K (E) v Judge Moran & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 05 February 2010
• Neutral Citation: [2010] IEHC 23
• Court: High Court
• Date: 05 February 2010

[2010] IEHC 23

THE HIGH COURT

[No. 512 JR/2009]

K (E) v Judge Moran & DPP

JUDICIAL REVIEW

BETWEEN

EAMONN K.

APPLICANT

AND

HIS HONOUR JUDGE CARROLL MORAN AND THE DIRECTOR OF PUBLIC PROSECTIONS

RESPONDENT

W (F) v W (J) UNREP CHARLETON 18.12.2009 2009 IEHC 542

O'LEARY A PRIVILEGE FOR PSYCHOTHERAPY? 2007 12 BR 33 2007 12 BR 76

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

C (P) v DPP 1999 2 IR 25

DPP, PEOPLE v T (J) 3 FREWEN 141 1988/7/2089

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

DPP v C (E) 2007 1 IR 749 2006/17/3511 2006 IECCA 69

K (C) v DPP UNREP SUPREME 31.1.2007 2007/30/6173 2007 IESC 5

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39

SPARROW v MIN FOR AGRICULTURE & JUDGE HAMILL UNREP SUPREME 29.1.2010 2010 IESC 6

CRIMINAL LAW (INSANITY) ACT 2006 S4

CRIMINAL LAW

Delay

Reasonable expedition - Sexual abuse case - Prejudice - Whether real risk of unfair trial - Mental disability of applicant - Psychiatric evidence - Significant cognitive impairment and illiterate - Simple man with limited recall - Whether applicant fit to understand court procedure - Applicable principles - Whether exceptional circumstances making it unfair to put applicant on trial - W v W [2009] IEHC 542, (Unrep, Charleton J, 18/12/2009); DC v DPP [2005] IESC 77, [2005] 4 IR 281; PC v DPP [1999] 2 IR 25; People (DPP) v JT (1988) 3 Frewen 141; Z v DPP [1994] 2 IR 476; People (DPP) v EC [2006] IECCA 69, [2007] 1 IR 749; CK v DPP [2007] IESC 5, (Unrep, SC, 31/1/2007); McFarlane v DPP [2006] IESC 11, [2007] IR 134; H v DPP [2006] IESC 55, [2006] 3 IR 575; PT v DPP [2007] IESC 39, [2008] 1 IR 701 and Sparrow v Minister for Agriculture [2010] IESC 6, (Unrep, SC, 29/1/2010) considered - Criminal Law (Insanity) Act 2006 (No 11), s 4 - Prohibition granted (2009/512JR - Charleton J - 5/2/2010) [2010] IEHC 23

K (E) v Judge Moran & DPP

Facts: The applicant sought to prohibit the trial of criminal charges of sexual abuse on grounds of delay. The applicant alleged that the delay would result in prejudice which could not be remedied by the charge of the trial judge. The two counts at issue in respect of alleged incidents occurred over forty years previously. The applicant had epilepsy, was illiterate and had cognitive impairment. Most of the alleged incidents had occurred in the family home of the applicant.

Held by Charleton J. That a person with the level of intelligence and ability of recall of the applicant could not adequately meet his own defence or recall adequately necessary information or events. One of the closest participants, namely his mother, was now dead. This was one of the few occasions where the applicant would succeed in showing that there was a real risk of an unfair trial on the grounds of delay.

Reporter: E.F.

1 Judgment of Mr. Justice Charleton delivered on the 5th day of February, 2010.

2 1. 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.

Facts

3 2. 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 17 ^th August, 2007 formal statements were taken by the Gardaí from these two people. The accused was not then arrested but on the 20 ^th August, 2007 he came to a Garda station in County Clare and was questioned. Eight months later, on the 16 ^th May, 2007, he was charged with ten offences of indecent assault. On the 30 ^th 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 3 ^rd and 27 ^th March, 2009. The applicant then commenced these judicial review proceedings, Peart J. granting leave in that regard on the 29 ^th June, 2009.

4 3. 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. [2009] 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.

5 4. 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 1 ^st June, 1966 and the 31 ^st December, 1967 at a town in Clare he indecently assaulted M, a male person. The other nine charges allege that between the 1 ^st January, 1964 and the 6 ^th 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.

6 5. 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 room. She describes the abuse happening "most of the time, but not always" while they were sitting on a couch on the right hand side of this room as you go in the door. The abuse consisted of the accused putting his hand up her skirt, pushing her underwear aside and touching her while he masturbated to ejaculation. The details of this statement are, as one might expect after a gap of up to 43 years, slight. When it comes to the applicant's response, the same comment might be made. He said to the Gardaí that he never went fishing, or ever had a fishing rod. He never showed his penis, he says, to M. Whereas he knew the two alleged victims he says that he was never alone with N in his house. When asked about the allegations, he said "I did no such thing, I did not". At this remove in time, he claimed not to have been able to remember being alone with N in the sitting room of his family home but described the relationship with the family of M and N as "good .... in them years".

7 6. I am told by counsel, and it is not contradicted, that the mother of the applicant died about 17 years ago. A case is made that because of the mental disability of the applicant, to which I shall shortly refer, his mother was more likely to have been closely involved with his care and supervision than would otherwise be the case. Whereas they cannot say that she would have been a witness to the occurrence, or non-occurrence, of any particular incident, the applicant claims she is a crucial witness in a case of this kind. As to whether, for instance, he ever had a fishing rod or went fishing, as to whether there was any evidence of masturbation in a particular room at any particular time and as to surrounding details which have been lost due to the passage of many decades, she could be expected to be a witness.

Psychiatric evidence

8 7. Dr. Bhamjee examined the applicant. He describes him as "a simple bachelor who lives alone since his mother died 17 years ago". His work history is of cleaning roads until epilepsy developed about thirteen years previously. He will be 64 years old this year. He is now living on an invalidity pension and taking anti-epileptic medication. In addition he has high blood pressure and a hip problem. Dr. Bhamjee describes the applicant as having given him a history of having been slow in class and being...