D.C. v DPP

JudgeDenham J.
Judgment Date21 November 2005
Neutral Citation[2005] IESC 77
CourtSupreme Court
Docket Number[S.C. No. 273 of 2004]
Date21 November 2005
C (D) v DPP



[2005] IESC 77

Denham J.

McGuinness J.

MacMenamin J.

Appeal No: 273/2004




Duties of An Garda Síochána - Sexual offences - Prior sexual history of complainant - Whether duty of gardaí to obtain evidence extended to obtaining prior sexual history of complainant - Dunne v DPP [2002] 2 IR 305 applied; Braddish v DPP [2001] 3 IR 127 considered - Criminal Law (Rape) Act 1981 (No10 ), s 3 - Criminal Law (Rape)(Amendment) Act 1990 (No 32) - Appeal dismissed and leave to seek judicial review refused (273/2004 - SC - 21/11/2005) [2005] IESC 77 - [2005] 4 IR 281; [2006] 1 ILRM 348 - C (D) v DPP


Leave to apply

Standard of proof of ex parte hearing - Whether different standard on inter partes hearing - Whether different test to statutory hearing - G v DPP [1994] 1 IR 374 applied; Gorman v Minister for the Environment [2001] 1 IR 306 overruled - Appeal dismissed and leave to seek judicial review refused (273/2004 - SC - 21/11/2005) [2005] IESC 77 - C (D) v DPP

Facts: The applicant, who was the defendant in Criminal proceedings pending before the Central Criminal Court on charges of rape and sexual assault appealed against the refusal of the High Court to grant him leave to seek by way of an application for judicial review, an order of prohibition prohibiting his trial on those charges. The applicant submitted that there was a serious risk that he would not receive a fair trial by reason of the failure of the Garda Siochana to ascertain the identity of a male, with whom the complainant may have been intimate a short time prior to the occurrence of the alleged offences. Specifically he alleged that the learned trial judge erred in law in finding that it would have been an unwarranted intrusion on the part of the Garda Siochana to have asked the complainant about her previous sexual history or whether she was intimate with anyone else before the alleged incident, in relying on section 3 of the Criminal Law (Rape) Act, 1981 and in finding that the mischief the applicant complained of was something that could be adequately dealt with at the trial.

Held by the Supreme Court (Denham, McGuinness, MacMenamin JJ) in dismissing the appeal: That the applicant failed to establish an arguable case that there was a serious risk that he would not receive a fair trial. The issues of importance in the case, namely consent, credibility and the availability of witnesses were all matters for the trial judge. In essence, what the applicant sought to do, was obtain information regarding the complainant's prior sexual history otherwise than by applying for leave to cross examine pursuant to section 3 of the Act of 1981.

Reporter: L.O'S

Z v DPP 1994 2 IR 476 1994 2 ILRM 481



G v DPP 1994 1 IR 374




BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241


DILLON v O'BRIEN 1887 20 LRIR 300



JUDGMENT delivered the 21st day of November, 2005 by Denham J.


1. The applicant in this case seeks to prohibit a trial in which he is the defendant. Such an application may only succeed in exceptional circumstances. The Constitution and the State, through legislation, have given to the Director of Public Prosecutions an independent role in determining whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having taken such a decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial.


In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.


It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial. This was described in Z. v. Director of Public Prosecutions [1994] 2 I.L.R.M. 481 at p. 498 by Finlay C.J. in the following terms:

"The principles of law applicable"


This Court in the recent case of D. v. Director of Public Prosecutions [1994] 1 ILRM 435 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also was pre-trial publicity) he could not obtain a fair trial.


This was the standard of proof accepted as an onus by counsel on behalf of the applicant in this appeal. It was also accepted, as I understood his submission, by counsel on behalf of the respondent though the latter did draw to our attention certain decisions arrived at in other common law countries and in particular in Australia in which much emphasis was laid upon the balancing between the public requirement of the trial and conviction of guilty persons committing criminal offences and the requirement to try and ensure in some instance as expressed in those decisions "as far as practicable" a fair trial. The three main decisions relied upon in this context were R. v. Glennon (1992) 173 CLR 592, Barton v. R. (1980) 147 CLR 75 and Jago v. District Court of New South Wales (1989) 168 CLR 23.


Even apart from what appears to be the submission of both sides in this case that we should follow our own judgments in the case of D. v. Director of Public Prosecutions I see no reason, on reconsidering the judgments and statements of principle which are unanimous in that case, to depart from them. Furthermore, insofar as the question of balance between the public right and interest to see the proper trial and conviction of persons guilty of criminal offences and the right of an individual to a fair trial under our constitutional provisions, I am satisfied that no mere statement about balancing would be correct. I would prefer to follow the statement contained in the judgment of Denham J in D. v. Director of Public Prosecutions where at p. 443, she stated as follows:


"The applicant's right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.


A court must give some consideration to the community's right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant's right to fair procedures is superior to the community's right to prosecute.


If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused's right to a fair trial being balanced detrimentally against the community's right to have alleged crimes prosecuted."


With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in the case of D. v. Director of Public Prosecutions that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial." (Emphasis added)


It is this law which falls to be applied to the application of the applicant.


2. This is an appeal by D.C., the applicant/appellant, hereafter referred to as the applicant, from the judgment and order of the High Court ( Ó Caoimh J.) delivered on the 18th day of May 2004 wherein the applicant was refused leave to apply for judicial review. The Director of Pubic Prosecutions, the respondent, is referred to as the respondent.


3. The applicant sought leave to apply for a number of reliefs including:


(i) An Order of Prohibition restraining the respondent from pursuing the prosecution entitled: "The People at the suit of the Director of Public Prosecutions v. D. C. " in respect of charges of sexually assaulting one L. H. on the 1st day of November, 2002, and further raping said L. H. on the 1st of November, 2002, as set out in Indictment Bill Number CC0026/03 presently pending before the Central Criminal Court.


(ii) An Injunction restraining the first named respondent from taking any further steps in the Central Criminal Court proceedings, the subject matter of the...

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