C.K. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 31 January 2007
• Neutral Citation: [2007] IESC 5
• Court: Supreme Court
• Date: 31 January 2007

[2007] IESC 5

The Supreme Court

Denham J.

Hardiman J.

Kearns J.

[415/2004]

Record Number JR 814/2001

K (C) v DPP

Judicial Review

BETWEEN

C. K.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL LAW AMDT ACT 1935 S6

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802

G v DPP & KIRBY 1994 1 IR 374

DPP v B (R) UNREP CCA DENHAM 12.2.2003 2003/13/2871

DPP v C (E) 2007 1 IR 749

B (J) v DPP UNREP SUPREME 29.11.2006 2006/5/797

Abstract:

Criminal law - Constitutional law - Judicial review - Sexual offences - Whether real and serous risk of unfair trial -

Whether missing evidence and witnesses would result in prejudice to the defence - H v. DPP

Facts: The applicant/ appellant sought to restrain his trial in respect of alleged sexual offences dating back to the 1970’s

by reason of delay. The applicant alleged inter alia that missing evidence would prejudice his defence.

Held by the Supreme Court, per Kearns J., that the applicant had not discharged the evidential burden of proving that

on the balance of probabilities that a real risk of an unfair trial existed.

Reporter: E.F.

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

2 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.

3 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.

4 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.

5 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.

6 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.

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

8 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.

9 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.

10 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:-

11 (a) Dr. G

12 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.

13 (b) The Blue Van

14 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, the applicant had deposed to the effect that he did not own a blue van during that period. Rather he had owned such a van between 1968 and 1973, prior to the time of the alleged offences. He maintains that this van was destroyed in a fire and that the fire in question was attended to by the local fire brigade. Despite efforts made on his behalf through Wicklow County Council and AXA Insurance to trace the identity and ownership of the vehicle in question, such efforts had proved fruitless, no records in relation to the vehicle being available prior to 1985.

15 (c) Baby-sitting

16 The applicant denies that he regularly baby-sat the complainant or her sisters when they were children. He asserts that a Mrs. K., the complainant's grandmother, was in charge of baby-sitting whenever the complainant's parents were out or absent. Mrs. K. is now deceased. The applicant contends that her evidence would decisively influence a jury to accept his version of events in relation to baby-sitting arrangements in the complainant's family home.

17 (d) Local field

18 The complainant alleges that one indecent assault took place in a field at a specified location where the applicant brought the complainant in his van for the stated purpose of collecting wood. The applicant maintains that he could only access this field, which was otherwise locked, with the permission of the owner and that owner is now deceased.

19 In the course of a strongly argued submission on behalf of the applicant, Mr. Peter Finlay S.C., contended that the absence of evidence under the foregoing headings deprives the applicant of certain "islands of fact" upon which reliance could otherwise be placed by the defence to test the reliability of the complainant's account. While it was accepted that the absence of a particular witness or a particular piece of evidence in a criminal trial might not necessarily be fatal, it was particularly invidious in old cases of this type when, apart from such material, the evidence essentially would consist of the complainant's word against that of the applicant. Mr. Finlay further contended that the cumulative effect of the missing or non-available evidence in this case was such as to discharge the onus of proof placed upon him to satisfy the Court on the balance of probabilities that there was a real risk of an unfair trial which could not be avoided or overcome by warnings or rulings from the trial judge. He submitted in particular that a warning about the dangers associated with delay, if given by the trial judge, would not and could not overcome the problems which arise where material evidence is either missing or no longer available.

20 In response on behalf of the respondent, Mr. Paul Anthony McDermott B.L., addressed each of the areas of alleged specific prejudice in the following manner:-

21 (a) Firstly, there was no suggestion or evidence that the applicant's wife had ever visited Dr. G. during the relevant period. Indeed, in his grounding affidavit the applicant had merely referred to his wife's attendance "if any" on Dr. G., a hypothesis which was by definition too tenuous to justify halting a trial. Furthermore, the applicant's wife is available, as are other members of her family, to give evidence in relation to alleged beatings in the context of the trial. Mr. McDermott pointed out that the applicant's wife had sworn no affidavit to say she had ever been to see this doctor. Furthermore, even if she had seen her doctor during the period in...