D (P) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 23 April 2008
• Neutral Citation: [2008] IESC 22
• Court: Supreme Court
• Date: 23 April 2008

[2008] IESC 22

THE SUPREME COURT

Hardiman J.

Fennelly J.

Kearns J.

217/06

D (P) v DPP

JUDICIAL REVIEW

Between:

P.D.

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

B (C) v DPP 1997 3 IR 140

O'CONNELL, STATE v FAWSITT 1986 IR 362 1986 ILRM 639

O'C (J) v DPP 2000 3 IR 480

J (B) v DPP 2003 4 IR 525 2003/28/6503

C (P) v DPP 1999 2 IR 25

O'C (P) v DPP 2000 3 IR 87

R v H (EF) 1994 ONT CJ LEXIS 140

Z v DPP 1994 2 IR 476

D v DPP 1994 2 IR 465

ARIZONA v YOUNGBLOOD 1988 488 US 51

HAUGHEY, RE 1971 IR 217

H (S) v DPP 2006 3 IR 575

BARRY v IRELAND 2005 ECHR 865

OFFENCES AGAINST THE PERSON ACT 1861 S61

OFFENCES AGAINST THE PERSON ACT 1861 S62

M (P) v MALONE 2002 2 IR 560

M (P) v DPP 2006 3 IR 172

L (P) v BUTTIMER & DPP 2004 4 IR 494

D (D) v DPP UNREP SUPREME 19.5.2004 2004/12/2597

MCFARLANE v DPP 2007 1 IR 134

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599

Mr. Justice Hardiman

1 For a period of time which cannot now be precisely fixed, approximately a quarter of a century ago, the complainant in this matter was active as a male prostitute in Dublin. As such, he had sexual relations with "hundreds if not thousands of people", according to his evidence on cross-examination in the High Court. He appeared to become emotionally involved with some of these.

2 The complainant now makes six allegations of buggery against the applicant, together with eight allegations of indecent assault. All of these are said to have taken place between the 1^st June, 1982 and the 30^th April, 1983, i.e. between 25 and 26 years ago. It appears that, at the time to which the allegations relate, the complainant was functioning as a male prostitute. Although the offence of buggery between consenting adult males was decriminalised in 1993, these allegations appear to relate to a decade before that time, and the complainant alleges he was a child in law at the time of the offences.

3 The applicant/respondent (hereinafter referred to as the respondent), Mr. D. was arrested on these charges on 1^st December, 1998 and has denied them both at that time and ever since.

4 These allegations are plainly old ones. The lapse of time between their alleged commission and the proposed trial is so great that, in any other sort of case, it would itself preclude prosecution. As Denham J. said inB. v. Director of Public Prosecutions [1997] 3 I.R. 140 at p.193:-

"Prima facie the delay of approximately twenty or thirty years between the alleged offences and the pending trial is an inordinate lapse of time."

5 Much shorter periods have also been regarded as inordinate: in a non-sexual case a delay of three years was described as "extreme" by Finlay C.J. inState (O'Connell) v. Fawsitt [1986] I,R. 362. In my judgment in J.O'C v. Director of Public Prosecutions [2000] 3 I.R. 480 I discussed at some length the effect of such gross lapse of time on memory and on the ability to defend oneself; the strong view taken of the risk of a miscarriage justice caused by delay of this order in the Irish authorities prior to the advent of large scale complaints of child sexual abuse and some very disturbing examples of what has occurred when prosecutions have been permitted to proceed after even a much less gross lapse of time. I do not propose to set this material out again here but I wish to be taken as reiterating it. Subsequent cases have graphically illustrated the extraordinary effects of lapse of time of the memory even of trained honest and impartial persons: see for example B.J. v. Director of Public Prosecutions [2003] 4 I.R. 525.

6 InP.C. v. Director of Public Prosecutions [1999] 2 I.R. 25 at p.63 Denham J. observed that a trial after a long period without corroborating or contradicting evidence is "in fact a trial of the credibility of the witnesses". I agree with this. I would however reiterate what I said on the subject in PO'C v. Director of Public Prosecutions [2000] 3 I.R. 87 at pp. 120 and 121:-

"The risks of such a contest are easy to underestimate. A plausible and sympathetic witness is not necessarily telling the truth nor a furtive and cowed one lying. The very pressures of litigation of this sort, so deeply personal and perhaps central to a complainant's self worth on the one hand and so threatening of prolonged imprisonment, life long stigmatisation and financial and familial catastrophe on the other, in themselves have the potential drastically to alter the witnesses' presentation and affect. To permit such prosecutions, in the absence of any scope for corroboration or contradiction after one, two or more decades is to say the least to venture into unchartered territory where the normal forensic safeguards are gravely attenuated. The process of the trial itself may be a life altering event for one or both parties and their families, and rarely for the better. In these circumstances it appears to me that there is in each case a point at which a trial in those circumstances 'puts justice to the hazard' so that the issue of guilt or innocence is 'beyond the reach of fair litigation'."

7 Both of the phrases quoted at the end of the above passage are taken from the earlier cases about delay in civil litigation, discussed in the case just cited.

8 If a person, who is innocent, is confronted with an allegation of this sort, he can only hope to counteract it, in practical terms, if he can show that the complainant has previously made false or improbable allegations of the same kind against himself or another person or if he can contradict the complainant on some important matter of fact. This, I think, would be the universal experience of those who have prosecuted or defended such cases. Perhaps because of the shock which civil society in general sustained from the revelation of incidences of child abuse by improbable persons and in numbers much greater than might have been anticipated, the fact is that the complainant in cases such as this attracts a considerable level of presumptive credence from judges and jurors. The position of a person, who is innocent in fact, but whose defence can consist only of a bare denial (just as the complainants may consist of an unsupported assertion) is very perilous for reasons I have explained in more detail inJ.O'C., (above). This position has been worsened by the removal of a former legal obligation to give a corroboration warning in such cases.

9 In Canada, a jurisdiction in which the large scale prosecution of child sex abuse cases relating to a remote period seems to have commenced, the Ontario Court of Justice remarked inR. v. E.F.H [1994] Ont. CJ Lexis 140:-

"… we are mindful of the fact that this type of case, perhaps more so than any other, carries with it the potential for a serious miscarriage of justice."

10 Against that background it is disturbing to note that there is in this case no "island of fact" as I have used the term in previous cases. In the case as it originally appeared, there were two potential islands of fact: the first was the complainant's allegation that the respondent had taken him to a Sexually Transmitted Disease (S.T.D.) Clinic which was held in Sir Patrick Dun's Hospital, Dublin, for a check up and that he had told the doctor who dealt with him there that he was in a relationship with the respondent. Obviously the facts of the visit to the clinic at Sir Patrick Dun's, if they were capable of establishment, would either support and perhaps legally corroborate the complainant's account or, if resolved in the other way, have a grave effect on his credibility, especially in light of certain observations made below. But it appears that the clinic has since closed. Certain of its records were transferred to St. James's Hospital, and they were there destroyed in a fire, apparently in or about 1998.

11 The respondent was apparently engaged in business at the relevant times and had considerable business documents and diaries which might have enabled his whereabouts at a particular time to be pinpointed exactly. This is of limited value in the circumstances of the case because the charges all relate to unspecified dates between other dates several months apart. But experience shows that it is often possible in the cross-examination of a complainant, on deposition or otherwise, to get him to be much more specific about dates than the prosecution's statement of charges would suggest is possible. In any event, the respondent's documents were themselves destroyed in a fire also apparently having taken place in or about 1998.

12 It would appear that, these records being absent, there is no credible "island of fact" in the case. One must say this with some caution because it is never possible to predict precisely how the complainant will put his case in evidence or of course what defence the defendant will make. But looking at the case as it presently stands, I can see no "island of fact".

13 As mentioned above, the complainant was functioning as a male prostitute in the time when the offences are said to have occurred. He had sexual connections with hundreds if not thousands of people in that time, according to his own evidence. It is, therefore, a matter of some significance how out of all of these people he has come to make an allegation about the complainant specifically, as one of only three named persons he complains of.

14 It appears from the papers that the complainant has a long and unfortunate history of family disharmony and of abuse at a very early age (six or seven years old) by a priest. He was cross-examined on the affidavit he swore for the purpose of these present proceedings in the High Court and a number of features emerged. One of these is that he has since written a text, sometimes referred to as a book, of about 300 pages length about his life...