The High Court refused an application by S.K. to prohibit his trial on 51 counts of sexual assault and attempted buggery, allegedly committed against his stepson, N.K., between 1985 and 1991. Mr Justice O’Neill ruled that the judicial review application was out of time and that the applicant had not established good grounds for an extension. He also addressed the substantive arguments and found no breach of the right to an expeditious trial or demonstrated risk of an unfair trial.
The charges followed a formal complaint N.K. made to gardaí in October 2004. The judgment records that, when he first disclosed the alleged abuse in 1995, N.K. said he did not want a prosecution because he did not want to break up the family. The applicant also went to a garda and disclosed the abuse, according to the judgment. The court said it was unclear whether the applicant had initially provided a statement to gardaí in 1995.
The applicant argued that the authorities should have acted on the 1995 disclosure and that the delay caused unavoidable prejudice, including harm to memory, stress and anxiety. The Director of Public Prosecutions argued that a prosecution could not have proceeded without N.K.’s formal complaint and willingness to testify, and that there was no evidence the delay impaired the defence or caused the relevant stress or anxiety.
The judge found that N.K. had refused to make a formal complaint in 1995 and that gardaí could not reasonably have progressed the investigation without his evidence. He therefore concluded there had been no prosecutorial delay. He also found no evidence of interference with the applicant’s defence, pre-trial incarceration, or unnecessary stress and anxiety due to delay. The court rejected presumptive prejudice alone as sufficient to stop the trial in this case.
The applicant’s judicial review leave application was made on 27 March 2006, after the three-month period had expired on 27 January. The judge found the explanation for the delay inadequate. He refused the relief sought, including the requested order prohibiting the trial. The judgment does not determine the criminal charges; they remain allegations.