McG (T) v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 30 June 2009 |
| Neutral Citation | [2009] IEHC 294 |
| Court | High Court |
| Date | 30 June 2009 |
[2009] IEHC 294
THE HIGH COURT
BETWEEN
AND
OFFENCES AGAINST THE PERSON ACT 1861 S48
CRIMINAL LAW (RAPE) ACT 1981 S2
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S21
CONSTITUTION ART 38
PROSECUTION OF OFFENCES ACT 1974 S6
C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77
SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11
RSC O.84 r21
RSC O.122 r1
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7
DPP v WALL UNREP CCA 16.12.2005 2005 IECCA 140
C (C) & G (P) v IRELAND & ORS 2006 4 IR 1 2005/7/1439 2005 IESC 48
MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006/35/7440 2006 IESC 11
M (K) v DPP 1994 1 IR 514 1993/8/2400
BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351
DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645
K (D) v DPP UNREP SUPREME 3.7.2006 2006/30/6464 2006 IESC 40
O'FLYNN v CLIFFORD 1988 IR 740 1988/10/2792
G (P) v DPP 2007 3 IR 39 2006/26/5503 2006 IESC 19
O'H (M) v DPP 2007 3 IR 299 2007/49/10412 2007 IESC 12
F (B) v DPP UNREP HIGH 15.6.2007 (EX TEMPORE)
BOWES & MCGRATH v DPP 2003 2 IR 25 2003/6/1129
H v DPP 2007 1 ILRM 401 2006/27/5802 2006 IESC 55
B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797 2006 IESC 66
L (P) v BUTTIMER & DPP 2004 4 IR 494 2004/27/6186
O'C (J) v DPP 2000 3 IR 478 2000/13/5164
NOONAN (AKA HOBAN) v DPP 2008 1 IR 445 2007/45/9380 2007 IESC 34
T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39
HEALY & DODD v DPP UNREP HIGH 30.5.2005 (EX TEMPORE)
O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301
Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949
MCCORMACK, STATE v CURRAN 1987 ILRM 225
F (B T) v DPP 2005 2 IR 559 2005 2 ILRM 367 2005/24/4872 2005 IESC 37
CRIMINAL LAW
Evidence
Preservation of evidence - Fair trial in due course of law - Duty to seek out and preserve potentially relevant evidence - Rape - Forensic testing - Unavailability of material evidence - Character of complainant - Failure to re-interview complainant and other key witnesses in the context of subsequently disclosed information about the complainant's psychiatric condition, life circumstances and personal history of false allegations - Whether real risk of unfair trial - Scully v DPP [2005] 1 IR 242 followed; DPP v Wall [2005] IECCA 140 (Unrep, CCA, 16/12/2005) considered - Relief refused (2008/289JR - Herbert J - 30/6/2009) [2009] IEHC 294
McG v DPP
Mr. Justice Herbert delivered on the 30th day of June 2009
The applicant is charged with a single count of rape, contrary to s. 48 of the Offences Against the Person Act 1861, and s. 2 of the Criminal Justice Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990, arising from an alleged incident on the 6 th November, 2005, at the dwelling house of the complainant.
By order of this Court made on the 14 th March, 2008, the applicant was given leave to seek an injunction by way of an application for judicial review restraining the respondent from prosecuting the applicant in the Central Criminal Court on that charge, and, if necessary, an order extending the time for the bringing of the judicial review application.
The grounds upon which the applicant was granted leave to seek judicial review were as follows:-
(i) That the members of An Garda Síochána are under a duty, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of the guilt or innocence of an accused;
(ii) That, in failing to seek out or preserve or provide to the defence evidence of a potentially exculpatory nature, namely evidence from forensic testing of the bed sheets, mattress and bedclothes from the scene of the alleged incident from which the said charge has arisen, that could have been beneficial to the applicant's defence, the respondent and the relevant members of An Garda Síochána have created a real risk that the applicant will not obtain a fair trial in due course of law;
(iii) That, over and above the forensic evidence, the respondent and An Garda Síochána failed to properly investigate or cause to be properly investigated, the criminal allegation against the applicant, and failed to fairly and fully probe the circumstances surrounding that charge;
(iv) That the respondent and the An Garda Síochána failed to properly interview or subsequently re-interview any of the persons who made statements in respect of the criminal charge against the applicant. Specifically, the respondent and An Garda Síochána failed to re-interview the complainant, the complainant's daughter, the complainant's son, or any other key witnesses in the context of subsequently disclosed information about the complainant's psychiatric condition, life circumstances and personal history of false allegations;
(v) That the respondent and An Garda Síochána failed to advise the complainant that she should submit herself to a physical examination thereby denying the applicant evidence of a potentially exculpatory nature, namely medical evidence;
(vi) That the respondent failed to provide full and meaningful disclosure of information and materials in his power or control in a proper or timely manner, or at all;
(vii) That the respondent failed to take into account or properly investigate the prima facie mala fides of the complainant and the malicious nature of her complaints, including motives behind same;
(viii) That the respondent has failed to perform his functions properly or fairly in the bringing of the criminal charge against the applicant;
(ix) That the applicant's right to natural justice and fair procedures have been breached and would further be breached by any criminal trial arising the from the charge herein;
(x) In the light of what is now known about the complainant, in the light of the request made to the respondent to arrange to re-interview the complainant and other key witnesses, and in the light of the demonstrated failure of An Garda Síochána and the respondent to properly investigate the matter and take such further statements as were required, any trial of the charge would be unfair, not in accordance with law, not in accordance with the Constitution and in particular Article 38 thereof, and contrary to the applicant's constitutional rights to fair procedures in the trial and pre-trial process;
(xi) In all the circumstances of the case, justice requires that the respondent should not be permitted to put the applicant on trial.
In the Statement of Opposition dated the 4 th June, 2008, the respondent opposes the relief sought on the following grounds:-
(1) The Applicant failed to seek judicial review promptly and/or within the time provided by the Rules of the Superior Courts and has not adduced any good reason why the Court should extend the time for seeking judicial review.
(2) Pursuant to the provisions of the Prosecution of Offences Act 1974, the respondent is entrusted with the decision whether or not to initiate a prosecution where he considers that there is credible evidence that the offence alleged has been committed and in the absence of mala fides, improper motive or improper policy on his part this decision is not subject to judicial review.
(3) The Court has not and should not appear to have any responsibility for the institution of a prosecution or to determine the evidence upon which it is to be advanced.
(4) The respondent has no function in relation to the investigation of an alleged crime nor is he responsible for the actions of members of An Garda Síochána.
(5) The investigation by An Garda Síochána was conducted properly and diligently and there was no failure to seek out and/or to preserve all evidence.
(6) The Applicant has not discharged the onus of showing that there is a real and substantial risk that he will face an unfair trial.
(7) The respondent has fully complied with his duties relating to disclosure and further and in the alternative, disclosure is a matter for the Trial Judge and is not properly a matter for judicial review.
(8) There has been no breach of the Applicant's right to natural justice and/or fair procedures nor would such a right be breached by putting the Applicant on trial in relation to this charge.
(9) There is no evidence of mala fides on the part of the complainant nor is there evidence of malice in relation to the making of the complaint.
(10) There has been no breach of the Applicant's right to a trial in due course of law in accordance with Article 38 of the Constitution.
The facts relevant to this application as gleaned from the several Affidavits filed in the application are as follows.
The alleged rape is claimed to have occurred in the complainant's bed in her bedroom at about 5.00 am on the 6 th November, 2005. A reference to the calendar shows that the 6 th November, 2005, was a Sunday. On the evening of the next day, Monday, the complainant told a friend who had telephoned her that the applicant had raped her, "on Saturday night the 7 th November, 2005 or Sunday morning". In her statement to An Garda Síochána the complainant alleged that on Saturday she had organised a party for a relative by marriage in a local licensed premises. She stated that she had only three drinks during the course of the evening as she was responsible for the money. In his statement to An Garda Síochána the applicant denied the alleged rape and said that the complainant's daughter had told him that the complainant had a severe drink problem, that she loved attention and, that she was not happy with him and, had asked her daughter what was going to happen to her...
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