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THE SUPREME COURT
151 & 163/05
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of January, 2007.
This is the appeal of the Director of Public Prosecutions against the judgment and order of the High Court (O’Sullivan J.) perfected the 9th March, 2005, whereby the Director was restrained from further prosecuting the applicant on the charges he had initiated against him.
These charges numbered 114 in all. The first 78 alleged either rape or indecent assault of the applicant’s stepdaughter, H. These crimes are said to have taken place between the 1st January, 1978, and the 31st December, 1986. At that time the alleged victim was between 3½ and 12 years old. The balance of the charges alleged indecent assault against another stepdaughter, F., between the 1st January, 1981, and the 31st December, 1989. To put this another way, he is alleged to have sexually abused, in an aggravated way, each of these girls when they were each aged between 3½ and 12: the age difference between them meant that these alleged activities went on over a total period of twelve years and that he is alleged to have been abusing the two girls between the 1st January, 1981, and the 31st December, 1986.
Following the decision of this Court in H. v. DPP (Supreme Court, unreported, 31st July, 2006), there is authoritative guidance as to the test to be applied in a case such as this where the applicant claims that, by reason of delay, his chances of a fair trial have been undermined. At p.26 the judgment of the Court in that case, delivered by Murray C.J., the following passage appears:
This case was argued with admirable focus and economy on both sides. Hence, it is possible to say that for the purpose of this case the only part of the test with which the Court is concerned is whether, by reason of the delay, there is a real or serious risk that the applicant would not obtain a fair trial.
“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 the light of the circumstances of a case”.
The complainants made complaints to the gardaí in November, 1999, some ten years after the end of the sequence of alleged abusive events in the case of F. and some thirteen years after the end of those events in the case of H. The applicant was returned for trial some two years later in November, 2001. Assuming that, if this application is refused, it will be possible to hold a trial of the applicant next term, that will be approximately 28 years after the abusive events are said to have commenced in relation to H., and just over 20 years since they are said to have ended. It will be about 26 years after the abusive events are said to have commenced in the case of F. and about 18 years since they are said to have ended.
There was only one substantial issue in this case, that is one matter alleged by the applicant to discharge the onus which lay on him of showing that there was a real or serious risk that his trial would be unfair. This related to the death, in 1984, of a witness called B. M. who was a district nurse for the area in rural Ireland where the applicant and the alleged victims then lived. The applicant said that he was gravely and obviously disadvantaged by the unavailability of this witness. The Director, while denying this, did not dispute that the death of the nurse was, in the circumstances of the case, a matter of some significance. In order to make sense of these submissions it is necessary to set out the background to the case in a little detail.
The applicant is the stepfather of the alleged victims: he married their mother at a time when she had three children and they went on to have further children. It is undisputed that the form of abuse alleged on very young children was such as would have caused injury to them which would be visible on examination. Indeed, each of the alleged victims described lasting feelings of pain and discomfort which they described as “scalding” and this was accompanied by a vaginal rash.
Although no complaint of sexual abuse was made until many years had passed after the alleged events, the family had come to the attention of the Social Welfare and medical authorities in a different connection, that of actual or suspected non-accidental injury. A brother of the alleged victims, J., was admitted to hospital in April, 1978, and was diagnosed as manifesting battered baby syndrome, having marked bruising of the scrotum and penis and also laceration to the root of the penis, and bruising in the spinal area, on the rib cage and over the right mandible. He was readmitted in October of the same year “with injuries suggestive of non-accidental infliction”. On this occasion he had a black eye and bruising to the trunk neck and arm. At the same time, in April, 1978, H., who was one of the alleged victims, was admitted to the same hospital with bruising of the mandible, in the spinal area and in the neck, shin and right popliteal space. Moreover, she had a previously unreported and healed fracture of her right humerus. She too was diagnosed with “battered baby/child syndrome”.
As a result of these findings, H. and J. were placed in care for a period in a town some distance from their residence. Moreover, according to a statement of one of the gardaí involved in investigating the case the local doctor “had been advised by the Health Board to keep an eye, and open mind, in relation to the family”. This doctor himself never treated them for any non-accidental injury. The doctor said he would have been “alert and suspicious” in relation to the family by virtue of the history. He said that B. M., the local nurse “would have called on the family regularly”. Another general practitioner who attended the family at a slightly later stage said, according to the Sergeant, that she had never treated any of the family for any complaint which gave reason to suspect any sort of abuse. She said that they appeared to her to be children who were well cared for. Moreover, the complainants’ mother denied seeing the “scalding” symptoms, which, according to the complainants, she treated for them.
The principal focus of the case, however, turned on the role of the District Nurse. In the documents grounding the present application it was stated that:
In the course of these present proceedings, the applicant swore an affidavit and was cross-examined on it on behalf of the Director of Public Prosecutions. In the course of cross-examination the following exchange took place:
“The District Nurse, B.M., who attended on the complainant during her younger years is now deceased and I am also of the view that this is a witness who might have been in a position to be interviewed and to give evidence which would be favourable to the applicant”.
On these facts it was submitted by Mr. Gageby S.C. for the applicant that the case was a unique one. He said:
Q. “When you say you are prejudiced in your defence, you are not required to deal with any legal matters, is there any particular matter, factual matter or documentary matter which you say you are prejudiced in because K.M. is not available?
A. K. is not available, S.C. is not available, and Nurse M. is not available, and anyone that is missing out of it like, in general. The nurse used to come twice, maybe three times a week, she would call, like, and she would bring the kids one at a time into the room, they know that. I am sure they can remember it if they can remember everything else”.
Mr. Gageby emphasised that these visits had been going on since 1979 and asked rhetorically why was the nurse calling to the house? There was some reason. Why would she call so often, against a background of non-accidental injury, except to examine the children?
“This case is very different from others. There is full penetrative rape of a child from 3½ years of age until 12 years and evidence throughout that period of specific alertness and suspicion on the part of the local doctor and district nurse in relation to the children of a family. The allegations are of a grave series of assaults on the bodies of small children. It is unique to have a defendant accused of such things whose house was visited regularly by someone specifically to look for evidence of non-accidental injuries”.
Mr. Gageby pointed out, without contradiction, that the nurse had never reported seeing anything of significance to the mother, or to the doctors. Her notes were not available, apparently due to lapse of time, but it seemed overwhelmingly likely that no relevant signs or symptoms were found. This, he said, was inconsistent with the account given by the complainants of the nature of the assaults on them, especially H., and of their account of the “scalding/rash”. Mr. Gageby pointed out that he was deprived of the evidence of very regular examinations of the children throughout the period when violent sexual abuse was said to be taking place, and this put him at an enormous disadvantage. He also pointed out that, by reason of the non-availability of the nurse he was not in a position to contradict anything the complainants might say if he raised the question of Nurse M. and her dealings with them in cross-examination.
Mr. Paul McDermott for the Director frankly stated that he was not saying that the death of the nurse was of no significance or had no effect on the fairness of the proposed trial. He said that it was undoubtedly true that following the release of H. and her brother from care there was monitoring of them by the Health Service. He agreed that there was difficulty in establishing precisely what that had consisted of:
Mr. McDermott complained that the role of the nurse in the case had loomed larger as time went by. In particular, he said that he was taken by surprise when the witness alleged visits by the nurse to the family home at the rate of two or three per week and alleged that the children were taken one by one into a separate room by the nurse. He agreed, however, firstly that this had legitimately been said in answer to a question from counsel specifically asking the applicant in what ways he had been prejudiced. He also agreed that there were present in court during the applicant’s cross-examination the two alleged victims who would of course have known how frequently the nurse came and what she did in relation to them when she called. However, the veracity and accuracy of the applicant’s account was not challenged. Indeed, Mr. Gageby was able to say that the applicant’s account of the frequency of the nurse’s visit and of her taking the children aside into a private room, was unchallenged and was “not inconsistent with any of the other evidence in the case”.
“It is undoubtedly the case that because of the lapse of time, not all questions can be answered”.
Mr. McDermott’s substantial answer to the applicant’s case, however, was of a different nature to that expressed in the points summarised above. He submitted that the applicant was not unduly prejudiced by the absence of the nurse because the bulk of the evidence which she could reasonably be expected to give could be supplied from other sources. He referred to the statement of the first general practitioner, and to the statement of the Sergeant about his interview with him and said that this was potentially good evidence for the defence: the doctor, alert to the prospect of non-accidental injury, never found any, never treated them for any symptom such as the alleged “scalding” and could not remember nothing untoward even though “he would have been alert and suspicious”. The mother denied the complainants’ accounts of treating them for “scalding” and of other matters. The second G.P. actually said that the children of the family appeared to her to be children who were well cared for. All of the evidence, said Mr. McDermott, is to the effect that the alleged victims never told anybody about the alleged abuse or drew to anyone’s attention the “scalding” or any other symptoms, other than to the attention of their parents. That was denied by both parents.
Mr. McDermott also made the point that the nurse apparently died in the year 1994, only five years after the end of the alleged abuse of the younger complainant. It was a simply a risk of litigation, he said that an important witness might die. If the case had got off the ground earlier, say in 1995, it could scarcely have been said that the mere absence of the nurse would have prevented the trial. Nor should it have that effect now, at least in circumstances where the substance of her evidence can be supplied from other sources.
This is a difficult case. It goes without saying that the nature of the assaults alleged is a most serious one and that there is, of course, a public interest in having the guilt or innocence of the applicant decided upon by a jury. Equally, however, the very frequency and violence of the assaults alleged, including full penetrative intercourse with a very young child, seems to indicate that there would, at some point, have been clear physical evidence referable exclusively to an offence of this sort if indeed it occurred. That would not itself carry the case much further if there were no evidence of the sort of examination which might have made such injuries palpable, or confirm their absence. But in this case there is evidence of precisely such examination, as a result of the unfortunate history of alleged non-accidental injury to two at least of the children in the family one of whom is a complainant in the criminal case.
For these reasons, it is impossible to dismiss the absence of the nurse and the evidence she might have given as being of little or no importance. Indeed, the Director did not attempt to do so: he made the arguments summarised above and in particular emphasised that a good deal of the evidence of the nurse (assuming, as seems likely, that it would have been that she observed nothing amiss) could be supplied from other sources.
I am not impressed with the submission that the Director was taken by surprise by the evidence of the applicant when he had him cross-examined in the High Court. The applicant was asked an open ended question by counsel for the Director, which specifically called upon him to state how he was prejudiced. He was fully entitled to answer it as he did and I cannot see any unfairness to the Director. In fact, it is difficult to seen any disadvantage to him either, fair or otherwise, because of the presence in court of persons who could contradict the applicant if their recollection did not accord with his. But it is the case that the role attributed to the nurse by the applicant expanded over time. In particular the frequency of the visits and the fact that she dealt with each of the children privately had not mentioned before the cross-examination. There is, however, a limit to the weight that can be placed on this point since the applicant, as a potential defendant in a criminal trial, was entitled to make only such disclosure as he considered essential to the case he intended to make.
The Director’s most substantial answer is that much of the potential evidence of the nurse can be replicated from other sources. There is no doubt that the evidence of the two doctors, the mother, and, if he gives evidence, the applicant, would be to the effect, not only that no complaint of sexual abuse was ever made by either of the complainants to any relevant party, but that nothing consistent with such abuse was noticed by them in their dealings with the complainants. That would have been the probable effect of the nurse’s evidence as well. Obviously her evidence would be more significant than that of the other witnesses if she attended the children with anything like the frequency alleged, or if she could say that she conducted a visual examination of their private parts. But one will never know whether she did that or not.
It seems to me that the Director has been able to point to the probable availability from other sources of at least the essence of the nurse’s evidence, and that this is sufficient to avoid the inference that there is a real or serious risk of an unfair trial. Obviously, if the Director were hereafter, by cross-examination or otherwise, to belittle the evidence available from the other sources in its veracity or its significance, a different position might then obtain. But that, I am satisfied, is something that can be dealt with by the trial judge if and when it occurs. It is difficult to speculate at the moment about what might or might not happen at the trial. But one must presume that the trial judge will be alert to protect the position of the applicant and that he or she will not allow the Director to “blow hot and cold” on the question of the evidence which, the Director specifically urged on this hearing, would enable the applicant to provide from other sources at least the substance or essence of what the nurse might have said. It has not been suggested that the nurse herself would not have been a credible witness.
For these reasons I would allow the appeal and refuse the relief sought.
P.H. and The DPP