J.K. v DPP

JurisdictionIreland
CourtSupreme Court
JudgeMrs. Justice McGuinness
Date27 October 2006

[2006] IESC 56

THE SUPREME COURT

McGuinness J.

Kearns J.

Macken J.

Appeal No. 367/2004
K (J) v DPP
JUDICIAL REVIEW

BETWEEN

J.K.
APPLICANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

H v DPP UNREP SUPREME 31.7.2006 2006/27/802 2006 IESC 55

CRIMINAL LAW AMENDMENT ACT 1885 S11

CONSTITUTION ART 38

RSC r8

G v DPP 1994 IR 374

HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

B v DPP 1997 3 IR 140

D (D) v DPP 2004 3 IR 172 2004/12/2597

C (P) v DPP 1999 2 IR 25

O'R (D) v DPP 2004/40/9150 2004 IESC 52

M (J) v DPP UNREP SUPREME 28.7.2004 2004/29/6677 2004 IESC 47

M (P) v DPP 2006 2 ILRM 361 2006 IESC 22

DPP v C (C) UNREP CCA 2.2.2006 2006/17/3496 2006 IECCA 1

BARKER v WINGO 1972 402 US 514

Z v DPP 1994 2 IR 476

CRIMINAL PROCEDURE ACT 1967

CRIMINAL JUSTICE ACT 1999

D v DPP 1994 2 IR 465

C (D) v DPP 2006 1 ILRM 348

1

Judgment delivered by Mrs. Justice McGuinness on the 27th day of October 2006

INTRODUCTION
2

This is an appeal from the judgment and order of the High Court (Smyth J.) delivered on the 15th July 2004 refusing the reliefs sought by the applicant in his judicial review proceedings. The applicant has sought an injunction prohibiting the respondent from further prosecuting him on a series of charges concerning a number of sexual offences alleged to have been committed by him against three of his near relatives.

3

The present appeal was heard by this court on the 10th July 2006. Judgment was reserved and had not been delivered prior to the 31st day of July 2006. On that day the judgment of this court (Murray C.J., Denham J., Hardiman J., Geoghegan J, Fennelly J.) was delivered by the Chief Justice in the case of H. v Director of Public Prosecutions [2006] I.E.S.C. 55. It was widely anticipated that the judgment in H. v Director of Public Prosecutions would deal with and develop the law in regard to cases where persons were charged with sexual offences which were committed many years previously. It is clear from the written submissions in the present case that the parties were aware of the imminence of the delivery of the judgment in H. v Director of Public Prosecutions and of its probable significance.

4

In the written legal submissions provided to this court in the present case by the respondent Director it is stated:

"These submissions are filed in the knowledge that the Supreme Court has reserved judgment in H. v D.P.P. The respondent may seek permission from this honourable court to make supplemental submissions in the event that the decision in H. v D.P.P. is relevant to the issue in the instant appeal and is delivered prior to its determination."

5

In his judgment in H. v Director of Public Prosecutions the Chief Justice, speaking for the court, analysed the jurisprudence which had developed over the last decade in cases such as the present case, where there has been an accusation of child sexual abuse and a significant delay between the alleged actions, the complaint and the prosecution. The Chief Justice went on to set out a new approach to the court's consideration of this type of case, a jurisprudence based on the core issue of the constitutional right to a fair trial, and a new test to be applied in such cases. I will refer in greater detail to the decision in H. v Director of Public Prosecutions later in this judgment.

6

In the light of the decision in H. v D.P.P. and thus of the development of the relevant law, including the new test set out in that judgment, the parties in the present case were invited to make further submissions to this court. Further written submissions were provided on behalf of the applicant. The Director of Public Prosecutions indicated that all necessary matters were included in his earlier written submissions. Counsel for the applicant and counsel for the Director made oral submissions to the court on 11th October 2006.

THE FACTS
7

The applicant is an eighty-four year old man. On the 13th May 2002 he was granted leave by the High Court (McKechnie J.) to apply by way of judicial review for an injunction restraining the respondent from further prosecuting him on nineteen charges in respect of which he had been sent forward for trial to the Dublin Circuit Criminal Court by order of the District Court on 8th November 2001. These charges related to alleged sexual offences against three complainants — his nephew D. McG., now aged 47, his niece Mrs F.P. now aged 43 and his grand-niece E.O'C. now aged 25. The charges comprised:

8

(I) Three charges of indecent assault upon E. O'C. at various addresses in the Dublin Metropolitan District on dates unknown between January 1st 1987 and December 31st 1988 and on September 8th 1990;

9

(II) one charge of the rape of E. O'C. committed at an address in Walkinstown, Dublin, between February 28th 1991 and February 27th 1993;

10

(III) one charge of the attempted rape of E.O'C. committed at an address in Walkinstown, Dublin, between February 28th 1991 and February 27th 1993;

11

(IV) two charges of the sexual assault of E.O'C. committed at an address in Walkinstown, Dublin, between February 28th 1991 and February 27th 1993;

12

(V) nine charges of indecent assault upon D. McG. committed at various locations in the Dublin Metropolitan District on dates unknown between 1970 and 1973;

13

(VI) one charge of gross indecency with D. McG., contrary to section 11 of the Criminal Law (Amendment) Act 1885, committed at Walkinstown, Dublin, on a date unknown in 1970;

14

(VII) two charges of indecent assault upon F.P. (née McG.) committed at an address at Walkinstown, Dublin, on dates unknown between January 1st 1972 and December 31st 1975.

15

The factual background and the relationships within the family circle of the applicant are set out in detail in the judgment of the learned trial judge and need only be summarised here. The applicant is the uncle by marriage of two of the complainants, D. McG. and F. P., and the grand-uncle of the third complainant E. O'C. The applicant and the complainants are members of a large extended family circle of which a number of closely related families live in separate houses within a short distance of each other in a particular area of Dublin. The various family members visited each others houses informally on a regular basis. It was, and apparently still is, a close knit family.

16

D. McG's evidence as set out in his affidavit was that he was subjected to regular sexual abuse by the applicant when he was aged between ten and fourteen years. He did not disclose the abuse to anyone until August 1996. In that month he disclosed the abuse to his sister, F. P., in a conversation during a return to Ireland from Australia on holidays. It appears that Mr McG. did not disclose the abuse to any individual other than his sister until it came to both their attention that their niece, E. O'C., had been abused by the applicant. Thereafter he decided to report the abuse to An Garda Siochana. However he found it very difficult to speak about it. In September 1999 he was contacted by Detective Garda Doggett and asked to make a complaint, which he made by statement on February 19th 2000.

17

F. P. (née McG.), the sister of D. McG., states in her affidavit that she was sexually assaulted by the applicant when she was aged between eight and twelve years of age. It appears that she disclosed the abuse to various individuals at different times during her life. In July 1992 she finally disclosed the abuse to her mother. In August 1996 she discussed the matter with her brother, D. McG., at which point it appears that they decided not to say any more about the matter, basically for reasons of family solidarity. In the spring of 1999 she was informed that her niece, E. O'C., had disclosed to a doctor the fact that she had been abused by the applicant. Having spoken with her brother, she agreed with him that they should disclose the fact they had also been abused by the applicant. In spite of that decision she too found it difficult to make a complaint to the Gárda Siochána but ultimately did so in February 2000.

18

In her affidavit and statements E. O'C., who was born on February 28th 1981, alleges that she was the victim of sexual assault and rape by the applicant when she was between six and twelve years old, that is between 1987 and 1993. She attempted to disclose the abuse to her mother but unfortunately her mother was suffering from lasting disability resulting from a previous road traffic accident and she was unable to deal with such a disclosure or to offer protection to her daughter. It appears that Ms O'C. had a troubled childhood and adolescence. It seems that she disclosed the abuse to certain individuals but she felt unable to make a complaint to any official source. When she finally told her parents and her grandmother about the abuse she was approximately eighteen years old. She made a statement of complaint to An Garda Siochana on 7th February 2000 just before her nineteenth birthday.

19

The allegations against the applicant first came to the attention of An Garda Siochana in September 1999 but the complainants, as stated earlier, only came forward to make statements in February 2000. An investigation was carried out by the Gardai. Detective Garda Doggett was in charge of this investigation. The applicant was arrested for the purpose of questioning in respect of the allegations in May 2000. He denied all the allegations which had been made against him. There was some correspondence between the Gardai and the respondent in regard to the charges to be brought against the applicant. The applicant was arrested by Detective Garda Doggett and charged on 17th April 2001. He was returned for trial by the District Court on the 8th November 2001.

20

The applicant...

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