E(G) v DPP

Judgment Date30 October 2008
Date30 October 2008
Docket Number[RECORD NO: 329 of 2007]
CourtSupreme Court


Denham J.

Hardiman J.

Kearns J.

[RECORD NO: 329 of 2007]

E (G)

Criminal law - Attempted Rape - Rape - Increase of charge - CC v. Ireland - Fair procedures - Restraint of trial - Eviston v. DPP - CC v. Ireland - A v. Governor of Arbour Hill Prison - Whether decision to charge applicant with more serious charge in light of decisions of the Supreme Court was unfair

Facts: The applicant sought to restrain the respondent from prosecuting him for a charge of rape of a female under the age of seventeen years. The applicant had originally been charged with attempted unlawful carnal knowledge and the respondent had directed that the matter would be disposed of summarily if he pleaded guilty. The proceedings had been adjourned pending the outcome of the decision of the Supreme Court in CC v. Ireland


A v. Governor of Arbour Hill Prison. The file was re-examined subsequent to these decisions and it was decided that a case existed for a charge of rape. The applicant contended that his re-arrest breached the respondents own guidelines and that it was unfair to the applicant.

Held by the Supreme Court per Kearns J. (Denham, Hardiman JJ. concurring) that the applicant had been put in a far worse position as a result of the difference between the original and substituted charge. It was a radically different prosecutorial decision that had been taken in respect of the same material. He had lost his option of having the case dealt with in the District Court. It was palpably unfair to the accused to increase the severity of the charge, who had done nothing to contribute to the dramatic change in circumstances. The appeal would be allowed and the further prosecution of the applicant would be restrained.

Reporter: E.F.


Judgment of Mr. Justice Kearns delivered the 30th day of October, 2008.


This matter comes before the Court by way of appeal from the refusal of the High Court (Murphy J.) on 12th October, 2007 to restrain the respondent from maintaining a prosecution against the applicant on a charge of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990.


The complainant and the applicant in this case were slightly acquainted and happened to meet outside a disco in Wexford on the night of 21st February, 2003. A sexual encounter took place between the applicant and the complainant some short time later in a van in the centre of Wexford. The applicant had borrowed the keys to the van from a friend and both he and the complainant walked to the van where some kissing quickly developed into a more intimate event which involved the removal of the complainant’s clothing and an attempt at least at full penetrative intercourse by the applicant. The complainant subsequently alleged that the respondent had raped her, whereas at all times the respondent maintained that any sexual contact between them was consensual in nature. The applicant was born on 29th April, 1982 and was thus 20 years of age on the night in question. The complainant was born on 13th March, 1986 and was thus three weeks short of her seventeenth birthday at the time of the incident.


The Garda Siochana commenced an investigation into the incident. The applicant presented himself at the local garda station shortly after he became aware that the complainant had accused him of rape and made a detailed statement. On 10th October, 2003 the State Solicitor forwarded the garda file to the office of the respondent. Upon receipt of the file in the respondent’s office it was assigned to a professional officer who proceeded to consider it.


On 14th November, 2003 the professional officer in the respondent’s office directed that the State Solicitor obtain a forensic report in the case.


On 3rd February, 2004 the professional officer made a submission to Mr. David Gormally, also a professional officer in the respondent’s office, though presumably of more senior rank, in which he stated that there was no prospect of securing a conviction for rape or attempted rape


and he suggested a prosecution for an offence contrary to s. 2(2) of the Criminal Law Amendment Act 1935. Having considered the file, Mr. Gormally agreed with the submission and on 6th February, 2004 the professional officer directed the State Solicitor that a s. 2(2) prosecution be brought against the applicant. The direction indicated that if the accused wished to plead and be sentenced in the District Court that the respondent would consent to same, but that otherwise the matter was to be sent forward for trial to the Circuit Criminal Court.


By summons dated 16th February, 2004, the applicant was charged with attempted unlawful carnal knowledge, contrary to s. 2(2) of the Criminal Law Amendment Act 1935 as amended by s. 13 of the Criminal Law Act, 1997. The maximum sentence following conviction for this offence is two years: see sections 10 and 13 of the 1997 Act.


On 5th April, 2004 the applicant’s solicitor was informed by an inspector of An Garda Síochána that the respondent had directed summary disposal of the charge if the applicant were to plead guilty. On 6th December, 2004 the applicant was put on his election at Wexford District Court and he elected for trial on indictment. The case was adjourned to 28th February, 2005 for service of the Book of Evidence. On 28th February, 2005 the Book of Evidence was served and the applicant was sent forward for trial to the Circuit Court.


The case first came before the Circuit Criminal Court on 19th April, 2005 and thereafter was adjourned from time to time pending the judgment of the Supreme Court on the constitutionality of s. 1(1) of the Criminal Law (Amendment) Act 1935 in the case of CC v. Ireland, the Attorney General and the Director of Public Prosecutions [2006] 4 I.R. 1. All of these adjournments were by consent and the applicant was on bail at all material times.


On 23rd May, 2006 this Court delivered judgment in the CC case in the course of which s. 1(1) of the Criminal Law Amendment Act, 1935 was declared unconstitutional.


In the aftermath of the decision a number of habeas corpus applications were brought in respect of persons in custody. Because of some uncertainty concerning the consequences of the CC decision, it became clear that there would have to be further clarification as to the legal position and such clarification was thereafter provided by the judgment of this Court in


A. v. Governor of Arbour Hill Prison


On 23rd June, 2006 the respondent’s Deputy Director directed that the judgment in the A case should be awaited


before any decision was made on what should happen in the instant case. In his affidavit sworn in the proceedings herein, David Gormally states that at that stage the possibility of a charge of rape was not being considered so that the file was being dealt with on the basis that there was no alternative charge and that the sole issue was the status of the s. 2(2) charge in the light of what the Supreme Court had decided in the CC case and might yet decide in the A case.


On 29th June, 2006 the Deputy Director noted that it was likely the case would have to be dropped but said that it should be resubmitted to the Director when the judgment in A was forthcoming. On 29th June, 2006, the Director agreed with this approach. On 10th July, 2006 the Supreme Court delivered its judgment in the A case following which Mr. Gormally considered the file again. Having done so and without any new or additional evidence, Mr. Gormally decided there was a case for bringing a rape charge and for not proceeding with the s. 2(2) charge. On 20th July, 2006 the Director considered the file and was inclined to prosecute for rape or attempted rape. On 2nd August, 2006 Mr. Gormally considered the Director’s decision and suggested that on the facts of the case rape was a more appropriate charge than attempted rape. On 12th September, 2006 the Director, having considered the matter again, agreed and directed that a charge of rape be brought and that the s. 2(2) charge be dropped.


On 12th September, 2006 the professional officer who was reporting to Mr. Gormally prepared a written direction to the State Solicitor setting out the decision of the respondent to charge the applicant with rape and to discontinue the prosecution in respect of s. 2(2) of the Criminal Law Amendment Act 1935.


On 3rd October, 2006 a nolle prosequi was entered in respect of the section 2(2) charge.


On 10th October, 2006 the applicant was rearrested and charged with rape before the District Court in New Ross. The maximum sentence following conviction for this offence is imprisonment for life.


On 18th December, 2006 the applicant sought and obtained leave from the High Court (Peart J.) to bring the present judicial review proceedings.


The same were heard and determined in the High Court (Murphy J.) on 12th October, 2007.


Various grounds were relied upon by the applicant in seeking prohibition of the trial. One of those grounds was delay. However, this ground of complaint was dismissed by the learned High Court Judge and has not been further


argued in the course of the appeal before this court.


Secondly, it was argued that the substitution of the rape charge for the attempted unlawful carnal knowledge charge was, having regard to the contents of Mr. Gormally’s affidavit, a breach of the respondent’s own guidelines and further that such alleged breach constituted unfair procedures in relation to the prosecution of the case such that the applicant was entitled to restrain his further...

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