C.K. -v- DPP, [2007] IESC 5 (2007)

Docket Number:415/04
Party Name:C.K., DPP
Judge:Kearns J.
 
FREE EXCERPT

The Supreme Court

Denham J.

Hardiman J.

Kearns J.[415/2004]

Record Number JR 814/2001

Judicial Review

BETWEEN

  1. K.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 31st day of January, 2007

This is an appeal brought from the judgment and order of the High Court (Ó Caoimh, J.) made on the 5th July, 2004, which refused to prohibit the trial of the applicant in respect of alleged sexual offences on the grounds of delay and alleged prejudice associated with such delay.

The alleged offences of indecent assault occurred between 1974 and 1978 when the complainant was a girl aged between eight and twelve years and the applicant was aged between 32 and 36 years. The applicant is now sixty-four years of age, married and the father of three grown up children. He lives in the South East of Ireland.

The complainant first approached a member of the garda síochána on or about the 20th May, 2000 for the purpose of making a complaint in relation to the alleged conduct of the applicant. There was thus almost 26 years and 22 years between the commencement and termination dates of the alleged offences and the making of the complaint.

On the 8th day of August, 2001, the applicant was charged with various counts of indecent assault pursuant to Section 6 of the Criminal Law (Amendment) Act, 1935. He was returned for trial from the District Court to the local Circuit Court on the 2nd November, 2001. The applicant denies all of the charges.

In her statement of proposed evidence, the complainant states that C. K. was both a neighbour and a trusted family friend. The applicant's wife was on occasion asked to baby-sit the complainant and her sisters and would return the favour in turn for the family of C. K. When these occasions arose, the complainant asserts that the applicant would swap places with his wife and take over the baby-sitting functions in the course of which he both indecently exposed himself and indecently assaulted the complainant. On other occasions, the complainant asserts that the applicant would take her and his own children out for a spin in his van. She asserts that the applicant would find some pretext to send the other children away and he would then indecently assault her in the van. On one specific occasion the complainant alleges that the applicant brought her in the van to a particular field owned by a Mrs. C., stating that he wanted to collect wood which was in the field. He had his own two children with him, but sent them away to play and while they were away he allegedly perpetrated an indecent assault upon the complainant.

On other occasions, the complainant alleges that the applicant would call her into his house and perpetrate similar forms of sexual abuse upon her.

The complainant further asserts that the applicant always appeared to have money and would give her cans of Coke or buy her sweets or ice-cream which she later realised was in reward for her silence. She asserts that the applicant would always say after an episode of abuse that she should not tell her mother. She further asserts that the applicant would bring pornographic magazines into her house and show the pictures to her. She asserts that the applicant stated to her that he did not have sex with his wife and further asserts that there were dreadful rows between the applicant and his wife which were audible from next door. The complainant further asserts that in the aftermath of these beatings (which, apart from one 'accidental' injury caused to his wife, are denied by the applicant) the applicant's wife would have terrible bruising to her face and arms and would come into the complainant's mother to show such bruising to her.

The applicant now complains that he is prejudiced by reason of the lapse of time between the occurrence of the alleged activities and the making of the complaint to such a degree that he cannot properly prepare or present a defence to the charges in question. He asserts that in view of the lapse of time, he is deprived of both oral and documentary evidence necessary for that purpose.

Apart from the general prejudice associated with delay, the applicant contends he has suffered specific prejudice because certain evidence which might have been available at an earlier stage in the preparation of his defence is now either missing or no longer available. The examples tendered of missing evidence are as follows:-

(a) Dr. G

This witness, now deceased, was the family doctor to the applicant's family throughout the relevant years of the complaint. The complainant alleges that the applicant's wife was regularly beaten by him. This allegation is denied by both the applicant and his wife, but the applicant submits that as his wife underwent two pregnancies during the period 1974 - 1978, it would have been impossible for her to conceal serious bruising to her face and arms if she was seen by Dr. Gaffney during that period. His evidence, were he available, might have been utilised to challenge the credibility of the complainant.

(b) The Blue Van

The applicant asserts that the prosecution have brought their case on the basis that the applicant drove a blue van between 1974 and 1978 and that the complainant was assaulted in it. However, in his affidavit...

To continue reading

REQUEST YOUR TRIAL