1. The facts of this case are set out fully in the judgment of Hardiman J. and I do not need to repeat them. I have had the benefit of reading also the judgment of Fennelly J. and at p. 10 of his judgment he says the following:

“Hardiman J., in his judgment, concludes that the trial should be prohibited on the distinct ground that there is a real risk of an unfair trial by reason of the impossibility of producing the desk behind which the offending conduct is alleged to have taken place. In that respect, I agree with his judgment.”

3. I believe that the view I have arrived at in relation to the “desk” issue is soundly based on the opinions expressed by this court in a number of cases but in particular in PO’C v. DPP [2000] 3 I.R. 87. In that case, Keane C.J. in delivering the leading judgment approached the question of whether the applicant in the case was responsible for the delay in reporting the offence, by presuming guilt on his part but having arrived at a conclusion of culpability on that basis applied the presumption of innocence to the question of whether there was a danger of an unfair trial by reason of some specific factual evidence which might have afforded a defence being no longer available.

4. Although my colleagues Hardiman J. and Fennelly J. have expressed somewhat divergent views on the principles applicable to the other issues in the case, I find myself in the invidious position of not being in complete agreement with either.

5. Hardiman J. seems to suggest that an applicant is entitled to have his trial injuncted merely because of an absence of an “island of fact” or merely because there might have been a potential “island of fact” which was never explored. I do not think that the jurisprudence of this court has as yet gone that far and I would not be prepared to endorse it or even consider it without a court of five judges. Hardiman J. has expressed similar views in other cases to which he refers in his judgment. Those views do not appear to have been expressly endorsed by a majority of the court and cannot therefore be regarded at the present time as forming part of the jurisprudence of the court. I think that the “desk” is analogous to the “music room” in PO’C and that in each case there was an actual proven island of fact as distinct from a potential island of fact which might have come to light if investigated.

6. It is clear also that Hardiman J. takes the view that if the evidence is mere assertion contradicted by a mere denial the case should not go to trial. That may well be a tenable viewpoint but I do not believe that this court has ever held that to be the position. In an unreported judgment of this court delivered by me and concurred with by Murray J. (as he then was) and Fennelly J. on the 19th May, 2004 in the case of DD v. The Director of Public Prosecutions, I expressly approved of the following passage in the ex tempore judgment of Kearns J. in the High Court.

“Equally, the island of fact which Mr. Gageby says existed by reference to the dormitory arrangements, I am not satisfied that there is an island of fact such as was capable of being pursued in the way Mr. Gageby says it should have been. Accounts available at this point in time seem to me to be equally consistent with either version of events. I do not think there is either an island of fact or a demonstrable specific prejudice in this case in so far as the accused is concerned. I do accept, and it is one of the great misfortunes of this kind of case, that there is inevitably a sense of a potential prejudice and general prejudice, but essentially this case comes down to a credibility contest between the complainant and the accused. That inevitably is the case across a spectrum of different cases. Notably and I took this as an example, in a rape situation where the defence is consent, there are no other witnesses and it all hinges on essentially the resolution of a contest of that nature. That, of itself, cannot be a ground for stopping a case, the fact that there is simply one person’s testimony against another.”

8. I have the impression from reading the judgment of Fennelly J. that his views on these matters may coincide with mine. But there are other parts of his judgment with which I would have some problems. He has expressed the view (with which I do agree) that Keane J. (as he then was) in PC v. Director of Public Prosecutions [1999] 2 I.R. 25 was not postulating three different tests the first being whether the trial should be prohibited on the ground of delay alone. While undoubtedly reasserting the power of the courts to stop the trial on the grounds of delay alone this has always been postulated in my view as a kind of reserve power to be used for exceptional reasons and in exceptional circumstances and it would be folly on the part of any court to indicate in advance the kind of circumstances in which it would be applied. It would be something quite exceptional and was never intended to be the first of three tests. What Keane J. enunciated was a twofold process. It is quite true that at p. 68 the following sentence appears in his judgment.

“The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired.”

10. Keane J. went on to say that “in other cases” (by that he meant, in my view, the normal run of cases), the first inquiry must be as to what are the reasons for the delay and in a case such as a case of sexual assault where no blame can be attached to the prosecuting authorities whether the court is satisfied as a matter of probability that “assuming the complaint to be truthful” the delay in making it was referable to the accused’s own actions. If that is found to be the case it is necessary then to consider (this time applying the presumption of innocence) whether the accused’s defence is prejudiced by the delay. I call that a twofold test and I think that it has been generally accepted as representing the correct approach even though, as Fennelly J. points out certain members of the court have expressed understandable disquiet at the idea of abandoning the presumption of innocence for any purpose.

11. Where I depart from the views expressed by Fennelly J. is his emphasis on the so-called “special jurisprudence” applicable to sexual cases. I find myself unable to agree with his view that the case law establishes that in a prosecution for sexual offences prohibition can never be granted on the ground of delay alone. As I have already indicated, I am of opinion that that is a reserve power to be exercised by a court in a rare but appropriate case in relation to any criminal prosecution whether sexual or non-sexual where otherwise there would be a real and serious risk of an unfair trial or where in a more general sense the trial would not be “in due course of law” as for instance where there has been an abuse of process or significant prosecutorial misbehaviour. At p. 67 of the report Keane J. in his judgment makes an important observation.

“Clearly the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed.”

13. As I see it, there is no statute of limitations applicable to indictable crime. Accordingly, in theory, a trial may take place a great number of years after the alleged crime has been committed. In many instances this would be regarded as unobjectionable as, for instance, in a murder case where the offence could not be proved against a particular person until the body was found many years later and which then provided the evidence. Depending on the circumstances the alleged perpetrator would probably be put on trial. The mere fact that one or two potential witnesses for the defence had died in the meantime would not necessarily prevent a trial taking place. The court would have to balance the factors and determine whether prohibition would be reasonable or not. If on the other hand a person had been burgled many years before and for some reason best known to himself never complained to the gardaí and then did so many years later, a trial in that instance might be prohibited. It is worthwhile quoting again the well-known passage from the judgment of Finlay C.J. in DPP v. Byrne [1994] 2 I.R. 236 at 245.

“I am driven to the further conclusion that, of necessity, instances may occur in which the delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s capacity to defend himself would be impaired. This must lead of course, to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined.”

“It is a striking fact, nonetheless, that, as this passage implies, the appellant may, in the context of the ‘special jurisprudence’ be required to accept the risk of an unfair trial.”

16. This is all a far cry from the “desk argument”. It is on that ground that I would allow the appeal.