R B v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 26 February 2019
• Neutral Citation: [2019] IECA 48
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2018/273
• Date: 26 February 2019

BETWEEN/

R. B.

APPELLANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2019] IECA 48

Baker J.

Birmingham P.

Baker J.

Kennedy J.

Appeal No. 2018/273

THE COURT OF APPEAL

Prosecution – Sexual assault – Delay – Appellant seeking an order of prohibition on the grounds of delay – Whether the loss of evidence was prejudicial to the applicant’s defence

Facts: The appellant appealed to the Court of Appeal from the decision of the High Court given on 14 May 2018 ([2018] IEHC 326), and order perfected on 1 June 2018 by which the appellant was refused judicial review by way of prohibition to restrain the prosecution of him on a single count of sexual assault alleged to have been committed between 1 January 1992 and 31 December 1993. The appellant raised arguments of delay, lost and unavailable evidence, and general unfairness arising from the lapse of time.

Held by the Court that the appellant had not made out any basis on which the High Court failed in its application of established legal principles.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT delivered on the 26th day of February 2019 by Ms. Justice Baker

1 This is an appeal from the decision of Coffey J. given on 14 May 2018, [2018] IEHC 326, and order perfected on 1 June 2018 by which he refused the appellant judicial review by way of prohibition to restrain the prosecution of him on a single count of sexual assault alleged to have been committed between 1 January 1992 and 31 December 1993.

2 The applicant raised arguments of delay, lost and unavailable evidence, and general unfairness arising from the lapse of time.

Background

3 The alleged assault is said to have occurred when the accused was 18 or 19 and the complainant, a young boy, was between 8 and 9 years of age. The allegation is that the appellant sexually assaulted the complainant on an occasion when he stayed overnight in a mobile home in which the appellant and his family were then living. The complainant alleges that he fell asleep on a couch beside the appellant and that he was assaulted whilst he was on the couch. Following the alleged incident, the complainant alleges that he told the appellant's mother of the incident and that she shouted at him and asked him to leave her home. The appellant argues that evidence central to his defence relating to the incident, and to the living arrangements in the mobile home, have been irretrievably lost owing to the death of his mother in late 2015. The complainant stated that he told his own mother about the incident, but it is fair to note that the evidence proposed from the mother of the complainant is of an incident of a somewhat different nature from that the subject of the prosecution.

4 In February 2014, the complainant made a statement of complaint to the Gardaí and a file was then assembled. The Gardaí took statements from various potential witnesses and in late August 2014, invited the appellant's mother to make a statement in regard to the allegations that had been made against her son, but she declined to do so.

5 About a month later, in September 2014, the Gardaí interviewed the appellant and made him aware of the allegations made against him. On 19 February 2015, the Director of Public Prosecutions issued a direction that the appellant be charged with a single count of sexual assault. Thereafter, a period of more than a year elapsed when the Gardaí were unable to locate or contact the appellant with a view to an arrest by arrangement for the purposes of charging him.

The basis for judicial review

6 The appellant sought an order of prohibition on the grounds of delay, and argued that in addition to delay simpliciter, actual prejudice was been caused to him in the defence of the charge on account of the fact that his mother died on 15 November 2015, and that because she was the first person to whom the complainant is alleged to have communicated regarding the alleged incident and because she knew the living and sleeping arrangements in the house, the loss of her evidence is prejudicial in a material way to his defence.

The grounds of appeal

7 The notice of appeal identifies seven grounds of appeal which may usefully be summarised as follows:

(a) the trial judge erred in failing to have regard to the prejudice to the appellant arising from the loss of the evidence of his mother who is now deceased, and further erred in concluding that other witnesses identified in the book of evidence could provide evidence to address any unfairness that might arise from the loss of that evidence;

(b) that the trial judge erred in failing to have regard to the fact that the indictment contains a single complaint only;

(c) that exceptional circumstances exist which make it unfair or unjust to put the appellant on trial, such exceptional circumstances being the combined effects of the death of an essential witness, that the alleged incident is not identified by reference to a single date, that the applicant is now in his mid-forties, and that the incident is alleged to have occurred twenty-five years ago or thereabouts.

8 The appeal is fully defended.

Legal principles

9 It is convenient to first outline the general principles which govern the exercise of the jurisdiction to prohibit a trial. The case law is unequivocal. The power of the High Court to order prohibition of a trial is an exceptional remedy, and there is no real contest between counsel regarding the exceptional nature of the remedy. Recent jurisprudence has shown a preference for leaving any matter that arguably might give rise to unfairness to the trial judge, and such an approach most accurately reflects the balance of interest between the accused person and the administration of criminal justice.

10 In the Supreme Court decision of Nash v. DPP [2015] IESC 32, at para. 4.3, Clarke J. pointed out that:

‘A trial should only be prohibited from going ahead where it is clear that such balance lies against a full trial on the merits being permitted. I was not satisfied that it was at all clear that such is the case here. It will remain, of course, a matter for the trial judge to form a judgment (which judgment the trial judge will be in a much better position to exercise) whether that balance tips against allowing a final determination of Mr. Nash's guilt or innocence to be determined by a decision on the merits. In particular the trial judge will be in a much better position than this Court to assess the state of the evidence in that regard not least because there are many issues of admissibility which may have a significant impact on the extent to which Mr. Nash may be able to place before the Court any defence which he wishes’.

11 The point is so well established in the authorities that it is not necessary to consider it further and both counsel accept that the starting point must be that the prohibition of a trial will be granted only when the circumstances are exceptional, and that each case is decided on its own merits.

12 In order to succeed in an application for prohibition, an applicant must show that there is a real risk of an unfair trial, and that that risk is not one that can be fairly dealt with by the trial judge in the giving of directions and in the management of the trial. There has been an increased emphasis on the centrality of the role of the trial judge in achieving fairness, and for the purpose of the present appeal, I adopt the statement of Charleton J. in his concurring decision in Nash v. DPP, where he explained the approach of recent jurisprudence, at para. 23:

‘It will be noticed that the law has moved on since those decisions. The trial judge now has the primary role in decisions of this kind and judicial review is rarely appropriate. An application to the trial judge is an alternative to judicial review. As Clarke J states in his judgment on this appeal, if the case is one that there has been a diminishment in the availability of a trial that would be otherwise complete in every respect due to the factors complained of, then this judgment would concur that since the appropriate balance may best be seen by the trial judge in the context of a complete analysis of the facts of the case, it is preferable that an application to halt the trial be made to that forum. Where however, as Clarke J states, the case is one of a clear denial of justice resultant upon the factors found to be culpably wanting, prohibition by the High Court should be granted. An application to stop a trial before the trial judge may best be decided upon a consideration of all of the evidence and how the alleged defect, be it delay or missing evidence or unavailable witnesses, impacts on the overall case. Whether the real risk of an unfair trial that cannot otherwise be avoided then exists is, in such cases of an argument that justice has been diminished, often best seen in the context of such live evidence as has been presented and not through the contest on affidavit that characterises these cases on judicial review seeking prohibition in the High Court or on appeal.’

13 The trial judge quoted that statement with approval.

14 The reason for this approach to the respective roles of the trial judge and the High Court hearing an application for prohibition bears reflection. A court hearing an application for prohibition must have regard to the constitutional imperative that the proper forum for the determination of criminal matters is a trial by judge and, where appropriate, judge and jury. The trial court is uniquely competent to determine questions of guilt or innocence, and processes and procedures founded in the presumption of innocence and the nuanced respective roles of the prosecution and defence and of the trial judge have evolved to respect each of these interests.

15 In recognition of the uniquely complex and evolved practice in the trial courts, particularly that...