Director of Public Prosecutions v C.C. (Statment) [2019] IESC 94 (19 December 2019)

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The Supreme Court has given judgment today in this appeal, which concerned the proper

approach which should be taken by a trial judge in a case where an accused applies to have a

trial halted on the grounds of alleged unfairness arising out of a significant lapse of time

Four of the judges have delivered judgments in which they agreed that the proper approach at

the level of principle requires an assessment by the trial judge as to whether a trial is fair and

just in light of the lapse of time complained of and whether the accused had thereby been

deprived of a realistic opportunity of an obviously useful line of defence. In the judgment

delivered by the Chief Justice, with whom MacMenamin J. agreed, the elements of that

“9.2 In that regard, the trial judge must (a) first consider the prosecution case as it has

actually developed at the trial. Thereafter, the trial judge must (b) consider

whatever evidence is available as to the testimony which might or could have been

given but which is said to be no longer available. That exercise will generally

involve two principal considerations; first, the court must (c) consider the available

evidence about what might have been said by the missing witness or what might

have been contained in missing physical evidence, such as documents or objects.

The trial judge will be required to have regard to the degree of confidence with

which it can be predicted that the particular evidence would have been available,

while recognising that the very fact that the evidence is not available means that

that exercise must necessarily be speculative at least to some extent.

9.3 If the trial judge is satisfied that it has been established that there was a real

prospect that the evidence concerned could have been tendered, next, he or she

will be required to (d) assess the materiality of any such evidence. The materiality

of that evidence will need to be considered in the light of the prosecution case as it

9.4 In the light of all of those factors, the court must finally (e) reach an assessment as

to whether the trial is fair. The assessment of whether the trial is fair involves a

conscientious determination by the trial judge whether, on the basis of all of the

materials before the court, it can be said that the test identified by Hardiman J. in

S.B. has been met, being that the absence of the missing evidence has deprived

the accused of a realistic opportunity of an obviously useful line of defence.

9.5 Although not relevant on the facts of this case, it should also be noted that culpable

prosecutorial failure or wrongdoing can be taken into account in assessing the

degree of prejudice which renders a trial unfair. As noted earlier, no trial is perfect.

However, the degree of departure from a theoretically perfect trial which will render

the proceedings unfair can be less where it can be said that culpable action on the

part of investigating or prosecuting authorities have contributed to the prejudice. A

lesser departure from what might be considered to be a theoretically perfect trial

will render the proceedings unfair if that departure is caused or significantly

contributed to by culpable action on the part of investigating or prosecuting

authorities. A greater degree of departure from the theoretically perfect trial will

need to be demonstrated in cases where there is no such culpable activity.”

This step-by-step approach was expressly agreed with by O’Malley J. at para. 8 of her

judgment. In that paragraph, she also agreed with the principles set out in the judgment of

O’Donnell J. regarding the correct approach to be taken by a trial judge in this context, and

stated that she did not see any real disagreement between the members of the Court as to how

the trial judge determining such an application should proceed. These principles were set out at

“(i) The jurisdiction to determine whether it is just to permit a trial of an accused

person on historic allegations to proceed, is one normally best conducted at the

(ii) The decision the trial judge should make is whether he or she is satisfied that it is

(iii) The obligation on the trial judge is to make a separate and distinct determination in

this regard, and the trial judge must do so conscientiously, in the light of

(iv) The test to be applied does not involve any assessment of the guilt or innocence of

the accused, which is a matter for the jury, but rather the fairness and justice of

(v) While an appellate court must recognise that a trial court has particular advantages

in the making of this assessment, the decision of a trial court is subject to appeal,

and trial judges should therefore set out clearly the considerations leading to the

conclusion that it is or is not just to permit the trial to proceed.”

O’Donnell J. similarly agreed that there was consensus in the Court as to how the trial judge

should approach an application such as this, and stated that the differences between the

members of the Court in this case involved the application of general principles to the particular

facts of this case. O'Donnell J. further expressly agreed with paras 9.2 to 9.4 of the judgment

of the Chief Justice. At para. 15 of his judgment, Charleton J. concurred with the principles

which were set out by O’Donnell J., and reiterated in the judgment of O’Malley J.

It follows that the proper approach to be adopted by a trial judge in all cases involving such

However, the Court divided on the question of the proper application of those principles to the

particular circumstances of this case, which involved the absence of a witness, M.Cy., whose

evidence, it was argued, would have been of material assistance to the defence case.

The majority (O'Donnell, Charleton and O'Malley JJ.) considered that, having regard to the

strength of the prosecution case and an assessment of the potentially missing evidence, any

prejudice caused to the accused by the delay, and the resultant absence of M.Cy., did not

O’Malley J. considered that there was a reasonable possibility that the missing witness might

have been of material assistance to the defence, but that in an evaluation of the strength of the

prosecution case, there was evidence provided which was supportive of a number of aspects of

the complainant’s account and, significantly, that there was corroboration in the form of clear

and effectively unchallenged evidence of an admission by the accused of criminal behaviour

against the complainant. Thus, such evidence was sufficient to dispose of the claim that the

appellant was unable to defend himself against the charges. Charleton J. also agreed that the

evidence of the confession of the appellant carried a high degree of reliability, and that this,

along with other relevant aspects of the evidence provided, meant the trial judge correctly

O’Donnell J., agreeing with Charleton and O’Malley JJ., found, in light of a number of features of

the evidence put before the trial court, that he was unable to accept that there was “a real

possibility that M.Cy. might have been in a position to give evidence ‘highly favourable’ to the

defence, which would, moreover, have survived any challenge to its credibility, so that the

defence had not lost ‘the real possibility of an obviously useful line of defence’”. This conclusion

was reached in light of the evidence provided in respect of the extent of the witness’ knowledge

of the allegations of the complainant, of the credibility of the appellant’s account, and of the

appellant’s tacit admission of guilt. O’Donnell J. further stressed that the determination of the

trial court should be awarded some margin of appreciation by an appellate court reviewing its

The minority (Clarke C.J. and MacMenamin J.) considered that the absence of the witness

concerned, who had died before the trial came on, in circumstances where she would have been

potentially available for approximately 36 years after the date of the alleged offence, coupled

with the lengthy period of time which had elapsed, rendered the trial unfair. This conclusion

was reached in light of her role as a central witness in the complainant’s allegations, as stated

“[H]ere there can be little doubt that, had M.Cy. been available to give evidence, there is

at least a realistic possibility that she might have been in a position to give

evidence which would have been highly favourable to the defence and there is also

a real possibility that such evidence would have survived any attack on its

credibility to a sufficient extent to cause the jury to at least have a reasonable

doubt as to the guilt of Mr. C. She would, highly unusually, have potentially been

in a position to give direct evidence of the events surrounding an allegation of

historic sexual abuse, although neither the complainant nor the accused.”

19th December 2019

Result: Appeal Dismissed

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions v C.C. (Statment) [2019] IESC 94 (19 December 2019) URL: http://www.bailii.org/ie/cases/IESC/2019/2019IESC94.html Cite as: [2019] IESC 94

Supreme Court of Ireland Decisions