M.G. v DPP

Judgment Date30 January 2007
Neutral Citation[2007] IESC 4
CourtSupreme Court
Docket Number[S.C. No. 39 of 2003
Date30 January 2007

[2007] IESC 4


Murray C.J.

Hardiman J.

Fennelly J.

No. 039/2003
G (M) v DPP





H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55





GREALIS & CORBETT v APP & AG 2001 3 IR 144 2002 1 ILRM 241 2001 11 2968




Sexual offence - Fair procedures - Witnesses - Applicant accused of sexual offences - Complainant sole witness - Blackmail of accused by complainant - Application to restrain further prosecution - Whether further prosecution should be restrained - Applicant's appeal allowed (39/2003 - SC - 30/1/2007) [2007] IESC 4

G(M) v DPP

Facts: The applicant/ appellant sought to appeal the decision of the High Court refusing to restrain the prosecution of

the applicant in respect of charges of sexual offences allegedly committed as far back as 1977 on grounds of delay. The

applicant alleged that the conduct of the complainant who had threatened to blackmail the applicant constituted exceptional circumstances warranting the restraint of his trial

Held by the Supreme Court, per Fennelly J., that the complainant had engaged in criminal behaviour and had demanded money with menaces from the applicant. The criminal courts could not be used as instruments of blackmail. The sole witness of the alleged offence had used criminal behaviour for pecuniary benefit entailing that it would be wrong and unjust to put the applicant on trial and was an exceptional circumstance in the meaning of H v. DPP to halt a criminal trial.

Reporter: E.F.


JUDGMENT of MR JUSTICE FENNELLY delivered on the 30th day of January, 2007 .


This appeal raises, a matter of months after the pronouncement of the judgment of this Court on 31st July 2006 in H v Director of Public Prosecutions, [2006] IESC 55, the sort of exceptional cases which can justify restraint of delayed prosecution for sexual offences.


The Appellant stands charged with three sexual offences, arising in effect from two events, alleged to have been committed against one AG (hereinafter "the complainant") in 1977 and 1987. This is an appeal against the judgment of Murphy J, delivered on 17th December 2002, whereby he rejected the application for an injunction restraining the respondent from continuing with his prosecution.


Following the decision in H v Director of Public Prosecutions, this appeal was listed for further argument. It was conceded by counsel for the Appellant that it was no longer possible to rely on delay alone as a ground for prohibiting a prosecution in cases such as this. On the other hand, counsel submitted that the special facts of the present case warranted its being treated as a special and exceptional case within the principles established in H v DPP. Furthermore, it was submitted that there was and is a real risk that the Appellant could not have a fair trial due to the long lapse of time combined with the absence of allegedly crucial evidence so far as the defence of the charges is concerned.


The Appellant is charged with the following offences:


1. Buggery of the complainant on a date unknown between 1st June and 1st September 1977;


2. Indecent assault on the complainant, at the same place and between the same dates as in number 1 above;


3. Indecent assault on the complainant on 22nd August 1987.


The first and second charges relate to the same event and are, in effect alternative charges. It is important to note, at the outset, that no complaint of any sort was made concerning the first or second charge until nine years after the complaint about the 1987 incident. The first charge is laid as being contrary to section 61 of the Offences Against the Person Act, 1861. The second and third charges are laid pursuant to section 62 of the same Act.


The Appellant had originally contended that, at the time of his arrest in 1999, none of the offences with which he had been charged were known to the law. The offence of buggery had been abolished by section 2 of the Criminal Law (Sexual Offences) Act, 1993. The offence of indecent assault had been abolished by section 28 of the Non-Fatal Offences Against the Person Act, 1997. The Appellant acknowledged that, in the light of the decision of this Court in Grealis v Director of Public Prosecutions and another; Corbett v same [2001] 3 I.R. 144, this argument could not be maintained. The leaned trial judge, nonetheless, ruled on the issue and held against the Appellant.


It should also be mentioned that leave to apply for judicial review was granted in the High Court and that, at the time of the High Court proceedings, there was an extant charge of indecent assault against another male complainant. However, that complaint has subsequently been withdrawn and is no longer relevant.


By order of 2nd October 2000, O'Neill J gave leave to apply for judicial review by way of application for an order of prohibition or, alternatively, an injunction restraining the further prosecution of the Appellant in respect of the above offences. The facts will be set out in more detail. It suffices to state that, apart from the contention, now abandoned, that the offences charged were not known to the law, the grounds relied upon consisted of delay in bringing forward the complaints, delay by Garda authorities in prosecuting them and actual prejudice to the fairness of the prospective trial of the Appellant. Part of the complaint related to the fact that, on at least two occasions, the complainant had demanded money from the Appellant, in consideration of his agreeing not to pursue the charges.


I will recount the history of the alleged events in chronological order, though it will be essential to bear in mind that the chronology of the alleged offences does not coincide with and is, in some important respects, the reverse of the chronology of the complaints.


There is a significant age difference between the complainant and the Appellant. The complainant was born on 15th April 1962. The Appellant was born on 21st September 1945. The Appellant is a married man with five children. He is a farmer, living in the West of Ireland. The complainant lives near him in the same area of rural Ireland.


The complainant's account of the alleged offence which is first in time is as follows. On a date unknown between 1st June and 1st September 1977, the complainant was working for a local farmer. The Appellant, who lives 600–700 yards away, came into the farmyard seeking to borrow a plough or a harrow. He asked the complainant to show him where it was. It was in a bog, about three quarters of a mile in off the road. The complainant accompanied the Appellant on his tractor. On the way, the Appellant stopped at the entrance to the bog on the pretence of relieving himself. He asked the complainant to get down with him. He then committed, according to the description of the complainant, a violent anal rape. He pushed the complainant onto the ground. The incident went on for about twenty minutes. The complainant was shouting but nobody heard. The complainant got up and ran away.


The complainant made no complaint to anyone about this incident. He went to his home and washed himself. I will refer later to the history of the making of these complaints.


The second charge relates to an alleged indecent assault by the Appellant on the complainant on 22nd August 1987. On that occasion the Appellant offered the complainant, who wanted to meet a friend, a drive in his car. I must omit detailed reference to the places involved. It suffices to say that the Appellant drove the complainant a considerable distance out of his way, during which he sought to engage the complainant in conversation about his sexual experiences. He placed his hand over the complainant's crotch and asked if his penis would rise. The complainant said that only a woman would do that for him. The Appellant tried to open the complainant's zip. His advances were rejected. The Appellant then masturbated in the presence of the complainant. Afterwards he drove the complainant to his destination where he dropped him off.


Shortly after these events, the complainant confronted the Appellant at his home alleging sexual assault. On 26th August 1987, the Appellant himself complained to a member of the Gardaí that the complainant had done this and said that the complainant had drink taken. The Appellant denied at that time that anything had happened on the journey when he had given the complainant a lift the previous week. As will appear later, the Appellant later admitted that he had made some form of sexual advance to the complainant.


On 3rd September 1987, the complainant made a statement in writing to the gardaí at the local Garda station. He described the incident of 22nd August 1987. However, he made no complaint of any incident in 1977 or of any rape at any time.


Shortly after the complainant had made his statement, the local doctor called to his home and asked his parents to get him to call to see him, which he did. The doctor said that the Appellant was on the verge of a nervous breakdown. The complainant went away apparently to consider this. He returned and told the doctor that he " was willing to drop the charges" for the sake of the Appellant's family but that he wanted compensation for what had been done to him. He suggested IR£3000 as a reasonable sum. The doctor did not involve himself any further. The complainant heard nothing further about the matter. It is not in dispute that the doctor was used as some sort of an intermediary....

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