Donegal judge dismisses indecent sex act case due to lack of formal identification

A Donegal judge dismissed a criminal court case on “a technical matter” after a man was accused of masturbating in his property in view of the public. 

The judge dismissed the case after the defendant’s solicitor put forward a submission to dismiss the case, arguing that the Gardaí did not conduct a formal identification process of the defendant in the incident. 

Despite the judge’s dismissal of the case, the judge thanked the witness for “her bravery” and stated that “the dismissal is simply a technical matter.”

The defendant had been charged with engaging in offensive conduct of a sexual nature on March 7, 2024, contrary to Section 45 (3) of the Criminal Law (Sexual Offences) Act 2017.

Taking to the stand, the witness, who was in the passenger seat of a car driven by her mother, stated: “I saw a man masturbating, so we then drove to my house 30 seconds away, and drove the car back around to see what I thought I saw because I was shocked. I saw the same gentleman with trousers on going in about off the garden, and I called the Gardaí.

“I think that it might have been a white T-shirt that he was wearing. There were no trousers the first time I had seen him, and I would not be 100% if he had socks on. 

“He was inside the house, but the door was ajar. It was mostly open. 

“I saw the same gentleman with trousers on, going in and out of the garden. It didn’t really make me feel anything.” 

When asked how witnessing the alleged act made her feel, the witness responded: “It didn’t shock me, but it was the fact that a young girl (from a school) was walking at the time, which made me decide to ring Gardaí.”

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The defendant’s solicitor asked the witness if the Gardaí had asked her to identify anybody, and put it towards her that maybe “the individual was not the individual put before the court today.”

In response, the witness said: “They asked me to make a verbal statement. I believe he was in the grass, walking around. I believe he might have reached down for something.” 

The arresting Garda then took to the stand, commenting: “I was on mobile patrol when I received a call. Within a matter of minutes of receiving the call, we were at the location. As we drove past, the door was approximately one-third open, and there was a male looking out, concealing his body.”

“As I parked up, the door was immediately shut. As I went to the door, I could see there was a male standing in the living room, and after a delay of 10 seconds, the male in question opened the door.”

The Garda outlined that the property in question was identified because it had a distinctive feature as described by the witness who made the call.

“I went into the entranceway of the house. I candidly explained what the allegation was. He appeared nervous. His penis was quite visible through his tracksuit bottoms. 

“He denied the allegation in question.”

The defendant’s solicitor put it to the Garda that there had been no “formal proof of identification.”

Answering that statement, the Garda said: “There was no formal identification. It could have been another investigative step to be explored. It was an investigative step that was not taken.

“I genuinely didn’t recall seeing anyone else besides (the defendant). The only individual I interacted with or saw on the premises was the defendant himself.” 

When asked if he remembered what the defendant was wearing, the Garda responded: “It was the best of reflection that it was a black T-shirt, but it was the tracksuit bottoms that stuck in my mind. 

“It was glaringly visible of being able to see his penis through his tracksuit.”

The defendant’s solicitor further stated that “the defendant suffers from erectile dysfunction, and he has suffered from this condition for a number of years, and he is to take medication.”

He asked the Garda whether it was “the case that the proposed erection you saw was not correct?”

In continuing his cross-examination, the solicitor said: “You place quite a lot of evidence on the fact that the defendant was quite flustered. It is not normal to have two Gardaí in the house in the evening. It would make you be a nervous composition. 

“There were a number of individuals there who could have backed up the defendant’s story, but no formal identification was in place.

“There has been no identification by anybody of whether it was the defendant who did the act complained of. 

“The complainant had emphatically denied of any involvement. 

“There is a very serious and fatal flaw in the prosecution. The prosecution is asking the court to take a leap into the unknown and to arrive at the conclusion that it was the defendant. 

“There was a discrepancy in the clothing worn. It is unsafe that it is a criminal charge on what can only be regarded as very scant evidence.”

The state prosecutor conceded the point about the lack of a formal or informal identification process.

After a short break for the judge to review the submission to dismiss the case, the judge said: “The court agrees with the submission. 

“I would like to say that there is no criticism to the witness, who acted not for any personal campaign or vendetta, but out of concern for the public schoolchildren. 

“I would like to thank her for her bravery. This dismissal is simply a technical matter.”

The parties have not been named to protect the anonymity of the witness and due to a conviction not having been imposed.