D (K) v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 30 June 2011
• Neutral Citation: [2011] IEHC 384
• Court: High Court
• Date: 30 June 2011

D (K) v DPP

JUDICIAL REVIEW

BETWEEN

K D

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2011] IEHC 384

[No. 1386 J.R./2008]

THE HIGH COURT

Abstract:

Criminal law - Criminal procedure - Judicial review - prohibition - Lapse in time - Abuse - Trial in due course of law - Unavailable witnesses - Prejudice - Prosecutorial delay - Whether appropriate to prohibit the trial

Facts: The proceedings related to an application for an order of prohibition by way of judicial review prohibiting the respondent from taking any further steps in the criminal proceedings against the applicant in respect of sexual charges relating to his two sisters. It was alleged that the lapse in time between the date of the alleged offences and the trial was a 40 to 50 year time range, that the lack of specificity of the dates of the alleged offences over a nine year range, prejudice suffered from the unavailability or death of potential witnesses and hospital records in addition to a prosecutorial delay of two years and seven months entailed that the applicant would be deprived of a trial in due course of law.

Held by Dunne J. that it was necessary to prohibit the trial. The absence of medical records in respect of the accident, the lack of specificity in the time frame for the individual counts and the effect of blameworthy prosecutorial delay on the state of stress and anxiety of the applicant entailed that it was appropriate to prohibit the trial of the applicant.

Reporter: E.F.

1 JUDGMENT of Ms. Justice Dunne delivered the 30 day of June 2011

2 This is an application for an order of prohibition by way of application for judicial review prohibiting the respondent from taking any further steps in the criminal proceedings against the applicant herein in respect of the charges number 1 to 29 inclusive as set out in the book of evidence entitled the Director of Public Prosecutions v KD and MD returned for trial on 10 September 2008 then pending before the Central Criminal Court for trial on the 13 ^th July, 2009. Further ancillary relief was sought. The leave to apply for judicial review was granted by the High Court (MacMenamin J) on 8 December 2008.

3 The grounds upon which the relief is sought can be summarised very briefly as follows:-

4 1. The lapse of time between the date of the alleged offences and the trial being a 50 to 40 year time range.

5 2. The lack of specificity in relation to the dates of the alleged offences. (The offences cover a nine year time range).

6 3. Prejudice. In this regard a number of points have been raised on behalf of the applicant being:

7 (a) The unavailability or death of potential witnesses.

8 (b) The unavailability of hospital records in relation to the applicant's admission to hospital around the year 1966.

9 (c) The fact that the applicant has no knowledge of a child alleged to have been fathered by him with one of the complainants, M., and that as a consequence he may not be in a position to disprove his alleged parentage due to the passage of time.

10 (d) The fact that the applicant may be unable to obtain medical reports in relation to the other complainants contention in respect of a miscarriage in 1967 due to the passage of time.

11 The applicant also contends that there has been prosecutorial delay of approximately two years and seven months in relation to this matter and that he is in the situation where he is effectively left only with his denial of the allegations by way of defence to the charges. Finally, he has referred to severe anxiety that has been exacerbated by the fact that the lapse of time will result in him being unable to adduce evidence of an exculpatory nature or to defend the proceedings appropriately which, if the offences had been prosecuted with expedition, could have been put before a court of trial. Accordingly, he has contended that he has been deprived of a trial in due course of law, with due expedition and will be unable to attain a fair trial.

12 The applicant was born in the mid 1940s. He has been charged with 29 counts of rape against two of his sisters. The alleged offences are stated to have occurred over a period commencing on the 23 ^rd June, 1959 and ending on the 13 ^th January, 1969. There are 15 counts of raping his sister M. on dates between the 31 ^st August, 1966 and the 13 ^th January, 1969 and 14 counts of raping C. on dates between the 23 ^rd June, 1959 and February, 1967.

13 Complaint was first made by M. on the 11 ^th November, 2005 and by C. on the 12 ^th November, 2005. The applicant was arrested and interviewed on the 23 ^rd May, 2006, at which time he denied the allegations. He was arrested and charged on the 4 ^th June, 2008 and returned for trial in the Central Criminal Court on the 10 ^th September, 2008.

14 I was advised at the outset of the hearing that the respondent was not opposing the application in relation to the charges in respect of M., that is, charges No. 1 to 15 inclusive on the Book of Evidence in relation to the offences alleged to have occurred between August 1966 and January 1969. Given that concession, the court is therefore concerned with the charges in relation to events alleged to have occurred between June 1959 and February 1967m respect of C. All of the offences are alleged to have taken place in or around the vicinity of the family home of the applicant and his sister.

15 There is some uncertainty as to the age of the applicant. His solicitor, Jason Teahon, in the affidavit grounding the applicant for judicial review referred to the applicant as having been born in November 1944. In a memorandum of interview with the applicant taken in May 2006, his date of birth is given as November 1946. Depending on the correct age of the applicant, the applicant would have been twelve at the earliest time of the alleged offences in June 1959 or if he was born in 1944 he would have been fourteen years of age. Nothing of significance turns on this question.

Submissions

16 Counsel on behalf of the applicant referred to the appropriate test to be applied in respect of delay cases in her submissions. In this case, a trial, if not prohibited is now likely to take place in 2012. That means that 53 years will have elapsed from the earliest date of June 1959, in relation to offences alleged against the applicant and 45 years from the latest date in February 1967, in respect to the offences alleged. In considering the test to be applied by the court I was referred to S.H. v. Director of Public Prosecutions [2006] 3 I.R. 575 at 620, where Murray C.J. stated:-

"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 and the law."

17 Reference was also made to the decision in P. O'C. v. Director of Public Prosecutions [2003] I.R. 87 at p. 118 to 119. In his judgment in that case Hardiman J. commented as follows:-

"A person in whose case there is such an island of fact is, perhaps ironically, both in a potentially better position to face a trial (because evidence may not, after all, prove irretrievable) and in a better position to demonstrate prejudice in a specific way. By contrast, a person in respect of whom the prosecution case as disclosed to him contains no such island of fact is in a very perilous position at a trial (because of the inherent risk of a pure contest of credibility) and is unable to avail at all of the third test. If he is to succeed in proceedings such as the present it must be on the basis that he can bring himself within the first situation envisaged by the Chief Justice in his judgement in P. C. v. Director of Public Prosecutions [1999] 2 I.R. 25, at p. 66. This is: "

18 'Manifestly in cases where a court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it is being established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee or a trial 'in due course of law'. The delay may be such that, depending on the nature of the charges, a trial should to be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired.'

19 I take this to mean that there may be a lapse of time so gross that, in the circumstances of a particular case, it is open to the court to conclude that the lapse of time of itself give rise to a real risk of an unfair trial. This situation may, of course, arise because it is the lapse of time coupled with the lack of specificity in the sense of which I have used that term which makes it impossible to demonstrate prejudice. As has been observed in a quite different context, absence of evidence (of prejudice) is not evidence of absence. I do not feel compelled, or indeed able in the absence of argument on the topic, to suggest whether the lapse of time in this case would, apart from the demonstrated prejudice, bring it within this first test. What I say on the topic is therefore clearly obiter. But I would observe, first, that every effort must be made by both parties but particularly the prosecution, to try to avoid a situation where there is no island of fact, and where bare assertion can be countered only by bare denial. This must be done first in questioning the complainant: everything he or she says must be recorded, whether it forms part of the eventual formal statement or not, and whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time, place or otherwise than they need to be, and any variation between an earlier and a later...