DPP v C.C.

JurisdictionIreland
JudgeO'Donnell J.,Mr Justice Peter Charleton,Ms. Justice Iseult O'Malley,Mr. Justice Clarke
Judgment Date19 December 2019
Neutral Citation[2019] IESC 94
Date19 December 2019
CourtSupreme Court
Docket NumberSupreme Court appeal number: [S:AP:IE:2018:000025] Court of Appeal record number 2016 No. 210 [2017] IECA 326 Circuit Criminal Court bill number: Bill No. CC 110D/13 [Supreme Court Record No: 25/2018] Record Number: 2018/25
BETWEEN/
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR/RESPONDENT
AND
C.C.
DEFENDANT/APPELLANT
BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR/RESPONDENT
- AND -
CC (COUNTY CLARE SEXUAL ABUSE)
ACCUSED/APPELLANT
BETWEEN:
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT/PLAINTIFF
-AND-
C.C.
APPELLANT/DEFENDANT
BETWEEN/
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
PROSECUTOR/RESPONDENT
AND
C. Ce.
DEFENDANT/APPELLANT

[2019] IESC 94

Clarke C.J.

O'Donnell J.

MacMenamin J.

Charleton J.

O'Malley J.

Supreme Court appeal number: [S:AP:IE:2018:000025]

[2020] IESC 000

Court of Appeal record number 2016 No. 210 [2017] IECA 326

Circuit Criminal Court bill number: Bill No. CC 110D/13

[Supreme Court Record No: 25/2018]

Record Number: 2018/25

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Crime & sentencing – Sexual offences – Offences occurring substantial period of time in past – Fairness of trial – Lapse of time

Facts: The appellant had been accused of serious sexual offences committed against his niece in 1971/1972. After some period of time, charges were brought by the DPP. A key third party witness had died before being interviewed or giving evidence. The appellant had made an application to have the trial halted on the basis the lapse of time and the death of the third-party witness would render the trial unfair. The trial judge had refused the application, and the Court of Appeal had dismissed his appeal. The matter now came before the Supreme Court, leave to appeal having been granted in [2019] IESCDET 3.

Held by the Court, that the appeal would be dismissed. Four of the Judges considered that the trial judge was required to assess whether a defendant had been deprived of a realistic ground of defence by the lapse of time. Clarke CJ set out the elements that were relevant to that assessment, which were also discussed in the other judgments. The Court divided however on the application of that assessment process to the facts in the instant case. The majority considered that the delay and absence of the third-party witness did not render the trial unfair. The minority disagreed and stated that the absent of a central witness rendered the trial unfair.

Judgment of O'Donnell J. delivered the 19th day of December, 2019.
Introduction
1

The incremental development of the law is not simply linear. Cases emerge with different facts which place principles previously announced in a different light, perhaps requiring reconsideration, qualification, and even, on occasion, a change of course. General principles announced by appellate courts are applied in a myriad of different situations by trial courts, and by repetition can become reduced to rules of thumb which over time may themselves require further clarification, adjustment or qualification. The development of the law in any field is a process of adjustment and correction.

2

The emergence of the phenomenon of allegations of child sexual abuse occurring many years prior to the making of the complaint has been a significant feature of life in many countries in the late 20th century, and has posed particular problems for the law, both civil and criminal. At the risk of some oversimplification, it came to be recognised that the sexual abuse of children was a serious problem which, by its nature, tended to remain hidden. It was further recognised that one of the consequences of the sexual abuse of a child at a young age is that the victim would frequently be unable to make a complaint and to pursue it for many years afterwards. This was particularly so at a time when the phenomenon of sexual abuse of children was not generally recognised in society.

3

The lapse of time, however, between an allegation of abuse, a complaint, and any trial (whether civil or criminal) poses obvious problems for the fairness of the process towards the defendant, and, therefore, the fairness of the process generally. Normally, it is understood that trials, particularly those which depend on the oral evidence and recollection of witnesses, should proceed within a reasonably short period from the events described. It is generally accepted that there comes a point when any dispute about events goes beyond the reach of fair litigation, and becomes, if anything, a matter for historical debate and opinion, rather than adjudication with all the legal consequences that may follow. At that point, any trial would not be the administration of justice. There are a number of matters which are relevant to the decision as to whether that point has been reached, which may include any culpability on the part of the prosecution in the lapse of time, the length of the lapse of time itself, the death or unavailability of witnesses, the loss of real evidence, records or recordings, or any other events that real life can throw up. Even then, while there may be an agreement that there is, in principle, a point at which an allegation, even of serious criminal conduct, is beyond the reach of fair litigation, different courts and different judges may reasonably differ as to whether that point has been reached in any particular case. To that extent, the assessment is always dependent on the facts of a particular case, and the manner in which those facts are evaluated.

4

As set out in the judgment of the Chief Justice, the approach of the courts to criminal prosecutions in respect of child sexual abuse that is alleged to have occurred at a considerable distance in time from the trial has gone through a number of distinct developments. Initially, the Superior Courts heard judicial review applications seeking to prohibit such trials on grounds of lapse of time and/or culpable delay. Cases of that kind developed to involve sometimes lengthy hearings on oral evidence as to the cause of the delay in making a complaint, and, in particular, whether it could be said that the delay or lapse of time could be explained as a consequence of the abuse alleged to have been suffered. Apart from the inherent difficulty of applying such a test in the context of the criminal process, the fundamental component of which is that the accused is presumed innocent, such hearings could be an additional ordeal for the victim, and also necessarily created the prospect of very substantial delays in the trial process.

5

A significant development occurred in S.H. v. Director of Public Prosecutions [2006] IESC 55, [2006] 3 I.R. 575 (“ S.H.“), when Murray C.J. stated that the courts had now acquired considerable judicial knowledge of the phenomenon of abuse, and its consequences for criminal complaints. He said at p. 620 of the report:-

“45 As I stated in P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 at p. 105:-

‘Expert evidence in a succession of cases which have come before this court and the High Court has demonstrated that young or very young victims of sexual abuse are often very reluctant or find it impossible to come forward and disclose the abuse to others or in particular to complain to gardaí until many years later (if at all). In fact this has been so clearly demonstrated in a succession of cases that the court would probably be entitled to take judicial notice of the fact that this is an inherent element in the nature of such offences.’

46 The court's judicial knowledge of these issues has been further expanded in the period since that particular case. Consequently there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer “new factors”.

47 Therefore, I am satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. The court would thus restate the test as:-

The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case.”

6

As identified in the judgment of the Chief Justice at para. 1.3, it has become accepted as broadly preferable that, other than in very clear-cut cases which will not be affected by the development of the evidence at the trial, this issue:-

“should be left to the trial judge rather than, as tended to be case during the earlier stage of the development of the jurisprudence, be decided in proceedings which sought to prohibit the conduct of the criminal trial before it commenced. It will be necessary to refer briefly to that development in due course, but the underlying reason behind it was a view that a trial judge would normally be in a much better positon to assess the real extent to which it might be said that prejudice had been caused to the defence by the lapse of time in question”.

7

This development can itself be traced to the decision in The People (Director of Public Prosecutions) v. P.O'C. [2006] IESC 54, [2006] 3 I.R. 238 (“P.O'C.”), and the judgment of Denham J. (as she then was), where she said, at pp. 247 to 248:-

“Thus, in the course of the trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay.”

8

It is not necessary to consider in detail the steps by which it was considered inappropriate to permit these matters to be dealt with by preliminary application at the trial, as occurs in some other comparable jurisdictions. See Connelly v. DPP [1964] A.C. 1254, 1354, 1355 and the...

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