K (S) v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 26 February 2004
• Neutral Citation: [2004] IEHC 98
• Court: High Court
• Date: 26 February 2004

[2004] IEHC 98

THE HIGH COURT

HC 144\04

[2001 No. 392 J.R.]

K (S) v. DPP

BETWEEN

S.K.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S48

CONSTITUTION ART 38.1

C (P) V DPP 1999 2 IR 25

L (J) V DPP 2000 3 IR 122

M (P) V MALONE 2002 2 R 560

B V DPP 1997 3 IR 140

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

C (P) V DPP UNREP O'NEILL 22.2.2002 2002/5/1004

RSC O.84 r21

K (G) V MIN JUSTICE 2002 2 IR 418 2002 1 ILRM 401

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

RSC O.84 r21(1)

W (D) V DPP UNREP SUPREME 31.10.2003

K (M) V GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

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

Abstract:

Judicial review - Prohibition - Delay - Right to expeditious trial - Sexual offences - Pre-trial publicity - Prejudice - Evidence of dominion - Whether order of prohibition should be granted - Whether real risk of unfair trial - Rules of the Superior Courts, 1986.

Facts: The applicant sought an order of prohibition to prevent a trial for sexual and assault offences from proceeding. The applicant claimed that the delay in the institution of the proceedings had prejudiced his defence, was inordinate and inexcusable, was unfair and unjust to the applicant and violated the his right to a fair trial. The complainant was a daughter of the applicant and made her first formal complaint to An Garda Síochána some twenty-six years after the date of the last alleged offence. The applicant also submitted that the lapse of time had deprived him of the chance to seek out witnesses or collate evidence in his defence. Psychological evidence was tendered as to the reasons for the complainant’s delay in making a formal complaint. A preliminary issue arose as to whether the period within which the application should have been made should be extended pursuant to Order 84, rule 21 of the Rules of the Superior Courts.

Held by Gilligan J in refusing the relief sought. The period within which the application should have been made would be extended given that no serious prejudice would result. On the evidence adduced the complainant’s delay in reporting the sexual abuse was reasonable and explicable. Although there was some prejudice resulting to the applicant it was not such that it had deprived the applicant of a specific defence which otherwise would have been open to him. The trial judge would be well capable of giving the trial jury appropriate directions with regard to matters touching on the subject of delay.

Reporter: R. F.

1 Mr. Justice Gilligan delivered on the 26th day of February, 2004.

2 The applicant in this case has been charged with four counts of rape contrary to s. 48 of the Offences Against the Person Act, 1861, which are alleged to have occurred some time in 1972, and 41 counts of indecent assault contrary to common law, alleged to have occurred between 1968 and 1973. The applicant now seeks judicial review by way of order of prohibition or an injunction restraining the respondent from taking any further steps in the prosecution of these charges. The applicant was refused leave to apply for judicial review in the High Court on the 19 ^th of June, 2001, and appealed that decision to the Supreme Court, where judgment was delivered on the 6 ^thof July, 2001, granting leave to apply for judicial review as aforesaid on the following grounds:

3 1. That the delay in the institution of the proceedings above referred to has prejudiced the applicant; is inordinate and inexcusable; and is unfair and unjust to the applicant, and has thereby violated the applicant's right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution;

4 2. That the applicant has been prejudiced in his defence of these proceedings by reason of the delay in the institution and prosecution of the said proceedings;

5 3. That there is a real and substantial risk that the trial of the applicant will be unfair by reason of the delay and consequent prejudice resulting therefrom;

6 4. That the applicant has been further prejudiced in his defence in these proceedings by reason of the lack of specificity in the charges alleged.

7 The applicant was born in 1936 and has eight adult children. The complainant in this case was born in 1961 and is one of two daughters of the applicant and is the fourth child in the family. It is alleged by the complainant that the applicant indecently assaulted her on several occasions between 1968 and 1973 and that he raped her on several occasions in 1972. The offences are alleged to have begun prior to her First Communion, which she made at the age of seven in 1968. The rapes are alleged to have occurred in the family home, and the indecent assaults in the family home and also at another location where her father used to take her in the car. She further alleges that in 1972 at the age of eleven she became pregnant as a result of the abuse and suffered a miscarriage about three months into the pregnancy. She alleges that a Dr. M., who was the family's G.P., attended her during the miscarriage while she was bleeding heavily, but was not present or informed when she actually miscarried two days later. Dr. M. died in or around 1986. The first formal complaint to the Gardaí regarding these allegations was made on the 7 ^th June, 1999. The applicant was arrested on the 9th September, 1999, and was interviewed by the Gardaí. He was charged with the offences preferred against him on the 6th of June, 2000, and was charged at that point.

8 There is a gap of 26 years between the last alleged offence and the first formal complaint in this case. The applicant argues that the lapse of time has deprived him of the chance to seek out witnesses or collate evidence in order to controvert any material aspect of the complainant's allegations, that it has made it impossible to accurately recollect events, and in particular the lapse of time when added to the lack of specificity of the allegations has made it impossible to rely on certain defences which may have been open to the applicant such as an alibi defence. In particular the applicant argues that the unavailability of either Dr. M. or any records he may have kept in relation to the alleged miscarriage irreparably prejudices the applicant's ability to challenge the complainant on a material aspect of the charges made against him.

9 The applicant also argues that unfairness to him arises out of the fact that records of the counselling received by the complainant prior to her making a formal complaint have not been made available to him. He also states that the complainant was approximately 38 years of age when she made her initial complaint, whereas she left the family home in 1976 and was married in 1986 and has had little contact with her father for more than 20 years. In the circumstances, the applicant contends that there is a real and substantial risk of an unfair trial.

10 It is clear that a serious delay exists between the last alleged offence and the first formal complaint. In a judicial review of this nature, the court must decide whether:

"…as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution."

11 (P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25 , at p. 67 per Keane J.).

12 In particular, if the trial is to go ahead, the court must satisfy itself" …as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions" (at p. 68). It is also important to note that at this stage an assumption as to the truth of the allegations made by the complainant may be made (per McGuinness J. in J.L. v. D.P.P. [2000] 3 I.R. 122, at p. 137, Hardiman J. concurring).

13 In P. C. v. Director of Public Prosecutions Keane J. goes on to set out the second part of the test; after making a finding that the delay was referable to the accused's own actions, the court must then determine whether:

"…the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

14 In her statements to the Gardaí, the complainant provides details of abuse lasting from 1968 to 1972. She alleges that her father was violent towards both herself, her siblings and her mother, and that she was the only one who escaped his violence. She suggests that this was in return for her compliance in the abuse. She understood that if she refused to comply, her mother and siblings would be assaulted. Her father told her that if she told anyone, everyone in the family would be in trouble. She connected the beatings of the rest of the family with her own sexual abuse. If she said she was going to tell her mother, her father would say "We don't want any trouble" and she knew what this meant. She alleges her mother after a time was aware of the abuse, and in particular knew that she was pregnant and called the doctor when she was having the miscarriage.

15 In 1976 at the age of 14 the complainant left the family home to work and live with her paternal aunt, who ran a nursing home in a different town. She alleges she told her aunt of the abuse while she was living with her, in 1976 or 1977. She believes her aunt told a second paternal aunt of...