K (M) v Groarke

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 25 June 2002
• Neutral Citation: [2002] IESC 51
• Court: Supreme Court
• Date: 25 June 2002

[2002] IESC 51

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J.

Record No. 301/2000

K (M) v. GROARKE & DPP

BETWEEN

M.K.

APPLICANT/RESPONDENT

and

HIS HONOUR JUDGE RAYMOND GROARKE

RESPONDENT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S61

OFFENCES AGAINST THE PERSON ACT 1861 S62

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

F(S) V DPP 1999 3 IR 235

L(J) V DPP 2000 3 IR 122

PROSECUTION OF OFFENCES ACT 1974 S2(5)

CONSTITUTION ART 15

D V DPP 1994 2 IR 465

DPP V Z 1994 2 IR 476

CONSTITUTION ART 38.1

SINGER, RE 97 ILTR 131

DPP V BYRNE 1994 2 IR 236

HEALY, STATE V DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

G V DPP 1994 1 IR 374

Synopsis:

CRIMINAL LAW

Judicial review

Prohibition - Sexual offences - Delay - Order granted in High Court - Appeal -Constitution - Role of DPP - Whether real or serious risk of unfair trial - Whether order prohibiting trial should stand - Bunreacht na hÉireann, 1937 Article 38.1 (301/2000 - Supreme Court - 25/06/2002)

K (M) v Groarke

The applicant had been arrested and charged with sexual offences allegedly committed some years previously. The applicant brought an application seeking to prohibit his trial from proceeding. The applicant claimed that the lapse of time between the commission of the alleged offences and the date of trial was so great that it gave rise to an unavoidable and incurable presumption of prejudice against him. Furthermore it was claimed that the delay had deprived the applicant of prospective witnesses. Kearns J in the High Court granted the order sought holding that the delay had seriously impaired the applicant’s ability to defend himself. The Director of Public Prosecutions appealed the judgment to the Supreme Court.

Held by Supreme Court (Denham J delivering judgment; Hardiman J and Fennelly J agreeing) in dismissing the appeal. The decision as to whether or not to prosecute the applicant was one for the Director of Public Prosecutions to take. An order of prohibition might be required to protect the constitutional right of an accused to a fair trial. There was a balancing of the community’s right to prosecute offences as against the accused’s right to due process including the right to a trial with reasonable expedition. The circumstances of the case included a long delay prior to prosecution, alleged offences arising on a single occasion and the death of an important witness which had caused significant prejudice to the defence. There was evidence upon which the learned trial judge could find very grave prejudice and the appeal would be dismissed.

1 25th day of June, 2002 by Denham J. (Nem diss)

1. Judicial Review

2 The applicant/respondent, M.K., hereinafter referred to as the applicant, sought an order in the High Court for judicial review restraining the first named respondent from trying the applicant on the charges before him and an order prohibiting the second named respondent, hereinafter referred to as the Director of Public Prosecutions, from further prosecuting the applicant on the charges.

2. Charge

3 The applicant is charged as follows:-

"1. That you the said accused did between the 1st of March, 1981 and the 31st of December, 1983 at…commit buggery with a male namely W.

Contrary to section 61 Offences Against the Person Act, 1861.

2. That you the said accused did between the 1st of March, 1981 and the 31st of December, 1983 at…assault one W., a male person with intent to commit buggery or an indecent act.

Contrary to section 62 Offences Against the Person Act, 1861."

3. Facts

4 The applicant deposed to facts on affidavit which, in summary, are as follows. The applicant resided with his family in an area close to the home of W and he was friendly with W. In 1981 the applicant joined the army. He was married in 1985 and lost contact with W whom he had not seen since 1985. Some time in 1998 he was informed by his brother that W was alleging he, the applicant, had sexually molested W. On the 17th August, 1998 the applicant went to a Garda station by arrangement and made a statement concerning the allegations of W. On the 5th April, 1999 the applicant was arrested and charged with the offences as set out above. The applicant made a number of appearances in the District Court and on the 13th July, 1999 he was served with a book of evidence. On the 27th July, 1999 he was returned for trial to the Circuit Court on the said charges. The applicant deposed that the allegations in the book of evidence are untrue. He stated that he never sexually assaulted W nor did he have any conversation with W's mother concerning any such assault. He says that his mother was in good health at the time and not ill as alleged. The applicant deposed that he has been gravely prejudiced in his ability to defend himself against these charges by the long delay in bringing them.

4. Relief Sought

5 The applicant seeks a court order restraining the first named respondent from proceeding with the trial and prohibiting the Director of Public Prosecutions from further prosecuting the applicant on the charges. The grounds upon which this relief is sought are as follows:

6 (a) It was claimed that the lapse of time between the date of commission of the alleged offence and the date of trial is now so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

7 (b) In particular the applicant's parents with whom he resided at the time are both since deceased and are unavailable to him as witnesses.

8 (c) By reason of the said delay the applicant has been deprived of the chance to establish his movements at the time to seek out prospective witnesses or to defend himself in any way other than a bare denial on oath of the said charges.

5. Report of Psychologist

9 There was a report from Mr. Alex Carroll, a senior clinical psychologist, before the court. Mr. Carroll had carried out a psychological assessment of the complainant in February, 2000. He concluded:

"In my experience there are many reasons why victims of child sexual abuse may fail to make a complaint at the time the abuse takes place or for a long period of time:

1. Child sexual abuse often involves a known adult who is in a legitimate position of power over a child and who exploits accepted societal patterns of dominance and authority to engage in sexual activity which the child does not comprehend or understand. The power and authority of adulthood and/or the position of authority occupied by the abuser conveys to the child that the activity is acceptable and sanctioned.

2. It is not possible in my opinion to over emphasise the significance of the exploitation and misuse of accepted power relationships in assessing the impact of sexual abuse on a child, including the failure or otherwise of the child to disclose the fact of the abuse or to make a complaint at the time the abuse was taking place, in subsequent years, or indeed at all.

3. Sexual abuse invariably gives rise to feelings of guilt and shame on the part of the victim.

4. The victim may feel that she/he will not be believed if they complain or alternatively may be daunted by what they see as the difficulties of having their story accepted. The abuse may also give rise to confusion in the mind of the victim and cause reluctance to complain.

5. Victims of sexual abuse may have kept out of their minds or driven out of their minds the incidents of abuse and may not wish to recall them no matter what the circumstances.

6. The recall and disclosure of abuse may be unduly repugnant to the victim as something degrading and humiliating.

7. Victims of sexual abuse during their childhood will not, in most cases, be capable of seeing the abuse as an offence against the criminal law or as something which they have a public duty to report.

8. It some times happens that the explanation for a victim complaining is the happening of some event long after the last episode of abuse.

9. The sexual abuse suffered by a victim may have produced an unhealthy attitude to sexuality, so that the victim cannot be objective or discuss with others the fact of the abuse.

If the events described by W are correct then they represent the exploitation of a legitimate position of power by MK in order to engage him in sexual activity which he did not understand and was unable to give consent.

In my opinion the failure of W to make a complaint at the time, or in the intervening years is adequately explained, from a psychological perspective, by that exercise of power and by the known dynamics of sexual abuse as outlined above, each of which apply in whole or in part to this particular case."

6. Oral Evidence

10 Oral evidence was given in the High Court. Mr. Carroll, the senior clinical psychologist, was cross-examined on his report, by counsel for the applicant. The transcript of that examination, and the examination by counsel for the Director of Public Prosecutions, was before the court.

7. High Court Order and Judgment

11 On the 13th September, 2000 the High Court (Kearns J.) ordered that the first named respondent be permanently restrained from trying the applicant on the charges stated and that the second named respondent be permanently restrained from prosecuting the applicant on the charges stated. The High Court referred to precedent. Special reference was made to J.O'C. v. D.P.P. [2000] 3 I.R. 478 at page 504 where Hardiman J., stated:

"The effect of documentary, physical or forensic evidence, where they exist, is to provide some basis on which the part of the case which depends on mere assertion can be assessed and tested. Inevitably there will be a certain number of criminal cases, and far fewer civil ones, in which no such evidence exists. In such a case each side will naturally look to the surrounding circumstances; the...