M.M. v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Geoghegan
• Judgment Date: 23 January 2007
• Neutral Citation: [2007] IESC 1
• Court: Supreme Court
• Date: 23 January 2007

[2007] IESC 1

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Appeal No. 38/2004

M (M) v DPP

BETWEEN:

M.M.

Appellant/Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

OFFENCES AGAINST THE PERSON ACT 1861 S62 (UK)

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802

M (P) v DPP 2006 2 ILRM 361

CONSTITUTIONAL LAW

Delay

Right to fair trial - Right to trial with reasonable expedition - Sexual offences - Prejudice - Whether real and substantial risk of unfair trial - Faulty memory - SH v DPP [2006] IESC 55, [2006] 3 IR 575 applied - PM v DPP [2006] IESC 22, [2006] 3 IR 172 referred to - Appeal dismissed (38/2004 - SC - 23/1/2007) [2007] IESC 1M(M) v DPP

Facts: The applicant/ appellant sought to appeal a decision of the High Court refusing to restrain the respondent from prosecuting the applicant for sexual offences alleged to have been committed in the 1970’s. The applicant alleged that inter alia the

blameworthy prosecutorial delay and prejudice suffered would result in a real and substantial risk of an unfair trial in light

of the H v.DPP decision.

Held by the Supreme Court, per Geoghegan J. that the applicant had not established the existence of the risk of an unfair trial.

Fairness dictated that the issues had to be decided by a jury.

Reporter: E.F.

1 Judgment of Mr Justice Geoghegan delivered the 23rd day of January 2007

2 This is an appeal from an order of the High Court ( Ó Caoimh J.) refusing reliefs by way of judicial review including injunctions restraining the above-named respondent from continuing to prosecute the above- named appellant in respect of two sets of charges alleging offences contrary to section 62 of the Offences against the Person Act, 1861. The appellant was at all material times a Marist Brother teaching in a west of Ireland school. The two sets of offences related to two respective schoolboys. There were twenty-nine charges of indecent assault in respect of schoolboy M.W. between the 1st of December, 1970 and the 30th June, 1971. There were thirty-two charges of indecent assault in respect of schoolboy P.G. between the 1st March, 1971 and the 24th June, 1972.

3 The original application for judicial review can be summarised as being based both on delay (including alleged blameworthy prosecutorial delay) and prejudice in the conduct of the defence with the consequence that there would be a real and substantial risk of an unfair trial.

4 An initial hearing of this appeal took place on the 5th October, 2005 and the court reserved judgment. Subsequently this court delivered a judgment in H. v D.P.P. [2006] I.E.S.C. 55 as yet unreported. In that judgment which was a judgment of the court delivered by Murray C.J., it was pointed out that as a result of incremental knowledge and experience gained by the court in relation to these types of cases the court was satisfied that it was no longer necessary to establish the reasons for complainant' s delay. The only question which the court would henceforth consider is whether such delay has resulted in prejudice to an accused so as to give rise to a real and substantial risk of an unfair trial.

5 The court reserved its position in relation to "wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial". There has always been an important distinction between perception of a risk that a trial might be unfair on the one hand and a judgment that it would in the special circumstances of the case be actually unfair to put the person on trial. Hence the reservation but nothing turns on it in this case.

6 In the light of the court' s decision in the H. case the court invited further submissions in this appeal and fixed a resumed hearing of it. The appeal is now confined to prejudice but questions of prejudice need to be put into context and, therefore, I will briefly refer to the alleged history of the delay.

7 In the case of the complainant P.G. referred to above, he had an extraordinary history, in that under provocation he killed his father and was convicted and sentenced for manslaughter. It was alleged by the appellant that around that time in 1983, P.G. had made a complaint to members of the gardaí and that one of them a Detective Garda Staunton who is now dead had made some reference to a conversation in this regard with P.G. However, as far as the State authorities are concerned the case made at all stages has been that there was no formal complaint then made and that if it had been it would have been followed up. It is suggested that P.G. made complaints to various people in the 1980s and early 1990s including one to a member of the Garda Síochána in 1992. However, as far as the records of the Garda Síochána are concerned no formal complaint was made prior to the 20th October, 1995. I do not propose to review in detail what happened after that because delay is no longer an issue. It is sufficient to state that the matter was carefully considered and it was decided by the Director of Public Prosecutions that a prosecution would be unsafe in all the circumstances. That was about July, 1996. The matter became resurrected in 1999 when P.G.' s solicitor wrote requesting a re-opening of the investigation. A new detailed investigation was then carried out and evidence which was unavailable the first time became available. In the course of this second investigation the complaint of M.W. emerged. The appellant made a full admission of indecent assault in respect of P.G. In relation to M.W., he made what could be characterised as a partial admission in relation to the complaints of M.W. He was not admitting to remembering M.W. personally but he was accepting that the alleged events may have occurred. For instance, the following questions and answers were recorded as between Sergeant Dermot Flannery and the appellant:

"D.F. (M.W.) says that while you had him on your knee teaching him the guitar...