DPP v BK

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 24 May 2022
• Neutral Citation: [2022] IECA 119
• Court: Court of Appeal (Ireland)
• Docket Number: [2021 No. 45]

Between

The Director of Public Prosecutions

Respondent

and

B.K.

Appellant

[2022] IECA 119

The President

Edwards J.

Ní Raifeartaigh J.

[2021 No. 45]

[2021 No. 46]

THE COURT OF APPEAL

CIVIL

Judicial review – Criminal trials – Prohibition – Appellant seeking prohibition of criminal trials – Whether the appellant had been irreparably prejudiced by delay

Facts: The appellant faced trial in the Circuit Court on charges relating to the sexual abuse of minors. 270 charges involving six complainants were preferred, and the offences were alleged to have occurred in the period between December 1978 and March 1993. There were two returns for trial, each involving three complainants. The appellant applied to the High Court seeking prohibition of the two criminal trials but was unsuccessful in his efforts to secure judicial review. He appealed to the Court of Appeal against the orders and judgment of the High Court delivered on 26th January 2021. The judicial review proceedings raised issues about what was said to be undue delay in the prosecution of the alleged offences. The appellant contended that he had been irreparably prejudiced by the delay and by virtue of the fact that a number of people who would have had relevant evidence to contribute were dead or unavailable.

Held by the Court that it had not been persuaded that it would be appropriate to halt the trials, either generally or in respect of individual complainants. It seemed to the Court that the issues canvassed on the application were matters that could appropriately be dealt with by the trial judge; having heard the evidence in the trial, he or she would be in a much better position to assess the extent of the significance of the missing evidence and/or missing witnesses, and to determine whether the appellant had received a fair trial. In the event that the appellant was convicted in respect of any of the complainants, the Court held that it would then be for the Circuit Court judge to pass sentence. The Court held that the judge would, in deciding on a sentence, have regard to the fact that the previous sentence imposed was a very significant one and that the offending in respect of which he or she was being called on to sentence had taken place many years before the sentencing hearing on 19th February 2016.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the President delivered on the 24th day of May 2022 by Birmingham P.

1 . The appellant is facing trial in the Circuit Court on charges relating to the sexual abuse of minors. 270 charges involving six complainants have been preferred, and the offences are alleged to have occurred in the period between December 1978 and March 1993. There have been two returns for trial, each involving three complainants. The appellant applied to the High Court seeking prohibition of the two criminal trials but was unsuccessful in his efforts to secure judicial review. He has now appealed to this Court against the orders and judgment of the High Court (O'Regan J.) delivered on 26 ^th January 2021.

2 . Of central significance to the applications for judicial review is the fact that the appellant was previously charged with the sexual abuse of other minors, pleaded guilty to offences involving ten complainants, and, in February 2016, was sentenced to a term of fourteen years and two months' imprisonment, which he is now serving. The initial prosecution came about after a complainant attended Waterford Garda Station in December 2012 and disclosed that he had been abused by the appellant at various locations during the 1980s. It was suggested that the appellant had abused a number of boys during this period. An investigation was commenced, and a search warrant was obtained in respect of the appellant's home. When that search warrant was executed on 13 ^th December 2012, the appellant spoke to Gardaí. It is said that during the course of this conversation, the appellant voluntarily admitted that he had molested “a good few” boys, that is “[a]bout 20 … I'd put an estimate of 20 in total”.

3 . At present, each of the two cases involve three complainants, but if the matter proceeds to trial, it is not impossible that the prosecution might endeavour to consolidate the two trials. It is also possible that the accused might seek to sever one or the other, or both indictments.

4 . The judicial review proceedings raise issues about what is said to be undue delay in the prosecution of the alleged offences. The appellant contends that he has been irreparably prejudiced by the delay and by virtue of the fact that a number of people who would have had relevant evidence to contribute are now dead or unavailable.

5 . While there is very considerable overlap between the two sets of judicial review proceedings, the issues identified as giving rise to prejudice and the circumstances of the delay are not identical in the case of each complainant. In fact, counsel on behalf of the appellant went so far as to contemplate a situation where the charges in respect of some complainants would be permitted to proceed while others would be halted. Therefore, it is necessary to consider the position in relation to each of the six complainants.

Background

Complainant A

6 . 39 of the charges that the appellant faces relate to complainant A. These are alleged to have taken place between 1983 and 1988. It appears, by reference to the papers, that A spoke to his family about the complaints in 2001 and 2002, and that while he was invited to make a complaint to Gardaí in 2013, he declined to do so and “was informed of the implications” of that decision.

7 . A then made a formal statement of complaint on 25 ^th October 2016. The appellant alleges that there was deliberate delay on the part of A in making a complaint, that he only did so following contact with the Gardaí as well as with JC (a central figure in the earlier prosecution), and that he did so in response to coverage of the appellant's guilty pleas in the original trial.

8 . The appellant's attitude to the complaints made by A diverges from his approach to some other complainants, in that he accepts that there may have been sexual activity with this complainant, but he says that any such activity was consensual, and was at a time when the complainant was over the age of fifteen.

Complainant B

9 . B is the younger brother of A. 59 of the charges relate to B and are alleged to have occurred between 1988 and 1992. B made a formal complaint on the same day that his brother did, and similarly, made disclosures to his family in 2001 and 2002. The point was also made that B did not make a formal complaint until after speaking to JC, and after he had seen coverage in the media around the time of the first trial.

10 . Similar to the situation of A, the appellant accepts that there may have been sexual activity with B, but he says that any such activity was consensual, and was at a time when the complainant was over the age of eighteen. In the course of the conversation with Gardaí while the search warrant was being executed in December 2012, the appellant made reference to B, and moreover, a videotape labelled as referring to B was discovered and seized. The appellant explained that the video was for his own personal viewing, and also acted as collateral against a loan that he said he had provided to B.

11 . The appellant argues that there are inconsistencies in the explanations offered regarding the delay in the cases of A and B, in that the parents of both complainants were of the view that no formal complaints were made at the time of first disclosure because A and B were not ready, while the two complainants have indicated that their father objected to the making of complaints at the time. It should be noted that A and B, in their statements of complaint, referred to the fact that the appellant was a family friend. It appears that neither A nor B, nor their family, had any involvement with the Gardaí in 2002.

Complainant C

12 . The third complainant featuring in this book of evidence is C. He made a complaint on 9 ^th January 2017, and one count on the indictment relates to him. This complainant alleges that on the day after he finished his Intermediate Certificate in 1985, he was the victim of a sexual assault. It appears that C went to Gardaí the following day but was told to return with an adult. However, he did not follow through as he did not want to tell his parents. He eventually made a formal complaint following the coverage of the appellant's guilty plea at the time of the first trial, contact with JC, and having undergone counselling.

13 . The appellant notes that C had spoken to his wife about the situation in 1991, and that C had identified the appellant as the perpetrator in 1996. The appellant contends that Gardaí should have taken the statement of complaint in 1985, and that the failure to do so was unreasonable and amounted to culpable prosecutorial delay.

Complainant D

14 . The first complainant in the second book of evidence is D, and no less than 136 counts relate to him, covering the period 1980 to 1988. When interviewed, the appellant denied any wrongdoing involving D.

15 . It appears that D remained in contact with the appellant until after the appellant's conviction, as there seems to have been a relationship of accountant/client between them. There are indications that this complainant had discussed the situation with A back in 2002, and also that he was contacted by Gardaí as part of the investigation then underway (in or around 2013), but at that stage, did not wish to pursue a complaint.

16 . In respect of D, the appellant states that he had contact with the principal of his secondary school – Brother C – in or about 1987, who questioned him about the appellant's activities. This, it is suggested, is significant as Brother C is now deceased. It is...