Gaeilge

Title:	P.L. -v- Buttimer & anor
Neutral Citation:	[2004] IESC 110
Supreme Court Record Number:	348/03
High Court Record Number:	1992 442 JR
Date of Delivery:	12/20/2004
Court:	Supreme Court
Composition of Court:	Hardiman J., Geoghegan J., Fennelly J.
Judgment by:	Hardiman J.
Status:	Approved
Details:	Allow and set aside and grant order of prohibition sought
Judgments by Link to Judgment Hardiman J. Link Geoghegan J. Link Fennelly J. Link

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Hardiman J
Geoghegan J.
Fennelly J.

Between:

JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2004.

1. This is the applicant/appellant’s appeal against so much of the order of the High Court (Herbert J.) perfected the 9th September, 2003 as refused to restrain the second-named respondent from taking any further steps in relation to a prosecution of the appellant. In the prosecution, the Director has preferred eight counts of indecent assault on one B.L. These are said to have taken place between the 1st July, 1966 and the 30th June, 1968 i.e between 36 and 38 years ago.

2. The appellant seeks relief on the substantial ground that the delay and lapse of time between the dates of the alleged offences and the prosecution thereof is such that of itself, and in all the circumstances of the case, will as a matter of probability cause the appellant prejudice in the defence of these proceedings. He says that to proceed with the criminal trial would be unfair and unjust and would constitute a violation of his right to a trial in due course of law.

Factual background.
3. The applicant was born in April, 1928 and is accordingly now in his 77th year. He is a retired teacher and a member of a religious order. The complainant was born in May, 1956 and is now in his 49th year. He works as a public relations consultant having formerly worked as a child care worker and in the advertising industry. He is the holder of a diploma in psychotherapy, awarded in the mid 1980ies. He has been seeing a psychiatrist since that time.

The allegations
4. The allegations relate to a time when the appellant was a teacher and the complainant a pupil at a school in a large provincial town. The complainant alleged that while he was in fifth and perhaps sixth class in the National School he was sexually abused by the appellant in the following context. He said that the appellant had a stamp collecting class on Saturday mornings between 10am and 12 noon. At this class, he said, the appellant would sit at his desk at the front of the class. He would call the boys up one by one with their stamp books. In view of the arguments made on the hearing of the appeal I set out in full the complainant’s description of the desk:-

“The desk was tall, enclosed at its front and sides and as one looked up towards it from the class the only portion of one’s body visible was the chest upwards”.

The desk itself was on a raised platform.

5. The form of abuse alleged was that, while looking through the complainant’s stamp book, the appellant allegedly felt his private parts by putting his hand up the leg of the appellant’s short trousers when he was wearing these and by pulling his trousers down if he was wearing long trousers. He also said that the appellant exposed himself on these occasions though he also stated that he was unable to say how he managed to do this since he always wore a soutane. At the relevant time, the complainant was been between 10 and 12 years old and the appellant between 38 and 40 years.

Conflict on facts.
6. The appellant was interviewed on several occasions by the Gardaí and he consistently denied the allegations. He said he could not remember the complainant individually but from records was aware that he had taught him in sixth class in 1967/68. He had never taught 5th class. It seems that during most of his career he taught scholarship classes until these were abandoned with the introduction of free secondary education in 1967. Up to then, he said, he was teaching on Saturdays because the scholarship classes would have extra tuition. With the ending of the scholarship classes he said he began to play golf on Saturday mornings from 8.45am onwards. He did not recall at all bringing students to the desks during stamp class and doubted if he himself sat there. His denials of the allegations were repeated and couched in very strong terms. He appears to have cooperated fully with the Gardaí and identified his handwriting in the rolls for the relevant years. There were however no rolls for Saturday morning. The applicant denies that the stamp collecting classes ever took place on a Saturday morning.

7. After service of the Book of Evidence, which contained the description of the desk quoted above, the applicant said in an affidavit that to the best of his recollection the teachers’ desks:-

“were not enclosed but were low tables with drawers on one side and that they were placed on a raised platform at the front of the classroom… They were not as described by the complainant”.

8. He said however that he could not independently verify his recollection of the desks because the items themselves were not available for inspection having been replaced by more modern classroom furniture and that the authorities of his Order could not establish exactly when the replacement took place.

9. It appears that the appellant’s suggestion that he was elsewhere on Saturday mornings in and after 1967 may have been put to the complainant because other evidence was produced suggesting that the stamp collecting classes had perhaps occurred on Friday evenings. In a replying affidavit the complainant stated that “stamp collecting classes were held occasionally on Saturday mornings in the school by the appellant”. (Emphasis added)

Islands of fact.
10. The two factual matters mentioned above – the day on which the stamp collecting classes took place and the nature of the desk – appear to be the only islands of fact, as I have used that term in other cases, in what is otherwise a case of unsupported assertion and bare denial.

11. The role of such isolated factual elements in a case such as this was described, in my judgment in JO’C v. DPP [2000] 3 IR 478 at 504:-

“The effect of documentary, physical or forensic evidence, where it exists is to provide some basis on which the part of a case which depends on mere assertion can be assessed and tested. Inevitably there will be a certain number of criminal cases, and far fewer civil cases, in which no such evidence exists. In such a case each side will normally look to the surrounding circumstances: the prosecution to see whether there is corroboration or at least evidence consistent with the allegations being true, and the defence to see if there is material with which the complainant’s story can be contradicted, even on a collateral matter, or his credibility challenged. Apart from the effect of lapse of time on the memories of those principally involved, an interval of twenty or more years makes it difficult if not impossible to clarify the surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the parties can be correlated and tested. The element of hazard or chance which this state of affairs introduces into a trial has been recognised for centuries. The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all”.

12. The role of evidence in relation to surrounding circumstances was more fully discussed in PO’C v. DPP [2000] 3 IR 87. There, the continuation of a trial was prohibited on the basis that the applicant was able to point to a relevant aspect of the case – whether or not a particular door was capable of being locked – “which it is reasonable to think could have been the subject of irrefutable evidence one way or the other but for the very lengthy lapse of time”, and which would have been useful to the defendant.

Proceedings in the High Court.
13. By order of the High Court (O Caoimh J.) of the 29th November, 1999 the applicant was granted leave to seek certain reliefs by way of judicial review. These were, firstly, a declaration that by reason of delay in the institution of the criminal proceedings there is a real risk that the applicant will suffer prejudice in making a defence at the trial of the said charges against him and in consequence that the applicant has been denied his right to a fair trial; and secondly an order restraining the Director from taking any further steps in the said criminal proceedings. The grounds on which he was permitted to seek these reliefs were:-

(i) That the delay and lapse of time between the dates of the alleged offences and the prosecution thereof, the delay being such that of itself and in all the circumstances will as a matter of probability cause the applicant irreparable prejudice in his defence of the proceedings.

(ii) That to proceed with the criminal trial would be unfair and unjust to applicant.

(iii) Violation of the applicant’s right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution.

14. The statement of grounds was verified by the affidavit of the applicant. In this he said that he spent the period between 1949 and 1992 training and subsequently working as a primary school teacher, apart from a brief period of illness. He stated without qualification that at no stage did he take his stamp collecting classes on a Saturday morning; that he could not specifically recall the attendance of the applicant at his academic class or indeed his stamp collecting class. He denied the allegations strongly and complained of the lack of specificity in them. In a subsequent affidavit he made the complaint, summarised above, about the nature of the desks behind which the abuse was said to have taken place. The complainant swore a largely formal replying affidavit but subsequently, on the 9th November, 2001, swore a further affidavit in which he altered his previous account by accepting that he was in 6th class, not 5th class, at the time he alleged the abuse occurred; stating that the stamp collecting classes were held “occasionally” on Saturday mornings and confirming that “What I experienced with [the applicant] happened behind the classroom desk”.

15. It is significant to note that, at the time the judicial review proceedings were commenced, the applicant was charged with offences of indecency against three boys in all, the other two being the present complainant’s brother and another person who had been a class mate of the present complainant. In the case of these other complainants, the prosecution was restrained: it continues in the case of one complainant only, Mr. B.L.

16. A number of features of the High Court judgment are of considerable relevance on this appeal. First of all, the learned trial judge distinguished the cases of the other two complainants from that of the present complainant by holding that, in their cases, the Director “has wholly failed to discharged the burden of proving on the balance of probability that the reason for the delay of between eighteen and twenty-four years in making these complaints after all dominance by [the applicant] had ceased, is attributable to the alleged actions of the applicant.” In relation to the present complainant, however, he held this burden had been discharged (assuming the account of the complainant to be true). He made his finding, however, wholly on the evidence of the complainant himself. He dismissed, for cogent reasons set out at length in his judgment, the evidence of a psychologist called on behalf of the Director and he pointed out that a psychiatric witness had declined to express an opinion on the topic.

17. On the question of prejudice he held in relation to the other two complainants:-

“I am satisfied that in the circumstances of this particular case, from the length of this delay alone [eighteen to twenty-four years] that the court is entitled to presume and does so presume that the capacity of the applicant to defend himself is thereby materially impaired and that accordingly the trial in respect of these two complainants should not be allowed to proceed because of the risk of its being unfair even if no specific prejudice is in fact established”.

18. This is a finding on the first test described in the judgment of Keane J. (as he then was) in P.C. v. DPP [1999] IR 25, at 68. This test will be discussed at greater length below. There is no statement in the judgment of why the present applicant was not entitled to succeed on this test. In relation to the allegation of specific prejudice (the third test in P.C.) the learned trial judge emphasised that there would be no obligation on the applicant at the trial to prove the day on which the stamp collecting classes were held, his whereabouts on Saturday mornings, or the position and structure of the desk. He also pointed out that one of the original complainants actually agreed with the applicant’s recollection of the structure of the desk and that it had not been proved that others did not do so. He also said that:-

“It is open to the applicant to give evidence himself or for others to give evidence as to his or their recollection of the form and placement of the desk. The probative value of this evidence will of course depend entirely on whatever credibility the particular testimony might command before a jury. Physical evidence of the form and the placement of the desk would be an item of factual evidence by which a jury could assess the accuracy and reliability of the recollection of two of the complainants. As this evidence is no longer available and as it cannot be ascertained for how long it has not been available, the applicant contends that he is significantly prejudiced in the conduct of his defence.”

The appeal.
19. The applicant appealed to this Court from the judgment and order of the High Court in so far as it refused relief in respect of the trial of the allegations made by B.L. The respondent did not appeal against either the prohibition of the trial of the allegations made by the other two complainants nor against such of the findings of the High Court in relation to the case involving the present complainant as were adverse to him.

20. Apart from grounds relating to the findings of responsibility for the delay, which will be mentioned below, the relevant grounds of appeal which were actually argued were the following:-

“(5) That the learned High Court judge, having held that periods of eighteen to twenty years and nineteen to twenty-four years delay on the part of the other complainants was such as to impair the capacity of the applicant to defend himself against the allegations, erred in law in failing to hold that the lapse of time with regard to the third complainant did not import such a risk;

(6) That the learned High Court judge erred in law and in fact failing to hold that the applicant had established specific prejudice so as to give rise to a real risk of an unfair trial;

(7) That the learned trial judge erred in law and in fact in failing to find that the applicant would, in the particular circumstances of the case suffer an impediment to his ability to defend himself as a matter of probability;

(8) That the learned trial judge erred in law and in fact failing to find that the delay in and of itself amounted to prejudice in the particular circumstances of this case.”

The applicable tests.
21. In P.C. Keane J. (as he then was) set out p. 68 of the report three issues requiring to be addressed in cases such as the present. He began:-

“Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of unfair trial: that, after all, is what is meant by the guarantee of a trial ‘in due course of law’. 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 person to defend himself or herself will be impaired”.

22. The learned judge continued:-

“In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present 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.”

23. He then continued:-

“If that stage has been reached, the final issue to be determined will be whether the degree to which the accused’s ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case, because given the finding that the delay is explicable by reference to the conduct of the accused it is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial.”

24. These three sections of the judgment set out what I have called the first, second and third tests to be applied in cases of this sort. The judgment in which they are enunciated is an authoritative one which must be regarded as binding in the present case.

The first test.
25. It must first be observed that this is a very old case, even by the standard of child abuse cases. If the Director is successful in this appeal it may be anticipated that the trial will come on for hearing approximately thirty-nine years after the first cause of complaint allegedly occurred. Moreover, this will occur in a case wholly dependent on the recollections of the complainant and the applicant with no relevant “island of fact” which can be used to test the reliability of the complainant’s memory or the accuracy of his account.

26. This is a matter of grave concern because, as I said in my judgment in JO’C, cited above:-

“If a defendant who is innocent is exposed to a trial where the only evidence is unsupported assertion and the only defence bare denial, his position is indeed perilous. Where these cases have been successfully defended it has, in my experience, always been because it has been possible to show that the complainant’s account is inconsistent with objectively provable facts relevant to the allegations, or that the complainant has made other allegations against other people which are lacking in credibility”.

27. Neither of these factors are present in this case.

28. In the same judgment, I set out at some length what the longstanding attitude of Irish Courts to greatly delayed cases had been, prior to the advent of the present large number of child abuse cases. The classic Irish formulation is to be found in the judgment of Henchy J. in this Court in Ó Domhnaill v. Merrick [1984] IR 151 at 157. This was a case about a traffic accident which had occurred some twenty-four years before the hearing of an application by the plaintiff for an extension of time to serve a statement of claim. Henchy J. said:-

“I consider that it would be contrary to natural justice and an abuse of the process of the Court if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the accident.”

29. He continued:-

“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial”.

30. Henchy J. concluded:-

“Although the plaintiff’s case is not statute-barred I would hold that the lapse of 24 years between the cause of action and the hearing of the complaint – a delay which is virtually entirely the fault of the plaintiff or her advisers – is so patently and grossly unfair to the defendant that her claim to have the case against her dismissed is unanswerable”.

31. There are many other authoritative dicta to the same effect. In Sheehan v. Almond [1982] IR 235 the Supreme Court regarded a seventeen year old accident as having faded “into the dim uncertainties of the past so as to be beyond the reach of fair litigation”.

32. I consider that this formulation is another way of expressing the substance of the first test quoted above: is the matter simply “beyond the reach of fair litigation”?

33. O’Reilly v. Coras Iompair Eireann [1973] IR 278 was a case where the lapse of time was about eight years. This was regarded by the Court as:-

“In itself a possible cause of miscarriage of justice both for the plaintiff and for the defendant… furthermore the possibilities of success of either side may have been made haphazard by the fact that the passing years may have dulled or distorted the memories of witnesses”.

34. In O’Keeffe v. Commissioners of Public Works (unreported, Supreme Court, 24th March, 1980), which was an industrial accident case, the Court considered that a hearing which would take place twenty-three years after an accident would be “a parody of justice” because one witness had died and another’s memory had been” all but obliterated” by the passage of time.

35. It must be emphasised, firstly, that these examples could be multiplied and citations to similar effect found in cases from jurisdictions other than our own. Several of the Irish cases cite with approval the observations of Diplock L.J. (as he then was) in Allen v. Sir Alfred McAlpine and Sons Ltd. [1968] 2 QB 229 at 232:-

“ Where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the Court being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard”.

36. Secondly, it must be emphasised that, in considering the question of the fading or distortion of memories, it is not sufficient to consider only the memories of the complainant or the defendant. The memories of third parties who might have been able to give evidence about vital surrounding circumstances are also liable to fade. In PO’C v. DPP [2000] 3 IR 87, the vital surrounding circumstance was whether, at a date some eighteen years previously, a particular door in a music school had been fitted with a lock. The retired principal of the institution was approached for information on this topic and he replied:-

“Unfortunately, details such as those you seek constitute the minutiae that fade from the memory simply because they seem to be of no particular import at the time”.

37. This, I believe, is a statement of general application and ordinary human experience, aptly and elegantly expressed.

38. It is however a feature of these very old child abuse cases that minutiae – the form and structure of a teacher’s desk, the day of the week on which stamp collecting classes were held – suddenly become of great importance many years later because they are the only potential islands of fact in what is otherwise a case of mere assertion and bare denial.

39. Thirdly, the risks of a trial featuring only mere assertion and bare denial fall disproportionately on the defence. In JO’C, I rejected the view that long delay prejudices both parties equally saying:

“It is contrary to actual experience of these trials, where the prosecution case is often in fact strengthened, since many alleged victims may give clear evidence of the alleged offences but assert failure of memory due to lapse of time when asked about the all important surrounding circumstances. These, of course, are the only possible basis of an attempt to test the evidence”.

40. The truth of this, in my view, is illustrated in the present case. The applicant was first confronted with allegations relating to extracurricular classes said to have taken place on Saturday mornings in his school. He advanced the alternative view of the facts, and the possible alibi, described above. The prosecution’s reaction to this was to suggest that the classes may have taken place at another time, and to file an affidavit of the complainant saying that the classes took place occasionally on Saturday mornings. The vagueness on this point may be quite understandable after almost forty years, but, understandable or not, it deprives the plaintiff of one of the two islands of fact in the case. Furthermore it is an unfortunate reality of criminal trials that a complainant may resile from his or her position about a matter of detail such as that under discussion quite easily, but if a defendant were to do so it would, in practice, be gravely prejudicial to his or her credibility.

A forensic contest.
41. On an application such as this, it is essential to bear in mind the fundamental nature of a trial in due course of law, and certain realities about such a contest. In a passage cited above it is said that “The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all”. The reason for this is that a forensic inquiry proceeds as far as possible upon evidence, not prejudice or mere impression and each of the protagonists in such a trial seeks to offer reasons why the result it urges should be arrived at, as opposed to unreasoned appeals to give credence to their side of the case. It would be quite wrong to convict a person of a serious offence, likely to lead to prolonged imprisonment, social familial and often financial destruction, and lifelong stigmatisation as a sex offender, purely on the basis of impression, as opposed to reason. Despite this, there will often be aspects, and sometimes important aspects, of a serious criminal trial which depend on an assessment of credibility. This situation is fraught with the risk of miscarriage of justice. There is no litmus test, in such circumstances, for determining who is telling the truth. I make no apology for reiterating the passage I cited in an earlier case from a judgment of Lord Atkin in Lek v. Matthews [1926] 25 Lloyds Reports 525 at 543:-

“The lynx-dyed judge who can discern the truth teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the bench”.

42. Every conscientious fact finder is, I think, conscious of this limitation. A purely impressionistic decision is as likely to be wrong as right, and one cannot hope to justify it objectively. When one adds to the centuries’ long experience aphorised by Lord Atkin the disturbing fact, illustrated below, that with lapse of time, and perhaps in other circumstances as well, a person may state with perfect honesty and every appearance of conviction. that which is false, the difficulty is compounded. In particular any comfort one might derive from an assessment of the demeanour, that is the presentation and affect, of the witness is gravely undermined.

43. In such circumstances it is both natural and essential to seek some objective factor in the evidence for the purpose of forming a reasoned opinion as to where the truth lies and for the almost equally important purpose of being able to justify a conclusion. The reason behind this almost instinctive search for an objective factor was, as it happens, pithily expressed, again by Lord Atkin when he said:-

“I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”.

44. This is in no way to denigrate the necessity for the tribunal of fact to see and hear the witnesses, the value of that exercise, or the difficulty, amounting in many cases to impossibility, of reaching a conclusion without doing so. But it serves to emphasise that to proceed without any element of comparison with known facts is a profoundly hazardous matter.

A special case.
45. There is no doubt that cases of child sexual abuse do constitute a special case from the point of view of considering delay in making the allegations, for the reason set out by Finlay C.J. in G v. The Director of Public Prosecutions [1994] 1 IR 374 at 380. It is for these reasons that cases have been permitted to continue after periods of time which would prevent any other class of prosecution from proceeding to trial. I believe however that these cases are in a special category for another reason as well: because of the insidious and destructive effect which a long period of time may have on the ability of an innocent person to defend himself or herself. There have already been alarming cases of apparently wrongful convictions: I have discussed some of them in my judgment in JO’C. In my view, there is alarmingly little evidence available to the Courts as to the effect of long periods of time on the reliability of complainant’s, or other persons’, memories. I do not propose to reiterate the illustrations of this which I have given in previous cases but I will mention two recent cases which suggest that the fallibility of memory over time is astonishing, and as yet not properly explored.

46. In J. v. DPP (Supreme Court, unreported, 19th December, 2003), the witness in question was a retired Detective Sergeant of An Garda Síochána. There was no question whatever about his honesty and integrity. He was asked to give evidence about a vital conversation which he had with the applicant in that case some ten or eleven years before he gave evidence in the High Court. Asked whether he was absolutely certain in his recollection and the detail of his recollection he said “Absolutely no doubt about it”. He denied any possibility of mistake. Almost immediately afterwards, confronted with some documents, he acknowledged that he was in fact radically mistaken: he seems to have confused one case with another. Commenting on this I said:-

“Even more chilling is the fact that the true position emerged only out of skilful cross examination. The basis of this cross examination, however, was the fortuitous survival of a written statement in a discontinued case and of ten year old private letters. But for this there is every reason to believe that the detective sergeant’s subjectively honest but radically mistaken evidence would have been accepted at face value. Indeed, the prosecution were in possession of the written statement but apparently failed to notice that it was inconsistent with the Sergeant’s affidavit. These facts, in my view, graphically illustrate the acute dangers to the prospects of a trial in due course of law which are posed even by relatively moderate lapses of time… In my view the lessons of such cases – that lapse of time can distort in a radical manner the memories even of trained and experienced people – must be appreciated. So must the chilling fact that this process can occur without leaving any trace so that the mistaken witness confidently and honestly asserts what is false, quite apart from forgetting what is true”.

47. In DPP v. George Redmond (Court of Criminal Appeal, unreported 28th July, 2004) the defendant had been convicted of two charges of corruption relating to the receipt by him of a bribe of £10,000. The only significant witness for the prosecution, a business man, said that he had given the defendant £10,000 in cash on a date in 1988. He stated categorically that he had withdrawn the money from his account in a particular suburban branch of a named bank on the day on which he gave it to the defendant. Up to the trial, both sides had believed that there were no records of the banking transaction, due to lapse of time. The witness was emphatic in his recollection of the source of the cash, and repeated it nine times in the course of the trial. It subsequently came to light that there were extant records and that they did not show withdrawal of the sum in question, or any significant sum, at the relevant time. While it appears from the judgment that the witness was not a person of the highest character, he would of course have had no reason to lie about this detail, even from a strictly prudential point of view, because of the risk that he could be contradicted as eventually happened. He had clearly convinced himself that he had withdrawn the money from the relevant branch even though he had not, to the point where he repeatedly and emphatically denied on oath suggestions to the contrary.

48. These cases, combined with others mentioned in earlier judgments, illustrate the astonishing capacity of persons to forget what is true and to supplant it with a false version, even a detailed one. This can happen in lay witnesses, but also in trained and experienced ones. It can happen quite unconsciously, so that the witness does not give the impression of lying even to a skilled and experienced observer. It can happen to people who are perfectly honest.

49. Apart from such dramatic examples of distortion and replacement of the true account with a false one, there is the situation where the material is not forgotten, but the ability to correlate it with other material so as to bring out its relevance is lost. This occurred in the very disturbing case of DPP v. F., described in my judgment in PO’C. In that case, two witnesses who were desperately anxious to assist the defendant were, after the strikingly short interval (as these cases go) of two years, unable to deploy a recollection they undoubtedly had – that one of them, a teenage girl and the daughter of the other, had been in hospital in England at a period when her presence in rural Ireland was central to the prosecution case. The trial, without this evidence, led to a conviction and a sentence of seven years imprisonment, fortunately set aside after a few months when another family member made the connection and the hospital records were consulted.

50. It is a matter of deep significance that in the three cases just mentioned the true state of affairs came to light more or less adventitiously. In J., old documents survived and their significance was realised by the defence; the prosecution had had one of the documents but did not realise its significance. In Redmond, the bank records were still extant, though both sides had been told they were not: they came to light due to a chance remark by a witness whose statement did not include the information that the records were extant, probably because he did not realise its significance. In F., the child witness’s grandmother, who had not been told of allegations before the trial in order to protect her peace of mind, was, alone of her family, able to connect the hospitalisation of the child with the time of the alleged incident.

51. In each of these cases there turned out, albeit belatedly, to be an island of fact against which the otherwise uncorroborated and unsupported assertion of the complainant could be checked. What judge or juror would otherwise have accepted, for example, on the unsupported evidence of the defendant in J., that the absolutely emphatic and subjectively honest account of an experienced detective sergeant was in fact radically false?

No island of fact.
52. Against that background, one turns to consider the case where no actual prejudice can be demonstrated, perhaps due to lapse of time. The three cases just discussed show clearly that absence of evidence of prejudice is not evidence of its absence. In each of them there was actual prejudice, although this could not be demonstrated until, more or less fortuitously, missing or unappreciated evidence came to light. What of cases where chance withholds this favour?

53. In a very old case where there is no apparent island of fact a defendant may suffer a double handicap. There is nothing with which he or she could hope to check or contradict the evidence of the complainant: this deprives him of the basic components normally used to construct a forensic defence. Equally, if the surrounding circumstances are lost beyond recall, he may be unable to avail of the third test mentioned above, that relating to whether the real risk of an unfair trial can be demonstrated. This double difficulty is illustrated by portion of the High Court judgment to the present case. The learned trial judge did not find prejudice in relation to the issue of the form of the desk, in part because the applicant could not demonstrate when the class room furniture in use in the mid 1960ies had been disposed of: the items might have been unavailable even at an earlier time. This meant that the same lapse of time which caused the items to be unavailable also, in the judge’s view, caused the applicant to be unable to demonstrate legally recognisable prejudice flowing from their absence.

54. It is in this sort of situation that the first test is particularly important. After nearly four decades, and perhaps after a much shorter period of time, it will be a matter of chance whether any physical or documentary evidence survives, or any useful recollection of third parties. If it does not, the trial will be a pure contest of credibility.

55. The risks of a pure contest of credibility are very easy to underestimate. Ordinary experience demonstrates that a plausible and attractive witness is not necessarily telling the truth, nor a furtive and cowed one lying. Either a complainant or a defendant may be overwhelmed by the very pressure of the proceedings themselves and their likely consequences in the case of the defendant, to the point where he or she may be unable to do themselves justice. An elderly person may be particularly vulnerable in this respect.

56. Experience of prosecuting and defending sexual case, especially since the abolition of the requirement for a corroboration warning, shows that there is in practice a need for a defendant either convincingly to challenge some material aspect of the prosecution account or in some way to address the question of why the complainant would give the account which he or she has given if it is not true. That question will naturally arise in the mind of the tribunal of fact. In cases initiated shortly after the alleged offence, the prosecution and the defence will almost always be able to find some corroborating or consistent material, or some indisputable factual matrix with which the account of the other party can be correlated. Certainly, each side will look for such material and even its absence after proper inquiry may itself be significant. In a very old case, on the other hand, even the total absence of such material will not cause surprise.

57. If this situation is reached, a trial turning on the credibility of the witnesses will very largely depend on their presentation and affect. This in turn will be heavily influenced by matters which are entirely fortuitous: how good is their memory? Are they articulate or otherwise? Are they sharp, confident, alert and able to deal with hostile questioning or dull, confused in recollection or terrified? These matters will of course be factors in any trial but rarely indeed will they be the sole deciding matters. If they are, there is clearly a strong case for the view that the accusation is, by reason of lapse of time, simply beyond the reach of fair litigation. This position will have been reached if, in the words of another of the cases cited above, “The possibilities of success of either side may have been made haphazard by the fact that the passing years may have dulled or distorted the memories of witnesses”.

The third test.
58. This test raises the question of whether the degree of prejudice caused to the defendant in the criminal proceedings by the lapse of time “is such as to give rise to a real and serious risk of an unfair trial”.

59. This test must be contrasted with the first test, extensively discussed above, which focuses on the existence of delay such that the trial should not be allowed to proceed “even though it has not been demonstrated that the capacity of the accused person to defend himself or herself will be impaired.” One of the contrasting features is that the third test focuses on prejudice which can be demonstrated whereas the first relates to prejudice presumed in particular circumstances, especially a very long lapse of time, to exist even though its existence cannot be demonstrated.

60. Especially in the case of very long delay, however, the tests to some extent connect with each other. For prejudice to be demonstrable there must have been some island of fact, some indisputable factual matrix, with which an account of long past events can be correlated. Here, there were two possible islands of fact: the day on which the stamp collecting classes took place and the structure of the desk behind which the abuse allegedly occurred.

61. This complainant stated without qualification that the stamp collecting classes happens on a Saturday morning. This was not the applicant’s recollection, and he gave the Gardaí two specific pieces of information which, if established in evidence, would cast doubt upon, and might even conclusively contradict, the case against him in this regard. These were (a) That until the ending of scholarship classes with the introduction of pre-Secondary education he was always engaged in teaching the scholarship class on a Saturday morning and (b) That after the ending of the scholarship class teaching on Saturday mornings he played golf on those mornings, starting at 8.45am.

62. The question of whether or not t he applicant could establish his whereabouts on Saturday mornings is discussed in the judgment of the learned High Court judge. It does not however appear to have been appreciated that the significance of this whole topic as possibly generating an island of fact has been undermined by the change of position in the complainant’s third affidavit. There, he simply changes from the unqualified position that the stamp classes happened on Saturday mornings between 10 and 12 to the proposition that they “occasionally” happened on Saturday mornings. There is no suggestion that the classes themselves happened only occasionally, so this change of front implies that the classes usually happened at some other time, but this time is not stated. This, in turn, must be read in the context that the prosecution has produced other material in the Book of Evidence suggesting that perhaps the classes happened on Fridays. The effect of this is that when the prosecution were confronted with information which might be the basis of a successful challenge to the complainant’s first account, it deliberately and consciously retreated into vagueness on the question of when the classes had taken place. There is no third party evidence on this point. There is no evidence in the papers before this Court that the Gardaí sought information from non-complaining members of the class or if they did what these persons recollections were. They were aware of the identity of several such members because the applicant had supplied the names and current locations or occupations.

63. In summary, I believe that there is no useful island of fact or factual matrix arising in connection with the day of the week on which the stamp collecting classes took place. There was such an island of fact on the case as originally presented but it has vanished as a result of the subsequent position adopted by the prosecution.

64. A further potential island of fact existed, based on the complainant’s assertion that the abuse occurred while he was in 5th, and perhaps 6th, class in the National School. The applicant stated emphatically to the Gardaí that he had never, at any stage of his career, had anything to do with 5th class: this appears to have been accepted because, in the complainant’s affidavit, he accepted that he was in 6th, and not 5th, class at the time the alleged abuse occurred. No explanation is given for this change of recollection.

65. In my view, the reaction of the prosecution to the defendant’s raising points which might successfully challenge the State’s initial account amply supports the reasoning, quoted above, leading to the conclusion that long delay prejudices the defendant disproportionately, and may actually assist the prosecution. If this were a recent case, it would be a major advantage to the defendant if he could demonstrate, for instance, that the stamp classes had not taken place on Saturday mornings. Because it is an old case, however, the complainant or the prosecution is entitled to say “It is perfectly understandable to be vague on these matters after so many years have gone by”. In saying so, they are in fact seeking to retreat into a position where any challenge to the complainant’s account is belittled, and sought to be deprived of significance, on the basis that no-one could reasonably expect a reliable recollection after so long. This puts justice to the hazard.

The desk.
66. The abuse in this case was said to have been perpetrated in the presence of perhaps 15 to 20 classmates. It is said to have been concealed from them by the desk behind which the teacher sat. The detailed description of this desk quoted above is taken verbatim from the complainant’s initial statement. In the context of that statement, the purpose of the description is to explain how the abuse could have taken place in the presence of so many young persons without being observed by them. The complainant has not resiled from his description of the desk. Indeed, this description, particularly the information that the desk was “tall, enclosed at its front and sides” seems essential to the form of abuse described in which the applicant was alleged not only to have interfered with the complainant but to have exposed himself while doing so.

67. It is indisputable that the applicant would gain a considerable advantage at his trial if he were able to establish that the desk was open fronted or partially so: the contrary has not been argued. Instead, the Director points out that one of the other original complainants actually agrees with the applicant’s description and suggested that the applicant might rely on the evidence of this person. This suggestion, in my opinion, is wholly lacking in reality. The witness upon whose evidence the Director thinks the applicant might rely is one clearly hostile to the applicant, as the statements in the Book of Evidence makes clear. It would be an act of imprudence to call him or to cross-examine him.

68. In my view the absence of the desk or credible evidence as to its structure is a matter “which it is reasonable to think could have been the subject of irrefutable evidence one way or the other but for the very lengthy lapse of time”, and which would have been useful to the defendant. That is what an applicant must show in a case like the present and in my opinion this applicant has done so here. I also note that, though the authorities have been aware of the applicant’s recollection in relation to the structure of the desk for some years now, there is no evidence on the papers that the Gardaí, with their considerable resources, have been able to take this question further, as one must assume they tried to do.

Decision.
69. As indicated above, I would grant relief on the grounds that the unavailability of the desk, and the inability to produce secondary evidence of its structure usable by the defendant, has created a real and serious risk of an unfair trial.

70. In the circumstance of this case, I would in any event have been prepared to grant relief on the basis of the first test. The case is a very old one. Apart from the question of the structure of the desk, there is no island of fact which can be used either to contradict the complainant or to demonstrate prejudice. The applicant has sought to develop certain islands of fact, but this has been countered by a retreat into vagueness. After so long a period, in the absence of any corroborating or supporting evidence, after the failure by the authorities to discover any reliable third party accounts (and I stress that one must presume that attempts to do so were made), I consider that a trial of this case would be unduly hazardous and that the issue as to whether or not the applicant abused the complainant is simply beyond the reach of fair litigation.

71. I would accordingly allow the appeal and substitute for the High Court Order an order prohibiting the Director from taking any further step in the trial of the applicant.