (that while) I have made the suggestion about the Medical Council that must not preclude any other reasonable enquiries that are made”

The need to make these further enquiries necessitated the further adjournment of the trial. On the 1st of November, 2001 the Chief State Solicitor wrote to the applicant’s solicitors enclosing statements from six witnesses who attended the complainant while she was a patient in St Brigid’s hospital under the care of Dr B. and who were responsible for making certain entries in the records. 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 6th July 1994 in the following terms:-

“D. looks very tired. Violent headache over the weekend – says she would like to go into Rutland. She mentioned family history of alcoholism – alleged physical abuse by Father - S. A. by uncle – discussed possibility of RCC.”

The reference to ‘S. A.’ was of great significance given that for the first time there was now a record indicating that the complainant had made a prior allegation of sexual assault against an uncle. The reference to “RCC” that followed was a reference to the Rape Crisis Centre. This was the first indication that the Centre had been involved in the complainant’s history.
Thus, although the applicant and his legal advisors had been led to believe that a complete disclosure had been made prior to the applicant’s trial in the local Circuit Court, it now became apparent that the applicant had stood trial in circumstances where a document containing information of very great significance and possible assistance to him in his defence had not been procured or made available.
Arising out of the late disclosure of a separate allegation of sexual abuse by an ‘uncle’, the prosecuting Garda, Maureen McFadden, decided to take a further statement from the complainant on the 27th November, 2001. In this statement the complainant said:-

“Further to my previous statements I wish to state that I was never sexually abused by my uncle. I used the term uncle to cover up the fact that it was a priest Fr. X who was abusing me sexually and I was too ashamed to say it was a priest. If the social worker thought that it was an uncle that was abusing me she would have acted accordingly.”

On the 28th November, 2001, the respondent applied to adjourn the applicant’s trial on the basis that the various witnesses who had made entries in relation to the medical records of the complainant were not available to give evidence and that disclosure by the State was still outstanding. Further, counsel for the respondent indicated that a further relevant file had been identified and was being sought. In the circumstances, Judge Dunne vacated the trial date of 3rd December, 2001 and fixed a new trial date for the 6th March, 2002.
The case was further adjourned on that date when counsel for the respondent indicated to the court that the State had now found the missing file. The list of documents on the ‘missing file’ was set out in a letter dated 5th March from the State solicitor’s office. The list referred to documents which had been previously furnished prior to discovery of the missing file. This naturally caused the applicant’s solicitors to write further on the 12th March enquiring as follows:-

“If all of these documents were contained in the ‘missing file’, then it would seem that this file was never in fact missing as we had been previously furnished with a substantial number of the documents which you furnished us in your letter of the 5th of March.

Having regard to the entry in the documents furnished dated the 27th of June 1996, please furnish all records from the Rape Crisis Centre in relation to the complainant.

Is it your intention to furnish us with a statement from Margaret Sullivan of her observations on ‘missing file’ now that it has been found? We note that your counsel indicated to the court when this matter was last adjourned that it would be the prosecution’s intention to identify the authors of the various notes on the missing file and to obtain statements from them if possible.”

On the 20th March, 2002 the case was again in the judge’s list. On this date a copy of a fresh indictment was provided to the defence. Judge Dunne observed that three previous trial dates had been vacated and then fixed 8th October, 2002 for the trial of the action and marked the same peremptorily against the prosecution. The new indictment revealed that the prosecution now intended proceeding only with counts 1-3 on the original indictment. By further letter dated 18th June, 2002 the Chief State Solicitor’s office furnished a letter from the Rape Crisis Centre indicating that it had no records from the period requested by the State Solicitor’s office.
A clear explanation for the missing file only became available when this matter was at hearing before McKechnie J. in the High Court on the 23rd January, 2003. Garda McFadden gave evidence that the file had been removed from Ballsgrove Health Centre by a senior social worker and was located ultimately in a safe in St Brigid’s Hospital. This information about the missing file was obtained by Garda McFadden from social worker Margaret O’Sullivan. It appeared that a senior social worker had removed the file in September, 2000 but had left his name on a tracer card in the filing system of the Health Centre. Garda McFadden gave evidence that she spoke with the senior social worker in question, who declined to make any statement about this matter. Garda McFadden stated that she was unable to explain why the file ultimately came to be recovered from a safe in St Brigid’s Hospital. Given that Dr. B. worked in St Brigid’s, the witness was pressed as to why the file had not been found in the earlier searches. Garda McFadden replied that she had no power over the North Eastern Health Board and how they carried out their business. However, beyond noting that the list of documents stated to be on the missing file included a number of documents which had already been furnished to the applicant’s solicitors, there is no evidence to suggest that the file had been hidden or concealed in some deliberate fashion, although it is curious indeed that the tracer card records that the file was removed in September, 2000, being the time at which the North Eastern Health Board was making its third party discovery.
On the 26th July, 2002 leave was obtained from the High Court (McKechnie J.) to bring the present judicial review proceedings. The criminal trial has thus been further adjourned to await the outcome of those proceedings. However, from the history set out above, it is apparent there were no less than sixteen occasions when this case was listed before the Circuit Court in Dublin and that at least three trial dates had to be vacated. In addition, a trial of the applicant took place in October, 2000 at a time when the Drogheda Community Services file and information therein about the alleged sexual assault on the complainant by her uncle should have been available, as should the ‘missing file’ which was ultimately found in the safe at St. Brigid’s. It has never been suggested that had searches been made with due diligence prior to that trial, they would nonetheless have failed to turn up the files in question.

Decision
In the course of the appeal Mr Rogers, senior counsel for the applicant, argued that that there had been blameworthy prosecutorial delay in this case such as fully justified the decision of the learned High Court judge to make an order of prohibition, notably in circumstances where a specific undertaking as to disclosure of documents had been given on behalf of the Director on the 25th March, 1999. He also advanced an argument that what he characterised as the ‘total failure of disclosure’ in this case was such as to warrant prohibition.
I am satisfied to rest my decision on the first of these grounds. I do so for the particular reason that disclosure in this case was the subject matter of a specific undertaking which in time broadened into a more general undertaking to assist in procuring relevant documentation. The case therefore is not one in which it is necessary or appropriate to delimit the scope of the duty of disclosure in criminal cases in general, beyond affirming that the nature of that duty was fully set out by this Court in Ward (Director of Public Prosecutions) v Special Criminal Court

[1999] 1 IR 60. My judgment therefore will not, subject to one or two comments, revisit the authorities dealing with the obligations of gardaí in the investigation of crime to

“seek out and preserve all evidence”

material

to guilt or innocence, such as

Braddish

Director of Public Prosecutions

[2001] 3 IR 127,

Director of Public Prosecutions v. Dunne

[2002] 2 IR 305,

Bowes and McGrath v.

Director of Public Prosecutions

[2003] 2 IR 25 and

Scully v Director of Public Prosecutions

[2003] IEHC 92. In both

Dunne

and

Scully

however this Court stressed that there must be reasonable parameters on the obligation to seek out and preserve evidence. There is no obligation on the prosecution to marshal a defence for a person accused of a criminal offence. It should also be said that there is an independent obligation on the legal advisors of an accused to prepare his defence and to pursue lines of inquiry themselves to that end.

However, with regard to the obligations on the prosecution, it was noted by the Court of Appeal in

R. v. Brown (Winston)

[1997] 3 WLR 447, that

“the investigative process will also require an inquiry into material which may affect the credibility of potential Crown witnesses”

and in

Director of Public Prosecutions v. Dunne

this Court accepted as correct the 1997 United Kingdom code of practice which provided that a proper police investigation will involve obtaining and retaining

“material which may be relevant to their investigation”. “Relevant material”

in this context is described in para 2.1 of the code as including

“material…that has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.”

It is common case that the material ultimately disclosed to the defence in this case had a direct relevance insofar as the credibility of the complainant is concerned. The fact that a statement was sought and obtained from the complainant in November, 2001 by way of purported explanation of an allegation of sexual assault

‘by her uncle’

in 1994 speaks for itself. The Court has been given no reason why the file in which this note was contained was only discovered in November, 2001 or why another file in relation to the complainant went missing and only eventually turned up in a safe at St Brigid’s hospital in March, 2002. The late disclosure of these files is a matter of particular concern because the applicant stood trial in the year 2000 without being aware of the note which contained the allegation made by the complainant against her uncle. The contents of that note were hugely significant in terms of any cross-examination of the complainant. As McKechnie J. observed in the course of his judgment at para. 43:-

“had this trial proceeded to conclusion great injustice could have resulted and could have been caused to the accused person”.

This is a case where counsel on behalf of the respondent gave an undertaking in March, 1999 to obtain and to furnish Dr B.’s medical records on the complainant to the defence. In addition, Judge Groarke in the Circuit Court made an order in March, 2000 directing the North Eastern Health Board to make third party discovery of all records in its possession. Further the complainant herself had at an early stage consented to the release of her medical notes. The respondent, as noted in the judgment delivered by Fennelly J, participated in this process and in my view assumed a responsibility in so doing. The trial in October, 2000 could not and did not begin until the applicant had been given to understand by the respondent that everything relevant had been handed over. That this was not the case was amply demonstrated in the events which followed.

Was there ‘blameworthy prosecutorial delay’ in this case? In my view there was, even if one altogether excludes from any calculation the period up to and including the delivery of judgment by O’Sullivan J. in the earlier judicial review proceedings. One might also exclude the period up to October, 1999 when Dr B. finally agreed to hand over his reports and records as the respondent can not be faulted for the stance taken by Dr B. up to that point. Thereafter things went badly off the rails. Although the prosecution was in possession of the third party discovery since September, 2000, no follow-up inquiries were made into the suggestion contained in the letter of 16 July, 1994 (which seems to have been part of that discovery) that the complainant had been the victim of sexual abuse

“within the extended family”.

Thus it was that a most important disclosure was not made until November, 2001 and further disclosure was continuing into 2002. While part of the blame for this state of affairs is attributable to officers or agents of the North Eastern Health Board, the latter may arguably be seen as an emanation of the State, notably where an approach has been adopted by the respondent which may be seen as assumptive of overall responsibility for disclosure in the present case. From the applicant’s point of view it makes little difference which of several State bodies is causing delay – he must endure the added stress which ensues, including the distress of discovering that he stood trial without a crucial piece of evidence being made available to him. Furthermore it must be remembered that his legal team were, at the urging of the respondent, restrained at trial from cross-examining Dr B. in relation to any notes or records other than those he himself had written.

The law on prosecutorial delay has been considered in a number of cases, including

P.P. v. Director of Public Prosecutions

[2000] 1 IR 403,

P.C. v. Director of Public Prosecutions

[1999] 2 IR 25,

B.F. v. Director of Public Prosecutions

[2001] 1 IR 656,

Director of Public Prosecutions v. Byrne

[1994] 2 I.R. 236,

P.M. v. Malone and others

[2002] 2 IR 560 and, most recently, by this Court is

P.M. v. Director of Public Prosecutions

[2006] IESC 22.

P.C. v Director of Public Prosecutions

[1999] 2 IR 25, Keane C.J. referred to the

State

(

Healy) v. Donoghue

[1976] I.R. 325 and pointed out that in that case Gannon J. had construed Article 38.1 of the Constitution – which provides that no person shall be tried in any criminal charge save in due course of law – as recognising the right of an accused person to a trial with reasonable expedition.

P.P. v Director of Public Prosecutions

[2000] 1 IR 403

Geoghegan J. stressed the obligation which lies on prosecuting authorities to move expeditiously in recognition of those rights, particularly in old cases, stating (at p. 409):-

“It is not acceptable and, in my view, is a breach of a defendant's 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.”

While in that case, Geoghegan J. took the view that where blameworthy delay was found to exist in such cases, no additional actual prejudice need to be proved, Keane C.J. adopted a different emphasis in

P.M. v. Malone

[2002] 2 IR 560

when he stated (at p. 581):-

“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there was a real and substantial risk of an unfair trial then, as pointed out by Denham J. in

D. v. Director of Public Prosecutions

[1994] 2 I.R. 465, the applicant's right to a fair trial would necessarily outweigh the community's right to prosecute. Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”

This Court in

P.M. v. Director of Public Prosecutions

[2006] IESC 22, expressed its preference for the approach indicated by Keane C.J. when in the course of my judgment (with which the other members of the Court agreed) I stated:-

“… the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of substance, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”

Needless to remark, the above list of factors should not be seen as exhaustive, given that each case turns on its own facts. An additional factor stands out clearly in the instant case. That is the undertaking and approach adopted by the respondent in this case to make full disclosure of the medical records and to assist in procuring same from a third party, namely, the North Eastern Health Board. It was probably an approach adopted and broadened by reference to the objections which the prosecution itself had raised at the trial in October, 2000. Having assumed this responsibility the respondent clearly did not comply with the obligation thereby arising within a reasonable time. Having noted that the applicant’s solicitors had diligently pursued the process of endeavouring to identify the authors of medical notes and records on their current whereabouts, the learned High Court judge noted that the reaction and conduct of the respondent could not be measured in the same light. He noted from reading the correspondence that, throughout the process, the respondent persistently failed to respond to letters and constant reminders were sent to his office in order to expedite the process. By letter dated 7th June, 2001, the Chief Prosecution Solicitor stated in respect of the authors who had made notes and entries that

“these witnesses have long since left Ireland and are not contactable”.

However, the administrator of St. Brigid’s Hospital had entered into separate correspondence with the applicant’s solicitors and had by letter dated the 24th May, 2001 given an address for each of the individuals in question. In my view there were ample grounds which enabled McKechnie J. come to the conclusion that there had been a

“wholly unacceptable response on the part of the respondent in dealing with the undertaking given to O’Sullivan J. on the 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”.

While significant documentation was ultimately produced in March, 2002 and June, 2002, it was a lethargic process to say the least of it. Indeed when the case was mentioned before Judge Dunne on the 22nd June, 2001 she was moved even then to observe:-

“The State appears to be going backwards in relation to this case as opposed to moving forwards in terms of what is happening”.

It is fair to say that none of these delays were attributable to the applicant, and certainly not to his legal advisors who were pursuing their correspondence relentlessly though with unsatisfactory results with the Chief Prosecution Solicitor. At para. 48 of his judgment McKechnie J stated:-

“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 learned trial judge further noted that 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, on 3rd December, 2001 the case was further adjourned when 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.

At para. 52 he stated:-

“…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 Mary McDonald. In addition the Drogheda Community Services file was disclosed. As was another file from the social worker in March, 2002. Finally there was a 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 an 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.”

In my view, there was full and adequate evidential basis for these findings of the learned trial judge.

It was forcefully argued on behalf of the respondent that the applicant, while he had asserted increased stress and anxiety by reason of delay, had failed to swear an affidavit deposing to that fact. It was suggested that he therefore failed to meet the criterion established in the case of

P. M. v. Director of Public Prosecutions

[2006] IESC 22.

In this regard, the learned trial judge found (at para. 53):-

“In my opinion such a conclusion is a reasonable inference from the facts and events above outlined”.

Having recently dispensed with the requirement for psychiatric evidence to explain complainant delay, I would regard it as a retrograde step if in any case where heightened levels of stress and anxiety can reasonably be inferred as a matter of good common sense from the factual history, that there should in addition be imposed upon an applicant seeking relief the obligation to furnish psychiatric evidence in support of that contention. Nor should a failure to depose to additional distress or anxiety be a prerequisite to relief if it is glaringly obvious from the facts, as in this case, that any reasonable person would have so suffered. For a man of the applicant’s age to undergo a trial as he did in the year 2000, a trial which collapsed through a mishap, and then to discover that a critical piece of information had not been made available prior to that trial, can only be seen as a particularly worrying and stressful matter. Counsel for the respondent had argued before this Court that different people react in different ways to matters of this nature, but I would have no hesitation in approving the course adopted by McKechnie J., namely, to draw an appropriate inference, where it is reasonable to do so, on the facts of the particular case. In the context of the balancing exercise which the Court must conduct I would in most instances prefer the application of an objective test to measure any assertion of increased anxiety or distress by an applicant rather than a purely personal or subjective test. The latter approach in my view would simply open the door to such claims in virtually every case. This is not to say that in an appropriate case an assertion of increased distress arising through prosecutorial delay may not be buttressed by medical evidence.

Finally, and to the extent that any relief granted in this case has a discretionary element, I am also influenced by - though do not decide this case by reference to - a number of cases where, following an order of

certiorari

in the High Court, the High Court has nonetheless exercised its inherent jurisdiction to decline to remit the matter back for trial to the inferior court from which the case had come on the basis that it would be unfair to do so in circumstances where the accused had ‘endured enough’.

Thus in

Dineen v. District Justice Delap

[1994] 2 I.R. 228, Morris J., having found that the conduct of a trial in the District Court was totally unsatisfactory, declined to remit the matter back to the District Court

“… in circumstances in which the accused had endured hardship and the prosecution cannot be acquitted of all blame for what went wrong with the trial the appropriate step to take is not to remit the matter for further hearing.”

These words were adopted by Morris J. from the judgment of Hederman J. in

Sweeney v. District Judge Brophy

[1993] 2 I.R. 202 when he stated (at p. 211):-

“…the proper exercise of the Court's discretion would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for some, at least, of what went wrong at the trial. I would, too, have taken into account the fact that the applicant has spent a length of time in detention in respect of an alleged offence that was towards the lower end of the scale of minor offences.”

That there exists such an inherent jurisdiction was expressly acknowledged by Finlay C.J. in

Sheehan v O’Reilly

[1993] I.L.R.M. 427 at 434. These cases highlight a concern, an understandable concern, albeit in a different area of judicial review, that a person who has already been exposed to the criminal process should not be deprived of basic fairness when a court is called upon to decide if he should be exposed to the criminal process on another occasion. This is particularly so where the prosecution have been at fault and where an applicant has himself been at risk. Both of these latter considerations arise in the instant case when one considers the circumstances surrounding the trial which took place in the year 2000. The prosecution was at least partly to blame for not procuring the note going back to July, 1994. The applicant was very clearly at risk of being convicted in the absence of the information contained in the note. I see no reason why the underlying principles in these

certiorari

cases should not, to some extent at least, inform the exercise of the Court’s discretion in the present application though I do not base my conclusion on them.

I would dismiss the appeal.

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'H -v- DPP [2007] IESC 12 (28 March 2007) URL: http://www.bailii.org/ie/cases/IESC/2007/S12.html Cite as: [2007] 3 IR 299, [2007] IESC 12