R.C. v DPP

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Denham J.
• Judgment Date: 01 April 2009
• Neutral Citation: [2009] IESC 32
• Date: 01 April 2009

[2009] IESC 32

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

[No: 94 of S.C./2008]

C (R) v DPP

Between/

R.C.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

MCFARLANE v DPP UNREP SUPREME 5.3.2008 2008 IESC 7

SAVAGE v DPP UNREP SUPREME 3.7.2008 2008 IESC 39

MURPHY v DPP 1989 ILRM 71

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949

CRIMINAL LAW

Evidence

Lost evidence - Risk of unfair trial - Non availability of telephone records - Duty to seek out and preserve relevant evidence - Failure of prosecution to seek phone records of complainant while obtaining those of accused - Duty of An Garda Síochána - Whether failure to procure telephone records significantly prejudiced accused - Whether telephone records collateral to central feature of case - Whether records probative in value - Materiality of records - Whether specific prejudice established from non-availability of records - Exceptional circumstances - Test to be applied - Relevance of telephone records - Whether real risk of unfair trial which could not be avoided by rulings and directions by the trial judge - Circumstances of case - Approach taken in investigation - Dunne v DPP [2002] 2 IR 305; Scully v DPP [2005] IESC 11, [2005] 1 IR 242; McFarlane v DPP [2008] IESC 7, (Unrep, SC, 5/3/2008); Savage v DPP [2008] IESC 39, (Unrep, SC, 3/7/2008); Murphy v DPP [1989] ILRM 71; D v DPP [1994] 2 IR 465 and Z v DPP [1994] 2 IR 476 considered - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s 2 - Sex Offenders Act 2001 (No 18), s 37 - Appeal allowed; prohibition granted (94/2008 - SC - 1/4/2009) [2009] IESC 32

C (R) v Director of Public Prosecutions

Facts the applicant had been charged, inter alia, with sexual assault of a minor during a period between May and August, 2001. An important aspect of the complainant’s description of events was that the applicant would call or text her and request her to visit him in his apartment. The applicant stated that whenever he called her it was in response to a call or text from her. He denied the allegations. While the prosecutor procured the applicant’s telephone records and exhibited them, he did not, despite being requested to do so, seek to procure the complainant’s telephone records. The High Court dismissed his application for judicial review which sought to prohibit the prosecution on the basis that the prosecutor had failed in his duty to procure the said evidence and had prejudiced his right to a fair trial on the basis that the telephone records would have corroborated his account of contact with the complainant during the material period. He also complained of prosecutorial delay. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Denham J., Hardiman and Geoghegan JJ concurring) in allowing the appeal and granting an order restraining the prosecutor from proceeding with the prosecutions that An Garda Síochána had a duty to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence so far as was necessary and practicable. That duty had to be interpreted in a fair and reasonable manner and it did not require An Garda Síochána to engage in disproportionate commitment of manpower and resources. If evidence had not been obtained or no longer existed the reason for its absence was part of the factual matrix but it was not a determining factor in the test to be applied as to whether an order prohibiting a prosecution should be made. That test was whether there was a real risk of an unfair trial which could not be avoided by rulings and directions by the trial judge as an order prohibiting a prosecution should generally be made only in exceptional circumstances. In all the circumstances, the telephone records of both the applicant and the complainant were important, relevant and probative evidence which went to the core issue of the credibility of the complainant and the applicant and the prosecutor had a duty to seek both sets of telephone records.

Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305 and Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71 applied.

Reporter: P.C.

1 Judgment delivered the 1st day of April, 2009 by Denham J.

2 Judgment delivered by Denham J. [nem diss]

3 1. This appeal raises the issue of an absence of telephone records.

4 2. This is an appeal by R.C., the applicant/appellant, hereinafter referred as "the appellant", from the judgment of the High Court (MacMenamin J.) delivered on the 31 ^st July, 2007.

5 3. The appellant is charged with sexual assault of a minor, five charges contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s.37 of the Sex Offenders Act 2001. The offences are alleged to have been committed between the 1 ^st May, 2001 and the 31 ^st August, 2001, at which time the complainant was a minor, she became 13 years old during this time.

6 4. An important aspect of the complainant's description of events was that the appellant would call or text her and request her to visit him in his apartment. The appellant has stated that whenever he called her it was in response to a call or text message from her. The appellant has at all times denied the allegations.

7 5. The appellant sought leave to apply for judicial review, to seek an order prohibiting the prosecution.

8 6. On the 19 ^th June, 2006, the High Court (O'Neill J.) gave leave to the appellant to apply by way of application for judicial review for an order of prohibition.

9 7. The grounds upon which this relief was granted were:

10 (i) The appellant stands charged with sexual assault of the complainant in accordance with the charges set out in the book of evidence.

11 (ii) The State's case rests on the uncorroborated evidence of the complainant.

12 (iii) The appellant denies the charges vehemently and says the charges arise as the complainant felt ill will towards him, for reasons more particularly set out in the appellant's memorandum of interview.

13 (iv) Part of the State's case consists of adducing the appellant's telephone records in an effort to implicate him with the complaint and to try to substantiate the allegations.

14 (v) The appellant denies initiating telephone calls and has indicated clearly in his memoranda of interview that, in the main, any telephone calls made to the complainant were in response to text messages and/or telephone calls and/or messages from the complainant.

15 (vi) While the State have procured the appellant's telephone records and have exhibited them, the State did not, despite the explanations in the appellant's memoranda of interview, seek to procure the complainant's telephone records before the matter was returned for trial before the Circuit Court. The appellant stated that the authorities had a duty to procure the evidence (following the authority of the Supreme Court in Dunne v. The Director of Public Prosecutions [2002] 2 I.L.R.M. 241.

16 (vii) Subsequent to the return for trial the matter appeared in the Circuit Court when two counsel were assigned and thereafter the matter appeared in the Circuit Court on the 28 ^th June, 2005.

17 (viii) On that date, counsel for the appellant sought that the complainant's telephone records be now made available by way of disclosure. Counsel's note states that Judge Michael O'Shea adjourned the matter to the subsequent sessions and that disclosure was to be complete.

18 (ix) No disclosure was made prior to the November, 2005 sessions and, at those sessions, the solicitor representing the respondent agreed that the records would be made available.

19 (x) The matter was again adjourned for this purpose to the January 2006 sessions and subsequently to the March, 2006 sessions in order that the State might comply with the agreement to make disclosure.

20 (xi) A letter dated the 30 ^th March, 2006 was sent by the State's solicitor to the appellant's solicitor.

21 (xii) On or about the 25 ^th April, 2006, when the matter was listed before Kilkenny Circuit Court, almost a year from the date of the original application (in circumstances where the required evidence had not been procured), counsel for the State indicated to the court that a letter would be obtained from the telephone company in question indicating that the records were no longer available.

22 (xiii) On or about the 2 ^nd May, 2006, when the matter was again listed before the Circuit Court, counsel indicated that the aforementioned letter from the telephone company would be provided to the solicitor for the appellant by the end of the week.

23 (xiv) No letter was provided by the end of the week.

24 (xv) On or about the 9 ^th May, 2006, the solicitor for the prosecution provided a letter dated the 8 ^th May, 2006, from Meteor mobile telephone company stating that they were unable to provide telephone records dating back to 2001. They also provided a letter from O2, a mobile telephone company stating that they were unable to provide telephone records dating back to 2001.

25 (xvi) In fact, the complainant's mobile telephone number has an "087" prefix, which indicates that she was a customer of Vodafone. No letter was provided from Vodafone stating whether records were available from 2001 nor, more specifically, was a letter provided from any of the three companies stating whether they had records relating to the complainant's actual telephone.

26 (xvii) In the circumstances, it appears that the State has not only failed to procure and make disclosure as...