JK v DPP
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 15 July 2004 |
| Neutral Citation | [2004] IEHC 352 |
| Court | High Court |
| Date | 15 July 2004 |
[2004] IEHC 352
THE HIGH COURT
Citations:
P (P) V DPP 2000 1 IR 403
CRIMINAL PROCEDURE ACT 1967
CRIMINAL JUSTICE ACT 1999
MCKENNA V CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316
O'DONNELL V DPP UNREP O'HIGGINS 2.4.2004
O'C (J) V DPP 2003 3 IR 478
O'C (P) V DPP 2000 3 IR 87
Criminal law - Delay - Sexual offences - Whether risk of applicant being tried otherwise than in accordance with law
The applicant was charged with sexually abusing his nephew and his niece and his grandniece when they were all very young children. The applicant applied by way of judicial review for an injunction restraining his further prosecution on grounds that by reason of the delay in instituting, investigating and prosecuting the applicant up to and including his date of trial and the want of particularity which partly flowed from defects in the investigation there was a real risk of an unfair trial.
Held by Smyth J. in refusing the relief sought that there was not a real risk of the applicant being tried otherwise than in accordance with law.
Reporter: R.W.
MR. JUSTICE T.C. SMYTH ON THURSDAY, THE 15TH DAY OF JULY 2004
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
For THE APPLICANT
MR. P. GAGEBY SC
MS. S. NÍ CH ÚLACHÁIN BL
Instructed by:
JIM EUSTACE & CO.
For THE RESPONDENT
MR. ANTHONY COLLINS SC
MR. A. DWANE BL
CHIEF PROSECUTION
SOLICITORS OFFICE
COPYRIGHT:Transcripts are the work of Gwen Malone Stenography Services and they must not bé photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 15TH DAY OF JULY 2004
| MR. JUSTICE SMYTH: | B, P and K were three |
| sisters. Each married, |
had a family and lived near each other in a housing estate or scheme on C Road in Dublin.
B married JK, the Applicant (whose date of birth is 14 th June 1922). They have (or as of 10 th May 2002 had) five children aged between 31 and 42. The Applicant had worked as a driver and retired in 1983. This family live and at all material times lived at 104 C Road in Dublin.
P married a man call K and they and their family live and at all material times lived at 83 C Road in Dublin.
K married GG (who became an alcoholic and died in 1977, having been ill for two years prior thereto as a result of a stroke) and they and their family lived (for K now lives alone) at 68 C Road. Their family consisted of two sons - - D (born 14 thSeptember 1959) and K, F (born 8 th July 1963, who is “now married” with a family of her own), and G (who is now married with a family of her own and, in particular, a daughter called E).
Besides the three sisters first referred to, they themselves have two other sisters and three brothers, all of whom are living in Dublin.
JK, the applicant, stands charged with sexually abusing his nephew, DG, and his niece, FP, and his grandniece, EC, when they were all very young children. The Applicant does not wish to stand trial and answer the charges, but sought and seeks to evade or avoid the trial and to that end seeks an injunction restraining the Respondent from further prosecuting the Applicant on 19 charges sent forward for trial by Order of the District Court made on 8 th November 2001.
McKechnie J. by Order dated 13 th May 2002 granted leave to apply for judicial review on stated grounds, which Mr. Gageby, appearing for the Applicant, accepted as being summarised as follows:
"6. By reason of the delay in instituting investigating and prosecuting the Applicant, up to and including his date of trial and the want of particularity which partly flows from the defects in the investigation identified in these papers and in all the circumstances of the case, it would be unjust to cause the Applicant to stand a trial in which there is a real risk of his being tried otherwise than in accordance with law."
The charges on which the Applicant was sent forward for trial may be divided as follows:
I As against DG Period: 1970 - 1973 Charges 1 - 10 - - referable to three specific locations:
II As against FP Period: 1st January 1972 to 31st December 1975 Charges 18 and 19 - - referable solely to 68 C Road
III As against EC Period: 1987 - 1993 Charges 11 - 17 - - referable to three specific locations
c) 30 TN Grove, Dublin - - her home.
The Applicant generally acted as MC at family social gatherings (except FP's wedding at her express insistence) and held a position of esteem or popularity in the extended family. I am satisfied and find as a fact that when DG and FP were young children, they were constantly in and out of the houses of their cousins, who were roughly around the same ages as themselves and played in the houses on the road. There was a free and easy relationship between the cousins, whose visitations were marked by the uninhibited openness of young children. The communal type living as children went to find expression when they might be sent by their aunt, at their mother's request, to borrow milk or tea and the general position in that regard can be readily understood. The experiences recorded in affidavits and Garda statements of these two complainants, who were brought to court and cross-examined on their affidavits, was not challenged in such cross-examination as being untruthful, exaggerated or fabricated. It is unnecessary to record in this judgment the several debasing events recorded by DG and his sense of fear, disgust, being scared and shocked by such. He was afraid as a young boy of the consequences of telling about his experiences. When he was 13, he gained a bit of confidence and decided he would not put up with the degradation any further, and with one exception of an attempt which was repulsed when he was 16, the complainant did not have to contend any further with the conduct of the Applicant. When DG left school, he worked for four years in Dublin and then emigrated to Australia, from whence he came back to live in Ireland in 1997.
While the "experiences" of FP were neither as frequent or gross as that of her brother, they made her very scared. She told her aunt, P, about her trauma when she was about 9 or 10, but her aunt told her not to say anything about it as it would break up the family and her own mother, K, would have to give up her work (K had to work to support the family). Mrs. P did not say anything further to any family member for some time. She spoke of her "experiences" on and off over the years to a school friend and her sister-in-law, but not in detail. She informed her husband before she married in 1988. In 1992, she told her mother of her "experiences" and was very relieved when her mother believed her. Over a period of years, she appears to have had much anxiety, stress and nervousness which she attributed to the trauma of her "experiences". Matters came to a head in August 1996 when she and her brother, D, were on holidays and they disclosed to each other their respective "experiences" at the hands of the Applicant. Up to that date, each believed that they and they only had any "experiences".
Up to that time, Mr G had put the matter behind him and tried to move forward in his life without dwelling on the past. Mrs. P. seemed at last able to talk about the matter openly. They both at that stage agreed that they would not disclose the matter to anyone else, most particularly family members, because it would cause the break up of the family in the widest sense, and having regard to the regard in which the Applicant's wife, B, was held in the family and their own friendships with their cousins. That position remained so until 1999 when they became aware that their own niece had been subjected to sexual abuse by the Applicant when she (EC) was a very young girl. That the Applicant had visited his perversions on the next generation, and the circumstances of its revelation, altered. the position taken in 1996.
KG, an older brother of both DG and FP, having become aware of the events in the lives of his siblings in 1970 - 1975 and also of his niece, EC, in 1987 - 1993 reported the matter to the Gardaí. Even at that stage both DG and FP, who did not wish to leave EC to bear the burden of making the complaints on her own, held back for a period from September 1999 to February 2000 before ultimately agreeing to and; in fact, making statements to the Gardaí.
EC was a daughter of GC (née G), a sister of D and F. It appears that a person injuries action may have impaired her ability to be a proactive and effective parent. EC's experiences occurred between the ages of six/seven to the ages somewhere between ten and eleven in the periods 1987 - 1988 and 1990 - 1991. In. June/July 1999 E told her boyfriend about her "experiences" and also told a Dr. Burke. She...
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