Supreme Court dismisses appeal against refusal of injunction to proceed with prosecution for indecent assault charges.

THE SUPREME COURT

Appeal No. 38/2004

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN:

M.M.

APPELLANT/APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

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 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 that you slipped your hand down inside of

his trousers and felt his penis.

M.M. I can’t just remember (M.W.). I have no recollection of that at the moment but I would also say that he is probably

not making it up. I will try to remember that W. boy.”

A flavour of the activity being admitted is contained in the following bit of dialogue between the same sergeant and the appellant

later on in the interview.

“D.F. How did you start to get sexually involved with (P.G.)

M.M. When I would be tucking my shirt into my trousers I tried to get (P’s) attention to my penis. He would be standing

beside me. I would say to P. ‘look at the size of this thing’ meaning my penis. I would be sexually aroused. I told him to

feel how big my penis was. P. would feel my penis through my clothes. I was quite aware that what I was doing was

wrong. I was using P.G. for sexual arousement. This happened maybe twice and not much more than that. I wasn’t

interested in P.’s body as such. I wanted him to feel me and he did. My satisfaction was him feeling me.”

It has often been pointed out by members of this court that a trial which is nothing more than a one to one swearing match is

undoubtedly fraught with difficulty even though not necessarily unfair. This case, however, is not remotely analogous to that

situation. Although one of the specific grounds of appeal has been that the learned High Court judge was wrong to attach importance

to the admissions, I think that any such proposition is wholly unreal. In the context of a judicial review and the consideration of

whether a trial should be allowed to proceed the court must view the situation in the round. This case is full of alleged facts which

would be relevant at the trial but which are mere background to the alleged sexual assaults. This means, however, that there is ample

scope for wide cross-examination from which a jury should be reasonably able to assess the truth. There are some extraordinary

alleged side facts such as, for instance, collusion between the father of P.G. and the appellant in return for money, the actual

witnessing of an alleged assault on P.G. by a cleaning lady in the school who in turn was alleged to be having a relationship with the

appellant.

In the course of the very extensive investigation carried out in 1999 following on the request of the solicitor for P.G., M.W. came

forward. He made a statement of complaint and explained why he had not done so earlier.

It would appear that the Director of Public Prosecutions considered the evidence with great care and finally, directions as to the

prosecution of the offences were issued on the 27th July, 2001.

The issue of prejudice may, in some cases, be tied in with blameworthiness on the part of the prosecution authorities. In this case, I

am not satisfied that any case of blameworthiness has been made out against the authorities as a matter of probability. On the

contrary both the Director of Public Prosecutions and the garda authorities appear to have acted most responsibly.

It has been suggested that faulty memory may lead to prejudice in this case. There is also the question of the appellant’s own

memory in relation to, for instance, M.W. I do not think there is any operative prejudice based on these matters. There is no question

here of alleged restored memory on the part of the complainants nor is the appellant seriously alleging that the acts complained of did

not happen. His memory problem (if any) appears to relate to the identification of M.W. but then again he has not in these particular

proceedings put in issue the word of M.W.

If there are any issues to be resolved in this case it is clearly a case in my view where they should be resolved by a jury at a trial. As

this court has frequently reiterated, the trial judge himself or herself must, of course, ensure that there be in fact a fair trial.

There is one remaining important aspect of the matter to be considered. Ó Caoimh J. in his judgment in the High Court said the

following:

“The applicant is clearly entitled to a fair trial and fairness must include consideration of the applicant’s past including the

sentence which he has served and the fact that the admissions were made by him in 1999 at a time some years before he

had completed the service of the sentence. I am satisfied that these matters must be considered in favour of the

applicant, as will be the case in regard to any indication as to how the applicant proposes to deal with the matters

against him. In that context, I am satisfied, notwithstanding the criticism that has been voiced particularly in relation to

the bringing forward of the charges that this is not such as would give rise to a situation of an unfairness in the trial of

the applicant. As I said, these matters will have to be addressed by any court dealing with these charges and the court

must assume that fairness will prevail not only in relation to the trial itself but in relation to the consideration of any

penalty, if such arises, having regard to the applicant’s antecedents and the approach that he has taken in recent times

in relation to the complaints against him.

This obviously will include a situation where had the charges been brought forward earlier that there might have been a

situation where if the applicant was found guilty and was required to serve a sentence that any such sentence would

have run, or at least a portion thereof, would have run concurrent to the sentence then being served by the applicant.”

I am in complete agreement with those sentiments expressed by the learned High Court judge. I should explain, however, that they

are made not only in the context of the long time lapse etc. but particularly in the context that the appellant has already served a

sentence of twelve years (reduced on appeal from a sentence of 18 years imposed in the Central Criminal Court) penal servitude from

the 27th November, 1992 in respect of sexual offences relating to a different complainant. That conviction and sentence post-dates

the offences alleged in the matter before the court. Upon release the appellant attended a fulltime residential assessment and

treatment facility in England for men who have sexually abused children and underwent rehabilitation.

In the supplemental written legal submissions on behalf of the appellant, however, a suggested obstacle to this approach has been

identified. Referring to the judgment of Kearns J. with which the other members of this court concurred in P.M. v. D.P.P. [2006] ILRM

361 and which was delivered on 5th April, 2006 the submissions contain the following observation:

“Interestingly, Kearns J. rejected a submission that prosecutorial delay could be regarded as a ‘mitigating factor’ at

sentencing as it would offer no benefit to an innocent person. In the present case, during the course of oral argument

before this honourable court, one of the members of the court expressed the view that if the case was to proceed to trial

and the appellant was convicted the delay could be taken into account by the trial judge in the imposition of the

sentence. It would appear that this is now expressly excluded by the judgment of this court in P.M. v. D.P.P.”.

The observations of Kearns J. which were at any rate obiter dicta have been, in my view, taken wholly out of context. In the P.M.

case, Kearns J. was simply rejecting the proposition put up by counsel for the Director of Public Prosecutions that in a case where

there had been significant blameworthy prosecutorial delay giving rise to significantly increased anxiety on the part of the applicant

arising from it, it was not an answer to a claim for an injunction that these factors could simply be taken into account at the

sentencing stage by way of mitigation. I am quite satisfied that what Ó Caoimh J. said as quoted above is correct. The whole

background to this case including the relationship between the timings and the previous criminal proceedings against the applicant

may properly be taken into account in considering sentence in the event of the applicant being convicted.

I am satisfied that the appellant did not establish in the High Court a case either that it would be unfair to put him on trial or a case

that there would be a real and substantial risk of an unfair trial. Indeed, particularly having regard to the evidence of admissions,

fairness dictates in this case that the issues be resolved by a jury. I would, therefore, dismiss the appeal.

M. v. DPP