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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J. (B.) v. D.P.P. [2003] IEHC 134 (19 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/134.html Cite as: [2003] IEHC 134

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THE HIGH COURT

[2000 No. 56JR]

JUDICIAL REVIEW

BETWEEN

B.J.

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGE THOMAS BALLAGH

NOTICE PARTY

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 19^th day of December, 2003.

By order of this Court (Smyth J.) made the 21^st February, 2000, the applicant was given leave for the relief of an injunction restraining the respondent from proceeding with a criminal prosecution pending at the District Court in the District Court area of Bray, District No. 16, entitled the Director of Public Prosecutions v. B.J.

The grounds upon which the applicant was given leave are stated as follows:-

1. That the delay in the institution of the proceedings above referred to has prejudiced the applicant; is unfair and unjust to the applicant and has thereby violated the applicant's right to a criminal trial in due course of law pursuant to Article 38.1 of the Constitution.

2. That there has been an unjustifiable delay by the prosecution authorities in the preparation, initiation and prosecution of the aforesaid proceedings against the applicant which is unfair and unjust to him and has thereby violated his right to a criminal trial in due course of law pursuant to the provisions of the aforesaid Article of the Constitution.

The applicant has sworn an affidavit in which he exhibits a large number of charge sheets setting out the offences alleged against him. He points out that these charge sheets relate to a number of offences of a sexual nature alleged to have taken place between the 1^st January, 1979, and the 30^th June, 1983, and all relate to complaints of C.M. He points out that there are eighteen charges of rape, eleven of unlawful carnal knowledge and nineteen of indecent assault. The applicant points out that the charges were preferred against him by the Gardaí on the 19^th November, 1999. He points out that the Book of Evidence was served upon him on the 11^th February, 2000, and that the case stands adjourned since that time for submissions on the Book of Evidence. He has exhibited the Book of Evidence herein.

The applicant points out that prior to this on 16^th October, 1998, he was arrested and charged in connection with certain charges as set out in Greystones Charge Sheets 79 - 108 of 1998 inclusive. He points out that these charges also relate to a number of offences of a sexual nature alleged to have taken place between the 1^st January, 1979, and the 30^th June, 1983, and all relate to complaints made by the said C.M. He refers to these as "the 1998 charges".

The applicant points out that on the 1998 charges he appeared at Bray District Court and was remanded on bail from time to time. He points out that on the 19^th February, 1999, the Director of Public Prosecutions made application to amend each of the 1998 charges by the substitution of the words "in or close to (the town in question)" in place of the specific addresses referred to as set out in each of the individual charges. The applicant points out that this application was granted. He points out that the matter was then further remanded from time to time and on the 5^th March, 1999, a Book of Evidence incorporating the amended charges was served on him. He says that this Book of Evidence was similar to the Book of Evidence exhibited by him, save for some relatively minor alterations. He points out that the matter was then adjourned for submission on the Book of Evidence and he was again remanded from time to time. He says that in connection with these submissions he has been advised by his solicitor that he wrote to the relevant State Solicitor, Mr. Charles Coonan, on a number of occasions requesting copies of all statements, interviews and complaints made to the Gardaí, in particular by the complainant, in the proceedings against him and also by one S.H. during the course of earlier investigations carried out by the Gardaí in 1991. The applicant says that there is a reference to this earlier investigation in the statement of Sergeant James Farrell which forms part of the Book of Evidence already exhibited herein. He points out that Sergeant Farrell was one of the investigating Gardaí in connection with the 1998 charges and his statement of evidence appears as Witness No. 6 in the aforementioned Book of Evidence to which he refers. The applicant then refers to a portion of the statement of evidence of Sergeant Farrell contained in said Book of Evidence wherein it is stated inter alia as follows:

"I was present in Greystones Garda Station on the night of the 9.2.98 when Ms. S.H. of (address) called. She said she wished complaints made to Gardaí back in 1991 investigated. I read over her original statement dated 3.12.91 and she identified it as that she made to Garda Anita O'Leary then. She then made a further written statement to Garda Mary Kennedy."

The applicant says that he is informed by his solicitor that he wrote to the State Solicitor on the 29^th April, 1999, receiving a reply dated the 1^st June, 1999; that he wrote again on the 11^th June, 1999, repeating his request, to which he received a reply dated the 6^th July 1999, that he wrote again on the 7^th July, 1999, and received a reply dated the 8^th November, 1999, and that he wrote again on 17^th November, 1999. He exhibits this correspondence in his affidavit.

This correspondence indicates documentation which is sought by the applicant's solicitor and it is stated that this is not yet to hand.

The applicant says that in or about the month of November or December, 1991 he received a telephone call from Sergeant Farrell in connection with a complaint he received from the said S.H. to the effect that she was being harassed by him. He says that he attended at the Garda station and spoke to Sergeant Farrell about the complaint and about S.H. During the course of this interview, Sergeant Farrell asked him about C.M., the complainant in the 1998 charges and in the current set of charges against him, and also about a number of other employees who had worked with him down through the years. He says that Sergeant Farrell told him that he was going to check out these people.

The applicant says that just before Christmas of 1991, Sergeant Farrell telephoned him and informed him that charges were not going to be preferred against him. He says that the next contact he had with Sergeant Farrell in connection with these matters was on the 29^th September, 1997, when he and other members of the An Garda Síochána called to the applicant's home and arrested him. He says that he was taken to the Garda station and retained there until approximately 6 p.m. that evening. He says he was questioned about offences alleged by C.M. The next contact with the Gardaí in connection with these matters was when he was charged with the offences as set out in the 1998 charges on the 16^th October, 1998, just over a year later. The applicant points out that these charges were withdrawn on the 19^th November, 1999, and the charges now preferred against him were laid. The applicant states that he is at a serious disadvantage in not having sight of the statements, documents and memoranda prepared in connection with the complaint or complaints made in 1991. He also says that a number of witnesses who would have been beneficial to his defence have died in the meantime, between the date of the alleged offences and the time of the swearing of the affidavit being:

1. Ms. F. who was then an elderly lady from whom he rented the shop referred to in the charges, the shop originally forming part of her dwelling house. Ms. F. spent most of her time at home, was regularly in and out of the shop and was always there at the close of business at 5.30 p.m. He says that the said Ms. F. died in or about 1991.

2. D.F. who was a shopkeeper in a shop opposite his and who regularly called to check on Ms. F. and most evenings assisted in the placing of the security grilles on his shop at the close of business. He says that the said D.F. died in or about 1991.

3. The complainant's father, T.M., who was a regular caller to his shop and remained friendly with him after 1993 and up to the time of his death in or about 1995.

4. The applicant's father-in-law, J.O., who lived with the applicant and his wife on and off and would have known who called or stayed in their house and as such, would have been able to contest the complainant's allegations that she looked after their baby as referred to in para. 3 of her statement of evidence in the original Book of Evidence. He points out that it was his father-in-law who cared for their children when the need arose. He points out that this man died in or about the year 1988.

The applicant complains that, by reason of the delays referred to, he is being deprived of his right to an expeditious trial. He says also that by reason of the elapse of time and the deaths of the above named witnesses his constitutional rights have also been denied.

A statement of opposition has been filed on behalf of the Director of Public Prosecutions in which it is pleaded, inter alia, that the applicant has not been prejudiced by the alleged delay in the bringing of the charges against him. There is also a denial that there has been an unjustifiable delay by the respondent, his servants or agents, in this application, or in the initiation and prosecution of the charges against him, pending before the District Court. It is further denied that the delay has in any way violated the applicant's right to a criminal trial in due course of law. It is further pleaded that the factual basis for the charges currently laid against the applicant were disclosed to the prosecuting authorities for the first time in 1997. It is also indicated that reliance would be placed upon evidence put before the Court regarding the effect of the abuse upon the complainant and the reasons why she did not make her complaints earlier. Furthermore, reliance is placed upon the applicant's efforts to prevent early disclosure.

An affidavit has been sworn by the complainant, C.M., which states that in 1979 when she was twelve years of age, she, together with a friend, approached the applicant for work in his shop on Saturdays during the holiday break. She states that they worked on alternate Saturdays. She says that she worked in a very enclosed space behind the counter of the shop. She says that almost from the beginning she remembered the applicant brushing up against her as he passed by. She states that after a while he continued to make advances, such as putting his arms around her and fondling her breasts. She says that he used to work in a little space partitioned off from the counter, where he eventually had her sitting on his knee. She said that this went on for a few more weeks before developing into kissing and fondling.

The complainant says that the first occasion on which the applicant had full sexual intercourse with her was some time when she was twelve years of age. She says that it was already dark at 6 p.m. when the applicant locked up the shop and turned off the lights. He started to kiss and fondle her, got her down on the floor on the carpet, pulled up her skirt, removed her pants and had full intercourse. The complainant then states that she was working in the shop on a regular basis. She says that on practically each such occasion the applicant had full intercourse or some form of sexual contact with her, such as touching her in the genital area or having her sit on his "little chair" while he stood up and she was made perform oral sex on him. She states that the applicant also took the opportunity presented by occasions such as when she would baby-sit for his family for the same purpose.

C.M. states that the applicant regularly told her that he loved her and that, if he ever lost her, he would commit suicide. She states that he also told her that she was second hand goods and that no other man would have anything to do with her, that she was his and that she was not a virgin. She states that as the abuse continued, and particularly from the time she had full sexual intercourse with the applicant, she felt that he had a hold over her and that she was trapped in a situation from which she could not escape. She states that she was totally ashamed of what had happened to her and was afraid in case anyone found out about it. She adds

"Worse still, the applicant realised the state of my feelings and took the opportunity to remind me of them on a regular basis. I felt that I could not tell anyone about the abuse to which I was being subjected and that I was being simultaneously cajoled and bullied into silence".

C.M. states that the applicant also exercised his control over her in other ways, such as forbidding her to do the sort of thing that her own age group were doing, such as attending discos etc. She says that he nevertheless allowed her to be in public houses provided that he, his brother or his wife, were present. She states that on one occasion, she successfully defied him about participating in a school trip to France. She states however, even after breaking off contact with the applicant, he would arrive up to her house looking for her. She states that her father used to walk the applicant's dogs for him and regarded him as a reliable individual. She instances one occasion when she had left the applicant's employment and her father advised her to return to work for him. She states that her brother also used to do odd jobs for the applicant. She states that both her family and her friends were entirely unaware of what was going on as regards the applicant and herself during that period of time.

C.M. states that the abuse continued on a regular basis until 1983 when she was about seventeen years of age. She says that when she was eighteen years of age she left Ireland and went to live in England. As result of the applicant's behaviour, she says that she no longer wished to be in her home town and felt that she just had to get away from everything that reminded her of the applicant. She states that she stayed in England for about two years and then returned to Ireland and did a course in Dublin, as a result of which she secured employment.

The complainant states that, having left her hometown, the abuse continued to prey on her. She says that she was totally ashamed of the whole ordeal and was afraid that others might find out about it. She was also afraid that the applicant might find out where she lived and come after her. She states that as she progressed in her career she began to regain some of her confidence but continued to have difficulties with relationships. She states that through reading accounts of similar experiences in the daily newspapers she began to realise that she had been the applicant's victim and that he had taken advantage of her childhood. She states that, having been terrified of him, she became conscious that it was he who ought to be afraid of her. She states that this gave her the confidence to tell her boyfriend and to bring matters out into the open.

She states that one evening she was reading about a case of child abuse when she suddenly decided that she wanted to know if the applicant knew what he had done to her or did he read about any of these cases and feel that he was a child abuser. She states that she looked up his name in the telephone book and telephoned his house. She indicates that when he answered the telephone she said, "This is (C.M.)" but that she lost her nerve when she heard his voice and she hung up. She states that, although she did not have the courage to say anything to him at that stage, she decided to report the matter to An Garda Síochána. She states that after telephoning the Domestic Violence and Sexual Assault Unit of An Garda Síochána on the 11^th August, 1997, that she made a statement to Garda Mary Kennedy on the 12^th September, 1997. She states that on the 11^th October, 1998, the 29^th January, 1999, and the 18^th April, 2000, she made statements. She has exhibited these with her affidavit.

C.M. states that as a consequence of these proceedings, at the respondent's request, she attended Domhnall Casey, Psychotherapist, of the Institute of Psycho-social Medicine, Dun Laoghaire, Co. Dublin, for assessment on the 20^th April, 2000. She verifies matters of fact contained in his report relating to her personal circumstances.

Mr. Domhnall Casey, Psychotherapist, has sworn an affidavit in which he describes himself as a sex therapist and psychoanalyst, practising from premises at Dun Laoghaire, Co. Dublin. He holds an M.A. in Psychology from the National University of Ireland and has been trained in psychotherapy at the Institute of Psychosynthesis in Dublin and in London and was trained as a psychoanalyst by the Irish Psychoanalytical Association. He describes himself as a member of the Psychological Society of Ireland and as Secretary of the Irish Psychoanalytical Association.

He indicates that on the 20^th April, 2000, at the request of the respondent, he met and assessed C.M., the complainant. He indicates that he was provided with copies of the statement of evidence of C.M.. He exhibits his report and indicates that to the extent that the report recounts C.M.'s experiences he has obtained those details from her. He adds that, to the extent that the report relates to his views and findings regarding C.M. and the reasons for the delay in reporting the abuse perpetrated upon her, the opinions and findings are true. He indicates his opinion that C.M.'s account as to why she did not disclose the abuse to anyone prior to 1997 is consistent with the considerable feelings of shame, disgust, guilt and self-blame felt by her as a result of the abuse allegedly perpetrated by the applicant. He adds that according to her the applicant deliberately and consciously manipulated these feelings in order to ensure her silence. He indicates that remarks such as, "You are no longer a virgin" or, "You are second hand goods", would appear to have been made for that purpose. He indicates that C.M. recounted to him that the applicant had used a mixture of threats and entreaties such as his threat to commit suicide if he "lost her" in order to secure his control over her. He adds that C.M.'s difficulties with regard to disclosure were compounded by the fact that her family was in regular contact with the applicant. It is stated that both her father and her brother used to do odd jobs for him, such as walking his dog. It is indicated that, in addition to working in the applicant's shop, C.M. also worked as a babysitter for the applicant's family. Mr. Casey indicates that due to the regular nature of the relationship between the two families it appears that C.M.'s family considered the applicant as a trustworthy individual. Even on the occasions when she attempted to escape from his influence, the applicant would turn up at her family home or approach her father to encourage him to persuade her to return to his employment. He states that this relationship between the two families thus further compounded her fear and difficulty in disclosing the abuse perpetrated upon her to anyone.

He indicates that C.M. appears to have tried to cope with the abuse by shutting herself off from the normal life of a teenager. As she became older she dealt with the situation by leaving her family and her locality as soon as she possibly could. He indicates that her departure from the area appears to have been her way of exiting from the unhealthy situation that had developed between herself and the applicant. He indicates that as time passed, a combination of her temporal and geographical distance from both the abuse and the abuser, her appreciation that experiences were not unique and the support of her boyfriend encouraged her to disclose the fact of her abuse. Mr. Casey concludes that in his professional opinion, the delay in reporting the alleged experiences of sexual abuse is reasonable.

In his report, Mr. Casey indicates that C.M. was controlled by the applicant through a mixture of his attractive personality and by subtle intimidation and exploitation of her normal childish fears.

In his conclusions he indicates that C.M. went to the Gardaí in 1997. She waited so long because she believed that she was wrong and solely responsible for what had happened because she felt intimidated and afraid. He indicates that while in England she observed that the trade unions insured that "people were treated with respect". He states that for this reason and from reading newspaper articles and reports about abuse and the general raising of consciousness about the problem in Ireland, she gradually became aware that her development was distorted by the applicant. The increase in publicity and awareness also emboldened her to go to the Gardaí. This growing awareness took place over a long number of years for C.M., as it has done for Irish society in general.

He indicates that while the complainant went to England to get away from the applicant, it was a physical journey but it had strong psychological undertones and served a vital emotional need. He states that time makes no difference to the unconscious mind. If problems are not dealt with, if unconscious events are not made amenable to conscious scrutiny and healing, they affect with the same intensity and energy that they had when they first occurred. He states that while C.M. was not literally unconscious of the sexual events that took place in the applicant's shop and home, her level of psychosexual development was not able to process the events in a way that an adult would. He states that C.M. was sexualised long before she was ready, long before her psychosexual 'centres' ought to have been awakened and probably with devastating consequences. He states that it is important to be aware that, while we may be physically/sexually capable of sexual activity, psychologically we may not be. In children, the psychosexual development has to be nurtured and protected. He states that C.M.'s was not. Quite the opposite. He concluded his report by stating as follows:

"This is the profile of a twelve year old who could not tell what happened to her and who gradually learned the truth of it as she grew older. The abuse that she has experienced has had its effects and they are evident in her daily life."

An affidavit has been sworn by Detective Garda Brendan O'Connor who indicates that he has been the Member in Charge of the investigation of the applicant herein in respect of eighteen counts of rape, of eleven counts of carnal knowledge and nineteen counts of indecent assault against C.M. at various dates between January, 1979 and July, 1983. He indicates that on 12^th September, 1997, C.M. made a cautioned statement to Garda Mary Kennedy in which she complained that between 1979 and 1983 the applicant had regularly abused her sexually in various locations in County Wicklow.

Detective Garda O'Connor indicates that after making inquiries to determine the veracity of the facts of the complainant's employment by the applicant and having been aware of the contents of this statement on 29^th September, 1997, he went to the applicant's home in the company of Sergeant James Farrell and Garda Joseph Healy, where the applicant was arrested and where, after being cautioned, he is stated to have said "I am not surprised, I had a couple of phone calls from (C.M.) about a month ago". The applicant was heard to say to Garda Farrell "I can't deny it happened". Sergeant Farrell asked the applicant if he was admitting the offences had occurred. The applicant replied "I can't deny this happened but I want to talk to my solicitor".

Sergeant Farrell and the applicant walked to the Garda station at the applicant's request and the applicant was informed that he was being detained under s. 4 of the Criminal Justice Act, 1984 to enable the proper investigation of the crimes for which he had been arrested. Sergeant Farrell then read over to the applicant the notes that he had made at the applicant's home in his note book after his arrest and caution. The applicant is stated to have agreed that they were accurate. It is indicated that he declined to sign the notebook stating that "I will have to talk to my solicitor, I might say the wrong thing, I will see what he says". He says that later that afternoon the applicant was taken to an interview room in the Garda station and he was again asked if he was aware of the nature of the alleged offences and the reason for his detention after caution and he agreed that he was. The interview was suspended pending the arrival of the applicant's solicitor at the Garda station. Before the interview resumed the applicant gave a hand written slip of paper to Sergeant Farrell which read: "The allegations are completely untrue. On the advice of my solicitor I do not wish to say anything further at this stage". It appears that a further interview was carried out with the applicant and notes were made of same.

Detective Garda O'Connor indicates that the complaint required further investigation and inquiries had to be made. He says that particular difficulty arose in relation to contacting a witness, Ms. Glynn, whom it is proposed to call at the applicant's trial, who was then resident in Australia. He indicates that a statement was taken from her on the 23^rd December, 1997, on her return to Ireland. It appears that in her statement she referred to another witness who had worked for the applicant for a week. This reference required the making of further inquiries. It appears that on the 27^th February, 1998, Sergeant Farrell sent a full investigation file for directions to Detective Inspector Kenneth J. Lamb of Bray Garda Station. It appears that the file was received from him by the Office of the Director of Public Prosecutions on 2^nd April, 1998. On 16^th June, 1998, directions to prosecute were received from the Director of Public Prosecutions through the State Solicitor. At this stage Sergeant Farrell had retired from An Garda Síochána and the directions and question were transmitted to Detective Garda O'Connor in his capacity as Member in Charge of the investigation.

He indicates that on 1^st July, 1998, he raised a query on the directions raised and forwarded sample charges in respect of offences of rape, carnal knowledge and indecent assault to the Detective Inspector to be approved by the Director of Public Prosecutions. He indicates that at his request that letter was followed up by a telephone call by Detective Inspector Lamb to the Office of the Director of Public Prosecutions. On the 31^st August, 1998, he resubmitted his letter to Detective Inspector Farrell of Bray Garda Station. He indicates that on the 28^th September, 1998, he received revised directions from the Office of the Director of Public Prosecutions superseding the earlier directions given. He says that due to a misunderstanding arising from the manner in which the directions were phrased, it appeared as if the rape charges were to be disregarded.

Detective Garda O'Connor indicates that on the 11^th October, 1998, he took a further statement from C.M. On the 16^th October, 1998, he arrested the applicant at his home on suspicion of having committed the offence of unlawful carnal knowledge contrary to the Criminal Law (Amendment) Act, 1935, against C.M. He cautioned the applicant. The applicant replied: "I thought that was finished with. Can I ring my solicitor and can I change my clothes". It appears that the applicant was permitted to change his clothes and, after contact was established with his solicitor, the applicant was conveyed to Bray Garda Station. He was detained under s. 4 of the Criminal Justice Act, 1984, and was thereafter charged with the charges set out in Greystones Charge Sheets 79 – 108 of 1998 inclusive. The applicant made no comment to the charges. He was then handed a copy of the charge sheets and was taken in custody before Bray District Court on the same date where evidence of arrest, charge and caution was given. The applicant was admitted to bail on his own bond and remanded to appear before Bray District Court on the 27^th November, 1998, for service of the Book of Evidence with time extended for service. It appears that thereafter on the 21^st October, 1998, the applicant's solicitor sent to Detective Garda O'Connor a submission addressed to the Director of Public Prosecutions seeking to have the charges withdrawn. It appears that this submission was based essentially on the issue of delay.

On the 10^th November, 1998, Inspector Hand at Bray Garda Station forwarded two copies of the file on the matter to the Office of the Director of Public Prosecutions to the State Solicitor for directions on the preparation of the Book of Evidence. Detective Garda O'Connor received his initial directions dated the18^th November, 1998, sometime thereafter. He indicates that on the 27^th November, 1998, Judge Haughton adjourned the matter to the 15^th January, 1999, on consent. He says that on that occasion he spoke with the State Solicitor about the matter and it was agreed that he should set out his concerns in writing for his attention. He says that a letter was forwarded by Inspector Ward of Bray Garda Station to the State Solicitor on the 9^th December, 1998.

On the 15^th January, 1999, the District Court adjourned the matter to the 19^th February, 1999, on consent, on the application of the applicant's solicitor, he having stated that he wished to take counsel's advice in the matter. In late January, 1999 Detective Garda O'Connor received a further direction from the Director of Public Prosecutions dated the 19^th January, 1999, concerning the wording of the charges then preferred against the applicant. He indicates that on the 29^th January, 1999, he took a further statement from the complainant C.M. He further indicates that on the 19^th February, 1999, Charge Sheets 79-108 were amended by the District Court, on his application, by deleting certain words appearing in the charge sheets. It was indicated that the applicant's solicitor did not object to the amendments being made at that time and the applicant was remanded to the 5^th March, 1999, for service of a Book of Evidence, time having been extended for such service. The applicant was served with the Book of Evidence on the 5^th March, 1999, in respect of the amended charges. The matter was then adjourned to the 9^th April, 1999, by the District Court on the application of the applicant's solicitor for the hearing of submissions on the Book of Evidence.

By letter of the 15^th March, 1999, Detective Garda O'Connor received a request from the applicant's solicitor for photocopies of all original statements made by the injured party and copies of all statements made by the injured party and copies of all statements made during the investigation of the offences that had not been included in the Book of Evidence. He said that he forwarded this letter to the State Solicitor for the purpose of him furnishing a reply. He states that on the 9^th April, 1999, the applicant's solicitor sought a further adjournment as he had not received the information sought in that letter. By consent the matter was adjourned to the 7^th May, 1999. Further correspondence with the applicant's solicitor ensued. On the 7^th May, 1999, with the consent of the parties, the matter was adjourned to the 4^th June, 1999, and on that date the District Court adjourned the matter to the 9^th July, 1999, the applicant's solicitor stating that he had received photocopies of the injured party's original statements but did not receive copies of the other statements that he sought, i.e. a statement made by a witness F.H. On the 9^th July, 1999, the District Court adjourned the matter on consent to the 10^th September, 1999, for the same reason. On that date the matter was further adjourned to the 12^th November, 1999, and again to the 19^th November, 1999, both adjournments being made on consent.

Detective Garda O'Connor states that by this time it had become apparent to both the Office of the Director of Public Prosecutions and to him that the rape charges had not been preferred against the applicant, by reason of an unfortunate omission. He states that once this had become apparent, fresh instructions were sought and obtained from the Office of the Director of Public Prosecutions on the 10^th September, 1999. He says that these directions were to the effect that all of the charges then pending against the applicant were to be withdrawn and replaced with the fresh charges alleging rape, carnal knowledge and indecent assault. He states that during the months of September and October he prepared sample charges and forwarded them to the Office of the Director of Public Prosecutions for comment and amendment, which advice was forthcoming.

Detective Garda O'Connor indicates that the reason for taking this step was because the applicant might have been returned for trial to the Eastern Circuit Criminal Court on the charges of unlawful carnal knowledge and indecent assault in the absence of any rape charges being made against him. If the rape charges had then been proceeded with there was a substantial risk of two contemporary mis-trials arising out of similar events, involving the same complainants and accused, being proceeded with in two different courts. He states that it was in order to avoid that eventuality that the decision was taken to withdraw the charges and replace them with fresh ones.

Detective Garda O'Connor indicates that on the 19^th November, 1999, in furtherance of the respondent's instructions, the earlier Charge Sheets 79-108 of 1998 were withdrawn. He says that at 11.40am on that date he arrested the applicant at Bray Courthouse. He informed him that he was arresting him for the rape, unlawful carnal knowledge and indecent assault of C.M. He cautioned the applicant, to which the applicant made no reply. He says that accompanied by Detective Garda Merrigan he took the applicant to an interview room at Bray Courthouse where he charged him with eighteen counts of rape, eleven counts of unlawful carnal knowledge and nineteen counts of indecent assault against C.M. at various dates between January, 1979 and July, 1983 as set out in Charge Sheets 55-102 of 1999 inclusive. The applicant replied not guilty to each charge. He was then brought before Bray District Court where evidence of arrest, charge and caution was given and the applicant was remanded on bail to appear at that Court on the 7^th January, 2000, for the service of the Book of Evidence. He says that the matter was further adjourned to the 4^th February, 2000, when he served the Book of Evidence on the applicant. This has been exhibited by him. He says Detective Garda O'Connor indicates that prior to the commencement of these proceedings the charges did adjourn to Bray District Court on the 3^rd March, 2000, with submissions on the Book of Evidence.

Detective Garda O'Connor says that there is a considerable difference between the Book of Evidence served on the applicant on the 5^th March, 1999, in connection with the earlier charges and that served on him on the 4^th February, 2000, in connection with the subsequent charges, in that the second set of charges includes an additional eighteen charges of rape.

Detective Garda O'Connor states that the applicant is mistaken in his assertion that there is or ever was a connection between the investigation of the complaint made by C.M., the subject matter of the criminal proceedings in respect of which this application arises, and the complaint made against the applicant by S.H. He says that on the 3^rd December, 1991, S.H. made a written complaint against the applicant. He says that on a date between the 11^th December and the 15^th December, 1991, the applicant attended voluntarily at Greystones Garda Station for the purpose of being interviewed in connection with the investigation of that complaint. Sergeant Farrell conducted the interview in his presence. He says that at no time in the course of that interview was any reference whatsoever made to C.M. or to any other of the applicant's employees. He further says that neither Sergeant Farrell nor he made any reference to "checking out these employees or other individuals in the course of that interview". He says that the applicant declined to make any statement after caution and he left the Garda station without charge. He further adds that as this investigation was incomplete Sergeant Farrell did not telephone the applicant prior to Christmas, 1991 to tell him that charges were not being preferred against him in connection with S.H.'s complaint. He says that S.H. then contacted An Garda Síochána to withdraw her complaint. He says that on receipt of this information Garda Farrell informed him in late February or early March, 1992 that the matter was being dropped.

In regard to other matters addressed by the applicant in his affidavit, Detective Garda O'Connor indicates that C.M.'s complaint first came to the attention of An Garda Síochána by way of a telephone call received by Sergeant Mary Delmar of the Domestic Violence and Sexual Assault Unit, National Bureau of Criminal Investigation, on 11^th August, 1997. He says that that complaint stands alone and apart from that made by S.H. and investigated in 1991. On this basis he expresses the view that the applicant's attempt to make some kind of link between the investigation of these separate complaints is unfounded.

Detective Garda O'Connor comments upon the applicant's assertion of prejudice by reason of the deaths of four potential witnesses including C.M.'s father. He indicates that C.M. has informed him that her father was entirely unaware of the abuse perpetrated upon her by the applicant.

An affidavit has been sworn by the applicant's solicitor, Mr. Neville Murphy, in which he indicates, inter alia that he has been instructed that at the time of the investigation in 1991, the applicant was questioned in relation to the allegations made by C.M. and that this cannot be established without access to the notes of the Gardaí who interviewed the applicant at that time as well as notes of all complaints lodged. On this basis discovery was sought in relation to same. The respondent was directed to make discovery by order of the 13^th November, 2000, and, in discovery, the statements of S.H., dated the 3^rd December, 199, and the 9^th February, 1998, were discovered and have been exhibited.

The applicant was cross-examined on his affidavit and in particular in relation to a letter from Neville Murphy & Company, Solicitors, to the Director of Public Prosecutions, dated the 21^st October, 1998, where it is stated at point 3 at p. 2 of the letter:

"The very first our client heard of these alleged offences was when he was

arrested and brought to (Garda station) on 29^th September, 1997, completely without any prior warning."

The applicant asserted that in 1991 when interviewed by the Gardaí he indicated the names of other persons who had worked in his shop, including the complainant, C.M. He asserted that he was told some time before Christmas of that year that he would not be further prosecuted in relation to the allegations made by S.H. He said, under cross-examination, that he was not questioned in relation to any allegation made by C.M. in 1991. He denied further having admitted the truth of any allegation made by C.M. when spoken to by Sergeant Farrell on the 29^th September, 1997.

Mr. Domhnall Casey was cross-examined on his affidavit. He indicated that in addition to practising out of the Institute of Psycho-Social Medicine that he has a clinical session in the Royal Hospital in Donnybrook. He indicated that the terms of reference given to him with regard to the complainant, C.M., was to see her with a view to establishing the effect of the alleged incidents upon her, the reason for the delay in reporting the alleged incidents and whether the delay was reasonable in the light of her particular circumstances. Counsel addressed the complainant's background up to the point where she was married in 1999. Mr. Casey indicated that the complainant had some difficulty in establishing relationships in the past. Mr. Casey indicated that he was not forming any judgment on the allegations themselves or the motivation of the applicant.

Mr. Casey did not meet any other member of the complainant's family. Mr. Casey indicated that his report contained a description of the relationship between the applicant and the complainant as related to him.

Mr. Casey indicated that he did not explore the type of schooling which the complainant received. He formed the impression that the complainant got on well with her friends. He did not get the impression that the complainant was demure, violent or retreated into herself at all. Mr. Casey said that the complainant understood from the beginning that these things alleged should not be going on and that she never felt right about the events that were going on. Mr. Casey indicated that he thought that the complainant still feels

responsible. He indicated that the main psychological reason the complainant went away to England was to get away from the applicant.

Mr. Casey indicated that even though she has a family, she has had difficulties with her intimate life with her husband and, before him, with other people. While she has managed to work and love and have a family this does not mean that she has not had difficulties, which she traces to the alleged incidents. While the applicant had certain supports from her family, Mr. Casey indicated that what she alleges has had consequences and the reason she did not report them earlier is because what happened to her began happening to her when she was too young to know, or too young to be strong enough to say no.

Mr. Casey indicated that he had no collateral information and was entirely dependent on what the complainant said to him. There was no history of psychiatric disturbance in her background necessitating intervention in the past. Nor was there a history of current or past psychiatric illness. Furthermore, there was no learning disability. There was no mental impairment of any kind, but Mr. Casey indicated that she has some psycho-sexual impairment. There was no physical domination of the complainant by the applicant from the age of seventeen, after she moved on from the relationship.

Mr. Casey indicated that as far as he was aware there was no process of therapy through which the complainant had gone in order to gain the confidence to deal with the matters.

Mr. Casey indicated that his characterisations of an abuser as contained in his report were not based on any assessment of the applicant but were based on what he was told and he applied a profile to same.

In the context of delay, Mr. Casey indicated that if events are not dealt with then the delay may be reasonable. He indicated that people can in some ways deal with what has happened to them without the intervention of a psychologist or a psychotherapist. It could arise from the intervention of a good person or a wife or a husband. In this way the psychological impairment might be overcome and a decision made not to report something.

Detective Garda Brendan O'Connor was cross-examined on his affidavit. He indicated that in 1991 both he and Sergeant Farrell were stationed together in the same Garda station. He indicated that at the time of his investigation in relation to the charges against the applicant in 1997 and 1998 the premises which had previously been a shop was no longer a business premises and it is a dwelling house. He stated that he was never in the premises in question. He accepted that the prosecution rested essentially on the evidence of the complainant and related to her testimony in circumstances where there was no corroboration.

With regard to what happened in the winter of 1991, it is accepted that the applicant attended voluntarily at the local Garda station at the time following the complaint having been made by S.H. Her complaint was made to a Garda Anita O'Leary. He filed the receipt of the complaint to Sergeant Farrell and asked the witness when he would be available to interview the applicant herein. The applicant was interviewed some time between the 11^th and 15^th December, 1991. The witness indicated that the applicant denied flatly that he ever had anything to do with S.H. and declined to make any statement and left the Garda station at the time. He confirmed further that in the course of the interview, no reference whatsoever was made to C.M. or to any of the applicant's other employees. He confirmed the contents of his affidavit in regard to what occurred on this occasion. The applicant was invited to make a statement after caution and he declined to make any statement. No record was made at the time. There was no memorandum of what had transpired. As the applicant had attended the Garda station voluntarily, there was no power to detain him at the time. He left the station. While a file was created, it has not been possible to locate this file. The witness then explained that S.H.'s statement of complaint had been retained by Sergeant Farrell and he produced it to the witness.

The witness indicated that Sergeant Farrell had telephoned the applicant some time after Christmas in 1991. It was his recollection that this could have been in late February and that it was definitely in the following year because he believed that the file would not have been sent in to the Superintendent's office before Christmas. This was because the file could not be ready and sent in before Christmas. S.H. had withdrawn the complaint. She contacted Sergeant Farrell. She was receiving psychiatric counselling at the time. The witness indicated that the applicant did not produce any letters at the time of his interview, when he attended the Garda station voluntarily.

Detective Garda O'Connor was cross-examined about the course of the prosecution. He indicated that he took over charge of the case at the time of the receipt from the Director of Public Prosecutions of directions in June of 1998. He indicated that on the 1^st July, 1998, he raised a query, but this had nothing to do with the inclusion or exclusion of a charge of rape. This matter was addressed to Detective Inspector Farrell again towards the end of August. The witness indicated that he was unclear as to what was meant by certain paragraphs in the letter containing the directions of the Director of Public Prosecutions. He indicated that on the 28^th September, 1998, the Director gave revised directions. The witness indicated that the confusion related to the charges of unlawful carnal knowledge. The witness indicated that when revised directions issued from the Director, there was no reference to the sample count of rape which he had submitted. As a result of the misunderstanding, the rape charges were not preferred. When he received the directions back, he prepared the charges and then arrested the defendant and charged him with the charges. It was at that stage that he submitted the charges to the State Solicitor, together with an additional statement of evidence covering the fact that he had arrested the applicant, charged him and that he was taken before the court. A further statement from Garda Merrigan, who was present at the time of the arrest and charge, and a statement of Sergeant Brennan, who was the detaining Sergeant for the period he was in the Garda station, were furnished also, in addition to a further statement taken from C.M.. On the 15^th October, 1998, the applicant was remanded until the 27^th November, 1998, and between those dates he received directions in relation to the Book of Evidence. The directions related to the applicant's two premises. The charges at the time included charges of unlawful carnal knowledge and indecent assault. Ultimately the Book of Evidence was served on the 5^th March, 1999, and thereafter the matter was adjourned from time to time in the District Court which related to the fact that the applicant's solicitor sought copies of the original statements and raised questions in relation to the 1991 file pertaining to S.H. The witness indicated that apart from November, 1999 there was on-going contact between the State Solicitor and the Office of the Director of Public Prosecutions. He received certain telephone calls from the State Solicitor between this period. On the 19^th November, 1999, the Book of Evidence and the charges were withdrawn. At that stage he had all the new charges prepared and they were preferred on the same date. With regard to the fresh Book of Evidence, its main additions related to the fact of the new charges and such additional statements related to the actual process of charging the applicant in these proceedings. With regard to the evidence relating to the substance of the charges, there was no additional statement in the Book of Evidence. The witness indicated that in relation to the unfortunate omission of the charge of rape that he had to take some of the blame insofar as he had misread the instructions. This relates to the fact that he disregarded a paragraph in the directions which related to the charges of rape.

SUBMISSIONS

On behalf of the applicant, it is submitted by Mr. Ó Dúlacháin S.C., that the appropriate test in considering whether or not the criminal proceedings, the subject matter of the application, should be prohibited, is that set out in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 at p. 68 in the judgment of Keane J. and that the overriding consideration of the Court must be to ascertain whether or not the applicant can obtain a fair trial. Counsel refers to the judgment of Hardiman J. in the case of J.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478 where, at p. 521, he stated, inter alia as follows:

"I believe that the sole issue in these proceedings is whether there is a real risk that the applicant will not receive a fair trial, that is whether in all the circumstances including, principally, the lapse of time there is a risk that these allegations cannot fairly and safely be prosecuted."

It is submitted that the delay in this case is prima facie excessive and was not brought about by any "cause attributable to the applicant himself". On this basis it is submitted that the applicant is entitled to the relief sought as after such an elapse of time, prejudice arises necessarily.

It is submitted that in all the circumstances of this case as alleged by the complainant, which complaints are not accepted by the applicant, there are no alleged circumstances which render explicable, the alleged inaction of the alleged victim from the time of the offences until the initiation of the prosecution.

Dealing with the psychological evidence in the instant case it is submitted that the same is inadequate and that no weight can be attached to the same. In this regard, counsel refers to the decision of Kearns J. in the case of A.W. v. Director of Public Prosecutions, (Unreported, High Court, 23^rd November, 2001).

It is submitted that the respondent has further contributed to the delay in this case in prosecuting the criminal proceedings against the applicant and that this delay was wholly avoidable. Counsel refers to the passage of time before the applicant was first charged being thirteen months and a further delay of five months in the preparation of the Book of Evidence relating to those charges and the fact that these charges were subsequently withdrawn in November, 1999. New charges were preferred and a further period of three months ensued thereafter, after which a new Book of Evidence was served on the applicant. A further aspect of the delay alleged against the prosecution in the instant case, pertains to the applicant's version of events, that when interviewed in 1991 he was asked about C.M. in the course of the interview with him.

It is submitted that the charge in the Book of Evidence could have been presented some eighteen months earlier than in fact presented. On this basis it is submitted that the delay in question was such as to give rise to prejudice in its own right.

Dealing with the delay on the part of the complainant, it was submitted that fourteen years of adulthood passed from the time of the last alleged offence. On this basis it is submitted that this brings the case into a category of delay which requires an explanation.

Dealing with the evidence of the psychologist, it is submitted that he has failed to classify the case in any scientific manner. It is submitted that his approach is not one of an expert witness. It is submitted that the courts require a coherent explanation showing inhibition on the part of the complainant in coming forward and that this is absent in the instant case. It is submitted that the approach taken by the psychologist lacks certain critical criteria. It is submitted that the evidence of the psychologist fails to look at the pros and cons, showing the possibility that he might come to a contrary conclusion. It is submitted that unless it is shown that he approached his task in a critical manner and applied the appropriate criteria that the evidence should be rejected by this Court. While the complainant has continuing psycho-sexual problems, it was submitted that this was not added into the picture of the failure to make a complaint. It is submitted that the complainant's own affidavit says little about the 1980s or 1990s or as to what inhibited her from making a complaint. It is submitted that while the complainant acts with the benefit of a presumption that her complaint is true, her evidence fails to demonstrate an inhibition of fourteen years relating to the delay in the instant case.

Dealing with the aspect of prejudice, counsel refers to the fact that in some cases it is possible to rely on particulars giving graphic details in statements of complainants. In this regard it is submitted that one may have an ability to challenge evidence which may turn on surrounding facts. Counsel refers to the fact that the applicant in the instant case says that the particular premises referred to by the complainant was one owned by a third party who resided in the premises at the time. Counsel refers to the fact that the other witness who assisted in closing up the shop is now deceased. It is submitted that the applicant could have relied upon this evidence had the complaint been made earlier. It is submitted accordingly that the delay in the instant case is deeply prejudicial to the applicant as he is not now able to rely upon independent evidence that was available to him at the time. It is submitted that he is deprived of the evidence of witnesses who would have been present at the time of the closing up of the shop and would have been in a position to indicate how and when the shop was closed up. Counsel submits that a particular aspect of the instant case relates to the years 1979 to 1981 which coincides with the allegations of unlawful carnal knowledge against the applicant. It is submitted that the core of the case rests in this period and that the applicant is most inhibited in his defence in reference to this period.

Counsel submits that there are other elements of prejudice in this case which are of a somewhat lesser degree. In this regard, reference is made to the applicant's father-in-law who was residing at home at the time. In particular, counsel refers to the fact that a number of the allegations relate to the circumstances where it is alleged that the complainant says that she was babysitting, and the issue arises as to whether she was alone on the premises at the time. Counsel further refers to the fact that the complainant's own father is not available. In this regard it is submitted that his evidence would be of relevance in the context of his dealings with the applicant. His evidence would add colour to the case which cannot be tested in light of the passage of time. In assessing the circumstances of the case and the delay of fourteen years, the period of fourteen years is itself an element of prejudice. It is submitted that the non-availability of witnesses is evident from the evidence of Detective Garda O'Connor who has instanced his own difficulties in getting corroboration of the complainant's case. It is submitted that the nature of the charges of the offence must bear on the Court's mind.

On behalf of the respondent, it is submitted by Mr. Anthony Collins, that the only issue in the case is one of delay. It is submitted that this case does not relate to any decision on the part of the Director of Public Prosecutions to change his mind in relation to the prosecution of the applicant.

It is submitted that it is only in exceptional circumstances that the superior courts should intervene to prohibit a trial, such as that of the applicant, taking place. Counsel stresses that the onus that rests upon the applicant of establishing his case is that on the balance of probabilities that there is a real risk that he will not receive a trial in due course of law in accordance with Article 38.1 of the Constitution. Counsel refers to the test propounded by Keane J. in P.C. v. Director of Public Prosecution [1999] 2 IR 25 at p. 68 of the report, where he stated as follows:

"Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial 'in due course of law'. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.

If that stage has been reached, the final issue to be determined will be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

Having referred to the appropriate test it is submitted by counsel that the elapse of time between the dates on which the offences are alleged to have been committed and the applicant's arrest and charge in October, 1998 is not such as automatically to deprive the applicant of his right to a fair trial, nor does it violate his right to a trial with reasonable expedition. It is submitted that the period of time for which the prosecuting authorities were in no way responsible amounted to approximately fifteen years. It is submitted that the elapse of time in the instant case is not such as would lead inevitably, or even tentatively, to the conclusion that a fair trial cannot now be had.

It is submitted that unless the applicant can establish "blameworthy delay" on the part of the respondent and/or An Garda Síochána in the prosecution and investigation of these complaints, he is not entitled to any relief based upon an alleged prosecutorial delay. Counsel submits that the passage of time between the making of the complaint in September, 1997 and October, 1998 may not be characterized as "blameworthy delay". It is submitted insofar as the first set of charges were withdrawn and replaced by fresh charges in November, 1999 that the circumstances in which this occurred are explained and excused in the affidavit sworn by Detective Garda O'Connor and was further elaborated upon by him in his cross-examination. Counsel refers to the fact that from his first arrest in September, 1997 the applicant had the benefit of legal advice and was on notice that he was the subject of an investigation into the alleged offences. From October, 1998 onwards he stood charged with having perpetrated offences of a sexual nature upon the complainant. It is submitted that from that time he could be under no illusion as to the nature of the case being made against him and he was in a position to collect evidence to assist in his defence. It is submitted that in the circumstances the applicant cannot rely solely upon any alleged prosecutorial delay and the ground for obtaining the relief sought herein but must also demonstrate that he has raised a real likelihood that he could not receive a fair trial. In this regard, counsel refers to McKenna v. Presiding Judge of the Dublin Circuit Court and The Director of Public Prosecutions (Unreported, High Court, Kelly, J., 14^th January, 2000) affirmed by the Supreme Court on 7^th December, 2000.

In regard to the relationship between the applicant and the complainant, it is submitted that to establish a position of dominance, it is not necessary to establish that the applicant has been a parent, guardian or otherwise in a position of formal authority.

Counsel refers to the judgment of McGuinness J. in J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 at p. 132 where she stated, inter alia, as follows:

"There are cases, however, of which this is one, where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her participation, albeit unwittingly, in what he or she sees as wrongdoing."

Counsel refers to the relevant ages of the applicant and the complainant. Counsel refers to the fact that at the time the offences were alleged to have been committed, the complainant was between twelve and sixteen years of age and at the same time the applicant was aged between twenty-seven and thirty years of age.

Counsel refers to the onus on the applicant of establishing a real and serious risk of being deprived of a fair trial and submits that nothing in the affidavit sworn by him or in the other material before this Court suggests that he runs such a risk. It is submitted that the applicant does not show how the death of the four individuals referred to in his affidavit would prejudice his defence in a tangible fashion. Counsel refers to the fact that the alleged abuse is stated to have taken place in private. The complainant asserts that at the time she made every effort not to disclose the fact of the alleged abuse to others. On this basis it is submitted that it is difficult to see what these other persons could adduce, were they available to give evidence, that would tend to establish the applicant's innocence or otherwise in respect of these charges. With regard to the evidence of the complainant's father, the complainant, herself, states that he was entirely unaware of the abuse perpetrated upon her by the applicant. Counsel submits that if the applicant could show that the deaths of these various individuals prejudiced his defence that this itself would not be sufficient to justify a conclusion that a fair trial will be impossible. It is submitted that even if the trial had occurred some short time (say three or four years) after the commission of the alleged offences similar difficulties might well arise. Counsel submits that even if the persons referred to in the applicant's affidavit were available or willing to give evidence, it is unlikely that they would be in a position to offer any significant assistance to the applicant. It is on this basis that counsel submits that the applicant has not identified any material factors which indicate, to the required standard of proof, the existence of a real and serious risk that he will not obtain a fair trial.

Counsel refers to the power of the court of trial to give directions to a jury and to draw the attention of the jury to relevant matters for consideration arising from the elapse of time in the prosecution of the offences alleged against the applicant.

Dealing with the evidence of the complainant herself, it is submitted that there is no evidence of any psychiatric treatment having been afforded to her or of any counselling or other assistance having been given. Counsel refers to the fact that the complainant has not been cross-examined on her affidavit which testifies to the fact that she is still labouring under limited handicaps. On this basis, it is submitted that this is sufficient to discharge the onus of proof resting on the respondent.

Dealing with the issue of prejudice it is submitted that there is no evidence to the effect that the applicant cannot recollect events at the time when the offences are alleged to have been committed against him. Counsel refers to the fact that when first arrested, he did not say that he could not recall events in relation to the time in question. While the applicant had made certain statements, these do not show any deficit of recollection or memory on his part.

Dealing with the four witnesses in respect of which it is submitted that assistance could be given to the applicant, were they alive and available, it is submitted by counsel that the evidence before this Court does not establish that they could give relevant evidence. It is submitted that the Court should only concern itself with the absence of material witnesses and that these witnesses have not been demonstrated to be material.

Dealing with the issue of prosecutorial delay, counsel refers to Director of Public Prosecutions (Coleman) v. McNeill [1999] 1 I.R. 91 and to the judgment of O'Flaherty J. at
p. 96 of the report. Where he stated inter alia as follows:-

"To recapitulate the law as delineated in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 at p. 253:

'Where, however, the delay is excessive, a prosecution may be dismissed. In such a case prejudice may be inferred.'

That may beg the question of what is unreasonable delay? This must be a matter for resolution in each individual case and matters are not advanced very much by simply adding on a couple of months to what was in issue in Director of Public Prosecutions v. Byrne. Regard must be had to the nature of the charge in such a case as this which, as already related, will depend on scientific findings which are unlikely to be disputed. It is clear from a reading of Director of Public Prosecutions v. Byrne that the onus is on a defendant, asserting delay, to show that he has been prejudiced. I do not take the defendant in this case as having discharged that onus."

Counsel refers to the case P.P. v. Director of Public Prosecutions [2000] 1 IR 403 and to the categorization that the prosecutorial delay in that case involved a slovenly approach on the part of the Gardaí. It is submitted that the words which applied to that case do not apply to the prosecution in the instant case. Detective Garda O'Connor has referred to an unfortunate oversight and it is submitted that, in the circumstances, there has been no blameworthy or culpable delay such as to ground a stay of proceedings against the applicant.

Dealing with the passage of time itself, counsel submits that the passage of time is relatively short in the instant case and not a ground in itself upon which this court should intervene to grant to the applicant the relief which he seeks. In this regard it is submitted that no presumed prejudice can apply.

CONCLUSIONS

In the first instance there is no dispute between the parties as to what is the applicable law. This is the law as set out in P.C. v. Director of Public Prosecutions [1999] 2 IR 25.

Based upon the test as propounded by Keane J. in that case, I am satisfied that in the first instance due to the passage of time in the instant case the applicant has established a prima facie case calling for an explanation on part of the respondent for the delay that has ensued since the date of the alleged commission of the offences to the date when the applicant was charged with the offences in the instant case.

Dealing with the psychological evidence in the instant case, I am satisfied that the evidence of Mr. Domhnall Casey establishes that the delay in reporting the alleged instances of child sexual abuse is reasonable in the instant case. The statement of the complainant herself indicates that the first person that she told of the alleged offence is her current boyfriend in the year 1997 and that it was he that had told her to contact the Rape Crisis Centre and the Gardaí. She indicated that she spoke to the Rape Crisis Centre and thereafter to An Garda Síochána.

I am satisfied that the evidence of Mr. Casey indicates that the effect on the complainant of the alleged abuse has been the factor which has contributed to the delay on the part of the complainant coming forward and making her complaint which she first made in 1997 to An Garda Síochána.

Insofar as there is a dispute between the applicant and the Gardaí as to what was stated to him in 1991, having observed the applicant and Detective Garda O'Connor being cross-examined before this Court, I accept as more probably true, the Garda's version of events, such that there was no report of the incident in question made by C.M. prior to 1997 such that the same could have been mentioned by the applicant. I do so in circumstances where the complainant herself has sworn an affidavit in which she refers to the statements made by her to An Garda Síochána. She says that the contents of these statements are true and accurate to the best of her belief. In these statements she indicates that the first person that she told of the alleged abuse was her current boyfriend in 1997. She has not been challenged in regard to this evidence and has not been cross-examined on her affidavit. In these circumstances I believe that I must accept as true this statement such as to preclude any possibility of the abuse on the complainant having been mentioned to the applicant in 1991.

In the statement made by C.M. to the Garda Síochána on the 17^th April, 2000, she indicates the lack of confidence that she suffered and the fact that she could not tell her boyfriend of what happened between herself and the applicant and that it was from reading newspapers that she finally obtained the courage to tell her boyfriend and bring matters out in the open. It is clear from this statement that the first time she told her boyfriend was on the occasion when she telephoned the applicant in his home. Accordingly, I am satisfied on this evidence that the delay on the part of the complainant in making a complaint to the Gardaí is clearly explained by her and, as is indicated by the psychologist, is reasonable in the circumstances. Accordingly, the applicant must bear responsibility for this period of delay.

Dealing with the issue of prosecutorial delay, I am satisfied that such delay as is referred to is essentially the delay relating to the confusion on the part of the prosecuting Garda, Detective Garda O'Connor, in relation to the directions that had issued from the

Director of Public Prosecutions. It is clear that this has resulted in some delay in the instant case and that this is at most a period of twelve months. I am satisfied that, while this is a delay for which the applicant bears no responsibility, the same has been explained and has not been the result of any general lack of attention to furthering the prosecution in the case. Detective Garda O'Connor, has with some frankness indicated that he must bear some responsibility for the delay in question. I am, however, satisfied that the delay, such as it is, is not such as to render the applicant's trial unfair or to entitle him to the relief which he seeks. In this regard I am satisfied on the authority of McKenna v. Presiding Judge of the Dublin Circuit Court and the Director of Public Prosecutions (High Court, Kelly, J., 14^th January, 2000), affirmed by the Supreme Court, 7^th December, 2000, that even where there has been some gross or inordinate delay that the same does not of itself give rise to the court intervening to stop a trial proceeding. I am satisfied that the circumstances of the instant case can be clearly contrasted with the facts of the case of P.P. v. Director of Public Prosecutions [2000] 1 IR 403 where there was a clear delay occasioned by the Gardaí in relation to their failure to address the investigation of the charges in that particular case.

With regard to the issue of prejudice, I am satisfied that the facts put forward on the part of the applicant to show prejudice, are such that the absence of the persons identified by him are unlikely as such to give rise to the clear absence of material evidence in the prosecution against him. The involvement of the persons concerned can at best have been peripheral in the overall picture, insofar as the abuse alleged is in this case, as in most other cases, alleged to have taken place in private. This is not a case of an isolated event where crucial evidence is absent in relation to same. The allegation is one of continual sexual abuse perpetrated on the complainant when she was a child. In this regard I am satisfied that such difficulties as might be occasioned by the absence of these witnesses falls very far short of showing that it is such as to give rise to a real and substantial risk that the applicant will not obtain a fair trial. I am prepared to accept as a general probability that the passage of time, together with the absence of some evidence relating to the surrounding physical circumstances, is such as to give rise to a situation where some greater difficulty may be encountered by the applicant in defending the charges in question. I am satisfied, however, that a judge conducting a trial of the applicant can give appropriate directions to a jury such as to minimise any limited prejudice that may exist in this regard. I am satisfied, in conclusion, that any prejudice that may have been occasioned by reason of the passage of time, is not such as to give rise to a real or substantial risk that the applicant cannot obtain a fair trial in the circumstances. In light of this conclusion I am satisfied that I must refuse the applicant the relief which he seeks.