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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (J.) v. D.P.P [2004] IEHC 100 (2 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/100.html Cite as: [2004] IEHC 100

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HC 177/04

THE HIGH COURT JUDICIAL REVIEW

[2001 No. 766 J.R.]

BETWEEN

J S

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice O'Higgins delivered the 2^nd day of April 2004.

On the 12^th November, 1999, the applicant was arrested and charged with seventeen counts of indecent assault. All charges relate to a period between the 1^st July, 1982, and the 31^st November, 1983. All the offences are alleged to have taken place at the applicant's home in County Westmeath, during which time the complainant was under his care.

On the 19^th November, 2001, the President of the High Court granted leave to the applicant to issue Judicial Review proceedings to prohibit the respondent from further prosecuting the applicant in relation to the various counts on which he was returned for trial within the proceedings pending the outcome of the determination of the prohibition proceedings. Leave to apply was granted in respect of grounds 1 to 7 and 9 in the grounds of relief. Those grounds are as follows:

1. The lapse of time in itself of approximately 19 years between the date of commission of the alleged offences and the likely date of a trial of the applicant before the Mullingar Circuit Court is so great as to constitute a denial to the applicant of his right to a trial with reasonable expedition and in accordance with the law as guaranteed by the constitution and as further protected by Article 6 of the European Convention on Human Rights.

2. The lack of specificity in relation to the dates upon which it is alleged the offence complained of took place having regard to the passage of time since the date of the commission of the alleged offences imposes an unfair and oppressive burden upon the applicant in the preparation and presentation of his defence and further hampers, injures and effects the applicant in instructing his solicitors in relation to his defence as he is unable to nominate dates, times or places where he might have been when the offences are alleged to have occurred or locate persons who he might have been with or point to other circumstances tending to show the unlikelihood of the commission of such an offence in such a place at such a time and further renders the allegations incapable of rebuttal by fact or inference to be derived from any provable collateral fact, and renders it practically impossible to produce any alibi evidence such as to render any trial of the offences alleged unfair to the applicant and in breach of his constitutional right to fair procedures.

3. The applicant is prejudiced in the preparation and presentation of his defence by reason of the death of the following potential witnesses who in the case of 3(a) above, lived with the applicant at the time the offences occurred, and, in the case of 3(b) above regularly attended upon the complainant as her nurse. The references are to M S and M S, the parents of the applicant, and to A R who was, at the date of the alleged offence, a District Nurse who visited with the complainant.

4. The locations where the offences are alleged to have occurred have changed substantially and in some cases are no longer in existence so that enquiries or investigations into the physical circumstances in which they are alleged to have occurred are not possible, and nor is it possible to check if any of the factual or collateral matters relating to the alleged offences actually existed or were improbable.

5. By reason of the passage of time the applicant herein is left only with his denial of the allegations contained in the Book of Evidence served upon him and his plea of not guilty by way of defence to the charges.

6. The complainant who was under no disability and who was under no continuing dominion by the applicant, failed to make any complaint to the Gardai until she was twenty-eight years of age having allegedly told other people years earlier.

7. The failure of the prosecution to fully investigate the offences and in particular their failure to interview and obtain statements from anybody else who could corroborate any of the evidence of the complainant. The prosecution is proceeding on the basis that all matters in controversy can be resolved by calling the complainant.

Leave was refused to seek Judicial Review on Ground No. 8 (prosecutorial delay), and Ground No. 9 was specifically abandoned by counsel at the hearing of the action.

A Statement of Opposition was filed on the 20^th November, 2002.

The relevant grounds of opposition are the following:

3. It is denied that the lapse of time between the commission of the alleged offence and the date of trial is so great as to constitute a denial to the applicant of his right to a trial with reasonable expedition and in accordance with law and it is denied that there is a breach of the Constitution or of Article 6 of the Convention of Human Rights.

4. The lack of specificity in relation to the dates is usual in offences alleging the abuse of young persons.

5. The lack of specificity also often occurs where the alleged abuse took place in private. It is denied that the lack of specificity prejudices the applicant in preparation and presentation of his defence.

6. It is further denied that the lack of specificity and the recall of a minor would be something which would have been greatly remedied by a complaint made closer to the time of the alleged offence.

7. It is denied there is an unfair or oppressive burden upon the applicant in the preparation or presentation of his defence, and it is denied that this hampers, injures and affects the applicant in instructing his solicitors in relation to his defence, and the other difficulties which the applicant alleges he experiences in paragraph 2 of the statement of grounds are denied as if set out herein and traversed seriatim. So far as the applicant has encountered difficulties attributable solely to the elapse of time, such difficulties are not such as to warrant the prohibition of the trial.

8. It is denied that the allegations are capable of rebuttal by fact or inference of fact to be derived from provable collateral fact. It is denied that it is practically possible to produce alibi evidence, if any was truly available to the applicant, and no indication of the same has been given. It is denied that the trial of the offences alleged would be unfair to the applicant as a breach of his constitutional right to fair procedures.

9. It is denied that the applicant is prejudiced in the preparation and presentation of his defence, and it is further denied that paragraph 3 is pleaded with accurate particularity or with the identification of the alleged potential material witnesses, to allow rebuttal.

10. It is denied that the locations where the offences are alleged to have occurred have changed substantially or are no longer in existence.

11. It is denied that enquiries into the physical circumstances are not possible and it is denied that it is not possible to check factual or collateral matters relating to the alleged offences.

12. It is denied that the applicant is left only with his denial of the allegations and his plea of not guilty.

13. It is denied that the complainant was under no disability and was under no continuing dominion by the applicant. It is accepted that the complainant did inform other persons previously.

14. The delay in making the complaint is attributable, wholly or in part, to the actions of the applicant and to the effects of the alleged abuse on the complainant, including effects of inhibition and dominion.

15. It is denied that the prosecution has failed fully to investigate the offences, and it is denied that the prosecution has failed to interview or obtain statements from anyone who could corroborate the evidence with the complainant. The applicant has not indicated to the prosecution any line of enquiry he alleges would assist him.

Grounds 16 and 17 are irrelevant to these proceedings – and were not pursued by the applicant.

18. There is no Statute of Limitations prohibiting prosecution; and the people have a constitutional right to have offences prosecuted and complainants have a constitutional right to have their complaints considered.

19. The respondent reserves the right to flesh out its opposition to the application through affidavit. It is denied that this case is a particularly unusual case and it is further denied that the matters complained of by the applicant could not be properly dealt with by the trial judge.

The factual background

The complainant B.W. was born on the 9^th April, 1971. Both of her parents had abandoned her by the time she was two years of age. She was left in the care of her grandparents from the age of two until she was eleven years old. Her grandmother died in 1982, and she then went to live with the applicant and his wife and their young family. She lived in the applicant's home from May, 1980 until December, 1983. She was eleven or twelve when the alleged assaults took place. On the 8^th December, 1993, she left the applicant's home and moved to new foster parents, and she remained in the care of the Health Board until she was eighteen. She started going out with her husband in 1990 and was married in 1991. She was in foster care until she was eighteen years of age. She then went to work in a factory and she got married in 1991 and is happily married with three children. It is unnecessary for the purpose of these proceedings to set out in detail the allegations of sexual abuse. It is unnecessary to set out in detail the allegations of sexual assault, other than to say that they include allegations that she alleges that she was forced to masturbate the applicant and to have oral sex with him, and that there were allegations that he put his hand into the complainant's vagina and allegations of digital penetration of her back passage.

The complainant in her affidavit states that prior to the first alleged assault, she was warned that "if she spoke about the incident she would be homeless". She says that on two occasions she ran away from the applicant's house and, on one occasion, when she went to the house of a friend, she may have told that friend why she had run away. On another occasion she believes an assault may have been witnessed by the applicant's wife. A complaint was made to S K, a social worker, in or about 1984. It appears, however, that this complaint concerned physical abuse, and it was not until 1987 that the complainant told Ms. K about the alleged sexual abuse. On one occasion in 1984, shortly after she had ceased living in the applicant's house, the complainant says that the applicant said to her, "Don't worry about what happened with us and don't say anything".

The complainant also complained to her husband about the alleged sexual abuse. No date is given for this but the case proceeded on the basis that this was in or around the early 1990s.

The Law

In this case it is accepted by the respondent that the delay is prima facie inordinate. That being so, it is incumbent on the respondent to show that:

1. The delay from the time of the offence until the initiation of the prosecution can be explained in all circumstances.

"The delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her, e.g. as parent, stepparent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and the degree of trust on the part of the child may be more readily inferred.

This is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue in every such case is whether the court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved."; per Keane J. (as he then was) in P.C. v Director of Public Prosecution [1999] 2 IR 25 at p. 67.

2. Circumstances such as to render explicable the action of the alleged victim from the time of the offence until the invitation of the prosecution need further elaboration. The explanation has not only to be reasonable: it must be substantially connected with the actions of the applicant. The reason for this and the rationale behind the provision for the explanation of otherwise inordinate delay is that the applicant should not be allowed to benefit by reason of a delay which was brought about by the actions alleged against him.

In G. v Director of Public Prosecutions [1994] 1 I.R. 374, at p. 380:

"The court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order"

3. For the purposes of ascertaining whether delay is explicable in all the circumstances – and for those purposes only – the court proceeds on the basis that the allegations are true.

4. If the delay is explicable in the sense set out above, the court will proceed to enquire as to whether the degree to which the accused's ability to defend himself had been impaired is such that the trial should not be allowed to proceed.

"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; PC v Director of Public Prosecutions [1999] 2 IR 25, at p. 68, per Keane J. (as he then was).

If there is such a risk, the right of the applicant to a fair trial is jeopardised and the trial will be stopped. As pointed out by Denham J. in D. v Director of Public Prosecutions [1994] 2 I.R. 465, the applicant's right to a fair trial would necessarily outweigh the right of the community to prosecute.

5. If the delay is not attributable to the fault of the applicant, the delay may be such that, depending on the nature of the charges, the 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; per Keane J. (as he then was) in P.C. v Director of Public Prosecutions [1999] 2 IR 25, at p. 67.

6. If the case is not one where the circumstances are such as to give rise to a presumption that, even in the absence of specific prejudice, his capacity to defend himself would necessarily have been impaired, the court has another matter to resolve.

In those circumstances,

"There remains the question as to whether the unarguable violation of the constitutional right of the applicant to a reasonable expeditious trial was of such a nature as to necessitate the prohibition of a trial at this stage . . .

The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage . . . Where . . . the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences"

P.M. v Malone [2002] 2 I.R. 561 at p. 581.

The factors to be taken into account in this case are set out below.

The length of delay

The delay in this case is between 1982/83 and 1999. The dates of the alleged assaults are between the 1^st July, 1982, and the 31^st November, 1983, and the applicant was charged on the 12^th November, 1999; thus there was a period of between sixteen and seventeen years between the offences and the charges. While it is true that there have been prosecutions where applicants were charged with offences dating back longer than in the present case, it is beyond dispute that memory fades considerably over a period of seventeen years, and while the time to be taken into account on the authorities is the date between the alleged offences and the institution of the proceedings, it is correct to say that memories will be tested in relation to a trial some twenty years after the event alleged. It is accepted by the respondent that such delay is prima facie excessive and that the onus is on the respondent to justify it.

Relationship – Dominion

At the time of the offences alleged the applicant was in loco parentis to the complainant who was between either eleven or twelve years old at all relevant times. It is clear that the factors mentioned in the passage of Keane J. in P.C. v. Director of Public Prosecutions quoted above, are applicable. As well as the age difference, the relationship between them was such that dominion by the alleged perpetrator over the child can be readily inferred. Moreover, the applicant is alleged to have told her that if she spoke she would be homeless and would have no home to go to. Furthermore, after she ceased living with him in 1984, he allegedly said to her,

"Don't worry about what happened down with us and don't say anything."

The fact that the abuse allegedly took place in what was the home of the complainant at the time is also a factor making it harder for the complainant to make the allegations. In those circumstances any delay in reporting the matter at least up to the time she left the house and indeed up to 1987, when disclosure was made to S K, is entirely understandable and explicable. One must also take into account that the complainant says that she was, and indeed still is, afraid of the applicant; that fear would certainly render explicable the delay up to 1987 and perhaps beyond. However the complaint was made in 1999 despite continuing fear. It is clear that, as of that time, fear was not sufficient to prevent the complaint being made. There is no evidence as to whether the fear diminished from 1990 or thereabout to the date of complaint.

Admissions made by the applicant

In this case there is no admission of any wrongdoing; the applicant denies all the allegations.

Witnesses and evidence: Prejudice

In his affidavit filed the 16^th December, 2001, the applicant says at para. 6:

"I say that it appears (sic) that the following potential witnesses at the time of the alleged offences are now dead:

(a ) A R, District Nurse, visited regularly with the complainant.

(b) My parents, M S and M S who resided with me in the County of Westmeath."

The applicant does not, however, say what evidence these people might have been in a position to advance. Because of their very nature, these type of cases usually (though not invariably) tend to be committed without witnesses being present. In relation to one of the seventeen charges in the present case the assault is alleged to have been witnessed. However, the witness in that case, the wife of the applicant, is alive and in a position to give her testimony. The applicant says that he has been inhibited in his defence due to the death of potential witnesses and the lack of any records. I have already commented on the lack of recollection and the death of potential witnesses. It has not been suggested that the deceased parents of the applicant were alibi witnesses. It has not been explained to the court what possible evidence they could have been in a position to give. The same applies to the late A R, The District Nurse. It is hard to conceive of the type of records which the applicant has in mind and his affidavit does not specify them.

The applicant complains that the lack of specificity makes it practically impossible to produce alibi evidence. This is an unfortunate feature of cases of this nature and poses a real difficulty. It is not a matter, however, caused by the delay in this case – it is a problem that is likely to have existed even had the charges been preferred at a much earlier date. The applicant also complains that the physical destruction of a shed where one of the offences is alleged to have taken place has the potential to inhibit his defence, as it can no longer be examined for material which could cast doubt on the complainant's account. If it emerges that there is any actual unfairness to the accused in the course of the trial, that can be dealt with by the trial judge. As McGuinness J. pointed out in The People (D.P.P.) v. P.J., Unreported, Supreme Court, 31^st July, 2003:

"It has again and again been pointed out that trial judges are obliged to issue appropriate directions and rulings to avoid the possible prejudicial affects of delay in sexual abuse cases".

Moreover some observations of Keane J. (as he then was) in P.C. v. Director of Public Prosecutions [1999] 2 IR 25, at p. 70 are apposite:

"In common with other cases of this nature, the acts complained of are alleged to have been committed in private and the applicant cannot point to any witness or witnesses whose evidence might have been available to him were it not for the delay but are not longer available. Had this case been tried ten years ago, the issue for the jury would essentially have been one as to the credibility of the complainant and, if he gave evidence, of the applicant. The position will be the same when the present case comes to trial. As Denham J. observed in B. v. Director of Public Prosecutions [1997] 3 I.R. 140, the delay in such cases presents difficulties for the prosecution as well as for the defence. I am satisfied, however, that no prejudice, other than that which inevitably flows from a delay of this nature, has been shown in the present case which justified the High Court in prohibiting the continuance of the prosecution."

Unlike in the case of PC however, the applicant in this case suggested the absence of certain witnesses as a factor to be taken into consideration. He has not, however, been able to state any evidence that those witnesses might have been in a position to give

The applicant complains that his memory is impaired by dint of the passage of time. The court is ready to accept that memory fades over time, but is not satisfied that the applicant has shown that the deterioration of memory caused by the passage of time has been shown to be such as to demonstrate a risk of an unfair trial.

In all the circumstances, I am not satisfied that the applicant has discharged the onus on him to show that he has suffered specific prejudice by reason of the delay.

The Evidence

M.D. an experienced clinical psychologist furnished a report containing an analysis and opinion on the reasons for the time lapse in the reporting of the alleged sexual abuse by BW. He interviewed the complainant on the 27^th November, 2002, and on the 9^th and on the 14^th January, 2003. He had read the statement grounding the application for judicial review, the statement of charges, the statement of evidence of BW, the statement of evidence of C D, the statement of evidence of A S, the statement of evidence of S K, the statement of evidence of D. Sergeant G N, the statement of evidence of D. Garda James A. Doherty, the statement of evidence of Garda Shane Nolan, the statement of evidence of Garda Grace Holt, the statement of evidence of M McG, the statement of J S, and he read the affidavits of J S, O S and G N. However, unfortunately he was not in possession of the document showing that a complaint had been made to S K in 1987 of sexual abuse, a matter to which I will return. He does refer to a complaint of physical abuse as follows:

"She reported that sometime later, when she had moved to her new foster placement, her social worker Ms. K, asked her if she had ever been abused while living with the Ss. She reported that she had understood Ms. K to be referring to physical abuse, not sexual abuse. It is my opinion that Ms. W would have found it difficult to complain about the alleged sexual abuse at that time because of her sense of dominance that Mr. S had over her and indeed because she had begun to blame herself for the abuse."

The disclosure of physical abuse mentioned above relates to 1984, and not to the complaint of sexual abuse in 1987. It is clear that in the course of his three interviews with the complainant the psychologist was unaware that she had complained specifically of sexual abuse at the hands of the applicant to Ms. K. It is unclear what action if any was taken on foot of that information by those responsible.

Page 3 of Mr. D's report states that the immediate effects of the alleged sexual abuse were that she was afraid that if she spoke out about it she would be homeless and that she feared and continues to fear Mr. S.

The summary and conclusion of Mr. D. reads as follows:

"At the time she was fostered by the Ss, Ms. W. was in an extremely vulnerable position, having been abandoned by her parents and relatives and following the death of her grandparents. Her account of the alleged abuse is consistent with other accounts of abuse reported in the literature. She reported experiences of dissociation and dissociation is associated with traumatic events including sexual abuse. She reported experiencing symptoms of post-traumatic stress and such symptoms can be associated with sexual abuse. Her delay in reporting the alleged abuse is, in my opinion, reasonable. She was motivated to do so partly because she had read a survivor's account of her own abuse and the fact that sexual abuse is now being addressed in the media and spoken about more freely could well have enabled her to report her own alleged abuse. Additionally, she reported that she was motivated to report it to protect other children and this is a frequently cited reason for reporting abuse. Her having to try and cope with her dissociative experiences and her symptoms of post-traumatic stress could also reasonably account for the delay in reporting the matter to the Gardaí. It is often difficult for people who have been sexually abused in childhood to overcome their sense of self-blame in relation to the abuse and, in my opinion, this also inhibited her from reporting the alleged abuse until relatively recently. Her continued fear of Mr. S is another reason for her not reporting the alleged abuse until relatively recently."

As appears from the summary given by Mr. D, he considers it reasonable for the reporting not to have been earlier in view of the dissociative experiences, the symptoms of post traumatic stress disorder, the overcoming of feelings of self-blame, and the fear of Mr. S. Furthermore, he considers the fact that the topic of sexual abuse is being discussed more freely may have been a factor leading to her eventual complaint.

The report, evidence and conclusions of Mr. D are open to a number of serious criticisms.

1. Mr. D. was not in possession of the vitally important information that in 1987 the complainant had disclosed the sexual abuse to SK, a social worker, until the morning that he gave evidence. Therefore he did not discuss the matter with the complainant. Because he was unaware of its existence it was impossible for him to ascertain the nature and extent of the disclosure and the importance to be attached to it. These are matters which have a considerable bearing on the question of delay from 1987 onwards.

2. It is surprising and most regrettable that the disclosure of the fact of sexual abuse made by the complainant to her husband does not appear to have been explored by Mr. D. When asked what transpired as a result of the conversation with her husband the psychologist said, "I didn't ask". The court has been given no details of the extent of such disclosure or the nature of such discussions that the complainant had with her husband. What was the attitude of her husband? Was the option of complaining to the gardaí discussed? If so, was a decision made not to complain? If so, what were the reasons for such decision? If not, why the delay? It is probable that all of these questions could have been answered had the appropriate inquiries been made. In those circumstances it is not possible to assess the importance or otherwise of that disclosure in the context of further delay in reporting the matter to the Gardaí. Indeed the court has not been told what year the disclosures were made to the complainant's husband though it is reasonable to assume that the period was 1990 or shortly afterwards.

In the context of delay post 1990 – the following answers are important.

When asked if there were:

Q: Any symptoms that would prevent her from telling the gardaí?

For example, how do we know that she didn't discuss it with her husband and say: "Look, we are happily married, put this thing behind us, get on with our lives, it is not worth going through the trauma of the court case and all that".

Whether that was a decision that she made or whether she was prohibited by reason of trauma or whatever from complaining to the garda.

A. Certainly there are a couple of prongs to your question. The first wheel (sic) when I saw her is that although when I saw her in 2003, and certainly she was, she was reporting these symptoms. Now, you know, there are, and I state in my report that of course the scales that I used to look at this symptoms really are only focusing on the present, so I can't say with certainty that she was suffering from these symptoms for those nine years. But what – I mean I do in the sense to the other prong of your question is that, you know, she had a number of children in the mean time and in my experience people try to put these things behind them, perhaps as an avoidance response, perhaps as a deliberate attempt to put them behind them and move on in their lives and focus on their present day relationships. So perhaps the explanation is to be found in that type of thing, that type of situation.

Q. But she was never asked directly about it.

A. About the delay.

Q. About whether – about why the delay occurred in such a way as to get the answer that she was ashamed or she was afraid or she was upset.

A. No. No. Yes she would have been. I would have asked her that because the whole ethos of the whole interview is to look at these points.

Q. but what was the response then if she was asked about that, what was her response to why was this delay which is what you were probing.

A. Right, but I mean she might not have been aware of some of the reasons for the delay.

Q. Indeed she may not. But surely it will be in your interest to know what she thought even if that was not the full story.

A. But I would have asked her that as the stand. I would have pointed out what (sic) the whole ethos of this interview is to find out the reasons for the delay.

Q. Sorry. Perhaps as avoidance or perhaps in the context of rest of her life.

A. Yes, in fact, you know that people move on, she has children herself and sometimes people try to put the past behind them. In my experience in a lot of these cases of abuse, and I know it is a general statement, but people do try to move on and put it behind them. But also she would not, even in the early 1990s, I am not so sure, my Lord, that people would have felt, you know, felt that they would have been listened to or that was society ready in many was to support people who were making these very difficult, very personal allegations".

The evidence of Mr. D. on these points is unsatisfactory. The court has not been told with any precision as to what reasons were advanced by the complainant for her failure to report the alleged abuse after 1990, a topic which is of the utmost importance. The foregoing answers make it clear that the psychologist gave a number of different possible reasons for the failure to report from 1990 onwards. The fact that the complainant had made the allegations of sexual abuse to Ms. K in 1987 does not necessarily mean that she was able to disclose them to the Gardaí at that time (or indeed at any time). Likewise the fact that she disclosed the allegations to her husband in 1990 does not necessarily mean that she was able to disclose them to the Gardaí at that time. However these are matters of great relevance in ascertaining the reasonableness of delays subsequent to such disclosures. In my view they should have been dealt with specifically.

3. The Court finds it very surprising indeed that in the course of three interviews, each of one hour's duration or more, the complainant either was not asked directly for her reasons for not reporting the matter to the Gardaí, or if she was asked the reply was not noted. I accept, of course, the evidence of Mr. D. that the complainant may not have known fully the reasons for the delay, but nonetheless the reasons given by her would have been of considerable importance and assistance to the court. The evidence of Mr. D. on this topic is unsatisfactory. Mr. D. said:

"I didn't ask her specifically why she didn't report or why she didn't report between 1990 and 1999, but in the sense of the whole interview it makes sense to me at least, that the reasons for the delay is in terms of the symptoms that she is reporting, but also maybe in terms of not feeling able to make a normal complaint about this."

It is unclear to the court what reasons, if any, were advanced by the complainant herself for failure to report from 1990 onwards.

4. Insofar as the symptoms of post-traumatic stress disorder are advanced as an explanation as to why the complainant did not report the alleged offences earlier to the Gardaí, these symptoms cannot be taken as providing much assistance in circumstances where, although Mr. D found that symptoms of post traumatic stress disorder were evident on his examination, he was not in the position to say that they were present during the period between 1990 and the complaint to the Gardaí. In page 4 of his report he says:

"Of those symptoms these may not necessarily have been present throughout her adolescence and adulthood. People often cope with traumatic stress by avoiding dealing with it and indeed may go through life avoiding thinking about it or dealing with it. However, some event or events may occur to reactivate the symptoms of post traumatic stress and in my opinion this is what probably occurred in this case. When Ms. W read a book about a victim of childhood abuse and when she became aware of the media accounts of abuse. The fact is that she is currently going through the consequences of having made a complaint to the Gardaí, for example being interviewed by the Gardaí, being interviewed by myself, is probably serving to maintain her current symptoms of post traumatic stress."

5. Fear. The complainant says that she was and continues to be afraid of the applicant. The fear could provide an explanation as to why she did not complain earlier to the Gardaí. However in relation to the period with which the court is concerned, i.e. 1990 until 1998, there is no evidence as to the diminution of fear or the extent of the fear. The fact that she complained despite the fear indicates that fear was itself not a sufficient factor to prevent her reporting. The Court has no evidence as to whether and if the fear diminished between 1990 and the date when the complainant went to the Gardaí. Accordingly the court is unable to assess the importance if any of this factor in considering the delay from 1990 onwards.

The difficulties which I have mentioned with the evidence of the psychologist might well have been surmounted had (as not infrequently happens in cases of this type) the complainant given her reasons for the delay – particularly in the period from 1990 – 1999. Unfortunately the complainant does not deal with the question of delay in her affidavit sworn.

As a result of the foregoing the court is not satisfied as to what exactly were the actual reasons as opposed to what could be reasonable explanations.

It is now appropriate to refer to some other criticisms of the psychologist made by counsel. Mr. D has been criticised for not interviewing the husband of the complainant. Mr. G relied on the passage in the case of M. F. v. Director of Public Prosecutions, unreported High Court, 5^th December, 1997 where in his judgment McCracken, J. said:

"It is my strongly held view that, where a witness purports to give evidence in a professional capacity as an expert witness, he owes a duty to ascertain all the surrounding facts and give that evidence in the context of those facts whether they support the proposition he is being asked to put forward or not. I cannot accept that the background of abuse of these complainants was not relevant, consequently, I will give little weight to the evidence of Mr. C".

That passage was referred to by Hardiman J. in his decision in the case of J.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 479, at p. 529, where Hardiman, J. said:

"In my view it is essential that an expert witness in a case such as this should ascertain all facts relevant to the question whether a delay in reporting alleged abuse is referable to the act of the alleged abuser. Where the delay is attributable to, or the reasons for it evidenced by, specific symptoms the cause of such symptoms is clearly relevant. For a professional witness to state (only when asked) that there were factors other than the sexual abuse present but not to identify them and therefore to be unable to discuss the actual causes of the complainant's presentation is inadequate".

In the case of M.F. v. The Director of Public Prosecutions, Unreported, High Court, McCracken J. 5^th December, 1977, the psychologist failed to consider the possible effect of sexual abuse other than that of the subject-matter of the proceedings on the complainants, and that was the basis of the criticism. In the J.O'C. case the criticism was that acknowledging there were factors other than the alleged sexual abuse present but not being able to identify them and being able to discuss the causes for the complainant's presentation was inadequate. The circumstances of the present case are quite different from the cases above in which the psychologists were criticised. It may indeed have been helpful in this case had the husband of the complainant been interviewed. What was important, however, was not the question of who was interviewed but the obtaining of all the relevant background information, and the nature of the discussion with her husband in 1990/1991 to which I have referred could have been obtained in the interview with the complainant herself.

Undoubtedly the examination of the complainant by the psychologist in this case was done without him being aware of a most important fact: that is that the complainant had made allegations of abuse to a social worker in 1987. Despite three hour long interviews with the complainant this fact did not emerge. The psychologist says that the onus was on the D.P.P. to provide him with all relevant information. The important matter, however, is not who should have provided the information, but the fact that Mr. D. was unaware of a most important piece of information in this case. In those circumstances, regardless of whether the duty was on him to ascertain the surrounding facts or the D.P.P. to provide them, it is clear that the psychologist was not in position of vital material at the time he made his assessment. Being in possession of all the relevant facts does not necessarily imply that there is a duty on the psychologist to conduct a parallel investigation to that of the Gardaí nor does it mean that he has to conduct a collateral investigation to the Gardaí. Moreover the validation of the fact of abuse is a matter for the jury and not the function of the expert. His duty in these cases is concerned with explaining the question of delay.

It was also submitted by counsel for the respondent that no remedy of prohibition should lie in cases of delay other than prosecutorial delay, and that insofar as there are decisions to the contrary those decisions should be revisited. The Supreme Court has upheld prohibition of trials by reason of delay other than prosecutorial delay on numerous occasions and in my view that Court is the appropriate forum in which to argue that contention.

Conclusion:

For the reasons outlined above the respondent has failed to satisfy the court that the delay is explicable in all the circumstances. It is accepted that the delay is such as to require such explanation; therefore the rights of the applicant to a trial with reasonable expedition has been violated. The court hence has to decide whether or not the circumstances are such as to give rise to a presumption that, in the absence of specific prejudice to the applicant, his capacity to defend himself has necessarily been impaired. This concept is not without difficulties in its application. However in my view, the present case falls within that category. The combination of the difficulties in recollection, the understandable lack of specificity in the charges (which in really all cases causes particular problems for an innocent person in their defence) and the fact that the trial would take place more than twenty years from the date of the offences are all factors which, when taken together even in the absence of proof of specific prejudice are such as to persuade me that there is a serious risk of an unfair trial. The further prosecution of the applicant should therefore be prohibited.

With regard to the deterioration of memory, although I am not satisfied that it is sufficient of itself to constitute specific prejudice in this case, it is nonetheless a factor which can be taken into account together with other matters in assessing as to whether the circumstances are such as to give rise to a presumption that the capacity of the applicant to defend himself has been impaired to the extent that there is a risk of an unfair trial.

The respondent has failed to satisfy the court that the delay is explicable in all the circumstances. It is accepted that the delay as such is to require such explanation: therefore the rights of the applicant to a trial with reasonable expedition has been violated. The Court therefore has to decide that here there are factors which, taken together even in the absence of specific prejudice, such as to persuade me that there is a serious risk of an unfair trial. The further prosecution of the applicant should therefore be prohibited.

If I am wrong in that conclusion it would be appropriate to conduct a further enquiry. In those circumstances the court would have to balance the unnecessary anxiety caused by the violation of the applicant's right to a reasonably expeditious trial with the public interest in the prosecution of those guilty of criminal offences. It is much easier to form some impression of the stress and anxiety in cases of prosecutorial delay where the charges have been preferred and await disposal, then in cases where the delay is not due to the prosecuting authorities. In cases such as the present where there is no evidence that the applicant was even interviewed in relation to the offences alleged up to the time of the garda investigation, and is presumed to be innocent, the task becomes much more difficult to quantify. However in the circumstances where the crimes alleged are of the utmost gravity, were alleged perpetrated by a person in loco parentis on a small child, were the alleged victim is still suffering symptoms attributable to the alleged assault, and where the applicant is responsible for a great part of the delay in my view the rights of the community to prosecute would prevail over the rights of the applicant. If, therefore, I am incorrect in my conclusion concerning [presumption] that the capacity of the applicant to defend himself was impaired to such an extent that the trial should be halted, in my view the rights of the community to prosecute would prevail over the breach of the applicant's right to a trial with reasonable expedition.