DPP v M D
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,Dunne J.,O'Malley J. |
| Judgment Date | 22 May 2019 |
| Neutral Citation | [2019] IESCDET 103 |
| Court | Supreme Court |
| Date | 22 May 2019 |
[2019] IESCDET 103
THE SUPREME COURT
DETERMINATION
Clarke C.J.
Dunne J.
O'Malley J.
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 7 th June, 2018 |
| DATE OF ORDER: 7 th June, 2018 |
| DATE OF PERFECTION OF ORDER: 30 th July, 2018 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 23 rd August, 2018 AND WAS IN TIME. |
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.
The applicant seeks leave to appeal against the decision of the Court of Appeal dismissing his appeal against convictions on one count of anal rape, eight counts of indecent assault and one count of sexual assault (see The People (At the Suit of the Director of Public Prosecutions) v M.D. [2018] IECA 277).
The application was filed on the 23 rd August 2018. The additional papers required by the Practice Direction in effect at the time (Practice Direction SC16) have not been lodged. However, the Court has considered the merits of the matter and is in a position to give its determination.
The convictions related to a period between May 1988 and April 1991. The complainant is a nephew of the applicant and during the relevant time the applicant lived with the complainant's family. The complainant's mother (who gave evidence for the prosecution) was still living in the house at the time of the trial.
Originally there had been a further 26 counts on the indictment, that were disposed of by way of a direction to acquit. Four of these counts concerned allegations of oral rape, where the evidence of the complainant differed from his statement and was to the effect that the applicant had attempted oral penetration but had not in fact succeeded. The remainder were withdrawn from the jury because of uncertainty as to the dates when the applicant had been living in the house.
According to the complainant, the applicant would assault him when they were alone in the house, and the assaults would take place ‘anywhere [the applicant] could get me…rooms, pigeon loft, back garden, front garden, doesn't matter’. Under cross-examination the complainant maintained that the pigeon loft was big enough to walk into while the defence said that it was a small, knee-high structure. The applicant notes in the within application that the witness did not give a clear picture of the loft and may in fact have been referring to the aviary that was either part of the same structure or located beside it.
Counsel for the applicant had argued that there should be a direction on all counts on what are now referred to as ‘P.O'C. grounds’. It was submitted that the garda investigation had been inadequate, in that no photographs or plans of the house had been obtained; that there was no evidence independent of the complainant as to the size and structure of the pigeon loft; that no statements had been taken from most of the...
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