K. -v- Judge Carroll Moran & Anor,  IEHC 23 (2010)
|Docket Number:||2009 512 JR|
|Party Name:||K., Judge Carroll Moran & Anor|
THE HIGH COURT
JUDICIAL REVIEW2009 512 JR
HIS HONOUR JUDGE CARROLL MORAN AND THE DIRECTOR OF PUBLIC PROSECTIONS RESPONDENTJudgment of Mr. Justice Charleton delivered on the 5th day of February, 2010.
This is an application to prohibit the trial of criminal charges for sexual abuse on the grounds of delay. The applicant claims that the delay has caused him such prejudice that there will now be a real risk that he will not obtain a fair trial notwithstanding the presumption that the trial Judge will give appropriate directions as to the law and warnings as to the evidence, including the standard warning in favour of the accused that points out to a jury the evidential deficit that automatically arises when a criminal case is delayed. In addition, the applicant claims a mental disability and so urges the Court that this is one of those now rare cases where it would be unfair to allow the trial to proceed. I will call the applicant Eamonn K. and the complainants M. and N.
At a family funeral in early August 2007, a scuffle broke out. This was because it had come to light that two members of a family, ostensibly friendly with the family of the accused, were now alleging that he had sexually assaulted them many years before. On the 17th August, 2007 formal statements were taken by the Gardaí from these two people. The accused was not then arrested but on the 20th August, 2007 he came to a Garda station in County Clare and was questioned. Eight months later, on the 16th May, 2007, he was charged with ten offences of indecent assault. On the 30th May, 2008 he was served with the book of evidence. His solicitor then had him psychiatrically examined and reports were received from two psychiatrists on the 3rd and 27th March, 2009. The applicant then commenced these judicial review proceedings, Peart J. granting leave in that regard on the 29th June, 2009.
It might also be mentioned that one of the alleged victims of this offence told her husband of the circumstances leading to these charges about ten years before the incident at the funeral. She also told her best friend from childhood about two years prior to that funeral incident. It is uncertain on the authorities whether in a criminal case I am allowed to take that fact in to account. In a civil case I would have to consider this delay; W. v. W.  IEHC 442; such a delay might be regarded as inordinate and inexcusable, depending on what explanation might be put forward by the plaintiff, and the balance of justice would have to be considered. That would be in a case where the standard of proof is on the balance of probabilities, not as here where the prosecution must prove their case beyond reasonable doubt. Articles 5 and 6 of the European Convention on Human Rights guarantee trial in civil and criminal matters within a reasonable time. But, as this point was not debated, I will not consider it.
I turn first of all to the facts. There are ten charges brought by the second respondent against the applicant. The first alleges that between the 1st June, 1966 and the 31st December, 1967 at a town in Clare he indecently assaulted M, a male person. The other nine charges allege that between the 1st January, 1964 and the 6th June, 1969, during various time periods identified by the charges, he indecently assaulted N, a female. In his statement, M said that about 40 years previously he was on a fishing trip with the applicant. Suddenly, the applicant opened his trousers and asked M. to touch his erect penis. This he did, but that seems to be the extent of the incident.
N. says that when she was approximately eight years of age a pattern of abuse began which continued "for a few years after that". She believes that the alleged abuse by the applicant stopped when she started going to secondary school, "or at least I don't remember it happening after I started secondary school". All of the abuse happened in the applicant's family home, when they were in the kitchen, which was also a sitting...
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