K (C) v DPP

JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date27 May 2004
Neutral Citation[2004] IEHC 111
CourtHigh Court
Date27 May 2004

[2004] IEHC 111


[2001 814 JR]
HC 242/04
K (C) v. DPP








F V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057

W (A) V DPP UNREP KEARNS 23.11.2001

C (P) V DPP 1999 2 IR 25

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

Z V DPP 1994 2 IR 476

B V DPP 1997 3 IR 140

BARKER V WINGO 1972 407 US 514

O'C (J) V DPP 2000 3 IR 478

DPP V R (B) UNREP CCA 12.2.2003 2003/13/2871

D V DPP 1994 2 IR 465


Criminal law - Delay - Judicial review - Fair trial - Lapse of time of over 20 years since alleged offences - Absence of oral evidence and documentary evidence - Prejudice to applicant - Delay on part of complainant - Whether real and serious risk of unfair trial

Facts: The applicant applied by way of judicial review for an order of certiorari quashing the indictment against him. The ground upon which the relief was sought was that the passage of time of over twenty years since the termination of the activities in question was such that if the trial was conducted the applicant would not be in a position to properly present his defence and would thus be denied his right to a fair trial. In particular, the applicant relied on the absence of oral evidence from deceased persons and the absence of documentary evidence.

Held by O Caoimh J. in refusing the application that the applicant had failed to satisfy the court that there was a real and serious risk that he could not obtain a fair trial. The delay on the part of the complainant in coming forward had been adequately explained and the delay had to be attributed to the applicant himself. The prejudice alleged by the applicant was not such as to deprive him of the opportunity of having a fair trial. As regards the deceased persons the applicant had not demonstrated that these persons, if alive, would have been able to give relevant evidence.

Reporter: R.W.


Mr. Justice Aindrias Ó Caoimh delivered the 27th May, 2004.


By order of this court dated 3 rd December, 2001 the applicant was given leave to apply by way of an application for judicial review for the relief by way of an order of certiorari of the indictment against the applicant herein. The grounds upon which the relief is sought are:


1. The unexplained delay between the alleged occurrences of the alleged offences, which offences are denied, is of such duration that, by reason of that delay alone, the trial of the applicant herein should not be allowed to proceed. A period of 26 and 22 years respectively elapsed between the alleged commencement and termination of the activities in question and the making of the complaint.


2. Further or in the alternative, the delay is such that, if the trial herein were conducted, the applicant would not be in a position to properly present his defence and would thus be denied his right to a trial in due course of law as guaranteed by Article 38.1 of Bunreacht na hÉireann. In particular, the applicant is unable to present the oral evidence of:


(a) Ms. King, grandmother of the complainant, as to the nature of the childminding and babysitting duties in relation to the complainant's family. Mrs. King is now deceased.


(b) Ms. Kitty Clinch, owner of a field at Onagh at which an alleged incident occurred, for the purposes of giving evidence to the effect that the applicant only visited the said field in the 1980's i.e. outside the said period. Ms. Clinch is now deceased.


(c) Dr. Gaffney, family doctor to the applicant and his wife regarding the complainant's assertions that the applicant's wife frequently suffered and displayed bruising to her face and arms. Dr. Gaffney is now deceased.


a (d)Mr. Johnny Maguire, regarding events at the tug-of-war, after which an alleged incident occurred. Mr. Maguire is deceased.


The applicant is further impaired in the conduct of his defence by reason of his inability, due to the lapse of time, to adduce documentary evidence regarding the ownership and period of ownership of certain vehicles in which the incidents alleged occurred.


The applicant has sworn an affidavit in which he indicates that on the 8 th August, 2001 he was charged with offences contrary to common law as provided for by s. 6 of the Criminal Law Amendment Act, 1935to the effect that he did indecently assault one P.K. between the 4 th day of October, 1974 and the 3 rd day of October, 1978. He says that he appeared on a number of occasions on foot thereof before Bray District Court and was ultimately returned for trial on 2 nd November, 2001. He says that the matter was thereupon remanded to Wicklow Circuit Court on 4 th December, 2001. The applicant refers to the Book of Evidence in the prosecution against him. He says that the complainant first approached a member of An Garda Síochána on or about the 20 th day of May, 2000 for the purposes of making a complaint in relation to the alleged conduct of the applicant. On this basis he says that almost 26 years and 22 years elapsed between the alleged commencement and termination of the alleged offences and the making of the complaint herein. He says that the delay of itself, and without more, is of such duration that the trial should not be permitted to proceed. He says that it is now in excess of 27 years and 23 years since the alleged commencement and termination of the activities. He denies all the charges.


The applicant says that between 1970 and approximately 1984/1985 he resided at (address) in Co. Wicklow. He states that the complainant lived next door during those years and continued to reside there until 1987 whereupon she moved to England. He says that while his wife was indeed a friend of the mother of the complainant he did not have a close relationship with the parents or other family members of the complainant and was not a regular visitor to their home. He says he did not exercise any dominion over the complainant. He says that the absence of dominion is particularly pertinent, given that he moved from the area in which the complainant resided in or about 1984 or 1985. He says that after that time he continued to visit the family home on a weekly basis.


The applicant says that the delay between the alleged occurrences of the offences and the making of the complaint is unexplained. He says that the delay and lack of explanation regarding same is particularly pertinent as he believes and is informed that the complainant previously made a complaint regarding a sexual offence while resident in England in or about 1987 and was accompanied at the prosecution of the said offence in England by a member of An Garda Síochána based in the area in which she and her parents reside.


The applicant complains that he is prejudiced by reason of the lapse of time between the occurrences of the alleged activities and the making of the complaint in the presentation of his defence to the charges in question. He says that in view of the lapse of time, he is not in a position to adduce oral and documentary evidence necessary for the purposes of the conduct of his defence.


He says that in this regard, the complainant alleges in her statement of proposed evidence as set out in the Book of Evidence, exhibited herein, that a number of alleged activities occurred in the applicant's blue van. He says that he did not own or otherwise have the use of a blue van in the period between the 4 th October, 1974 and the 3 rd October, 1978, being the dates between which the alleged activities occurred. He says that he did in fact own a blue van between the years 1967 and/or 1972/1973, whereupon the said van was burned out. He says that as a result of the passage of time he is not in a position to adduce evidence of ownership nor of the period of ownership of the said blue van in the form of a log book or otherwise. Upon inquiry at the Wicklow Fire Brigade, in relation to the maintenance of records of vehicles destroyed by burning, he learned that the fire brigade only retains records from 1985 onwards.


The applicant refers to a statement made by him contained in the Book of Evidence. He says by reference to this statement that it is recorded therein that he indicated that he acquired a blue van in or about 1977. He says, however, that he clearly stated to the garda in question that he acquired in or about 1967 and, due to the unavailability of his reading glasses and attendant poor sight, and furthermore due to the fact that the services of a solicitor had not been made available to him, he could not read said statement properly and thus failed to notice that the guard in question had in fact recorded the year 1977 in place of 1967 as directed. He says further that due to the lapse of time he cannot recall the registration numbers and letters of said vehicle and is thus not in a position to make inquiries of the insurance company insuring same, nor of the office regulating motor taxation in order to establish ownership of same.


The applicant says that the mother of the complainant herein refers in the statement of her proposed evidence as set out in the Book of Evidence to a photograph exhibited in which a Hiace truck used by the applicant and owned by his then employer is visible. He states that this model of Hiace truck only became available on the Irish market in 1979 and that his employer acquired it in or about 1980. He says however that as a result of the lapse of time he is denied the opportunity of adducing documentary evidence in the guise of log books or otherwise for the purposes of establishing the period of ownership of the Hiace truck.


The applicant refers to the complaint that a sexual assault was committed by him upon the complainant during his visit to a secluded spot at Onagh, which visit occurred for the purposes of collecting wood. He...

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