RC -v- DPP
Supreme Court
Judgment was given by Mrs Justice Denham on April 1st, 2009, Mr Justice Hardiman and Mr Justice Geoghegan concurring.
Judgment
There was a real risk of an unfair trial due to the loss of the telephone records of a complainant in a sex abuse case. Consequently an appeal was allowed against an order of the High Court, which had allowed the case to proceed, and an order granted restraining the DPP from proceeding with the prosecution.
Background
The appellant was charged with the sexual abuse of a minor in 2001, a girl who was 13 at the time of the alleged offences. The assaults were alleged to have taken place between May and the end of August 2001.
The complainant made a complaint on September 5th. The appellant at all times denied the allegations, stating he never initiated the calls and that the complainant had a crush on him.
An important aspect of the complainant’s version of events was that the appellant would call or text her on her mobile phone asking her to come to his apartment.
He said that whenever he called her it was in response to a call or text message from her.
The appellant had opened a pub in March 2001, employing the complainant’s mother and aunt. He sacked the aunt some time in May, and the mother left then. He claimed that there had been friction with the sisters prior to that.
During the investigation it was decided to seek telephone records. In an affidavit a Garda said that she considered it unnecessary to request details of both the complainant’s and the appellant’s phone records, and that if she was in possession of both the incoming and outgoing calls of the appellant that would suffice. Seeking those of the complainant would be duplication.
In the event only the outgoing calls of the appellant were obtained, recorded and presented in the Book of Evidence.
The appellant sought a judicial review to stop the proceedings on the grounds that the State’s case rested on the uncorroborated evidence of the complainant. The State also adduced his telephone records to substantiate the allegations. The State did not seek to procure the complainant’s telephone records before the matter was returned for trial.
Counsel for the appellant sought the complainant’s telephone records by way of disclosure. This was agreed, but they were never produced. The appellant claimed that the lack of these records seriously prejudiced his trial.
He also complained that he was prejudiced by delay. The alleged offences took place in 2001, but the State did not seek to pursue the matter until March 2004. Witnesses who would have been available in 2001 have left the jurisdiction.
His application for judicial review was refused in July 2007, and he appealed against that judgment on a number of grounds, including that the court was mistaken in finding that the absence of the telephone records was collateral to the case against him; in failing to give sufficient weight to his assertions of innocence; in finding that the delay in prosecution had not been inordinate; in finding that the Garda and the DPP did not have a duty to obtain the records and in finding that no specific prejudice had been established from the non-availability of the records.
Decision
Mrs Justice Denham said that an order prohibiting a prosecution should only be made in exceptional circumstances, where there was a real risk of an unfair trial.
Referring to the absence of information on the complainant’s telephone calls, she said: “Even at the investigation stage the issue of the telephone calls was significant. In all the circumstances of this case the telephone records of both the appellant and the complainant are important, relevant and probative evidence.”
The prosecution had a duty to seek the telephone records of both the appellant and the complainant. The Garda Síochána has a duty to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence so far as is necessary and practicable, though this duty must be interpreted in a fair and reasonable manner.
The onus to be established is that of a real risk of an unfair trial, which cannot be avoided by rulings and directions of the trial judge.
In this case there appeared to have been an unfortunate misunderstanding, where, for some reason not quite clear from the affidavits, only the records of the outgoing calls of the appellant were obtained.
“This was an error,” she said. “The calls of the complainant would also be required in the investigation and for a fair trial.”
Sometimes it may be appropriate to refuse to prohibit a trial, but to prohibit the use by the prosecution of some evidence in order to ensure a fair trial. This was not possible in this case.
The prejudice alleged by the appellant is that the telephone records of the complainant, if available, would have corroborated his version of events, that she regularly contacted him.
Thus they went to the core of the issue – the credibility of the complainant and the appellant – she said.
Referring to the issue of delay, she said that it was reasonable for the appellant to conclude that no prosecution was pending following the interviews with the Garda in the autumn of 2001.
He was then charged in January 2004. Vodafone, with whom the complainant had her telephone account, keeps records for three years. The request was not sent to them until June 2005.
In general the absence of phone records was not a reason to prohibit a trial, but in the particular circumstances of this case there was a real risk of an unfair trial.
The prosecution had a duty to seek the telephone records of both the complainant and the appellant.
Those of the appellant were obtained but not those of the complainant, and these had now been lost. The absence of this evidence gave rise to a real risk of an unfair trial, therefore Mrs Justice Denham allowed the appeal.
The full judgment is on www.courts.ie
John Peart SC and Mark Tottenham BL, instructed by Michael Lanigan Solicitors, Kilkenny, for the appellant; Sunniva McDonagh SC, instructed by the Chief Prosecution Solicitor, for the DPP