S.K. v DPP

JudgeMr. Justice O'Neill
Judgment Date02 February 2007
Neutral Citation[2007] IEHC 45
CourtHigh Court
Date02 February 2007

[2007] IEHC 45


[No. 319 JR/2006]
K(S) v DPP





M (P) v MALONE & DPP 2002 2 IR 560 2002 16 3761

BARKER v WINGO 1972 407 US 514



RSC O.84 R21 (1)

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

O'D v DPP UNREP O'HIGGINS 2.4 2004 2004/38/8796

BJ v DPP UNREP SUPREME 29/11/2006 2006 IESC 66

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55



Right to fair trial - Right to trial with due expedition - Prosecutorial delay - Complainant delay - Sexual offences - Presumption of prejudice alone not grounds for prohibition - Judicial notice of reasons for delay - H v DPP [2006] IESC 55, [2007] 1 ILRM 401 followed - Necessity to establish prejudice to defence, pre-trial incarceration or unnecessary stress - PM v DPP [2006] IESC 22, [2006] 3 IR 172 followed - Necessity to adduce evidence of extent of stress or anxiety suffered - JB v DPP [2006] IESC 66, (Unrep, SC, 29/11/2006) applied - Application for judicial review refused (2006/319JR - Ó Neill J - 02/02/2007) [2007] IEHC 45 K(S) v DPP

Facts: The applicant sought to prohibit his trial as to sexual offences relating to his stepchild on ground of delay including prosecutorial delay, alleging that he had been deprived of his right to a fair trial. The applicant alleged that the circumstances of the case were unique whereby he had initially brought the matter to the attention of the Gardai

Held by O’ Neill J. that no prosecutorial delay existed as the actions of the Gardai had been reasonable in dealing with allegations relating to a family. The decision of the Supreme Court in H v. DPP applied and the applicant had not discharged the onus of proof in demonstrating that a real risk of an unfair trial existed. The reliefs sought would be refused.

Reporter: E.F.


JUDGMENT of Mr. Justice O'Neill delivered on the 2nd day of February, 2007


This judgment is circulated in a redacted form to avoid identification of parties


By order of this court (Peart J.) on the 27th March, 2006, the applicant was given leave to seek inter alia an order of prohibition of his trial on 51 counts of sexual assault and attempted buggery allegedly perpetrated on N.K. the applicant's stepson. These offences are alleged to have been committed between the 1st January, 1985 and the 18th October, 1991. A book of evidence was served on the applicant on the 29th July, 2005 and he was returned for trial to the Circuit Court on the 28th October, 2005 and the matter first appeared in the Circuit Court on the 24th January, 2006, the indictment having been served on the applicant on the 23rd January, 2006.


The grounds upon which the applicant was given leave to pursue relief by way of judicial review are that he has been deprived of his right to a trial in respect of the alleged offences, with due expedition because of the lapse of time between the commission of the alleged offences and the trial in respect of these, and as a consequence of this lapse of time the applicant contends that there is an unavoidable and incurable presumption of prejudice, and furthermore the State authorities and in particular the Gardaí and the prosecuting authorities have been guilty of inordinate and inexcusable delay in the prosecution of these offences.


The factual background to this matter is as follows.


The applicant herein is the stepfather of N.K. The applicant and N.K.'s mother were married in 1982. N.K. alleges that over a period of several years he was repeatedly sexually abused by the applicant and this sexual abuse is the subject matter of the 51 counts laid out in the aforementioned indictment.


When N.K. was approximately 18 years of age or slightly more, and in a course of a row with his mother, he revealed for the first time the alleged sexual abuse. The applicant was confronted with this by his wife and he admitted the abuse to her. The applicant then went to a Garda, not in the Garda Station but in his private house and disclosed the abuse to him. The Garda in question visited the family and interviewed N.K. in the presence of his mother and it would seem also the applicant. All were very upset and the Garda advised them of the need to seek counselling. N.K. in the course of the discussion made it clear that he did not want a prosecution in relation to his allegations. His reason for this was that he did not want to break up the family.


In or about the year of 2000, N.K. formed a relationship with S.K. and in due course had a son with her. Since having his own son, the incidents of alleged abuse came flooding back into mind and he began to suffer bouts of depression and anger. He attempted suicide by means of an overdose of tablets. The relationship with S.K. broke up. He described the hurt and anger at the alleged abuse as surfacing more, and he felt that the applicant should be punished or at least acknowledge the hurt he had caused.


In the meantime the applicant had left N.K.'s mother for about two years and he felt that he could report the alleged abuse without fear of any effect on the family.


N.K. got in touch with the Gardaí and on the 14th October, 2004 he made a formal statement. A Garda investigation commenced and statements were taken from the applicant's mother and his aunt G.C. and on the 22nd October, 2004 the applicant made a statement.


It is not clear whether a statement was furnished to the Gardaí initially in 1995, by the applicant.


For the applicant it was submitted that the delay or lapse of time from the reporting of the alleged abuse in 1995 until a formal complaint was made in October, 2004 is to be characterised as prosecutorial delay, on the basis that the Gardaí were apprised of the facts in 1995 and a prosecution should have ensued from then or not at all. In this regard the applicant relies on the case of P.M. v. The District Judge Miriam Malone and The D.P.P. [2002] I.E.S.C. 46. It was submitted, again in reliance upon P.M. v. Malone and Another that the presumptive prejudice suffered by the applicant as a result of the passage of time is sufficient to justify the prohibition of the applicant's trial, because of the inordinate and inexcusable delay on the part of the prosecuting authorities in failing to have pursued the prosecution actively from 1995.


It was submitted that the circumstances of this case are somewhat unique in that it was the applicant who initially brought the matter to the attention of the Gardaí and because of that, he was entitled to be dealt with promptly in 1995 and not to have had the whole issue left hanging over him for approximately ten years and as a consequence of the delay he has been caused wholly unnecessary stress and anxiety and this anxiety/stress is one of the three factors, identified originally in the judgment of Powell J. in the case of Barker v. Wingo 407 U.S. 514, [1972], and later identified in many cases in this jurisdiction culminating in the case of the P.M. v. The D.P.P. in which the Supreme Court delivered its judgments on the 5th April, 2006, as interests which should be protected from culpable prosecutorial delay.


It was stressed on behalf of the applicant that having taken the unusual step of going to the Gardaí himself, the applicant was entitled to have the whole matter dealt with in a timely fashion at that time, or not at all, and that it was unjust for him to now have to face a trial on these charges when he is ten years older, his life has moved on and whilst he does not point to specific prejudice to his defence he does suffer from the inevitable and unavoidable prejudice that results from a long lapse of time with the inevitable damage, that does to memory.


For the respondent it was submitted that the status of the applicant in 1995 and immediately thereafter was of a person who was suspected of criminality but no more and hence he was not entitled to have a prosecution taken against him within any particular time-frame. In this regard reliance was placed upon the judgment of Gannon J. in O'Flynn v. Clifford and Others [1998] 1 I.R. 740, which was approved by the Supreme Court inter alia in P.M. v. Malone and Another.


It was submitted that the prosecution did not commence in 1995 and could not have commenced then because the Gardaí were denied at that time the necessary evidence to ground a prosecution namely the formal statement from N.K. together with a willingness to testify in court. Hence it was submitted that there was no prosecutorial delay from 1995 onwards. From the commencement of the prosecution in October 2004 there was no delay and indeed the applicant does not complain of delay post October, 2004.


Insofar as the lapse of time from 1995 to October, 2004 is concerned if it is to be considered as delay it was submitted it could only be regarded as complainant delay and is now governed by the judgments of the Supreme Court in the case of H. v. The D.P.P. in which the Supreme Court delivered its judgment on the 31st July, 2006, holding that an inquiry as to the reasons for delay in sex abuse cases is no longer necessary, the courts, having regard to their accumulated experience on these issues, now will be in a position to take judicial notice of the reasons which cause delay in the reporting of allegations of sexual abuse.


Insofar as the applicant claims that his right to an expeditious trial has been breached because of what he characterises as prosecutorial delay from 1995 onwards, it was submitted that the applicant had not demonstrated, as was now required, following the judgment of the Supreme Court in P.M. v. The D.P.P., that there was a breach of, or infringement or interference with one of the three...

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