MG (appellant/plaintiff) v Director of Public Prosecutions (respondent/defendant)
Judicial Review - Appeal against refusal of order for prohibition restraining further prosecution of appellant - Delay - Whether real or serious risk of unfair trial as consequence of delay - Exceptional circumstances justifying restraint of delayed prosecutions - Whether demand for money with menaces amounted to exceptional circumstances - Offences Against the Person Act 1861, ss 61, 62.
The Supreme Court (Chief Justice Murray, Mr Justice Hardiman and Mr Justice Fennelly); judgment delivered January 30th, 2007.
The test of whether there is a real or serious risk that the applicant, by reason of delay, would not obtain a fair trial is to be applied in light of the circumstances of the case. Delay alone is not sufficient to prohibit the prosecution of sexual offences. In determining prejudice to the accused, the court can have regard to wholly exceptional circumstances that may otherwise render the trial unjust or unfair.
The Supreme Court so held in allowing the appeal and granting an order restraining further prosecution of the appellant in respect of any of the charges.
Hugh Hartnett SC, Isobel Kennedy SC with Anne- Marie Lawlor BL for the appellant/plaintiff; Maurice Gaffney SC and Anthony Collins SC for the respondent/defendant.
Mr Justice Fennelly, delivering the judgment of the court, commenced by stating that the appeal raised, a matter of months after the judgment of the Supreme Court in H v Director of Public Prosecutions, IESC 55, the sort of exceptional cases which can justify restraint of delayed prosecution for sexual offences.
The appellant stood charged with three sexual offences, arising in effect from two events, alleged to have been committed against a single complainant in 1977 and 1987. The appellant stood charged with (1) buggery of the complainant on a date unknown between June 1st, and September 1st, 1977; (2) indecent assault on the complainant, at the same place and between the same dates as aforementioned; (3) indecent assault on the complainant on August 22nd, 1987. The first and second charges related to the same event and were, in effect alternative charges.
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 was laid pursuant to section 61 of 1861 Act. The second and third charges were laid pursuant to section 62 of the same Act.
The appellant appealed against the judgment of Murphy J, delivered on December 17th, 2002, whereby he rejected the application for an injunction restraining the respondent from continuing with the prosecution. Following the decision of H v Director of Public Prosecutions, the 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 such cases.
Counsel submitted, however, that the special facts of the case warranted it's being treated as a special and exceptional case within the principles established in H v DPP. Furthermore, it was submitted that there was 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 was concerned. 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 3 IR 144, this argument could not be maintained. The leaned trial judge, nonetheless, ruled on the issue and held against the appellant.
Mr Justice Fennelly said that by order of October 2nd, 2000, the High Court 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 offences. It sufficed to state that 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 the complainant had demanded money from the appellant, in consideration of agreeing not to pursue the charges.
Mr Justice Fennelly recounted the alleged events in chronological order, stating it would be essential to bear in mind that the chronology of the alleged offences did not coincide with and was, in some important respects, the reverse of the chronology of the complaints.
Mr Justice Fennelly noted there was a significant age difference between the complainant and the appellant. The complainant was born on April 15th, 1962. The appellant was born on September 21st, 1945. The appellant was married with children.
On a date unknown between June 1st, and September 1st, 1977, the complaint was approached by the appellant in relation to a loan of farming equipment, which was located in an isolated area. The complainant accompanied the appellant and was then subjected allegedly, according to the description of the complainant, to a violent anal rape. The complainant made no complaint to anyone about this incident at the time. The second charge related to an alleged indecent assault by the appellant on the complainant on August 22nd, 1987. On that occasion the appellant offered the complainant a lift in his car. During the journey he allegedly sought to engage the complainant in conversation about his sexual experiences. He allegedly placed his hand over the complainant's crotch. Also he allegedly tried to open the complainant's zip.
His allegedly advances were rejected. The appellant then allegedly masturbated in the presence of the complainant.
Mr Justice Fennelly stated that shortly after these events, the complainant confronted the appellant at his home alleging sexual assault. On August 26th, 1987, the appellant himself complained to the gardaí that the complainant had done this and said that the complainant had drink taken. The appellant denied the allegation. On September 3rd, 1987, the complainant made a written statement to the gardaí.
He described the incident of August 22nd, 1987. However, he made no complaint of the alleged rape in 1977 or of any rape at any time. Shortly after this a local doctor approached the complainant acting as an intermediary. The complainant indicated that, if financially compensated, he would be willing to drop the charges for the sake of the appellant's family. A figure of IR£3,000 was suggested. It was not disputed that the doctor was used as an intermediary of sorts. The complainant demanded payment but none was made.
Mr Justice Fennelly stated that the gardaí approached the appellant in 1987, but no charges were brought against him at that time. No explanation has been offered for this. There was no mention of the 1977 incident, as no complaint had been made. The appellant averred in his grounding affidavit that he heard nothing further for approximately one year when he was repeatedly contacted by the complainant by telephone seeking payment. The complainant's affidavit referred to this evidence, without denying the allegation, but claimed that the appellant must have known of the approaches made through the doctor. Thus, it appeared to Mr Justice Fennelly that the complainant made repeated demands for money for upwards of a year. No payment was offered or made.
Nothing further occurred until June 18th, 1996, when the complainant wrote to the wife of the appellant alleging an attempted rape by the appellant in 1987. Mr Justice Fennelly stated that it was noteworthy that the allegation made by the complainant in respect of 1987 was not one of attempted rape, but of an indecent assault whereas what was alleged to have occurred in 1977 was an act of buggery, not an attempt. The complainant explained that he had been unwilling to admit to having been raped, when writing the letter.
Some time in June, 1996, the complainant complained to a priest about the alleged sexual abuse without specifying a time or other details. The priest referred him to a social worker, whom the complainant met on July 11th, 1996. He told her that he had been sexually assaulted by a neighbour. She suggested he go to the gardaí or to the Rape Crisis Centre. He called to see her again on August 30th, 1996, but had not made any official complaint in either of these ways.
This led to the making of his first complaint to the gardaí regarding the alleged rape. However, the complainant admitted writing a further letter addressed this time to the appellant in which he indicated that he would be willing to settle out of court. This appeared to have occurred prior to making the complaint about the 1977 incident.
On September 1st, 1996, the complainant for the first time complained in writing to the gardaí that the appellant had raped him in 1977. The appellant was interviewed by the gardaí on November 21st, 1996.
He denied that anything at all of a sexual nature had occurred in 1977 when the latter alleged that he had been raped. So far as the gardaí were concerned, the investigation into both the 1977 and 1987 allegations was completed in December 1996. In March 1997, the respondent directed that there was to be no prosecution.
Both the appellant and the complainant were informed of this fact. In December, 1998, the complainant took the law into his own hands. The windows of the appellant's home and car were broken. He was prosecuted and received a suspended sentence of three months imprisonment and was ordered to pay compensation.
In the course of the investigation of this matter, the complainant on December 19th, 1998, reiterated to the gardaí his complaint of having been raped by the appellant in 1977. A number of further statements were made.
On October 5th, 1999, the appellant was arrested pursuant to section 4 of the Criminal Justice Act, 1984. In the course of questioning, he accepted that both in 1977 and 1987, he had made sexual advances to the complainant.
The appellant's version of events accorded with the complainant's account in respect of the 1987 incident. Mr Justice Fennelly stated that whether any of these events were consensual would be entirely a matter for the jury. However, it must be recalled that, both in 1977 and 1987, homosexual activity, even consensual was criminal. Mr Justice Fennelly stated that it was important to record, however, that the appellant had never accepted that he committed the more serious offence of buggery.
Clearly, there existed material in this case to maintain a prosecution for indecent assault. More importantly, the complainant alleged anal rape (buggery) in 1977. No separate allegation of any lesser offence was made.
Mr Justice Fennelly stated that following the decision of H v Director of Public Prosecutions, it is no longer incumbent on the prosecution to provide an explanation for the complainant's delay in bringing forward the complaint. The High Court dealt with the matter in the context of the case-law as it was prior to that decision. The delay had been explained by the complainant's shame at the idea of having been raped by another man.
Mr Justice Fennelly stated that insofar as there was communicated to the appellant, implicitly in 1987, and explicitly in 1997, that there would be no prosecution, or that there was delay on the part of the Garda authorities or the prosecution, the matter was governed by the principles laid down in P.M. v Director of Public Prosecutions (2006) IESC 22.
Mr Justice Fennelly stated that on the facts there was no blameworthy delay by the prosecuting authorities. The affidavits sworn on behalf of the Garda Síochána satisfied the court that the investigation of the case was carried out in conjunction with other investigations of a similar kind, including some concerning the appellant.
These matters necessarily involved extensive timely interviews. There was no undue delay.
Mr Justice Fennelly noted, however, the fact remained that no action took place on foot of the 1987 complaint and that the appellant was informed in 1997 that there would be no prosecution in respect of the 1977 incident.
Mr Justice Fennelly stated that in the judgment in H v Director of Public Prosecutions, the court had stated that it was satisfied that it is no longer necessary to establish such reasons for the delay in making a complaint of a sexual offence. It reformulated the test as follows:
"The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in light of the circumstances of the case."
The court also considered the relevance of a multiplicity of complaints, stating:
"The courts have referred previously to instances where there was a single complainant or a single complaint in such a manner as to give the benefit to an accused because of the sole nature of the complaint. While it would always be a matter for consideration in all the circumstances of a case, the converse would also be a relevant factor on an application for judicial review. If there were multiple complaints that too may be a factor . . .
"The court is satisfied that in the same way as the fact that there is one complaint is a relevant factor, so too is the fact that there are a multiplicity of complaints a relevant factor for consideration by the court in determining whether to grant the relief sought."
The court concluded its judgment by acknowledging that it could "not exclude wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial".
Mr Justice Fennelly stated the first allegation of rape was made 19 years after the alleged event. It is a single event. The complainant was the only witness. The appellant was led to believe that he would not be prosecuted on foot of the complaints. None of these factors, taken on their own, would constitute sufficient justification for restraint on the prosecution of the appellant.
Mr Justice Fennelly stated, however, there was a singular distinguishing feature in the case. It consisted of the fact that the complainant persistently and repeatedly resorted to threats, combined with demands for money, of exposure of the appellant's allegedly sexual proclivities.
He ultimately resorted to a physical attack on the appellant's property. These threats were combined with offers to withdraw charges in consideration of money payments. Mr Justice Fennelly stated that it redounded to the credit of the appellant that, although clearly vulnerable to allegations of this type, he never paid or offered to pay anything as to the price of the complainant's silence. This was criminal behaviour. The complainant was demanding money with menaces.
The complainant did not appear to have been confronted with the possibility that he would himself be prosecuted. The complainant consistently used the weapon of blackmail and did not appear to have faced any criminal exposure.
Mr Justice Fennelly stated it was necessary to repeat that the charge of anal rape (buggery) was an extremely serious one.
The complainant made this complaint only when repeated demands for payment in return for silence in respect of alleged sexual assault had failed to yield fruit. This situation was unique in the annals of the many cases of prosecution for sexual offences that had come before the courts. It constituted a completely exceptional set of circumstances.
The complainant wished to use the courts at his own option as a means of extracting money from a person accused. The criminal courts were to be used as the instrument for the complainant's greed.
Mr Justice Fennelly stated that if the appellant's case were to be considered as one based on delay alone or on prosecutorial behaviour alone, it would not succeed.
The court should be slow to permit the criminal courts to be used as an instrument of blackmail. This is a matter of public policy. In most cases, improper demands by a witness would not provide a basis for halting a prosecution. However, the sole witness in respect of each alleged offence had consistently sought to use the threat of exposure to criminal prosecution, and thus the courts themselves, as a means of extracting private pecuniary benefit.
Mr Justice Fennelly concluded that the exceptional element meant that it would be wrong and unjust to put the appellant on trial on any of the charges. Mr Justice Fennelly stated he would allow the appeal and granted an order restraining the further prosecution of the appellant in respect of any of the charges. Mr Justice Fennelly then stated that it was unnecessary, therefore, to consider whether the appellant had sufficient grounds for his claim that there was a real risk that he could not obtain a fair trial in accordance with a law.
The Chief Justice, Mr Justice Murray, and Mr Justice Hardiman concurred with the judgment of Mr Justice Fennelly.
Solicitors: McMahon & Williams (Clare) for the appellant; Chief State Solicitor for the Respondent.
• Martin McDonnell, barrister