K(J) v DPP

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE ÓCAOIMH
Judgment Date10 May 2004
Neutral Citation[2004] IEHC 315
Date10 May 2004

[2004] IEHC 315

THE HIGH COURT

[2004]IRLHC 315
2001 586 JR
K (J) v. DPP
DUBLIN
J K
Applicant
THE DIRECTOR OF PUBLICPROSECUTIONS
Respondent

Citations:

CRIMINAL JUSTICE ACT 1984 S4

O'C (J) V DPP 2003 3 IR 478

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

C (P) V DPP 1999 IR 25

Abstract:

Criminal law - Delay Judicial review - Sexual abuse - Allegation of sexual abuse perpetrated by parent - Reason for delay - Dominion - Right to trial of criminal charges with due expedition - Whether dominion exercised by applicant over complainants to such extent that applicant responsible for delay - Whether further prosecution of offences should be restrained.

the applicant was given leave to seek an injunction by way of judicial review restraining the respondent from taking any further steps in the prosecution of various sexual abuse offences alleged to have been perpetrated by him on his daughters between 31 and 17 years before being arraigned before the Circuit Court. He alleged that the delay was excessive and unconscionable and prejudiced his right to a fair trial in due course of law. The respondent alleged, inter alia, that the applicant had exercised such a degree of dominion over the complainants as to be the author of the delay complained of. The complainants also alleged that discussing the abuse re-traumatised them and that they had been afraid to broach the subject due to the feared effect it would have on their mother’s health.

Held by Ó Caoimh J in refusing the relief sought that each case where a complaint of delay in prosecuting sexual offences was made had to be assessed on its own facts. In the present case, the prosecution had discharged the onus of explaining the delay of the complainants in reporting the abuse satisfactorily, given that the abuse had taken place within the family unit and was a delay for which the applicant had to bear responsibility.

Reporter: P.C.

1

MR. JUSTICE ÓCAOIMHON MONDAY, 10TH MAY 2004

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I hereby certify the following to be a true and accurate transcript ofmy shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Applicant:

MR. KAVANAGH SC

MR. CONDON BL

Instructed by:

GARRETT SHEEHAN & CO.

32 FRANCIS STREET DUBLIN 8

For the Respondent:

MS. McDONAGH BL

Instructed by:

CHIEF STATE SOLICITORS OFFICE

OSMOND HOUSE LITTLESHIP STREET DUBLIN 8

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COPYRIGHT: Transcripts are the work of Gwen Malone StenographyServices and they must not be photocopied or reproduced in any manner orsupplied or loaned by an appellant to a respondent or to any other partywithout written permission of Gwen Malone Stenography Services

MR. JUSTICE Ó CAOIMH:

By order of this court of 17th December 2001 the

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Applicant was given leave to seek an injunction by way of an applicationfor judicial review restraining the respondent from taking any furthersteps in the prosecution against him, on Bill of Indictment No. 896/2001of the Dublin Circuit Criminal Court, on the grounds 1 to 7 in theStatement of Grounds, which are as follows:

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1. The delay in the case is excessive and unconscionable. Proceedingfurther with the trial of the Applicant on these charges would breachthe Applicant's constitutional right to a fair trial and due course oflaw.

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2. The delay in the case is of itself so excessive as to beunconscionable, and violates the Applicant's right to a trial in duecourse of law.

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3. The delay has prejudiced the Applicant in his defence of theseproceedings.

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4. The Applicant is further prejudiced, in that the ability toproperly test the credibility of witnesseshas been seriously impaired, and he has been impeded by this delay inhis ability to gather evidence or locate witnesses to allow him fullyprepare his defence.

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5. The right of the Applicant to a trial without delay or with dueexpedition has been irreparably affected by the inexplicable failure ofthe complainants to proceed with their complaints with expedition.

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2 The right to make a complaint is not an inalienable right, and inthe circumstances of this case that right has been waived or lost byvirtue of the delay, or ought for the reasons of staleness not be giventhe forum of a criminal trial.

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7. The respondent is not entitled to proceed any further havingregard to the staleness of the complaints.

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It would be seen that all of these grounds relate to general issues ofdelay. The issue of prosecutorial delay is not raised in thesegrounds.

13

The application is grounded upon an affidavit of the Applicant, whoindicates that at the time of swearing thereof he was 69 years of age.He indicates that he had seven children of his marriage, and that hiswifeand he had separated about six years prior to making the affidavit.

14

He indicates that he was charged on 28th July 2000 with 56 counts ofindecent or sexual assault on three of his daughters the threecomplainants in these proceedings. At the time of bringing thisapplication the Applicant was awaiting arraignment before the CircuitCriminal Court in Dublin, having been returned for trial by the DistrictCourt.

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He indicates that on 3rd December 1998 he was arrested and detainedunder the provisions of Section 4 of the Criminal Justice Act 1984, and that he denied the allegations against him.

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The Counts 1 to 16 relate to his daughter CD, and relate to conductalleged between 4th December 1968 and 4th December 1972. The period oftime from the date of the alleged offence to the time of swearing was 31years from the earliest point in time to a period of 27 years for thelast of the complaints pertaining to this complainant, and somewhatlesser periods in respected of the other two complainants. The least intime being a period of 17 years from the date of the alleged offence tothe swearing of the affidavit.

17

He claims at Paragraph 11 of his affidavit that it isnow almost impossible for him to ascertain with any degree of accuracyhis whereabouts at the times when it is alleged he assaulted hisdaughters.

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A statement of opposition has been filed on behalf of the respondent, inwhich the following grounds of opposition are pleaded:

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The first matter raised is that the Applicant is not entitled to reliefsought or any relief, and that strictly speaking is not a ground ofopposition. It is further pleaded that there has not been the alleged orany delay by the complainants.

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Secondly, that the delay in this case, if there had been any, is notexcessive or unconscionable. It is denied that proceeding further withthe trial of the Applicant on these charges would breach the applicant'sconstitutional right to a fair trial in due course of law.

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Thirdly, if there has been any delay it is not of such duration that byreason of the unexplained delay alone the trial of the Applicant shouldnot proceed.

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Fourthly, if there has been any delay in the making of the complaintsagainst the Applicant, the Applicant has been responsible for the saiddelay. The Applicant at the time of the offences was in aposition of dominion over the complainants.

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Fifthly, it is pleaded that the Applicant prevented the making of thecomplaints by threats and intimidation of the complainants.

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Sixthly, that there is no time bar to prosecute such offences as arecharged therein.

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Seventhly, that the Applicant has not established that any alleged delayhas caused or will cause him to suffer prejudice in the preparation orpresentation of his defence to the charges laid against him.

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Eighthly, it is denied that any of the particulars relied on in theApplicant's pleadings would constitute a violation of the Applicant'sright to a trial in due course of law.

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Ninthly, that the Applicant is not entitled to relief sought by reasonof his delay in seeking judicial review.

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Tenthly, it is denied that the right of the Applicant to a trial withoutdelay or with due expedition has been irreparably affected by theinexplicable failure of the complainants to proceed with expedition.

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Finally, in the statement of grounds of opposition it is stated thatsuch further other grounds may be advanced at the hearing of thismatter.

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Well, that is something that is not provided for in the Rules, insofaras the opposition relates to the grounds of opposition thathave been filed.

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An affidavit has been sworn by Sergeant Mary Murphy, who indicates thatin August 1998 the three complainants reported allegations of sexual andphysical abuse alleged against their father, the Applicant herein. Shesubsequently took statements from each of the complainants. These werein the months of August, September and into October of 1998. Thisrelated to evidence given by her in this court at a time when she wascross-examined.

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She indicates that the Applicant was initially arrested and questionedon 3rd December 1998, and ultimately the prosecution file was forwardedto the Respondent in late November 1999. The Respondent's directionswere received at Ballyfermot Garda station in April 2000, after whichSergeant Murphy sought to locate the Applicant. She located him in July2000. On 26th July 2000 she obtained an arrest warrant and on the sameday the Applicant was arrested and charged.

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The Book of Evidence was served on 15th November 2000, and on 5thJanuary 2001 the defence requested the taking of depositions from thecomplainants and from Sergeant Murphy. These were taken on 24th May2001. She indicates that the case was listed for submissions before theDistrict Court on 13th September 2001, and on that date, having heardthe submissions, the District Court returned the Applicant for trial tothe Circuit Criminal Court.

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Sergeant Murphy has indicated that she took further statements from eachof the complainants on 14th March 2002 and 8th October 2002. Dealingwith the issue of delay in making the complaints to the Gardaíshe indicates that one of the concerns of the complainants in not comingforward sooner was the state of their...

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