Supreme Court allows appeal to restrain prosecution due to witness blackmail and exceptional circumstances preventing fair trial.

THE SUPREME COURT

No. 039/2003

Murray C.J.

Hardiman J.

Fennelly J.

BETWEEN

MG

PLAINTIFF/APPELLANT

AND

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 married man with five children. He is a farmer, living in the West of

Ireland. The complainant lives near him in the same area of rural Ireland.

The complainant’s account of the alleged offence which is first in time is as follows. On a date unknown between 1st June and 1st

September 1977, the complainant was working for a local farmer. The Appellant, who lives 600-700 yards away, came into the

farmyard seeking to borrow a plough or a harrow. He asked the complainant to show him where it was. It was in a bog, about three

quarters of a mile in off the road. The complainant accompanied the Appellant on his tractor. On the way, the Appellant stopped at

the entrance to the bog on the pretence of relieving himself. He asked the complainant to get down with him. He then committed,

according to the description of the complainant, a violent anal rape. He pushed the complainant onto the ground. The incident went

on for about twenty minutes. The complainant was shouting but nobody heard. The complainant got up and ran away.

The complainant made no complaint to anyone about this incident. He went to his home and washed himself. I will refer later to the

history of the making of these complaints.

The second charge relates to an alleged indecent assault by the Appellant on the complainant on 22nd August 1987. On that

occasion the Appellant offered the complainant, who wanted to meet a friend, a drive in his car. I must omit detailed reference to the

places involved. It suffices to say that the Appellant drove the complainant a considerable distance out of his way, during which he

sought to engage the complainant in conversation about his sexual experiences. He placed his hand over the complainant’s crotch and

asked if his penis would rise. The complainant said that only a woman would do that for him. The Appellant tried to open the

complainant’s zip. His advances were rejected. The Appellant then masturbated in the presence of the complainant. Afterwards he

drove the complainant to his destination where he dropped him off.

Shortly after these events, the complainant confronted the Appellant at his home alleging sexual assault. On 26th August 1987, the

Appellant himself complained to a member of the Gardaí that the complainant had done this and said that the complainant had drink

taken. The Appellant denied at that time that anything had happened on the journey when he had given the complainant a lift the

previous week. As will appear later, the Appellant later admitted that he had made some form of sexual advance to the complainant.

On 3rd September 1987, the complainant made a statement in writing to the gardaí at the local Garda station. He described the

incident of 22nd August 1987. However, he made no complaint of any incident in 1977 or of any rape at any time.

Shortly after the complainant had made his statement, the local doctor called to his home and asked his parents to get him to call to

see him, which he did. The doctor said that the Appellant was on the verge of a nervous breakdown. The complainant went away

apparently to consider this. He returned and told the doctor that he “was willing to drop the charges” for the sake of the Appellant’s

family but that he wanted compensation for what had been done to him. He suggested IR£3000 as a reasonable sum. The doctor did

not involve himself any further. The complainant heard nothing further about the matter. It is not in dispute that the doctor was used

as some sort of an intermediary. The complainant demanded payment but no payment was made.

The Appellant was approached by the gardaí in 1987, but no charges were brought against him at that time. No explanation has been

offered for this. There was no mention of any incident in 1977, since no complaint had been made to the garda about it.

The Appellant, in his grounding affidavit, has sworn 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 refers to this evidence,

without denying the allegation, but claims that the Appellant must have known of the approaches made through the doctor. Thus, it

seems clear that the complainant made repeated demands for money from the Appellant for upwards of a year. No payment was

offered or made.

Nothing further occurred until June 1996. On or about 18th June 1996, the complainant wrote to the wife of the Appellant as follows:

“As you know your husband tried to rape me in 1987. He also tried to do it when I was 15 years of age but I escaped

from him going up to [name] bog for a plough. I am willing to make a deal. This is a letter for both of ye. It is not for him

but I will consider your family.

Yours sincerely,

[signature]

PS I am not joking but very serious.”

It is noteworthy that the allegation made by the complainant in respect of the year 1987 is not one of attempted rape, but of an

indecent assault, whereas what is alleged to have occurred in 1977 is of an act of buggery, not an attempt. The complainant explains

that he had been unwilling to admit to having been raped, when writing that latter.

Some time in June1996, the complainant got in contact with a priest, who was asked to visit his home. It is not clear whether this

approach predated the letter to the Appellant’s wife. When the priest called, the complainant was said to be in bed. According to the

statement of evidence of the priest as it appears in the book of evidence, the complainant complained of being “abused,” without

specifying a time or other details. The priest referred him to a social worker, whom the complainant met on 11th July 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

her again on 30th August 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, which I will relate later.

However, the complainant, as he admits, wrote a further letter addressed this time to the Appellant. This is undated, but from internal

evidence, it appears to have occurred after his contact with the priest and social worker. It reads as follows:

“Hi scumbag

You know who I am from August 87 and also when you asked me to show you [name of owner] plough above in bog when

I was 15. I have contacted [name of priest] who put me in touch with [name of social worker] a counsellor in [name of

town]. So I see you in court. Not even [name of doctor] or [name] the quack doctor you went to will save you guards

relations, unless you want to protect your family name. [illegible word] I would be willing to settle out of court. So you

can contact either [name of solicitor] my solicitor or [name of priest].

[signature]”

On 1st September 1996, the complainant for the first time complained in writing to the gardaí that the Appellant had raped him in

1977. His account is set out above.

The Appellant was interviewed by the gardaí on 21st November 1996. He denied that anything at all of a sexual nature had occurred

between himself and the complainant on the occasion in 1977 when the latter alleged that he had been raped. The Appellant did not

maintain this total denial with utter consistency. As will be seen, he accepted at a later date that he had made some form of sexual

overture to the complainant.

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. The local gardaí duly informed both the Appellant and the

complainant of this fact.

In December 1998, the complainant, as explained in his affidavit, became so angry that he “took the law into [his] own hands.” He

took an iron bar to the Appellant’s home. He broke windows of the house and of a car. He was prosecuted and received a suspended

sentence of three months imprisonment and was ordered to pay IR£600 compensation.

In the course of the investigation of this matter, the complainant on 19th December 1998 reiterated to the gardai his complaint of

having been raped by the Appellant in 1977. In the period following, a number of further statements were made. On 5th October 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. These took the form of putting his hand on the

complainant’s crotch. On each occasion, his advances were rejected. He accepted that he had masturbated in the presence of the

complainant. This version of events accords with the complainant’s account in respect of the 1987 incident. 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.

It is important to record, however, that the Appellant has never accepted that he committed the much more serious offence of

buggery against the complainant.

Clearly, there is material in this case upon which a prosecution for indecent assault can be maintained. More importantly, the

complainant alleges anal rape (buggery) in 1977. That is in fact the entire gist of the complaint in respect of the 1977 incident. No

separate allegation of any lesser offence is made. The rape is denied by the Appellant.

The rape or buggery charge makes the case a particularly serious one. This complaint was first advanced against the Appellant some

nineteen years after the alleged act. It is noteworthy that there was no proposal to prosecute the Appellant in respect of the 1987

matter, though no reason has been given for that fact.

Following the decision of this Court in 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 learned High Court judge dealt with the matter in the

context of the case-law as it was prior to that decision and concluded that the delay had been explained. The complainant’s case

was that he was so overcome by shame at the very idea of having been raped by another man that he could not bring himself to

make the complaint.

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 is now governed by the principles laid down

in the case of P.M. v Director of Public Prosecutions. On the facts of this case, I am satisfied that there was no blameworthy delay

by the prosecuting authorities. The affidavits sworn on behalf of the Garda Síochána satisfy me that the investigation of the present

case was carried out in conjunction with other investigations of a similar kind, including some concerning the Appellant. These matters

necessarily involved extensive interviews of many people, all of which took time. There was no undue delay. However, the fact

remains 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.

In its judgment in H v Director of Public Prosecutions, this Court 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.”

In the present case, the first allegation of rape was made nineteen years after the alleged event. It is a single event. The

complainant is the only witness. The Appellant was led to believe, implicitly in 1987 and explicitly in 1977 that he would not be

prosecuted on foot of the complaints of the complainant. For reasons already given, none of these factors, taken on their own would

constitute sufficient justification for restraint on the prosecution of the Appellant.

There is, however, a singular distinguishing feature in the present case. It consists in the fact that the complainant persistently and

repeatedly resorted to threats, combined with demands for money, of exposure of the Appellant’s 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. It redounds to the credit of the Appellant that, although he was clearly vulnerable to allegations of

this type, he never paid or offered to pay anything as the price of the complainant’s silence.

Within days of the first complaint of indecent assault in 1987, the complainant confronted the Appellant and, shortly thereafter,

demanded a specific sum of money for his silence. He repeated these demands in a number of telephone calls about a year later. The

complainant is the sole witness to the alleged rape. He preceded the first making of that allegation in 1996 with an explicit written

demand addressed to the Appellant’s wife for money as the price of not making it. He wrote later to similar effect to the Appellant

himself. The complainant on every occasion threatened the exposure of the Appellant’s family.

This was criminal behaviour. The complainant was demanding money with menaces. The complainant does not appear, at any stage,

to have been confronted with the possibility that he would himself be prosecuted. This is not necessarily to criticize the Garda

Síochána. They may not have been aware of these matters at the relevant times. However, even when, at a much later stage, it

became clear that the complainant consistently used the weapon of blackmail, he does not appear to have faced any criminal

exposure.

It is necessary to repeat that the charge of anal rape (buggery) is an extremely serious one. The complainant made this complaint

nineteen years after the alleged events, and only when his repeated demands for payment in return for silence in respect of alleged

sexual assault had failed to yield fruit.

This situation is unique in the annals of the many cases of prosecution for sexual offences that have come before the courts in recent

years. It constitutes a completely exceptional set of circumstances. The complainant wishes to use the courts at his own option as a

means of extracting money from a person accused. The criminal courts are to be used as the instrument for the complainant’s greed.

This is an unprecedented situation. If the Appellant’s case were to be considered as one based on delay alone or on prosecutorial

behaviour alone, it would not succeed. However, I am of opinion that this 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 has consistently sought to use the

threat of exposure to criminal prosecution, and thus the courts themselves, as a means of extracting private pecuniary benefit.

I believe that this exceptional element means that it would be wrong and unjust to put the Appellant on trial on any of the charges. I

would allow the appeal and would grant an order restraining the further prosecution of the Appellant in respect of any of the charges.

It is unnecessary, therefore, to consider whether the Appellant has sufficient grounds for his claim that there is a real risk that he

cannot obtain a fair trial in accordance with a law.