K.R v DPP and P.R v DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 07 November 2006
• Neutral Citation: [2006] IESC 59
• Judgment citation (vLex): [2006] 11 JIC 0701
• Court: Supreme Court
• Date: 07 November 2006

[2006] IESC 59

THE SUPREME COURT

Denham J.

Kearns J.

Macken J.

[S.C. 91 of 2004]

[S.C. 108 of 2004]

R (K) & R (P) v DPP

Between/

K.R.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

and

Between/

P.R.

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

H v DPP 2006 IESC 55

Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949

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

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

Abstract:

Criminal law - Criminal procedure - Judicial Review - Prohibition trial of sexual offences - Impact of H v. DPP - Onus of proof - Whether actual prejudice, prosecutorial pedicle or process delay established

: The appellants sought to appeal the refusal of the High Court to prohibit by way of judicial review their pending trial on sexual offences in light of the Supreme Court decision in H v. DPP (Unreported, 31st July, 2006). The appellants alleged that that trial judge erred in failing to hold that the lapse of time between the commission of the offences and the trial of the action gave rise to unavoidable prejudice, as did the delay in prosecuting and the lack of particularity in the alleged offences

Held by the Supreme Court, per Denham J., that the onus of proof rested with the appellants to demonstrate a real or serious risk of an unfair trial on grounds of actual prejudice, prosecutorial delay or process delay, which they had failed to discharge.

Reporter: E.F.

1 Judgment delivered the 7th day of November, 2006 by Denham J.

2 1. These two appeals come on for hearing after the review of the jurisprudence in such cases taken by this Court in the judgment H. v. D.P.P. (Unreported, 31st July, 2006).

3 2. In the High Court both cases were decided in a single judgment given by Ó Caoimh J. on 30th January, 2004. The cases were heard sequentially by this Court and this judgment governs both cases.

4 3. K.R. and P.R. have sought by way of judicial review to prohibit or injunct their pending trials. The High Court refused the applications and it is against that refusal that they have appealed to this Court.

5 4. K.R. is charged with two counts of rape and one count of indecent assault allegedly committed in 1971, 1972 and 1979. The complainant was born in 1960, she first contacted the gardaí in 1997, and K.R. was arrested and charged in 1999.

6 5. K.R. was granted leave by the High Court (Murphy J.) on 31st day of July, 2001, to apply by way of application for judicial review for an order of prohibition prohibiting or injuncting the Director of Public Prosecutions, the respondent, and hereinafter referred to as “the respondent”, from further prosecuting K.R. on the charges preferred against him on Bill No. CC0118/00. The leave to apply for the reliefs was on the grounds:

7 (i) That the lapse of time between the dates of the commission of the alleged offences (between 1st January 1970 – 30th September 1976) and the date set for trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against K.R.

8 (ii) The delay by the respondent in charging and prosecuting K.R. in respect of the above alleged offences is, either by itself, or in conjunction with the lapse of time since the date of alleged commission of the alleged offences so great as to be oppressive, unfair and unjust to K.R. and in violation of his rights to a criminal trial in due course of law under the Constitution.

9 (iii) The lapse of time between the alleged dates of the alleged commission of the alleged offences and the date of trial is so great as to have caused and to continue to cause the applicant to suffer prejudice in the preparation and presentation of his defence.

10 6. P.R. was arrested on 27th September, 1999, and charged with 28 counts of indecent assault by P.R. on the complainant on dates between 1st January, 1970, and 30th September, 1976.

11 In October, 1997, the complainant telephoned An Garda Síochána for the purpose of making a complaint alleging that P.R. had sexually assaulted her. On 21st January, 1998, members of An Garda Síochána spoke to P.R. and informed him of the allegations. In the affidavit of Detective Sergeant Gerard J. Roche sworn on 25th October, 2001, he describes the steps taken in the Garda investigation.

12 P.R. was granted leave to apply by way of judicial review for reliefs on the same grounds (i) and (ii) as granted to K.R., by the High Court (McKechnie J.), on the 23rd April, 2001.

13 7. Both cases came on for hearing before the High Court ( Ó Caoimh J.) on the 18th and 19th December, 2002. A reserved judgment was delivered on 30th day of January, 2004, in which both applications were refused.

14 Applying the jurisprudence of that time the High Court reviewed the reasons for the delay in making a complaint of the alleged rapes and sexual abuse. This was the main issue before the High Court and on which there was evidence and cross-examination. The High Court was satisfied that the delay had been adequately explained and refused this aspect of the application.

15 As to the other issues raised, the learned High Court judge held:

"With regard to the alleged prejudice put forward by the applicants I am satisfied that the absence of certain witnesses identified by them is not such as to give rise to a situation where a fair trial cannot be had by them, I am satisfied in circumstances where the offences are alleged to have been committed in private that the absence of these witnesses in unlikely to result in a situation of an unfairness in the trial procedure itself.

I[n] find no case of prosecutorial delay to have been established in light of the evidence of Detective Sergeant Roche.

Finally, taking all the matters into consideration, I am satisfied that the applicants in each case, notwithstanding the difficulties that may be experienced by them having regard to the passage of time, have failed to demonstrate that such difficulties as may be experienced by them in defending the charges will result in a situation where there is a real and serious risk that they cannot obtain a fair trial. In light of these conclusions I am satisfied that I must refuse to the applicants the relief which they seek."

16 8. K.R. has appealed to this Court on the following grounds:

17 The learned trial judge erred in fact and in law by failing to hold that:-

18 (i) The lapse of time between the dates of the commission of the alleged offences (between 1st January, 1970 – 30th September, 1976) and the date set for trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against K.R.

19 (ii) The delay by the respondent in charging and prosecuting K.R. in respect of the above alleged offences is, either by itself or in conjunction with the lapse of time since the date of alleged commission of the alleged offences so great as to be oppressive, unfair and unjust to K.R. and in violation of his rights to a criminal trial in due course of law under the Constitution.

20 (iii) The lapse of time between the alleged dates of the alleged commission of the alleged offences and the date of trial is so great as to have caused and to continue to cause K.R. to suffer prejudice in the preparation and presentation of his defence.

21 (iv) The lack of particularity in the alleged offences of which it is proposed to try K.R. is such, either in itself or in conjunction with the lapse of time since the date(s) of the alleged offences, to suffer prejudice in the preparation and presentation of his defence.

22 P.R. filed identical grounds of appeal.

23 9. Submissions were filed on behalf of K.R. and on behalf of P.R., and the respondent filed submissions in relation to each case. In addition oral submissions were made by Mr. Martin Giblin S.C. on behalf of each of the applicants and oral submissions were made by Mr. Shane Murphy S.C. on behalf of the respondent in the K.R. case and by Mr. Anthony M. Collins S.C. in the P.R. case.

24 10. The judgment of the High Court dealt at length with the reasons for the delay - in accordance with the jurisprudence of that time. However, this case has been listed for hearing after the review of the law in H. v. D.P.P. In that case the Court...