M.M. -v- DPP, [2007] IESC 1 (2007)

Docket Number:38/04
Party Name:M.M., DPP
Judge:Geoghegan J.


Appeal No. 38/2004

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.







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

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.

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.

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.

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.

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.

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...

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