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Cite as: [2004] IEHC 352
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K. (J.) v. D.P.P. [2004] IEHC 352 (15 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/352.html Cite as: [2004] IEHC 352 |
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[2004] IEHC 352
THE HIGH COURT
DUBLIN
2002/257 JR
BETWEEN
JK
Applicant
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 15TH DAY OF JULY 2004
B, P and K were three sisters. Each married, had a family and lived near each other in a housing estate or scheme on C Road in Dublin.
B married JK, the Applicant (whose date of birth is 14th June 1922). They have (or as of 10th May 2002 had) five children aged between 31 and 42. The Applicant had worked as a driver and retired in 1983. This family live and at all material times lived at 104 C Road in Dublin.
P married a man call K and they and their family live and at all material times lived at 83 C Road in Dublin.
K married GG (who became an alcoholic and died in 1977, having been ill for two years prior thereto as a result of a stroke) and they and their family lived (for K now lives alone) at 68 C Road: Their family consisted of two sons - - D (born 14th September 1959) and K, F (born 8th July 1963, who is now married with a family of her own), and G (who is now married with a family of her own and, in particular, a daughter called E).
Besides the three sisters first referred to, they themselves have two other sisters and three brothers, all of whom are living in Dublin.
JK, the applicant, stands charged with sexually abusing his nephew, DG, and his niece, FP, and his grandniece, EC, when they were all very young children. The Applicant does not wish to stand trial and answer the charges, but sought aid seeks to evade or avoid the trial and to that end seeks an injunction restraining the Respondent from further prosecuting the Applicant on 19 charges sent forward for trial by Order of the District Court made on 8th November 2001.
McKechnie J. by Order dated 13th May 2002 granted leave to apply for judicial review on stated grounds, which Mr. Gageby, appearing for the Applicant, accepted as being summarised as follows:
"6. By reason of the delay in instituting investigating and prosecuting the Applicant, up to and including his date of trial and the want of particularity which partly flows from the defects in the investigation identified in these papers and in all the circumstances of the case, it would be unjust to cause the Applicant to stand a trial in which there is a real risk of his being tried otherwise than in accordance with law."
The charges on which the Applicant was sent forward for trial may be divided as follows:
I As against DG
Period: 1970 - 1973
Charges 1 - 10 - - referable to three specific locations:a) 104 C RoadII As against FP
b) a laneway off B Road, Dublin
c) 68 C Road
Period: 1st January 1972 to 31st December 1975 Charges 18 and 19 - - referable solely to 68
C Road III As against EC
Period: 1987 - 1993
Charges 11 - 17 - - referable to three specific locations:
a) 68 C Road
b) 104 C Road
c) 30 TN Grove, Dublin - - her home.
The Applicant generally acted as MC at family social gatherings (except FP's wedding at her express insistence) and held a position of esteem or popularity in the extended family. I am satisfied and find as a fact that when DG and FP were young children, they were constantly in and out of the houses of their cousins, who were roughly around the same ages as themselves and played in the houses on the road. There was a free and easy relationship between the cousins, whose visitations were marked by the uninhibited openness of young children. The communal type living as children went to find expression when they might be sent by their aunt, at their mother's request, to borrow milk or tea and the general position in that regard can be readily understood. The experiences recorded in affidavits and Garda statements of these two complainants, who were brought to court and cross-examined on their affidavits, was not challenged in such cross-examination as being untruthful, exaggerated or fabricated. It is unnecessary to record in this judgment the several debasing events recorded by DG and his sense of fear, disgust, being scared and shocked by such. He was afraid as a young boy of the consequences of telling about his experiences. When he was 13, he gained a bit of confidence and decided he would not put up with the degradation any further, and with one exception of an attempt which was repulsed when he was 16, the complainant did not have to contend any further with the conduct of the Applicant. When DG left school, he worked for four years in Dublin and then emigrated to .Australia, from whence he came back to live in Ireland in 1997.
While the "experiences" of FP were neither as frequent or gross as that of her brother, they made her very scared. She told her aunt, P, about her trauma when she was about 9 or 10, but her aunt told her not to say anything about it as it would break up the family and her own mother, K, would have to give up her work (K had to work to support the family). Mrs. P did not say anything further to any family member for some time. She spoke of her "experiences" on and off over the years to a school friend and her sister-in-law, but not in detail. She informed her husband before she married in 1988. In 1992, she told her mother of her "experiences" and was very relieved when her mother believed her. Over a period of years, she appears to have had much anxiety, stress and nervousness which she attributed to the trauma of her "experiences". Matters came to a head in August 1996 when she and her brother, D, were on holidays and they disclosed to each other their respective "experiences" at the hands of the Applicant. Up to that date, each believed that they and they only had any "experiences".
Up to that time, Mr G had put the matter behind him and tried to move forward in his life without dwelling on the past. Mrs. P. seemed at last able to talk about the matter openly. They both at that stage agreed that they would not disclose the matter to anyone else, most particularly family members, because it would cause the break up of the family in the widest sense, and having regard to the regard in which the Applicant's wife, B, was held in the family and their own friendships with their cousins. That position remained so until 1999 when they became aware that their own niece had been subjected to sexual abuse by the Applicant when she (EC) was a very young girl. That the Applicant had visited his perversions on the next generation, and the circumstances of its revelation, altered the position taken in 1996.
KG, an older brother of both DG and FP, having become aware of the events in the lives of his siblings in 1970 - 1975 and also of his niece, EC, in 1987 - 1993 reported the matter to the Gardai. Even at that stage both DG and FP, who did not wish to leave EC to bear the burden of making the complaints on her own, held back for a period from September 1999 to February 2000 before ultimately agreeing to and; in fact, making statements to the Gardai.
EC was a daughter of GC (nee G), a sister of D and F. It appears that a person injuries action may have impaired her ability to be a proactive and effective parent. EC's experiences occurred between the ages of six/seven to the ages somewhere between ten and eleven in the periods 1987 - 1988 and 1990 - 1991. In June/July 1999 E told her boyfriend about her "experiences" and also told a Dr. Burke. She had difficult teenage years, in which drugs figured in her life. She left school at the age of 14, but to her great credit has since picked up, her life and moved along very considerably to third level. It is unfortunate that when E was about 11 years old and told her mother, G, of the abuse she had been subjected to by the Applicant, her mother failed to grasp the significance of what she was told and did not understand E's complaints.
The Applicant claims there have been several forms and periods of delay such as are a prejudice to him or otherwise adversely affect his entitlement to an expeditious trial and, accordingly, to a trial in accordance with law.
l. Complainant delay:
While it is true that FP in particular spoke over the years about her "experiences", she was disinclined to give details, afraid she would not be believed, and whether for this or other health reasons harboured fears and anxieties which inhibited her from reporting matters to the Gardai even in August 1996 when she and her brother, D, for reasons of family pride and reputation agreed to bear their scars. It was only when E's experiences emerged from the medical and health services and K informed the Gardai that she moved. In my judgment, the reasons given by the complainants, F and D, for failing to notify the Gardai at an earlier date were understandable and certainly subjectively justified. The very fear they had that they would rupture the greater family unity and be isolated from such family is exactly what has come to pass as a result of their informing the Gardai and making statements that led to the charges. Those features of a person's private life which are integral to their identity or ability to function socially with a sense of wholeness were damaged by their "experiences" and their reluctance to place such intimacies in the public domain is understandable and, in my judgment, justified.
It is accepted that there was no delay by the accused, but the overwhelming sense of "family" from which so many who lived in their formative years a communal type, if not tribal, existence clearly created an almost smothering and, perhaps, objectively a disproportionate sense of family loyalty to the detriment of the individual complainants in different ways. The indispensable preconditions to effective enjoyment of a balanced upbringing had been damaged and their sense of frankness. In place of a wholesome openness, there developed a sense of the secretive and furtive with which the complainants each dealt with in their own way
Even when matters were being flushed out in the open in September 1999, the reluctance to wash the family "dirty linen" in public still held sway until February 2002 when it was put up to the complainants to make an inescapable decision. While the case law makes it clear that especially in old cases there should be alacrity in processing any complaints, I am satisfied that as a matter of fact and as a matter of law, there was not in all the circumstances of the case inordinate or inexcusable delay in making the complaints, and if there were elements of delay, they were both explicable and justifiable. Affidavits were sworn by EC and Melissa Darmody, a psychologist.
Leave to cross-examine both was given, but not availed of, and such evidence therein as is uncontradicted, I am prepared to rely on.
2. Prosecutorial delay:
Between February and early Summer 2000, most of the necessary information had been assembled by the Gardai. In May 2000, the Applicant was arrested and interviewed. He denied the allegations made by the complainants, some more robustly than others. There were some additional peripheral matters still outstanding in Summer 2000. The investigating officer in the Gardai on 11th August of that year sent the documentation to his superior Superintendent and from thence the matter was referred to the Chief Prosecuting Solicitor on 4th September 2000 and directions ensued from that solicitor on 25th October 2000. The formulation of charges in respect of DG and FP did not cause any great difficulty, but there were difficulties in framing charges with regard to the complaints of EC. There appears to have been some difficulty in being absolutely sure as to her exact date of birth and there was, apparently, some apprehensions concerning a change in the law.
Detective Garda Doggett, the investigating Garda, considered clarification of these issues was necessary and between November 2000 and February 2001, he made five or six telephone calls to the person in the Chief Prosecuting Solicitors Office seeking clarification as to the formulation of the charges to be made. Regretfully, for whatever reason, a response was not forthcoming as promptly as Detective Garda Doggett wished and he wrote on 26th February 2001 seeking a response, which he received on 21st March 2001. The Applicant was arrested on 17th April 2001 and the Respondent elected to proceed by indictment. The Book of Evidence was served on 11th October 2001.
While it is a matter of regret that a matter that had in all the circumstances of the case proceeded reasonably expeditiously between February 2000 and April 2001 had somehow got "bogged down" over the Book of Evidence, it is a far cry from the facts that led to the criticisms of Geoghegan J. in PP -V- DPP (unreported 5th October 1999) relied upon in the instant case by the Applicant.
This case then became entangled in the thickets of the law and I am satisfied and find as a fact that while this had the effect of deferring the trial of the Applicant, there was no prosecutorial delay. While there is much argumentative matter as to what took place between the return for trial on the charges on 8th November 2001 and the matter being listed in the List of Fixed Dates in the High Court on 17th July 2003, it is clear to me that on a date between November 2001 when Dr. Burke's report was made available to the Applicant, and May 2002, the Applicant determined on a course that might achieve the objective of never standing trial in respect of the charges made against him. The original anticipated date for trial was January 2003. Before that date was reached, these proceedings had begun to ensure that such event -- a trial -- would not occur. The admitted error on the Respondent's part in seeking a return for trial under the Criminal Procedure Act, 1967 (as amended by the criminal Justice Act, 1999) has not led to any delay in the Applicant's prosecution, given the fact of these proceedings.
While indebted to counsel for their detailed and analytical submissions, I do not consider it necessary to embark on a review of the ever growing number of judgments on the issues central to this case. The law on delay in the context of the instant case is admirably set out in the judgments of McKenna -V- The Presiding Judge~of the Dublin Circuit Criminal Court and the Director of Public Prosecutions (unreported 14th July 2000, per
Kelly J.) and Jimmy O'Donnell -V- The Director of Public Prosecutions (unreported 2nd April 2004 O'Higgins J.)
3. Prejudice:
The caution counselled in the several decisions of the courts as described in JOC -V- The Director of Public Prosecutions [2003] 3 IR 478 by Hardiman J. (Barron J. concurring) and POC -V- The Director of Public Prosecutions [2002] 3 IR 87 were fully argued before me. Special prejudice to the Applicant was asserted to arise from the complaints of EC. The fact that these matters may have, to some extent, been taken out of her hands through the health authority and the doctors to whom she had resorted for treatment does not make her complaints any the less genuine. An interval of 13 years between the latest date given in respect of the complaints of FP (1975), and 1987 the earliest date of the complaints of EC without any complaint to anyone, even back to as early as the complaints of DG in 1970, could not have left the Applicant with a reasonable anticipation that he could not be called upon to account for earlier events. Further, the inferential, if not express, view of the Applicant when called upon in May 2000 at interview to respond to the charges that "That girl's sick and needs treatment", referring to EC, i.e. that she was damaged by drug abuse and unreliable; and when asked whether he wished to make any reply to the alleged last and repulsed incident when DG was 16, his response was not a denial, but simply "No". Since the interview, not only has the Book of Evidence been available from October 2001, but the Applicant has had the benefit of the taking of depositions in the District Court. It is clear that each of the complainants as young children knew that the conduct into which they had been drawn was wrongful and, in my judgment, their innocence, fear, shock and reluctance to complain was out of such fear and the reputation of the tight knit and extended family and their overall sense of belonging and security (except, of course, for the Applicant) in that structure of community. Unless the Applicant can have considered such inappropriate conduct as normal (and his insistence with the complainants when children that it would be "their little secret" rather gives the lie to this) he cannot now, in my judgment, seek to assert a prejudice because they were less mature, assertive and conscientious at an earlier age and blighted his life by public complaints at an earlier age. The Applicant's medical certificate is not indicative of any serious inability to meet the prospects of a trial; nor is any case made of impaired memory or ,other faculties. The absence to date of some peripheral documents requested but not pressed for (presumably because of these proceedings) can and by Court direction will be available within a specified time to avoid any conceivable suggestion of prejudice, of which I am wholly unconvinced. Balancing the rights of the Applicant against those of the community, based on the complaints hereinbefore referred to, the trial which could have been held and concluded one and a half years ago did not occur because the Applicant has by these proceedings effectively delayed a trial. I direct that a comprehensive written response to the enquiries as to alleged missing documents be made by the Respondents within 10 days of today's date, explaining, if it be the case, that there are no such notes of documents (e.g. see Transcript page 6, Q. 9, lines 20 - 21; page 9/10, Q. 26/27, line 29 and following page, lines 1 - 9).
I have no doubt that the matter should proceed to trial. I refuse the relief sought. There is not, in my judgment, a real risk of the applicant being tried otherwise than in accordance with law.