D.K. v DPP

CourtSupreme Court
JudgeMr Justice McCracken
Judgment Date03 July 2006
Neutral Citation[2006] IESC 40
Docket NumberRecord No. 326/04
Date03 July 2006

[2006] IESC 40


Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

Record No. 326/04
K (D) v DPP





O'C (P) v DPP 2000 3 IR 87

BRADDISH v DPP 2001 3 IR 127

DUNNE v DPP 2002 2 ILRM 241

M (J) v DPP UNREP SUPREME 28.7.2004 2004/29/6677



Right to fair trial - Right to trial with reasonable expedition - Complainant delay -Actual prejudice - Death of witnesses - Absence of medical records - Psychiatric condition of complainant - Combination of factors - Prohibition affirmed (326/2004 - SC- 3/7/2006) [2006] IESC 40 K(D) v DPP

Facts: The appellant faced 38 charges of rape and indecent assault in relation to his daughter. This was an appeal from a decision of the High Court in judicial review proceedings seeking an order of prohibition or in the alternative an injunction restraining the respondent from proceeding with a prosecution against the appellant.

Held by the Supreme Court (Murray CJ, Hardiman, Geoghegan, Fennelly and McCracken JJ) in allowing the appeal that there was a real risk that the appellant would not obtain a fair trial.

Reporter: R.W.

Mr Justice McCracken

This is an appeal from a decision of the High Court (Murphy J.) in judicial review proceedings seeking an Order of Prohibition or, in the alternative, an injunction restraining the respondent from proceeding with a prosecution against the appellant. The learned High Court judge granted the order sought in relation to certain of the charges against the appellant but not in relation to other charges.


The facts of the case are set out in some detail in the judgment of the learned High Court judge and may be dealt with briefly in this judgment. The appellant faces thirty eight charges of rape and indecent assault in relation to his daughter (hereinafter called"the complainant"). It was alleged that these offences took place at various times when the complainant was aged between four and thirteen years of age, between the years 1972 and 1981. She was the third eldest of seven children and alleges that it was an unhappy household with a number of incidents of violence perpetrated by the appellant against both the children and against his wife, the complainant's mother. She alleges that these offences usually took place after a row between her parents, when the appellant would sleep in her bed with her.


The first allegation by the complainant was made on 17th April 1991 when she was hospitalised in a psychiatric unit apparently suffering from manic depression and was in a hyper-manic state. That complaint related only to her having been abused when she was twelve or thirteen years of age. The complaint was made to her consultant psychiatrist, Dr. Lucey, and a short time later he arranged a meeting with the complainant, the appellant and the appellant's wife. The complainant has stated that when the complaint was put to the appellant he responded by saying"I suppose that is possible" and that her mother said "of course it is possible, it explains everything". Dr. Lucey on the other hand said that the appellant denied that he had abused his daughter but said that the appellant accepted "there may have been some basis for her allegations". In a subsequent report by Dr. Lucey he states that the appellant was "hesitant and initially made no response" before denying the allegations and he also recalls that the appellant's wife simply made the comment "this explains everything". The appellant denies that he made anything in the nature of an admission on this occasion.


In subsequent conversations with Dr. Lucey in February 1992 and February 1994 the complainant stated that she was abused from the age of seven and when in 1997 the complainant made a formal complaint to the Gardai she alleged that she was abused from the age of four.


At various times between 1991 and 1998 the complainant suffered from psychiatric illnesses and was treated in psychiatric units of local hospitals. It appears that in February 1992, while a patient in a local hospital, she was interviewed by a female Garda about the allegations of abuse, but that Garda has not been identified and no further information is available as to what was said on that occasion.


The first formal and recorded complaint to the Gardai was made on 31st October 1997 but the appellant was not arrested and interviewed until 12th February 1999. The complainant made three further statements in the year 1999 and the appellant was charged on 9th December 1999.


In one of her statements she refers to an incident which she alleges took place in July 1973, when she was five years of age. She visited Denmark with some members of her family and alleges that she wanted a rocking horse and she remembers that a Danish friend of her father's told her that she could not have it, and she had replied that she would go to bed with him if he would buy it for her.


The complainant states that she was very frightened of her father and that he was a violent man. There is no doubt that he was, by the very nature of his being her father, in a dominant position in relation to her. She also clearly suffered from mental health problems and grew up in an atmosphere of family tension. It is probably relevant that she was in a state of hypertension when she did make her first complaint to Dr. Lucey.


There was no formal complaint made to the Gardai until some six years later in 1997. During this period the complainant gave birth to a child and was still from suffering psychiatric illnesses. I am quite satisfied that, on the assumption which is to be made in such circumstances that her complaint was correct, the delay in making the complaint is explicable and should not of itself justify the relief sought.


This is not a case in which the appellant is claiming some form of general or presumptive prejudice due to the delay. He is claiming to be specifically prejudiced for several reasons.



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