The Supreme Court dismissed P.G.’s appeal against the Director of Public Prosecutions, with Justice Hardiman agreeing with the reasons in a judgment by Justice Fennelly. The source contains Hardiman J.’s separate observations, delivered on 29 March 2006.
Hardiman J. said P.G. had not shown, on the facts of the case, grounds for relief based on delay or inadequate disclosure. He also considered that the applicant had not sufficiently used procedures available, or potentially available, before seeking relief.
The judge said he wished to reserve his position on aspects of disclosure until a suitable case arose. He discussed the difficulties of fairly trying old cases involving alleged sexual abuse of children, including the effects of time on memory and the ability to challenge an account or find contradictory evidence.
Hardiman J. did not accept that disclosure was always or primarily a matter for the trial judge. He noted that civil discovery procedures did not apply to criminal cases and that no provision had been made for a preliminary hearing of the kind recommended by a 2003 working group. He also referred to past disclosure shortcomings, including a case in which a conviction and life sentence were later held to be a miscarriage of justice. The source identifies that case as DPP v Nora Wall, dated 16 December 2005, and says it involved the non-disclosure of a prosecution witness’s earlier dubious rape allegation against another party.
The judge stated that, until satisfactory disclosure or discovery provisions exist for criminal cases, an applicant may in a suitable case raise disclosure on judicial review. He added that an applicant in an old sexual abuse case may be entitled to see statements amounting to complaints or disclosures of alleged abuse, which could help establish whether complaints were consistent over time or evolved. The judgment does not state that such access was ordered for P.G. in this appeal.