M.G. -v- DPP, [2007] IESC 4 (2007)

Docket Number:39/03
Party Name:M.G., DPP
Judge:Fennelly J.
 
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THE SUPREME COURT No. 039/2003

Murray C.J.

Hardiman J.

Fennelly J.

BETWEENM G Plaintiff/Appellantand

THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent/Defendant

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...

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