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1. The Applicant was originally sent forward for trial to the Dublin Circuit Court on the 1st of December, 1999 on 14 charges, nine relating to incest between the 1st of January, 1982 and the 1st of January, 1991 and five relating to indecent assault between the 2nd of January, 1982 and the 1st of January, 1987. The Applicant was born on the 14th of January, 1970 and attained the age of 14 years on the 15th of January, 1984. He is now charged only with the incest offences occurring after the 15th of January, 1984. Further, in view of the Complainant’s Affidavit in this matter that the abuse ceased after 1985, he could not be found guilty of charges after date.

2. The Applicant was granted leave to apply for Judicial Review by way of Certiorari and Prohibition. He is now applying only for an Order of Prohibition on the grounds

3. The Complainant, a sister of the Applicant, first told her mother in 1991 of sexual abuse by the Applicant, due to her concern that her youngest sister then aged 3 ½ might have been sexually abused by him. The mother told her G.P. as a result of which the whole family was assessed at St. Clare’s Unit in Temple Street. The family consists of a father, mother and five children being (in order of age) the Applicant, the Complainant, a brother and two sisters. A report was written by Kieran McGrath, Senior Social Worker on the 28th of January, 1992. The Guard to whom the report was directed was Guard (now Sergeant) Catherine Moran of Malahide.

4. From the report it appears that the father’s main concern was fear of what would happen to the Applicant if he was reported to the Guards and he was adamant that the Applicant did not abuse the youngest daughter. The mother was very dismissive of the Complainant’s statement that she was abused by the Applicant. The Applicant was then living with his grandmother. He admitted sexual contact with the Complainant. Mr. McGrath said the Complainant made it clear that she did not wish to make a formal complaint to the Guards about being abused by the Applicant. She was willing to forgive him because he was a member of her family.

5. In her Affidavit the Complainant confirmed sexual abuse when she was between 7 and 13 years of age. It had ceased prior to her starting secondary school in September 1985. She referred to the assessment at St. Clare’s Unit. She says she refused to make a formal complaint to the Guards about the abuse. At the time she was living at home and she knew neither of her parents wanted her to complain her brother, the Applicant, to the Guards. The entire episode put an enormous strain upon the family and each of its members. Soon after the assessment her mother suffered a nervous breakdown and was admitted to hospital. After her mother returned from hospital she allowed the Applicant to return home gradually. The Complainant moved out of the family home in 1994 and went to live with her boyfriend. On the 20th of April, 1998 she made a statement to Guard Patricia Maher and a further statement on the 27th of June, 1999 to Detective Garda Kevin Fields. She said that since making the first statement she had been effectively ostracised by the other members of her family. She had the support of her boyfriend in trying to come to terms with the traumatic effects of the abuse. She describes the entire episode as a nightmare which she hopes is drawing to a close.

6. Robert Foley, Senior Clinical Psychologist, met and assessed the Complainant on the 11th of April, 2000. He says in his Affidavit that her account of why she did not disclose the abuse to her family or other adults was consistent with that of a child’s attempt to adapt to a situation where she felt she had no control, would not be listened to, might well be blamed and where the perpetrator was, as far as she was concerned, a favourite child. When she did not make a statement after the assessment in St. Clare’s Unit he said she clearly anticipated the effects it would have on her family and her position in her family and as it turned out, accurately. After she left and had emotional support he said her reasons for making the statement were primarily influenced by her desire to save her younger sister and not to get back maliciously at her brother. He said the circumstances when she was living at home were consistent with a dysfunctional relationship between mother and daughter. That rendered her psychologically unable to face the consequences of disclosure. In his opinion he concluded the delay in responding was reasonable. He was cross examined and said it was difficult to generalise. He gave his opinion on the facts of the case. He said while ideally he would like to see everybody, he did get reports. He did not have time to interview the siblings. He confirmed his opinion given in the Affidavit.

7. In his Affidavit Detective Garda Fields stated that he received the investigative file on the 30th of September, 1998 (after the initial complaint to Guard Patricia Maher on the 20th of April, 1998) for the purpose of carrying out a full investigation. The Applicant was arrested by arrangement on the 13th of October, 1998. He was cautioned and a copy of the Complainant’s statement was read over to him. He made a detailed statement in which he said he had listened to the statement and agreed with it mostly. He was released from custody. Detective Garda Fields conducted further investigations. The file was transferred to the DPP for directions on the 22nd of February, 1999. The reason it took four months to prepare the file was his direct involvement in two charges of murder, extradition for robbery and firearm charges, investigation of sexual offences in a psychiatric hospital and charges of fraud. He averred that he submitted the file at the earliest opportunity available. He received directions on the 14th of April, 1999 obtained a warrant and arrested the Applicant by arrangement on the 25th of May, 1999. The Applicant appeared in Swords District Court and was remanded on his own bail to appear on the 1st of June, 1999 on which date the remainder of the charges were preferred. He said it was not unreasonable for the Complainant not to have formally brought matters to the attention of the Guards until April 1998.

8. Sergeant Catherine Moran in her Affidavit referred to the assessment of the family at St. Clare’s Unit. This followed a call by the Applicant’s mother to Malahide Garda Station when she took a statement from her. She referred to a report she had made concerning the allegation of sexual abuse of the youngest child, then aged three. In it she said the Complainant declined to speak to the Gardai about an allegation of sexual abuse by the Applicant and that she had no intention of making any complaint about her brother to the Gardai. She said at the time the Complainant and her sister refused to make statements to her about instances related to sexual abuse by the Applicant. She said the parents were reluctant to have the matter regarding the youngest child investigated once the physical examination revealed nothing abnormal. She confirmed she was furnished with the confidential report of Kieran McGrath. She said that to the best of her knowledge and belief neither the Complainant nor any member of her family made any complaint to the Gardai prior to the complaint made on the 20th April, 1998. She said that in the absence of a complaint being forthcoming it was effectively impossible to prosecute the Applicant.

9. The first issue is whether the Applicant is entitled to an Order of Prohibition on the grounds of delay by the State.

10. Prejudice is not essential to stop criminal prosecution where there is culpable delay on the part of the State. The delay itself may entitle the accused to an Order preventing the trial irrespective of whether there is actual or presumed prejudice (see PC -v- DPP 1999 2 IR 25).

11. In a recent Supreme Court decision BF -v- DPP (unreported 22nd of February, 2001) Geoghegan J. said there was only one issue, whether undoubted delay in making extradition arrangements entitled the Applicant to an injunction restraining the proceedings. The Applicant was charged with offences committed when he was aged 14 in April/May 1995. He was questioned by Gardai within a short time and made a statement broadly admitting the sexual activity. The family with the knowledge of the Gardai moved to England in September 1995. In November 1996 the family were told application for extradition was being made. The Applicant was arrested in February 1998 on foot of a warrant dated the 7th of July, 1997. It was held that there was a special obligation of expedition (because of the Applicant’s age) and it was not complied with because the extradition proceedings were allowed to take an excessive length of time and the delay appeared to be inexplicable.

12. That case was decided on the basis of culpable delay on the part of the State in that there was unnecessary delay in relation to extradition. The question of prejudice did not arise. In the present case it was argued on behalf of the Applicant that once the Garda authorities knew in 1991/92 following the report of Kevin McGrath and the report of Guard Moran (now Sergeant) they should have initiated a prosecution even though the Complainant then refused to make a statement. It was submitted that they should have required her to give evidence on deposition in the District Court.

13. This is contradicted by Sergeant Moran’s Affidavit where she says that in the absence of a complaint being made it was effectively impossible to prosecute the Applicant. She was not cross examined. I find that there is no reality in the suggestion made on behalf of the Applicant.

14. The State involvement began when the initial complaint was made on the 20th of April, 1998. Each step taken by the State is set out:- transfer of file 30th of September 1998; investigation; arrest 13th of October, 1998; statement by the Applicant; release; further investigation; file sent to the DPP 22nd of February, 1999; directions received on the 14th of April, 1999; arrest the 25th of May, 1999. In my opinion that sequence of events does not disclose any culpable delay on the part of the State so as to entitle the Applicant to an Order prohibiting his trial.

15. In the absence of culpable delay by the State, the next issue is whether there is prejudice to the Applicant by reason of the delay which would entitle him to have his trial stopped. There has been no Affidavit sworn by the Applicant alleging prejudice by reason of delay. There is no allegation by him that he could not reasonably recollect the circumstances. There have been a number of Supreme Court decisions dealing with delay and sexual abuse. Cases involving allegations of sexual abuse of children fall into a special category when dealing with the question of delay ( Hogan -v- President of Circuit Court

16. While that case was concerned with an allegation of dominance and whether the Court was satisfied as a matter of probability the delay in making the complaint was referable to the accused’s own actions, this case does not concern dominance. However dominance is not an essential factor. All factors must be taken into account.

17. The Applicant submits that the onus is on the State to prove the delay is caused by the actions of the accused person.

18. The absence of dominance was adverted to by Murphy J. in an unreported Supreme Court Judgment JOC -v- DPP 19th of May, 2000 at p. 7 in which he stated that if the law requires the DPP to satisfy the Court that the delay was caused by the accused or by some malign influence exercised by him, the onus had not been discharged. He nevertheless held that the delay did not preclude prosecution.

19. As I understand it, the Court must consider whether as a matter of probability (the onus of proof being on the Applicant) and taking the entire circumstances of the case into account, the inaction of the Complainant from the time of the alleged offences until the date of complaint to the Gardai in 1998 is explained satisfactorily. And further it is not a necessary factor that dominance or a malign influence exercised by the Applicant must be proved by the state. The Complainant gave us her own explanation for the delay. She did in fact tell her mother in 1991 but was unwilling to make a report to the Guards. This was due to the family dynamics. Both the father and mother were more concerned in protecting the Applicant than in helping the Complainant. She was 19 at that stage. While she left home in 1994 and went to live with her boyfriend it took her until 1998 to actually make the complaint. There is nothing extraordinary in that. It is very common that a long period of time may lapse before a child abuse victim is able to initiate a prosecution. The Complainant refers to the support of her boyfriend in trying to come to terms with the effects of the abuse which she describes as a nightmare. She was not cross examined. Doctor Foley the Consultant Psychologist was cross examined and he gave as his opinion that her delay was reasonable and he did not resile from it under cross examination. There was no evidence to the contrary.

20. Accepting Doctor Foley’s opinion, it is my view that given the circumstances of this case, in particular the circumstances within the family including the bad relationship with her mother and the effect of the alleged abuse on the Complainant, there is a reasonable explanation for the delay.

21. Lastly I must consider whether the accused’s ability to defend himself has been so impaired by reason of delay that the trial should not proceed because there would be a real and serious risk of an unfair trial. The Applicant himself alleges no specific prejudice. The question of prejudice is dealt with at paragraph 17 of the Affidavit of the Applicant’s Solicitor in general terms. In it he says that had the Applicant been charged with the offence when he was still a child or young person

22. A. He would have been in a much better position to take advantage of the rebuttable resumption of incapacity to commit a criminal offence in respect of the offences alleged to have been committed during the period when he was under the age of 14.

23. B. He would have been more likely to receive sympathetic consideration by a jury of his evidence rather than being perceived as a mature adult.

24. C. He would have been in a position to offer more reliable evidence having regard to the increased proximity in time between the giving of evidence and the dates of the offences.

25. D. The trial in respect of the said offences would have taken place in the context of the community’s perception of the seriousness of the charges 4 to 9 as it was reflected in the statutory provisions regarding sentence prior to 1993 including the equal position as between males and females in respect of the applicable maximum sentence.

26. In the circumstances of this case even if the Complainant had been willing to make a complaint to the Gardai when the family was assessed in 1991/1992, the Applicant was then 22 and no longer a teenager. No argument has been advanced that he should have been brought to trial prior to the assessment made in 1992.

27. The arguments directed to the sympathy of a jury are misdirected. A Jury’s function is to reach a verdict on the evidence given before it whether a crime has been committed and whether the accused committed it. It is no part of their function to decide the matter on the basis of sympathy for the accused if the evidence is otherwise sufficient to convict. The opposite is equally true. A jury should not convict on the basis of sympathy for the victim if the evidence is not sufficient to do so. If an accused is convicted it is then the function of the Judge in sentencing to weigh up all the necessary factors including the age of the accused when the crime was committed and impose an appropriate sentence which might well involve a non custodial sentence.

28. The fact that a young person commits a crime and delay occurs, does not of itself per se confer immunity from prosecution. If the delay does not occur through any fault of the State and is explicable and reasonable from the point of view of the alleged victim and if the accused’s ability to defend himself is not so impaired that would be a real and serious risk of an unfair trial, then the trial should go ahead.

29. In this case I find no reason why the trial should be prohibited.