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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (T.) v. D.P.P & Ors [2004] IEHC 50 (26 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/50.html Cite as: [2004] IEHC 50

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HC 168/04

[2001 No. 63 JR]

THE HIGH COURT JUDICIAL REVIEW

BETWEEN

T.S.

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

FIRST NAMED RESPONDENT

AND HIS HONOUR JUDGE HARVEY KENNY

SECOND NAMED RESPONDENT

AND DISTRICT JUDGE ALBERT O'DEA

THIRD NAMED RESPONDENT

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 26^th of February, 2004.

By order of this Court (O'Higgins J.) on 5^th February, 2001, the applicant was given leave to institute these proceedings for judicial review for the relief of

1. An order of certiorari quashing the order of the third named respondent made on 3^rd January, 2001, returning the applicant for trial to the Circuit Court in respect of offences referred to in the said order,

2. An order of prohibition prohibiting and restraining the second named respondent from proceeding with and hearing the trial of the applicant on the offences in the said order of the third named respondent, and

3. An injunction restraining the first named respondent from further proceeding with the prosecution on the said offences against the applicant.

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

1. The applicant has been deprived of his right to trial with due expedition because of the delay between the alleged commission of the offences referred to in the said return for trial and the trial of the applicant;

2. The applicant has been prejudiced by the delay in his being brought to trial and would be denied a fair trial if he were to be tried in respect of the said offences having regard to the lapse of time between the alleged commission of the said offences and the trial of same.

The application is grounded upon an affidavit of Judith Foley, solicitor, who indicates that the applicant is a married man and a farmer living in the County of Clare. She indicates that on 20^th October, 2000, a District Court summons containing 61 charges of indecent assault was issued against the applicant. This summons was returnable to the District Court on 1^st November, 2000, and was adjourned on that date at the request of the first named respondent to the 3^rd January, 2001, for the presentation of the Book of Evidence. She indicates that a Book of Evidence was duly served on the applicant and by order of the District Court made on 3^rd January, 2001, the applicant was returned for trial to the Circuit Court commencing at Ennis on 6^th February, 2001, in respect of the 61 charges of indecent assault referred to in the said summons.

The charges against the applicant concern three complainants, namely B.H., her sister M.D. and their first cousin I.G. Charges 1 to 36 inclusive allege that the applicant indecently assaulted B.H. Charge no. 1 alleges that the applicant committed an offence of indecent assault on a date unknown between 1^st January, 1955 and 31^st March, 1955. The most recent offence alleged against the applicant is set out at charge no. 36, which alleges that on a date unknown between 1^st October, 1963 and 31^st December, 1963, the applicant committed an offence of indecent assault upon the said B.H. Charges 1 to 36 inclusive encompass dates between 1^st January, 1955 and 31^st December, 1963.

Charges no. 37 to 60 inclusive allege that the applicant indecently assaulted M.D., a sister of the said B.H. on the dates therein referred to. The earlier offence insofar as the said M.D. is concerned alleges that the applicant assaulted her on a date unknown between 1^st January, 1958 and 31^st March, 1958. The most recent charge insofar as the said M.D. is concerned alleges that the applicant indecently assaulted her between 1^st October, 1963 and 31^st December, 1963. All of the said offences are alleged to have occurred in the County of Clare.

Charge no. 61 is a single charge which alleges that the applicant indecently assaulted I.G., first cousin of the said M.D. and B.H., between 1^st January, 1962 and 31^st December, 1962 when the said I.G. was about ten years of age.

It is stated that the first occasion in which the applicant became aware of the allegations made against him was in or about the month of May 1999 when he was contacted by the gardaí. On Wednesday 2^nd June, 1999, by prior arrangement he called to the garda station at Lahinch and was interviewed by members of the gardaí. The allegations made against him were outlined and an extensive memorandum of an interview with him was recorded by members of the gardaí who interviewed him. This memorandum was signed by the applicant. In his interview the applicant denied emphatically the charges alleged against him.

B.H. alleges that she can remember as far back as the mid 1950s when she was approximately nine or ten years of age. She alleges that the applicant, who was a neighbour of her family, indecently assaulted her until she was about fourteen or fifteen years of age. She states that she left home when she was eighteen years of age in 1965 but returned to live at home in 1983. It is stated that the applicant set up his own home in 1973 on land adjoining the H. family farm. It is stated that this family always wished to purchase this property and it is claimed that there has been a considerable amount of unhappy differences between the H. family and the applicant since they became close neighbours. It is stated that there have been numerous difficulties between B.H. and the applicant over a period of years in the nature of property disputes. It is stated that this resulted in them being summonsed for assault on each other at the District Court on 5^th July, 2000. On this occasion the applicant was convicted of assault and fined £500 and bound to keep the peace for three years. It is stated that B.H. was subject to a similar order upon condition that she would not burn fires which would affect the applicant's property.

With regard to the complainant M.D., she complains that the applicant sexually abused her when she was about nine years of age until she was about thirteen years of age.

With regard to I.G. she alleges that when she was about ten years of age the applicant sexually interfered with her.

It appears that the applicant has instructed his solicitor that the complaints are brought by the complainants out of spite and malice and directed towards the applicant arising out of long standing difficulties between him and the H. family. At the time of swearing of the grounding affidavit the applicant was 73 years of age. It is stated that the applicant is obliged to take full time care of his wife who is terminally ill with multiple sclerosis. It is stated that owing to the incapacity of his wife it is difficult for him to leave her alone at any time.

It is stated that the applicant also suffers from medical difficulties and suffers from arthritis.

The applicant's solicitor says that there is no explanation as to why the complainants delayed until 1999 until they made a complaint to the gardaí. It is stated that the long lapse of time between the alleged commission of the offences and the time of bringing of same to trial greatly prejudices the applicant's prospects of defending himself in respect of the said charges and of obtaining a fair trial thereon. It is further pleaded that the applicant is greatly disadvantaged in meeting the said charges at this juncture, having regard to the fact that the applicant is not in good health himself and further having regard to the fact that his wife, who is seriously ill, is totally dependent upon him. It is alleged that the charging of the applicant after such a lapse of time causes the greatest disadvantage to him. The applicant's solicitor says that having regard to the long lapse of time it will be difficult for the applicant to bring to court witnesses who might assist him in his defence and it is further difficult for him, having regard to such a long lapse of time, to remember specific matters in respect of the dates of the said alleged offences. It appears from the affidavit that when the order returning the applicant for trial was made it was intimated to the District Court that the applicant proposed to apply to this Court for the order sought herein.

A statement of opposition has been filed on behalf of the first named respondent (hereinafter referred to as the Director) in which the following grounds are advanced. The third named respondent is constrained in his function by the Criminal Procedure Act, 1967 to assess whether the accused should be sent forward for trial on the basis of the evidence presented and consequently acted within jurisdiction and reasonably. On this basis it is pleaded that no order of certiorari should lie as against the return for trial. It is pleaded that the applicant misconstrues the third named respondent's functions under the Act of 1967 and discloses no ground for certiorari. It is denied that the applicant has been deprived of his right to trial with due expedition because of the delay between the alleged commission of the offences referred to in the said return for trial and the trial of the applicant. It is furthermore pleaded that the application herein is based on hearsay evidence insofar as no affidavit has been sworn by the applicant herein. It is further pleaded that the application is in the nature of a quia timet application. It is pleaded that in the normal course the matter would be dealt with, including issues of delay, by the court of trial. It is further pleaded that the application is out of time and made contrary to O. 84 of the Rules of the Superior Courts. Insofar as there was delay it is pleaded that the same was caused or contributed to by the effects of the alleged incidents on the complainants and it is pleaded the applicant does not have a right to avoid prosecution resulting from the effects of the alleged offences. It is further pleaded that the applicant has failed to identify with any or any sufficient particularity the specific prejudice complained of.

The complainant I.G. confirms as true her statement in the Book of Evidence and two further statements made by her to the Garda Síochána on 13^th May, 2001, and the 15^th August, 2001, which are exhibited by her. She states that she was not aware that M.D. was a victim of sexual assault by the applicant until after February of 1999, after the applicant had assaulted B.H. at her home in January, 1999. She states that B.H. and she were always afraid of the applicant because of what he had done to them and that they tried to avoid him at all times. She states that at the times the assaults took place it was not something that was discussed and reporting it was not an option at that time. She states that she would have hinted to her mother as to what was happening and that she said she had discussed it with her father. She states that her mother wanted to tell the local priest but her father would not agree. The complainant states that she put it at the back of her mind for a few years until she had children of her own. She states that when she had children of her own she would not let them near the applicant's house when they visited their grandfather beside the applicant's home. She states that it all came to head again when B.H. was assaulted by the applicant in January of 1999. She states that it was only that then she became aware that M.D. was also a victim of the applicant. She states that B.H. told her about M.D. and it was then that they decided to report the matter to the gardaí.

This complainant refers to a psychological report prepared by Rosaleen McElvaney, clinical psychologist and confirms that the facts contained therein are accurate and correct.

The complainant M.D. states that she is a nurse. She refers to the two statements given by her to An Garda Síochána on 13^th May, 2001, and 15^th August, 2001. She confirms the truth of these statements and exhibits same. She also confirms as true the content of her statements in the Book of Evidence.

M.D. states that when they were being abused by the applicant all those years ago she thought she was the only one being abused. She states that she did not know that the applicant was abusing her sister or her cousin. She states that she never discussed it back then with them or with anyone. She states that she was always on her own when the applicant abused her. She states that it was not until the applicant assaulted her sister B.H. on 8^th January, 1999, that she and B.H. were discussing the case on 29^th January, 1999, when she broke down and cried. She states that B.H. asked her what was wrong with her and that she said that the applicant should be in jail as he abused her when she was young. B.H. said to her that she thought that she had escaped and then informed her how the applicant had abused her. The witness indicates that this was the first time she was aware that she was not the only one abused.

She states that she could not report the abuse when she was young as she felt she was the only one and felt so embarrassed. She says that after speaking to B.H. that day she came home and told her husband. She then contacted the local gardaí and spoke to a Garda Doyle. She states that for years she has suffered in silence over what the applicant did to her. She says that now that she has spoken about it and knows that she was not alone it is a help to her but she still gets very depressed, angry and frustrated every time she thinks about it and she is not sure that this feeling will ever leave her.

The witness states that the facts contained in the psychological report referred by Rosaleen McElvaney dated 18^th July, 2001, are accurate and correct with the following exceptions: at the start of the report under the heading "Background to the referral" the second and third lines read "Mrs. (D) has alleged that she was sexually abused by (the applicant) from the age of nine until thirteen several times each week and took the form of fondling genitals, exhibitionism, masturbation, frottage." It is correct to say that the abuse took place a number of times over the years when she was between nine and thirteen years and not several times each week as stated.

B.H. has sworn an affidavit in which she describes herself as a retired nurse. She refers to statements given by her to An Garda Síochána on 13^th May, 2001, and the 15^th August, 2001, and states that the contents thereof are true. She also confirms as true her statements in the Book of Evidence. She states that the reasons she did not report the applicant abusing her at the time was because her mother was alive and only died in 1997. She states that she told her mother about what the applicant had done to her at the time and she was against doing anything about it at the time because of the stigma attached to incidents at that time. She states that all the abuse took place while she was on her own. She says that she was aware at an early stage that I.G. and a third party were also abused by the applicant and they often discussed it.

This complainant states that her sister M.D. never confided in her that she was abused, but she always felt that she could not have escaped. She confirms that the first time M.D. told her about being abused by the applicant was after he assaulted her on 9^th January, 1999. She states that when they were talking about the assault on her, M.D. told her that the applicant had sexually abused her as a child. She states that this did not come as a surprise to her. She confirms that M.D. was upset to talk about it and even today, M.D. gets very upset when she talks about it. She states that this time her mother had passed away. M.D. was very upset and every time she thought about it she would get upset and they felt they had to report it.

B.H. states that where she resides now has been in her family for the past seven to eight generations. She says that in 1973 approximately the applicant purchased a house and land next door to their house. At that time her family had no bid on this farm and she cannot recall there ever being any dispute or differences over land.

This witness confirms as accurate and correct the facts referred to in this psychologists report prepared by Rosaleen McElvaney, dated 18^th July, 2001.

An affidavit has been sworn by Sergeant Brendan McDonagh of the Garda Síochána. He states that he was responsible for the prosecution of the criminal proceedings the subject matter of this application.

In his affidavit Sergeant McDonagh confirms that the applicant was fined £500 on 5^th July, 2000, on a charge of assault on B.H. He confirms that on the same date she entered into a bond to keep the peace for three years, a condition of the bond being that she lit no fires. He states that a case of assault against her on the applicant was dismissed. He states that this was the only time both parties appeared in court and that B.H. was not convicted of any charge.

Sergeant McDonagh confirms that the applicant's position and the fact that he was born on 19^th December, 1927. He confirms his wife's health condition and the fact that she gets around with the use of a wheelchair. He states that she is regularly in hospital with her complaint.

The applicant has undergone corrective surgery for his medical difficulties.

Sergeant McDonagh confirms that the matter was first reported to Garda Sharon Doyle at Ennis Garda Station and that a statement of complaint from B.H. was taken on 8^th February, 1999, a statement made by M.D. on 18^th February, 1999 and a statement of complaint made by I.G. on 6^th February, 1999. He confirms that on 30^th April, 1999, a statement and report was sent by Garda Doyle to the superintendent of the applicant's local garda station. He states that from 6^th May, 1999 to September, 1999 the matter was being investigated by Garda Fawl and himself. He states that the school teacher and pupils who attended the school were interviewed. He states that on 2^nd June, 1999, he and Garda Fawl conducted an interview (with the applicant). He states then on 24^th September, 1999, the completed file was sent to the local superintendent. On 6^th October, 1999, the file was sent to the State Solicitor.

On 21^st October, 1999, a minute was received directing psychological reports. On 8^th February, 2000, psychological reports were forwarded to the State Solicitor. He states that on 13^th March, 2000, a map and further interview with the school teacher were requested and the same were furnished on 12^th April, 2000. In July, 2000 directions were received to prosecute and on 23^rd October, 2000, an application for a summons was made to the District Court returnable for Ennistymon District Court on 1^st November, 2000. It is stated that on 1^st November, 2000, the first hearing of the District Court case was adjourned to 5^th January, 2001 for service of the Book of Evidence.

Sergeant McDonagh was cross-examined on his affidavit. He indicates that arrangements were made to take statements from each of the complainants between the 8^th and 18^th February, 1999. On the 30^th April, 1999, a statement and report was sent to the local superintendent. This was for the purpose of having statements investigated. This was the district where the alleged assaults took place. The witness indicated that in the course of the investigation seven people were interviewed in all. These were in addition to the complainants. The time taken related to the fact that the gardaí had to look back at the situation as to who was at school back at the time in question in its ascertaining of whom they should interview. Garda Fawl was stationed in Lahinch and Sergeant McDonagh was stationed in Corofin. They were not on the investigation full time as they had other duties to do in their stations. The period before the applicant was interviewed related to a time when the gardaí were carrying out their investigation and there was a case pending in the District Court where the applicant and B.H. were up in court in relation to an assault. During this time the gardaí were preparing their file and preparing their notes and they prepared a memorandum of questions to ask the applicant when they did interview him.

On 24^th September, 1999, the completed file was sent to the local superintendent. Had the sergeant been in a position to give the matter full time attention at the time, it is possible that it could have been done earlier but there was other work to be done. On 6^th October, 1999, the file was sent to the local State Solicitor by the superintendent and on 21^st October, 1999, a minute was received directing psychological reports. This was from the State Solicitor's Office. The local State Solicitor at the time requested the furnishing of the reports prepared by Dr. Deirdre O'Donnell as he had to forward this to the Director of Public Prosecutions who wanted to expedite the process. This psychologist had already seen the complainant at that time. It appears in fact that at that time in October, 1999 she was due to see each of the complainants. Her reports became available on 15^th January, 2000. On 8^th February they were sent to the State Solicitor, having been received shortly after the completion of the reports.

It appears that in March, 2000 a request from the Chief State Solicitor directed that further interviews be carried out with the school teacher.

Rosaleen McElvaney, clinical psychologist of the Dubh Linn Institute, Glasnevin, Dublin 9, carried out a psychological assessment of each of the complainants. She indicates that she interviewed I.G., M.D. and B.H. on 4^th and 12^th July, 2001, each for a period of approximately two and a half hours in total. She has prepared reports relating to each complainant for this court.

Each of the reports follows a similar format and sets out in detail the qualifications of Ms. McElvaney. In her reports she refers to interviews with each of the complainants in which she sets out their personal history.

I.G. described herself to Ms. McElvaney as always being close to her parents, spending more time with her father. She refers to I.G.'s schooling and her subsequent work record after which she went to England and returned in 1974 and married her husband. She states that they lived in London until 1977 when they returned home with their two small children. She refers to other significant life events for I.G., including her sister having been diagnosed with cancer ten years ago. She refers to the fact that she herself had a malignant melanoma removed over three years ago. She subsequently had a hysterectomy.

Under the heading "Factors Influencing Impact," the witness states that it is her opinion that the following factors would influence the extent to which I.G. would be negatively affected by her alleged experiences of child sexual abuse. She refers to the fact that I.G. reported fear of the applicant, the large age difference between her and the applicant, her vulnerable age with respect to emerging sexuality, the applicant's social standing as a neighbour giving him authority over her, her experiences of her teacher of whom she was afraid and whom she described as unstable, unpredictable and physically abusive. She described the applicant as referring to sexual matters involving other women, which in the opinion Ms. McElvaney constituted a breach of sexual boundaries through conversation and contributed to the psychological impact of contact sexual abuse. The witness refers to positive aspects including secure relationships in the life of I.G. which continued to support her in her life. She refers to the fact that she was able to pursue a career and enjoyed a stable and supportive relationship with her husband and family. She refers to various factors and states that these would mediate the extent to which she would be negatively affected by experiences of child sexual abuse. The witness refers to the fact that I.G. describes herself as having been a very negative force in her children's lives. It appears that she has been extremely paranoid and over-protective of her grandchildren and is suspicious of all men, in particular their fathers, even though she knows these thoughts are irrational.

Ms. McElvaney indicates that I.G. recalled that at the time she was being allegedly abused, she felt utterly miserable.

The "Trauma Symptom Inventory" (Briere,1995) was administered to I.G. to formally assess the range and severity of her difficulties at present. This inventory is used to assess post traumatic stress and other psychological sequela of traumatic events including, but not limited to, childhood abuse and other early traumatic events. It is indicated that I.G's profile is valid, indicating clinical levels of intrusive experiences, defensive avoidance, and tension reduction behaviour. Items on the "Intrusive Experience" scale measure intrusive symptoms associated with post traumatic stress, such as flashbacks, nightmares and intrusive thoughts, those on the "Defence Avoidance" scale measure post traumatic avoidance, both cognitive (. family farmj. it was stated that e.g. putting painful thoughts or memories out of one's mind) and behavioural (e.g. avoidance of stimuli reminiscent of a traumatic event). Items on the "Tension Reduction Behaviour" scale measure the tendency to turn to external methods of reducing internal tension or distress, such as angry outbursts. Her scores on the scales, "Anxious Arousal," "Anger Irritability," "Dissociation," and "Sexual Concerns" come within the borderline clinical range.

The witness indicated that these results indicate that I.G. continues to suffer from symptomatology directly associated with alleged experiences of sexual abuse which indicate the need for therapeutic intervention. She states that it is noteworthy that I.G. has a strong tendency to use avoidance as a psychological coping strategy and that this strategy is no longer as effective as it appears it once was for her in dealing with the memories of alleged childhood abuse. According to I.G., she was an "expert" at putting things out of her head.

Under the heading of "Delay in Reporting", this witness indicates that it would also appear that as a child I.G. was very frightened of the applicant and would have been inhibited from reporting this matter to an adult because of this fear and the applicant's position as an adult neighbour. She noted that the applicant had also abused her older sister who spoke with the garda but did not feel able to make a formal complaint. I.G. became tearful when discussing how her sister had suffered at his hands. She recalled giving out about the applicant saying that "no-one is safe" around him but only recently was able to discuss the details of her experiences.

She told her husband when the family returned to Ireland that the applicant was a "dirty old thing" but did not give any specific information. She told him more a few years ago but had only given him the full details when she made her formal complaint. However, she said that she discussed it with her husband's sister who died six years and also discussed it with a female friend approximately five years ago prompted by media coverage of the subject.

When asked why she reported it when she did, I.G. noted that she did not realise how dangerous the applicant still was until the incident when he assaulted her cousin B.H. which shocked her. She indicated that it had never occurred to her to report the matter, she did not realise there was anything she could do about it. According to I.G., it has only been in recent years that reporting childhood sexual abuse has become possible. She said that she made her statement because she believed that it would help to prevent the applicant being a danger to others, in particular B.H.

In her conclusions Ms. McElvaney indicates that I.G. is experiencing some post-traumatic symptomatology, which appears to be directly associated with experiences of childhood sexual abuse by the applicant. She states that it would appear that I.G. has managed to cope with the psychological impact of this alleged abuse through avoidance strategies and she was facilitated in this, in her opinion, by her own positive life experiences such as her nursing training and supportive relationship with her husband as well as her physical distance from the applicant whilst she was living in England. The witness continues that it appears that when I.G. returned to live in Ireland she suffered considerable anxiety about the risk of sexual abuse to her own children and in later years to her grandchildren which in her opinion is extreme and has negatively influenced her judgment as a parent and grandparent. The delay in her reporting the matter appears to be as a result of her avoiding thinking about her alleged experiences which in itself was a means of coping with the psychological impact of same, and her belief that there was nothing she could do about it. The witness concludes her report by stating as follows:

"In addition, she appears to have thought that (the applicant) did not present as a risk to others, a belief she says was challenged by the recent assault by (the applicant) on her cousin B.H. In my opinion taking account of (I.G.'s individual circumstances) the delay in reporting is reasonable."

Ms. McElvaney in her report in relation to the complainant M.D. sets forth the background referral and the documents which included the Book of Evidence, a psychological report and the documents required to ground the application of the judicial review.

Ms. McElvaney refers to the background of M.D. It appears from the report that she had a good relationship with her parents and her siblings although later in life she found her relationship with her sister B.H. to be difficult and irritable. There was no family history of psychiatric illness. M.D. described feeling guilty about her sister taking the responsibility for caring for her mother and her brother and that this inhibited her from taking holidays herself. She described her sister as heartbroken when her mother died.

M.D. described feeling very afraid of the applicant. She described herself as a quiet child and teenager who was obedient and never did anything out of the way. She described the applicant as an angry man who grinded his teeth which the children found frightening. The applicant was approximately 24 to 25 years older than her. She enjoyed secondary school. She did not recall the applicant ever saying anything to her about not to tell anyone, nor him giving her sweets or money and she feels she would remember this if he did. After she left home, she visited at weekends but always tried to avoid the applicant's house. She recalled when her mother was sick, looking for excuses not to go outside, but her mother asking her to go, and feeling obliged to help the applicant with putting in hay, yet hating to do it.

The complainant M.D. attended a psychologist, Deirdre O'Donnell, for three counselling sessions but she felt she was not able for it as she found it too upsetting. Ms. McElvaney identifies the following factors as influencing the extent to which M.D. would be negatively affected by her alleged experiences of child sexual abuse: the duration of the abuse, her age as a young girl just about to discover her own sexuality, the large age difference between the applicant and her, his standing as an adult neighbour who apparently regularly ordered the children to do things, all of which would have given him considerable authority over her, and her fear of the applicant.

Ms. McElvaney refers to other relevant life events in the life of M.D. and in this regard refers to alleged childhood experiences of physical abuse by a national school teacher and psychiatric illness suffered by her brother. On the positive side she describes a warm and loving relationship with her parents, her success in finding a career which she enjoys and the supportive relationship with her husband and family, which she has enjoyed for many years. Ms. McElvaney indicates that these experiences would significantly mediate the potential negative impact that her experiences of childhood sexual abuse might have.

M.D. described having confusing feelings about her sexual relationship with her husband and struggling with this over the years, trying to understand the differences between their sexual relationship and what had happened to her as a child. She could never show her husband the love which she felt for him because of this confusion and she has felt very angry with herself because she could not talk about it. She described having seen a television programme in recent years about sexual abuse. She had flashbacks of the applicant following this programme and only then understood the connection between her alleged experiences of sexual abuse and her sexual difficulties with her husband. She identified with what was discussed on the programme. She described how she can feel better when she is busy as she is better able to avoid thinking about the alleged abuse but that it is much more difficult when she is on her own. The fact that she has been working full time while rearing her children is something that she feels has helped her.

M.D. feels that she could have had a better relationship with her sister if she had known of her sister's alleged abuse. She feels very guilty for thinking ill of her sister, wondering why she was so bitter and feels she would have understood her sister better had she known.

M.D. described herself as having very little confidence in herself. She had difficulty showing love and affection for her family. She found it easier when the children were young, hugging and kissing them but feels this is much more difficult as they get older. She suffers from low self esteem and has sleepless nights, and has lost two stone in weight in the two years prior to her assessment. She feels guilty that she did not confide in her husband. She does not recall how the experiences affected her at the time and she does not remember ever thinking about it. She described feeling hypersensitive and paranoid about the possibility of either her children being sexually abused or her child abusing another child and feeling guilty about having these thoughts. She described a tendency to always fear the worst is going to happen.

The witness indicated that the "Trauma Symptom Inventory" was completed. This is used in the assessment of post traumatic stress and other psychological sequela of traumatic events including, but not limited to childhood abuse and other early traumatic events. It is indicated that M.D.'s profile was valid, indicating clinical levels of intrusive experiences, defensive avoidance and sexual concerns. The witness indicated that the pattern of response was consistent with having developed avoidance techniques as a strategy for coping with psychological distress in the past and these techniques have become less effective in recent times, resulting in intrusive thoughts and feelings about traumatic experiences.

M.D. referred the psychologist to the incident in which her sister B.H. confronted the applicant on the road which resulted in an assault on her when it is alleged that he hit her three times with the prong of a fork. The period from this event until the following 29^th January, 1999, was an extremely traumatic period for M.D. She did not sleep or eat for nearly four days. She struggled with whether to tell someone of her own alleged sexual abuse by the applicant. She indicated that she had never told anyone before this. She tried avoiding her sister during this time as she knew the conversation would inevitably focus on the applicant and she feared this greatly. She had tried to ring the Rape Crisis Centre but each time she picked up the phone she couldn't go through with it. She met her sister on 29^th January, and while discussing the applicant, M.D. broke down crying saying that the applicant should be in jail as he had abused her as a child. She told her sister. She had never told anyone not even her husband and B.H. told her to tell her husband or she would. M.D. told her husband that night with great difficulty. He wanted to ring a member of the Garda Síochána but M.D. asked him to leave it until the morning. The following day, a Saturday, he called to a neighbour, a detective garda. When asked had she ever thought of telling her parents, M.D. was emphatic that she had not. She referred to an incident when the applicant was exposing himself and her father was in the room and how terrified she felt that their father would see the applicant, wondering "what would he think of me?", as if it was her fault. She said she thought she was the only one. The more media attention was focused on the issue of sexual abuse, the more distressed she became, feeling the pressure to say what had happened to her but feeling frustrated by her inability to tell anyone. She recalled when seeing the television programme, previously referred to, she had to leave the room. She was angry with herself for not being able to report the matter.

M.D. discovered that her cousin I.G. had also been sexually abused when she reported it to the gardaí. She had thought that because her cousin lived further away, she did not have to tolerate any sexual abuse from the applicant. She did not consider not making a statement.

Ms. McElvaney indicates that the delay in reporting appears to be as a result of M.D.'s feelings of shame about what had happened to her as a child. The shame prevented her from being able to tell anyone of her experiences, even her husband with whom she describes having a close and warm relationship. It is associated with her feeling of being responsible for what happened. The witness indicates that this is a common reaction in children who have been sexually abused and a significant factor in inhibiting disclosure of child sexual abuse. It is, in her opinion, directly associated with the experience of sexual abuse.

In the conclusion of her report Ms. McElvaney indicates that M.D. is experiencing considerable distress at the present time which, in her opinion, is strongly associated with her alleged childhood experiences of sexual abuse. Her feelings of shame prevented her from being able to tell anyone of her alleged experiences of childhood sexual abuse until prior to when she made her formal complaint. It is indicated that she appears to have been able to cope with the impact of this alleged abuse by a means of avoidance, keeping herself busy and relying on her own personal resources which have served her well. The witness indicates however that this coping strategy has become less effective in recent years and the applicant's physical assault on her sister provided the catalyst for her to disclose her alleged experiences resulting in her making a formal complaint. The witness says that in her opinion, taking account of this complainant's individual circumstances, the delay is reasonable.

Dealing with the assessment of B.H., Ms. McElvaney indicates that she was seen for a psychological assessment at the request of the Chief State Solicitor. B.H. alleged that she was sexually abused by the applicant from the age of nine/ten years until she was fourteen/fifteen years old, several times each week and took the form of fondling genitals, exhibitionism, masturbation, digital-vaginal penetration.

B.H. was seen on 4^th and 12^th July, 2001. She became extremely distressed on occasion when discussing her experiences of alleged childhood sexual abuse and harassment in adulthood by the applicant.

Ms. McElvaney refers to B.H.'s description of her childhood. She described her primary school teacher from third class on as "a living terror" who was quite cruel to the children. B.H. did not attend secondary school as she was not able to cycle the seven miles to the nearest school. She worked in factories for several years, returning home for a summer to help care for her father who was ill, then moving to Shannon where she worked for seven to eight years and then in Ennis until 1983. She then lived at home and worked in a nursing home until 1990 and 1991 when she gave up work to care for her mother. She describes her working years as the happiest time in her life when she had a good social life.

B.H. indicated that she found it very difficulty to adjust to living at home full time which she described as a miserable time. She had a number of friends who got married and had children, leaving her feeling out of line. Her father died in 1986, while her mother died in 1997. According to B.H., a few years after her father's death, her mother developed a mild form of Alzheimer's disease.

B.H. described herself as having a very close relationship to her mother, closer than to her sister and described her mother as very supportive in helping her cope with her frustration towards the applicant who lived next door. The applicant had bought the house next door in the early 1970s at a time when B.H. was living away from home. This did not bother her and she had no idea when she returned to live at home the hardship she was putting herself in for in living beside the applicant. She told her mother of her childhood experiences of sexual abuse by the applicant when she returned to live at home in the early 1980s. She described feeling very anxious about children visiting her home, given the proximity of the applicant. She described him as using her and her mother and brother, coming into their house to make phone calls without asking permission, asking her to bring him places which her mother urged her to do despite having a sister living close by. B.H. described how, after her mother's death, she felt he had command over her. She felt like a prisoner in her own house. She fears going out at night, saying the applicant is always watching her although she feels somewhat more secure with the introduction of mobile phones. According to her the applicant has threatened her several times over the years saying "I'll have you one day" implying, according to B.H., that he would hit her. She indicates, however, that she was surprised on the day when he did hit her and this had never occurred before. She recalled one occasion when she spoke to him of his dumping rubbish in a nearby quarry and her concern that she could get blamed for this dumping and he hit the wall behind her with a stick saying "I'll split you". She said she had threatened to report him on one occasion in 1989/1990 about his own behaviour towards children, both boys and girls.

Under the heading "Factors Influencing Impact," the witness indicated the following factors influencing the extent to which B.H. would be negatively affected by her alleged experiences of child sexual abuse: the applicant's status as an adult and a neighbour gave him authority over B.H., and that she was a child of nine or ten when the abuse is alleged to have begun. In addition B.H. describes the applicant as frightening her and warning her not to tell of the abuse. B.H. was at a vulnerable age with regard to her developing sexuality and in the opinion of Ms. McElvaney, would have felt ashamed of this behaviour as she would have understood that it was wrong. The applicant's exhibitionism disgusted her as a child and in the opinion of the witness contributed to B.H.'s feelings of shame at being associated with him in his sexual behaviour. Her inability to tell about her experiences contributed to their negative impact.

Ms. McElvaney indicates that B.H. also appears to have suffered from her experiences in primary school from third class until she finished primary school, which appears to have coincided with the time she alleges that she was sexually abused. She indicates that the psychological impact of her experiences in school would have, in her opinion, contributed to the psychological impact of alleged sexual abuse at that time. The duration of the alleged abuse, over a period of five years and the nature of the abuse itself was repulsive to B.H. as a child and at the present time as an adult. Her lifestyle over the past eighteen years, caring for her mother and brother while having fewer social outlets has also been a psychological burden on her, as has the cumulative stress of living in such close proximity with the applicant which, in the opinion of Ms. McElvaney, has contributed to the psychological impact of alleged childhood sexual abuse. She indicates that B.H.'s helplessness in these circumstances and her mother's reported shame, were, in her opinion, contributing factors. She indicates that her brother's illness with schizophrenia and the resultant difficulty in coping with a family member with psychiatric illness and her mother's death would also influence the extent to which B.H. presents with post traumatic symptoms at the present time. She indicates that on the positive side, B.H. appears to have enjoyed good family relationships, particularly early in life and her continuing close relationship with her mother would appear to have mediated the negative impact of the alleged abuse as did her positive experiences of working and social life.

Dealing with the impact of the alleged abuse, the witness indicates that B.H. became very distressed when asked about the impact which her experiences of sexual abuse have had on her. She noted that she becomes very emotional at times when she thinks about what happened, finding relief sometimes from talking about it and at other times, she would have a "brain storm for a week", meaning she could not settle or concentrate. She does not recall how these alleged experiences impacted on her as a child, but does recall the constant watchfulness of the applicant, her fear of him and constantly trying to avoid him. According to her, he would appear out of nowhere. During the years when she had lived away from home, she thought very little of it, save only when she returned home at weekends as she hated to see him. She had enjoyed good health when she lived away from home but for the past eighteen years she has had to make a great effort to try to keep her best side out and to try hard not to be always giving out. She has found it very difficult to cope with living beside the applicant and would not have tolerated this if not for her love of her parents and brother and her wish to care for them. She indicated that if it was not for her brother, she would leave. She did try to get help for herself at one point, suggesting that she speak to her doctor, but her mother was so mortified at the thought of other people knowing, she begged her not to speak with the doctor so she agreed.

B.H. indicated that she did attend a psychologist for a few sessions since making her report, but was not able to pursue this due to the psychologist being unavailable. She also made some effort to contact the Rape Crisis Centre but appeared to be ambivalent about whether she believed this would be good for her or not. She described sleeping difficulties since the time she returned home. Although she acknowledged that this was partly due to her role in caring for her mother, it was also partly due to her unhappiness living so near to the applicant. She never had sleeping difficulties while she lived away from home. She noted that following the physical assault by the applicant, she did not sleep for some time but was reluctant to take medication.

The witness indicates that the Trauma Symptom Inventory was administered to B.H. to formally assess the range and severity of her difficulties at present. The witness indicates that B.H.'s profile is valid, indicating clinical levels of anxious arousal, depression, anger/irritability, intrusive experiences, defensive avoidance, dissociation, impaired self-reference and tension reduction behaviour. She indicates that overall the results indicate a high level of psychological distress as strongly indicating the need for therapeutic intervention. She indicates that of significance is B.H.'s tendency to use avoidance as a coping strategy for dealing with psychological distress.

Dealing with the delay in reporting, B.H. noted that it was common knowledge among her peers that the applicant was sexually abusing children, both girls and boys. She recalled discussing the applicant with her friend and also with her cousin. She also noted that I.G.'s sister was also abused but that she had said she couldn't face reporting it. B.H. said that she had to respect her decision. According to B.H. once the children left primary school, they went their separate ways and it was not referred to again until she spoke with her mother about the matter in the early 1980s. Ms. McElvaney expresses the opinion that B.H. was able to avoid thinking about the alleged experiences of sexual abuse during those years when she was content working and living away from home.

Her level of distress, in particular having intrusive thoughts and finding it very difficult to discuss the alleged abuse without becoming very upset is indicative of such avoidance earlier in life.

Ms. McElvaney indicates that B.H. did feel ashamed of these experiences as a child and young person and this shame and disgust and the applicant's status as an adult neighbour led to her feeling powerless to inform adults in her life of what was happening. It appears to Ms. McElvaney that having other children know about the alleged abuse in this instance did not facilitate B.H. as a child disclosing the abuse. She indicates that there appears to have been an acknowledgment among the children that no-one could do anything about it. She indicates that given the duration of the abuse, i.e. five years, it is also possible that B.H. as a child perceived herself to be responsible for what was happening, particularly after the first occasion when she did not tell an adult. This can be interpreted by children as allowing the abuse to continue but then acts as a further inhibiter to their being able to talk to an adult of the abuse. She believes that the applicant's relationship with B.H.'s family is also significant in this instance. She indicates her opinion that his standing as an adult neighbour made it more difficult for B.H. to tell her parents as a child or teenager. When she did tell, her mother was afraid of it being reported, because of the shame it would bring on the family. It is the witness's opinion that this shame is directly associated with the sexual nature of the allegations. B.H. described how she would have reported this matter years ago if it had not been for the stigma attached to sexual abuse and her mother's terror that other people would know of it. At first when she told her mother, her mother questioned her at length, asking why she had never told her. According to B.H., her mother begged her not to tell her sister's husband about the applicant as she feared that he would no longer wish to visit the family home. B.H. noted that her mother had told her father who had remarked that that was the way the applicant's mother's family were, saying that his own sisters could not go to a dance when they were in the village.

According to B.H. it is only since public awareness levels have increased about sexual abuse that people have become more supportive. She said that she was planning to report the matter following her mother's death but her own health and pending operation delayed her making a complaint. Her mother died in February, 1997 following which her mobility was restricted due to her need for a hip replacement, which she had in November, 1997. It took her some time to recover from her operation. She would have made her complaint against the applicant regardless of whether others also complained because of the strain of many years living beside him and having to tolerate his behaviour because of her ailing mother.

In her conclusion, Ms. McElvaney describes the complainant B.H. as a 54 year old woman who is presenting with significant psychological distress which appears to be associated with alleged experiences of childhood sexual abuse. She describes it as her opinion that these difficulties have been exacerbated by the experience of living beside the applicant for many years in adulthood due to B.H.'s role in caring for her elderly mother and her brother who has a diagnosis of schizophrenia and attends the local psychiatric service. She expresses her opinion that B.H. was prevented from being able to report the alleged abuse for many years due to the psychological impact of these experiences and that, although it appears she would have been able to do so in adulthood after the time she returned to live in the family home, the shame which her mother felt in relation to the alleged abuse prevented her from making a formal complaint as she believed to do so would destroy her mother. Ms. McElvaney indicates that B.H. is also clear that she had every intention of reporting the matter when she regained her full health, following her mother's death and her own hip replacement operation. She expresses the view that it appears to her that the physical assault by the applicant on B.H. gave her encouragement to make this complaint. She concludes by saying that she considers it reasonable therefore in this instance that B.H. did not report this matter until she did.

Ms. McElvaney was cross-examined on her affidavits and her reports.

The witness indicated that if something came to light during the course of her assessment that raised questions that the person was presenting an inconsistent report then it would be her duty to check that out. The witness had in her possession the Book of Evidence, a psychological report on each of the complainants and the documents grounding the application for judicial review. The psychological reports were written after the complaints were made. The assessments were made after the complaints were made also.

The witness indicated that the condition and lifestyle of the complainant over the previous period namely from the dates of the alleged abuse is relevant. The witness did not seek confirmation from anybody else as this would not be normal practice in conducting psychological assessments.

The witness saw each of the applicants on the 4^th and 12^th July, 2001. She saw each of the complainants for approximately an hour and a half on the first occasion and an hour on the second occasion. While the three complainants were seen on the one occasion, there may be advantages by seeing them on different dates and keeping them separate.

The witness indicated that she inquired into the existence of a psychiatric history in the families of the complainants. She inquired from each of the complainants. She did not feel it necessary to take an objective view from a professional. She took account of the fact that M.D. is a qualified psychiatric nurse.

The witness described the trauma inventory as a self report, a list of symptoms or difficulties that the people may experience as a result of trauma and the individuals being asked to rate on a scale of 0 to 3 how frequently, if at all, they experienced these difficulties. The scores that are given on the self-report are then compared with populations of other people to see how does the person report their own distress compared to other people's self-reports. The test is to try and get a sense of how distressed the person is and how they compare with other people of the same age and the same gender. The test will indicate whether the individual is experiencing difficulties to a clinical level where they would need therapeutic intervention or whether their experience of these difficulties is within the normal range or whether their scores fall somewhere between the normal range and the clinical range, that is the range that is referred to as borderline. If people score highly on these tests, if there is a lot of scores within the borderline range, one would consider therapeutic intervention. If there is a lot of scores in the clinical range one would definitely be saying that this is a strong indication of the need for therapeutic intervention.

The witness indicated that in I.G.'s case she believed the scores were very much within the borderline clinical range on some of the scales. The test is not specific to any particular trauma. Other events of trauma in a person's life could be responsible for some of the scores on the test but there are particular items which refer to a particular experience. The individual is asked which of the traumas which they have experienced they are referring to. The witness indicated that she did not recall whether she asked the content of dreams or nightmares experienced by the complainant. Where the particular item refers to a particular thought or a particular intrusive thought then she would always ask.

Dealing with the scale "Anxious Arousal," there are particular headings involving particular scales within the test to give an idea of the kinds of difficulties with which someone is presenting, but within each scale there are a number of items. The scale "Anxious Avoidance" is one of the ten scales. Each of these scales is made up of a number of items and then the total score of those items is what gives one the score for either "Defensive Avoidance" or "Anxious Arousal". The witness indicated a misprint in the report where the words "Anxious Avoidance" should read "Anxious Arousal" , being the first scale of the ten that are mentioned. In terms of the anxious arousal this is something that the person experiences in their life at the moment but in terms of where that comes from it could either be because that is the way they are or it could be because of an accumulation of experiences that they have had, namely, traumatic experiences.

The witness indicated that certain items of the overall results are related specifically to sexual abuse. These are items in terms of intrusive thoughts around the experience of sexual abuse and they relate to the reports of sexual abuse. This arises under the scale "Intrusive Experiences", the scale of which was in the clinical range.

Under this item the subject was asked initially about nightmares or bad dreams. The second item related to flashbacks, sudden memories or images of upsetting things. Another example is sudden disturbing memories when one is not expecting them. The nature of the question in the first place is "In the last six months, how often have you experienced nightmares or bad dreams?" When these matters refer to specific memories or specific thoughts, normal practice is to ask what memories of what is specific. This is a normal part of the witness's assessment.

There are 100 questions in the test. The test is written. Sometimes the answers are written out by the individual on their own and sometimes in the presence of the witness. The witness indicated that she discussed the results with the person in her presence. If, for example, the intrusive memories or thoughts from the past related to something other than sexual abuse then she would write that down but, if it was about sexual abuse, she would not normally write that down. In other words the witness would write down counter indicators to what is being investigated.

The witness indicated that the date on which somebody was able to make a complaint or discuss the matter with other persons is relevant to the whole issue that she was being asked to deal with. The witness understood that I.G. and her cousin discussed in general the fact that the applicant was a "dirty old thing".

The witness indicated that the complainant discussed the matter with her husband and that the discussion took place over a period of time with different levels of information being shared. When she returned to Ireland, reference was made to the applicant as a "dirty old thing" but she did not give him any specific information. She told him more a few years ago but had only given him the full details when she made her formal complaint.

The witness understood that I.G. had discussed the matter with her husband's sister, who had died six years before the assessment, and also with a family friend approximately five years before the assessment. Her capacity to discuss it with her husband as well as her husband's sister was relevant to the whole question of her ability to make a complaint.

The witness indicated that the reason I.G. made her statement was because she made a conscious decision that the applicant, after the assault case, was a dangerous person and that then was the time to report it. On balance she decided it was time to overcome any difficulties that she had before then in reporting. The witness indicated that she did not agree that someone else's account of something is necessarily objective evidence and in this context that the account of the complainant's husband would necessarily be objective evidence. She indicated that people's memories in relation to detail may differ. The witness indicated that the fact that she had disclosed the abuse to her husband would not then indicate that she automatically was able to make a formal complaint.

The witness indicated that she did not know the details given prior to the formal complaint to the complainant's husband or to her husband's sister or her friend when she had previously discussed the matter with them.

Dealing with the conclusion of her report the witness indicated that the delay on the part of the complainant in reporting the matters appears to be the result of her avoiding thinking about her alleged experiences and her belief that there was nothing she could do about it. The witness indicated that avoiding thinking is not a total blanking out. It is a conscious effort not to think about something, usually something unpleasant. The witness indicated that in this regard she was not talking about repression or suppression. She indicated that it was closer to the concept of suppression, repression being an unconscious process. She indicated that suppression is a conscious effort to put something aside, to put it on the shelf, not to think about it.

Dealing with the reporting of sexual abuse the witness indicated there are some people who don't speak of it for many years and perhaps tell one or two people but don't give the full details or make a formal complaint for a further number of years and by this she means a continuum. The witness indicated that she did not accept that the complainant, I.G. could make a complaint in the 1970s. She drew a distinction between being able to talk to one's husband about something and being able to make a formal complaint. The witness indicated that, according to I.G., it has only been in recent years that reporting childhood sexual abuse has become a possibility. She said that she made her statement because she believed that it would help to prevent the applicant being a danger to others, in particular to B.H.

The witness was then cross-examined about the complainant M.D.

Dealing with the complainant's history and the presence of any psychiatric illness in the family, she indicated that she did not have any of these concerns in relation to her assessment of I.G. or M.D. She indicated that as a qualified clinical psychologist she would be able to determine whether someone was in need of psychiatric evaluation or if further questions need to be addressed in relation to their psychiatric condition. The witness referred to the psychological experiences of M.D. including her relationship with her husband and being hypersensitive and paranoid about the possibility of children being sexually abused including her own children. She did not seek to verify this with other members of the family. Dealing with the trauma inventory the witness indicated that again in the context of this complainant she had incorrectly referred to "Anxious Avoidance" as opposed to "Anxious Arousal".

Dealing with the complainant B.H. the witness indicated that insofar as she was not concerned about the fact that the applicant moved to live next door, this indicated that at that time she was not in fear or there was no sense of dominance by the applicant. There was no anxiety or worry at that time when he was buying the farmland next door. She told her mother of her childhood experiences alleged against the applicant when she returned to live with her in the early 1980s. She was aware of what she thought was the problem with the applicant because she said then that she had some anxiety about children visiting her home given the proximity of the applicant.

The witness indicated that it appears that B.H.'s attitude toward the applicant hardened in view of the continued disputes over boundaries and the like. This persisted over quite a period of time.

With regard to the fact that this complainant had at some stage threatened to report the applicant's behaviour she was unclear whether this included her own experience or whether it was to do with his behaviour in relation to boys and girls generally. The complainant indicated that she would have reported the abuse many years prior to the time of the report were it not for the whole business of making a complaint about sex or sex matters in front of a neighbourhood or when her mother was still alive. The witness indicated that her mother's attitude was a factor which prevented the complainant from reporting the abuse. The witness indicated that she did not know that the complainant had made a conscious decision not to do anything about the abuse until after her mother was dead. The witness indicated that it was following her mother's death that this complainant was planning to report the abuse but her own health and hip replacement delayed her making the complaint. The witness indicated that she was not aware that there was any plan before her mother died that she was going to report it but, certainly following her mother's death she was going to report it at some stage. Her mother died in 1997. The witness indicated that each of the complainants was distressed in the course of the interviews with them.

Submission

On behalf of the applicant it is submitted by Mr. Hugh Hartnett S.C. that it would be unconscionable and oppressive that the applicant be required to stand trial for the offences in question in circumstances where they are alleged to have occurred between 38 and 45 years previously. It is submitted that the nature of the delay is such that it is inherently unconscionable that the applicant should have to face trial in circumstances where there is such a distance from the time of the alleged commission of these offences. It is submitted that the delay in this case is such that irrespective of any failure to establish actual or presumptive prejudice that the trial ought to be prohibited. Counsel refers to portion of the judgment of Finlay C.J. in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 at p. 245 where he stated as follows:

"I am driven to the further conclusion that, of necessity, instances may occur in which a delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk of or probability that the accused's capacity to defend himself would be impaired. This must lead of course to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined."

It is submitted on behalf of the applicant that the delay in this instance is such as to lead to inherent or presumptive prejudice. It is submitted that account should be taken of the impact of the passage of the very considerable length of time involved in this case and the recollection of witnesses. Any trial on the charges would not be a true forensic inquiry but would merely consist of assertions and denial in relation to events that occurred over thirty five years ago in circumstances where witnesses or other collateral material could not be established or properly investigated.

Counsel refers to the affidavit of Judith Foley in which she details specific prejudice which, it is alleged, the applicant will encounter in resisting the charges preferred against him. In this regard reference is made to the fact that the parents of the complainants would have been potential witnesses in any trial of the applicant on the charges preferred against him. It is stated that these persons are not available to give evidence at the proposed trial of the applicant as all of them are deceased. Further, it is submitted that neither the gardaí nor any person of authority were ever in a position to interview the said persons in connection with the allegations made against the applicant and the surrounding circumstances. It is submitted that the nature of the delay has been such that the gardaí have had a limited opportunity for carrying out a comprehensive investigation. It is submitted that in considering the question of prejudice regard must be had to the individual circumstances of the applicant and to the inevitable difficulties that this will cause for him in defending the charges against him. Regard should also be had to the prejudice to the applicant arising by reason of the fact that he will be obliged to face a trial of serious offences, which are alleged to have occurred a very long time ago, in circumstances where his own individual circumstances are difficult and disadvantageous for him. It is submitted that the applicant is obliged to defend the charges of considerable gravity when he is elderly, in poor health and contending with difficult family circumstances. It is stated that it is clear that there has been prosecutorial delay in this case which cannot be disregarded.

Counsel refers to the fact that the applicant has not caused any delay by the exercise of dominion over the complainant.

While the statement of opposition raises an issue that the evidence relied upon by the applicant constitutes hearsay evidence, it is submitted that the applicant has a constitutional right to remain silent in respect of the charges against him. It is submitted that the exercise by the applicant, in these proceedings of his constitutional right to remain silent cannot be relied upon by the first named respondent to disadvantage the applicant.

Counsel refers to the fact that the passage of time in the instant case is one of the longest coming before the courts. It is submitted that while the applicant is entitled to a trial with due expedition, the onus is on the respondent to show that the delay has been caused by the applicant. Counsel submits that the delay may be divided into two parts (a) the complainant's delay and (b) the prosecutorial delay. Counsel refers to the judgment of Keane J. in the case of P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and to the test propounded by him in that case. Counsel submits that in the instant case one does not only have presumptive prejudice, but also real prejudice. Counsel submits that where the delay is of a nature giving rise to a presumption of prejudice that it must be of significance. Dealing with the judgment of Keane J. counsel refers to the fact that where a trial is other than a trial with due expedition the issue is whether the prosecution can say that this has been caused by the delay for which the applicant is responsible.

Counsel refers to the fact that in the instant case all the complainants had lived with no psychiatric disease. There is no reference to any psychiatrist or psychologist having had to attend to them.

Counsel submits that the run of the evidence suggests that it was only as a result of a fight between B.H. and the applicant that the complaints were made in the first instance. It is submitted that in one case the decision was made not to make a complaint until after the complainant's mother had died. In this context counsel refers to the judgment of the Supreme Court in the case of J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 and to the judgment of the Supreme Court in the case of P.M. v. Malone [2002] 2 IR 560 in suggesting that it was not appropriate to consider against an applicant a delay where a conscious decision had been made not to make a complaint. Counsel submits that there has to be something more than mere shame or embarrassment before delay can be excused. Counsel refers to the fact that in the case of P.C. v. Director of Public Prosecutions [1999] 2 IR 25 it was indicated that the counselling of the complainant enabled her to make a complaint.

Counsel refers to the judgment of Keane C.J. in P.M. v. Malone [2002] 2 IR 560 where at p. 574 of the report the Chief Justice observed as follows:

"There undoubtedly exists a category of cases, to which the present was found in the High Court to belong, arising out of contacts of a sexual nature with young children, in which special factors may arise which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed. The law on this topic has been considered at length and in detail in a number of recent decisions of this court. I would, in this context, refer to a passage in the judgment which I gave in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 at p. 67:

'The approach that must be adopted by a court asked to prohibit the trial of a person charged which such offences was dealt with comprehensively by Denham J., speaking for this court in B. v. Director of Public Prosecutions [1997] 3 I.R. 140 and has been considered by her again today. It is unnecessary to traverse that ground again in any detail. Clearly, the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed. Moreover, even in cases of unlawful carnal knowledge or sexual assault where the complainant is a girl under the age of consent, it is to be borne in mind that the alleged perpetrator may himself be a child. 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 unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases, there may be threats, actual or implied, of punishment if the alleged offences are reported.

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 a degree of trust on the part of the child may be more readily inferred'."

In the course of his judgment of P.M. v. Malone the Chief Justice continued as follows at p. 575:

"I went on to emphasise that it was not simply the nature of the offence which discharged the onus resting on the prosecution to explain the delay: all the circumstances of the particular case had to be considered."

Later at the end of p. 575 the Chief Justice stated as follows:

"It is, of course, the case that even though actual dominion by an accused over a complainant may have come to an end, its consequences may persist, thus rendering delay on the part of the complainant explicable. A notable example is P.C. v. Director of Public Prosecutions [1999] 2 IR 25 where the alleged victim complained to her headmistress, to the father of one of her schoolmates who was a garda sergeant and to her parents. In that case, the uncontested evidence of the psychologist was that the refusal of the persons concerned to take any action following her complaints resulted in the 'repression' in psychoanalytical terms, of the complainant's memory of the incidents concerned. It was not until she received professional counselling some years later that she was psychologically capable of formally complaining to the gardaí.

In his judgment in J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122, Hardiman J. has pointed out that even the concept of 'repression' has been the subject of acute controversy in the psychiatric and allied professionals on both sides of the Atlantic. In the present case, it is sufficient to say that, on the undisputed evidence, it does not arise in any way. Mr. Foley refers nowhere to the concept in his affidavit or in his report: he contents himself with a conclusion that the complainant's refusal to make a formal complaint to the gardaí in 1991/1992 was 'reasonable'. That, in turn is based on the complainant's belief that to make a complaint would cause difficulties within the family.

It is clear that if that was the ground on which the complainant declined to make a formal complaint to the gardaí in 1992, it would not bring the case within the exceptional category where the court would be entitled to regard the delay as, not merely explicable, but referable to the accused's own conduct."

Counsel contrasts the circumstances of B. v. Director of Public Prosecutions [1997] 3 I.R. 140 where the complainants were not psychologically capable of approaching the authorities in making the complaint until after 1991 and the circumstances of the instant case where it was submitted that the complainants were in a position to make the complaints at an earlier stage than they did.

Counsel has referred this court to portions of the judgment of McGuinness J. in J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 where the learned Supreme Court judge addressed the concept of dominion and contrasted the situation in that case with B. v. Director of Public Prosecutions, [1997] 3 I.R. 140 to the circumstances in J.L. v. Director of Public Prosecutions where dominion was not a factor.

McGuinness J. in that case addressed the particular features present, namely, a single attack by a virtual stranger and the circumstances whereby the defence of the applicant was prejudiced by the delay complained of. At p. 142 McGuinness J. stated, having referred to the various factors present in that case, as follows:

"Taking all these factors together, but relying in particular on the matter of the whereabouts of the caravan, it seems to me that the applicant has established on the balance of probabilities that his defence in any trial held after so long a lapse of time would be seriously prejudiced and that there is a real and serious risk that his trial would be unfair."

On this basis the court allowed the appeal of the applicant in that case. Hardiman J., who gave a separate judgment, indicated that he agreed with the judgment of McGuinness J. in that case. In the course of his judgment he referred to the approach adopted by the Supreme Court in the case of P.C. v. Director of Public Prosecutions [1999] 2 IR 25.

Counsel submits that in the instant case there is an absence of evidence of psychological inability on the part of the complainants to make an earlier complaint to the Garda Síochána.

Dealing with the methodology employed by the psychologists in the instant case counsel criticises the use of the word "reasonable" insofar as it relates to the conclusion of the psychologist. It is submitted that the concept has no psychological basis and that the onus in this regard rests upon the prosecution.

Counsel criticises the situation whereby the psychologist did not obtain dates in relation to when the complainants told others of the abuse. In particular, reference was made to the circumstances in which the complainant I.G. told her husband about the abuse alleged. Counsel complains that no date was obtained in reference to when this disclosure was made. Furthermore, counsel complains that insofar as the psychologist refers to the fact that this complainant discussed the abuse with her husband's sister who died six years ago and also discussed it with a female friend approximately five years ago, prompted by media coverage of the subject, the dates when these disclosures or discussions are alleged to have taken place are not indicated. Furthermore, the report in relation to I.G. does not indicate the particulars of what these people were told by the complainant at that time. Counsel states that this arises in circumstances where the matters were conceded to be important in the assessment of the capacity of the complainant to make a formal complaint.

Counsel refers to the judgment of Hardiman J. in the case of J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 where at p. 149 of his judgment he adopted as correct the statement of McCracken J. in M.F v. Director of Public Prosecutions (Unreported, High Court, 5^th December, 1997) where the learned High Court judge stated:

"It is my strongly held view that where a witness purported 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 which he is being asked to put forward or not."

Counsel suggests that the psychologist in the instant case should have made a collateral inquiry rather than accepting the complainants' versions of events. Counsel refers at some length to the judgment of Hardiman J. in the case of J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 and the particular criticism that he expressed in that case of the evidence of the psychologist.

Dealing with the issue of prejudice, counsel submits that having regard to the passage of time in the instant case that this is a strong case for a presumption or an assumption of prejudice in the ability of the applicant to defend himself. Secondly, counsel refers to the particular circumstances of the applicant himself which have already been referred to in this judgment. With regard to actual prejudice counsel refers to the death of the parents of the applicant and the complainants.

Counsel submits that while there may be a need to prove a real risk of prejudice that this does not amount to establishing a demonstrated certainty.

Dealing with the issues of prejudice it is submitted that insofar as it is alleged that the applicant exposed himself in the kitchen of the house in the presence of M.D. at a time when her father was present, that were he alive he would be in a position to deal with this. Furthermore, counsel refers to the fact that two witnesses allege that the teacher in the local school sent them for cigarettes and that they were sexually assaulted when going for cigarettes on her behalf. Counsel refers to the fact that the school in question closed in 1989. It is stated that the teacher in question is not available to give evidence. Further, it is stated with reference to the complainant, I.G., that an incident is alleged to have occurred in the house of a person, Sarah Kennedy, who is now dead. It is furthermore stated that I.G.'s sister-in-law, in whom B.H. alleges she confided some years ago, is also deceased.

With reference to the reliance by the applicant upon affidavits sworn on his behalf by a solicitor, counsel relies upon the judgment of Hardiman J. in the case of P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 at 107, insofar as he indicated that in applications such as this it is not unreasonable that the applicants rely upon affidavits sworn by solicitors on their behalf.

Counsel submits that there has been prosecutorial delay in the instant case amounting to approximately 20 months in all. Counsel refers to the evidence of Sergeant Brendan McDonagh and categorises his evidence as candid and honest. He refers to the fact that he was not advised of the necessity of fast tracking his investigation and dealt with the matter in circumstances where he was attending to other duties and therefore on a part time basis. Counsel submitted that he did not criticise the gardaí for this but that there is an obligation on the prosecution not to cause any further delay in a case such as the instant case. In this regard counsel refers to the judgment of Geoghegan J. in the case of P.P. v. Director of Public Prosecutions [2000] 1 IR 403.

Dealing further with the requirement for expedition counsel refers to the judgment of Geoghegan J., with which the Keane C.J. and Murray J. agreed, in the case of B. F. v. Director of Public Prosecutions [2001] 1 IR 656.

Counsel refers to the age of the applicant and submits that special circumstances in the instant case require that the State proceed with all haste. Counsel refers to the effect of the passage of time, resulting in certain islands of fact and where assertions have to be addressed in the context of denials on the part of the applicant. It is submitted that all relevant personalities are either dead or gone. On this basis it is submitted that this case falls classically within the categories as referred to by Hardiman. J. in his judgment in the case of J.L. v. Director of Public Prosecutions [2000] 3 I.R 122. Counsel refers to the fact that inevitably memories will have faded due to the considerable passage of time and that it represents quite a task for the accused's advisors to sit down and it must be impossible for them to address the issue.

In reply, it is submitted by Mr. Diarmuid Rossa Phelan, counsel for the Director of Public Prosecutions, that having regard to the statement of grounds upon which this applicant was given leave, that the case must be confined to that for which leave was granted, which raised a general plea of delay and no assertion of prejudice was made at the time of leave. It is submitted that the prosecution in the instant case was brought in a usual manner. Counsel accepts the time lapse in this case gives rise to a requirement on the part of the prosecution to explain the time that has elapsed. Counsel submits that this is adequately explained by each of the complainants by reference to their statements in the Book of Evidence, their affidavits and the facts referred to in the reports of the psychologist. It is furthermore submitted that the psychologist herself has explained the delay in the instant case.

Counsel submits that having regard to the various factors referred to in the affidavits of the complainants and in the affidavits and reports of the psychologist that this amounts to a sufficient explanation for the delay complained of and that it must be concluded that the delay complained of is one referable to the alleged conduct of the applicant.

Counsel submits that any effect of the delay is one that can be addressed in an appropriate manner by the judge conducting the trial in circumstances where the delay in the instant case is one that does not necessarily give rise to a situation where the applicant cannot obtain a fair trial. Counsel refers to the fact that the crimes alleged against the applicant are stated to have been committed in private.

Dealing with the nature of the evidence put forward on behalf of the applicant, counsel refers to the fact that no evidence has been put forward by the applicant himself and he relies entirely on the affidavit of a solicitor. It is clear that his case rests upon the affidavits sworn by his solicitor on his behalf and these are entirely reliant upon the say-so of the applicant himself. It is submitted that the assertions of prejudice put forward in the affidavits are not stated in the statement of grounds grounding the application for leave. Counsel refers to the fact that none of the complainants in the instant case has been cross-examined.

Counsel submits that it is misconceived to say, by reference to the cross-examination of the psychologist in the instant case, that she has not done a sufficient job in her assessment of each of the complainants. Counsel further submits that it is incorrect to say that the complainants have not been psychologically impaired in making complaints. Counsel indicates that no psychological evidence has been tendered by or on behalf of the applicant, nor has he sought to have the complainants psychologically assessed.

Counsel refers to the 40 year lapse of time since the conduct alleged against the applicant. With regard to this period, counsel submits that this has been explained in detail. Counsel refers to the circumstances where the acts complained of are alleged to have taken place when each of the complainants was a school child alleged to have been grievously sexually assaulted and the subject of direct physical assault.

Counsel refers to the circumstances of each of the complainants. With regard to I.G. he refers to the fact that she has in her affidavit indicated that she was afraid of the applicant and that the nature of the abuse was such that it was not discussed at the time. Counsel submits that reporting was not an option at the time. The complainant put the matter to the back of her mind. She and the other complainants were children on their own and it was only by reference to the recent assault upon the complainant, B.H. that the matters ultimately surfaced. Counsel refers to the situation in which this applicant indicated that she would have hinted to her mother as to what was happening and that she said that she discussed it with her father. Her mother wanted to tell the local priest but her father would not agree. She stated that she had put the matter to the back of her mind for a few years until she had children of her own. She indicates the circumstances in which the matter came to a head when B.H. was assaulted by the applicant in January of 1999.

Counsel refers to the statement of complainant in the Book of Evidence. She indicates the dread that she had as a child being sent over to the applicant. This complainant also refers to the guilt and shame which she suffered as a result of the applicant's actions. She had no voice as a child to report the alleged behaviour. In particular the complainant indicated the steps that she took to avoid going to school such as to roll herself in faeces.

Dealing with the psychological report counsel refers to the fact that this concludes that the complainant used avoidance techniques as a means of coping. On this basis it is submitted by counsel that it is explained why there has been considerable delay in the instant case. Counsel submits that whether this is expressed by reference to dominion or otherwise, dominion is just but one concept arising in cases of this nature. It is submitted that it is not only in cases of dominion that the delay complained of can be excused. Counsel submits that in the instant case therefore it can be concluded that the delay complained of must be attributable to the conduct complained of against the applicant.

Dealing with the complainant M.D. counsel refers to the fact that she never told anyone of the abuse until after the assault on her sister B.H. in 1999. Counsel refers to her statement in the Book of Evidence which indicates that she has suffered in silence over the years. By reference to counselling it is clear that the abuse complained of is upsetting even now. Counsel says that this is demonstrated by the psychological report before the courts.

Dealing with the complainant B.H. counsel again refers to the evidence where she indicates her fears. Counsel submits that she has indicated by reference to her own evidence, in support of that by the psychologist, the reason for the delay.

Counsel submits that the case of each complainant must stand on its own. Counsel instances cases where there have been a number of complainants and where the courts have indicated that charges might not be preceded with in reference to one or more complainants. In this regard counsel instances the case of P. L. v. Director of Public Prosecutions (Unreported, High Court, Herbert J. 16^th April, 2002). Counsel refers to the explanation given insofar as this complainant's mother was concerned about the stigma attaching as a result of the sexual abuse alleged. It is submitted it must be taken in conjunction with the shame experienced by the complainant herself. Counsel submits that the concept of inhibition in making a statement must be seen as much wider than the mere situation arising from dominion. Counsel submits that there has been an adequate explanation for the delay insofar as it affected the three complainants as victims. Dealing with a situation of postponing the making of the complaint until after the death of the mother, counsel refers to the judgment of B. v. Director of Public Prosecutions [1997] 3 I.R 140. In that particular case complainants postponed making a complaint until after the death of their mother.

Dealing with the evidence of the psychologist counsel submits that in the instant case that there is no factor destroying the credibility of the witness insofar as she has given her psychological opinion in respect of each of the complainants. While it has been suggested that the witness could have done better this might be said even where the witness has done a competent job in addressing the issues. Counsel refers to the burden of proof upon the applicant insofar as he seeks to overcome the on the evidence of the psychologist. Counsel submits that the methodology deployed by Ms. McElvaney was appropriate. It is submitted that she carried out an objective assessment of each of the complainants.

Counsel says that at no time did any complainant make a decision not to report the alleged abuse.

Counsel raised the issue as to whether the mere lapse of time can ever be a sufficient basis from which this court can restrain the prosecution in circumstances where it is submitted by counsel that this is not a ground of a breach of a right to trial with reasonable expedition. In this regard counsel submits that the decision of the Supreme Court in the case of Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 was a case concerning summary prosecution which of itself involved the concept of expedition. Counsel submits that the concept of a trial with reasonable expedition must be seen in the context of the particular crime and the particular facts of any given case. Counsel refers to the fact that there is no statute of limitation in the context of indictable crime and no constitutional right to such. Counsel submits that while the applicant has raised the issue of his right to a trial with reasonable expedition that the issue of prosecutorial delay has not been asserted in the grounds upon which leave was granted. Furthermore, it is submitted that it is something that has not been addressed in the grounding affidavit filed on behalf of the applicant, even vaguely.

Dealing with the particular facts counsel submits that in fact there has been no great delay on the part of the gardaí. Counsel refers to the fact that the matter was progressed at all stages and did not simply relate to a situation of interviewing the complainants. It is submitted that it would be unfair to categorise the evidence of prosecuting members of the Garda Síochána as sustaining a case of prosecutorial delay. While it was put to the witness that if he was aware of the statement from the Supreme Court that the matter should have been fast tracked, counsel submits that on the particular facts there has been no prosecutorial delay, albeit the situation was that the members of the Garda Síochána were not operating on this case on a full time basis.

With regard to the circumstances alleged to affect the applicant, counsel refers to the fact that no affidavit has been sworn by him and on this basis it is submitted that one cannot rely on the grounding affidavit to support the contentions made. Counsel submits that the applicant's case is based upon asking the court to draw inferences from unproven facts.

Dealing with the assertion of specific prejudice on behalf of the applicant, it is submitted that there have been no grounds advanced in the statement grounding the application for judicial review in support of this heading. The allegations of specific prejudice were brought up subsequent to the leave application. It is submitted that the absence of witnesses in respect of which complaint is now made is something of which the applicant must have been aware since the service of the Book of Evidence in the instant case. It is submitted that this is something that did not form part of his case until the replying affidavits were filed.

Without prejudice to these submissions made by counsel, it is submitted that, if one were to consider the points raised, that no real specific prejudice has been highlighted. Counsel submits that the situation here is no different from other cases involving this type of prosecution. Counsel further refers to the fact that while complaint is made about the absence of witnesses that the applicant fails to say how he is prejudiced in fact by the absence of these persons. Counsel submits that the applicant has failed to show how they would have helped the applicant in any event. It is submitted that one could equally speculate that if available they would have hindered the applicant in his defence.

Dealing with the third part of the tripartite test advanced by Keane J. in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 it is submitted by counsel that the instant case does not satisfy the test advanced. Counsel submits that the instant case involves three serious prosecutions for three complainants who have given explanations for the lapse of time. It is submitted that this in itself is a sufficient basis upon which the court should refuse the relief sought. Counsel asserts again that there has been no prosecutorial delay and that this has not been pleaded and furthermore that any specific prejudice has not been pleaded. It is submitted that the burden rests on the applicant of satisfying on the balance of probabilities that there is a real and serious risk that he cannot obtain a fair trial.

Dealing with the submissions of counsel for the applicant and the reference to the case of P.M. v. Malone [2002] 2 IR 560, it is submitted that the facts of the instant case are readily distinguishable from same. In that case it is submitted that there was a conscious decision on the part of the complainant not to proceed with the complaint. It is submitted that no parallel situation exists in the instant case.

Conclusions

It is agreed that the applicable test to be applied in the case is that contained in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and in particular that set forth in the judgment of Keane J. in that case at p. 67 where he stated:

"The approach that must be adopted by a court asked to prohibit the trial of a person charged with such offences was dealt with comprehensively by Denham J., speaking for this Court in B v. Director of Public Prosecutions [1997] 3 I.R. 140, and has been considered by her again today. It is unnecessary to traverse that ground again in any detail. Clearly, the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed. Moreover, even in cases of unlawful carnal knowledge or sexual assault where the complainant is a girl under the age of consent, it is to be borne in mind that the alleged perpetrator may himself be a child. 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 unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases there may be threats, actual or implied, of punishment if the alleged offences are reported."

and where he added at p. 68 of the report:

"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."

It is accepted that the passage of time in the instant case is such that the

Director of Public Prosecutions must explain same and demonstrate that the delay complained of is one for which the applicant bears responsibility.

It is clear that the passage of time in this case is such that the applicant may well be inhibited in his defence of the charges against him. Accordingly, it is necessary to consider the evidence put forward on behalf of the Director of Public Prosecutions to explain the delay complained of.

I must accept the evidence of each of the complainants in circumstances where they have not been cross examined on their evidence and the same has not been controverted. I also accept the evidence of the psychologist Ms. McElvaney insofar as the same pertains to each of the complainants. While her conclusions are similar in the case of each of the complainants it is clear that the circumstances of each differ.

In the case of the complainant I.G. it is clear both from her own evidence and the evidence of the psychologist that she has suffered from the effects of the alleged abuse and continues to suffer from symptomatology directly associated with the alleged experiences of sexual abuse and is in need of therapeutic intervention. She clearly has used avoidance as a psychological coping strategy. I am satisfied that the factors identified by Ms. McElvaney have influenced this complainant's ability to report the abuse alleged, initially as a child, and thereafter into adulthood.

It is clear that she only confided in her husband after returning to Ireland and even then did not give any specific information. The evidence before this Court demonstrates that she only told her husband the full details at the time when she made her formal complaint to the gardaí.

Based upon this evidence I am satisfied that the delay in reporting on the part of I.G. is something for which the applicant must ultimately bear responsibility as I am satisfied that it resulted from the effects of the abuse on I.G.

With regard to the complainant M.D., I am satisfied that in her own affidavit she adequately explains why she did not report the alleged abuse as a child. Based upon her evidence it is clear that she suffered repeated sexual abuse at the hands of the applicant. It is clear from the evidence that the effects of the alleged abuse include an adverse impact on her sexual relationship with her husband, notwithstanding the fact that she enjoys a supportive relationship with her husband and children. In addition, she has suffered from low self esteem.

It is clear that unlike I.G., this applicant never told anyone of the abuse alleged to have been suffered at the hands of the applicant until after the incident between the applicant and her sister B.H. When she did eventually confide in her husband on the same day as revealing the abuse to her sister, this was followed up immediately with a formal complaint to the gardaí.

While it is clear that one incident is alleged to have occurred when her father was in the room, namely when the applicant is alleged to have exposed himself, the evidence does not suggest that he witnessed the incident.

It is clear from the evidence that the delay on the part of this complainant in formally reporting the alleged abuse related to feelings of shame and guilt.

I am satisfied that the delay on the part of the M.D. in reporting the alleged abuse is directly related to the alleged abuse itself and is such that the applicant must bear responsibility for same, assuming the complaints to be true.

In accepting the evidence of the psychologist, I do not accept the submissions of counsel for the applicant that I should reject her evidence, by reason of the fact that certain details were not explored by her in discussions with this complainant. I do not believe that this failure is such as to invalidate her evidence and I am disposed, notwithstanding the failure to explore in detail the circumstances of recent disclosure by I.G. to her husband's sister in or about 1995 and another friend about one year later, to accept her evidence.

With regard to the complainant B.H. it is clear that the allegation against the applicant is one of repeated sexual abuse when she was a child between the ages of nine and fifteen years of age.

This complainant reported the alleged abuse to her mother sometime in the early 1980s. However, it is clear from her own evidence that having reported the abuse to her mother, she did not report the same at the time to the gardaí because her mother was against doing anything about it because of the stigma attaching to incidents at the time. It is also clear from the evidence before this Court that her mother prevented B.H. from even reporting the abuse to her doctor.

The evidence of the psychologist indicates that B.H. suffers from a high level of psychological distress and is in need of therapeutic intervention and this situation pertains at a time after this complainant has made a formal complaint to the gardaí. I am satisfied that the evidence clearly explains why B.H. did not report the abuse as a child or teenager and that this related to the effects of the alleged abuse itself.

It is clear that having told her mother of the abuse in the early 1980s, in deference to her mother's wishes, she did not report the abuse during her mother's lifetime, although her mother later suffered from a form of Alzheimer's disease. While her mother died in 1997 the abuse was not reported by B.H. to the gardaí until the 8^th February, 1999.

I fully accept the evidence of the psychologist Ms. McElvaney in relation to this complainant also. Her report sets out the particular circumstances of B.H. and the reasons for the delay in reporting. I am satisfied that the explanation given while reasonable in a psychological context, indicates that B.H. was minded to report the abuse many years prior to 1999 and chose not to do so in deference to her mother's wishes. In light of all the evidence, I cannot conclude that the delay from the 1980s was such that the same was attributable to the conduct of the applicant but related to a decision taken by this complainant not to report the abuse at the time, when apparently she had the ability to do so. In light of the judgment of the Chief Justice in P.M. v. Malone [2002] 2 IR 560, I believe that I cannot consider the delay from the early 1980s to be a period of delay for which the applicant is responsible, although it is clear that the complainant has and continues to suffer the effects of the alleged abuse.

In that case Keane C.J., referred to the judgment of Denham J. in B. v. Director of Public Prosecutions [1997] 3 I.R. 140 and the circumstances where the complainants in that case were under the dominion of the applicant until their mother died, which led Denham J. to observe at p.203

"The daughters were psychologically incapable of approaching the authorities and making the complaint until after 1991. They inhabited a unique world fashioned by the applicant's actions, which acts continue to affect them to this day"

Keane C.J. stated, inter alia, at p 577:

"The contrast with the admitted or proved facts in this case is clear. Here, there was no question of dominion at any stage, still less of its consequences persisting until the year 1998. On the contrary, the sole ground advanced for deferring the complaint until 1998 was the complainant's concern that it might cause problems within the family. That is not an appropriate ground for denying the applicant his right to a reasonably expeditious trial."

I consider that the evidence before this Court is to the effect that the complainant B.H. chose not to make a formal complaint during her mother's lifetime and was not under any dominion or other consequences such as to prevent her making an earlier complaint.

With regard to the issue of prosecutorial delay contended for on behalf of the applicant, it is clear that this is not a basis upon which the applicant was given leave to seek the relief sought herein.

Nevertheless, it is to be noted that the complaints were made to the gardaí in February, 1999 and investigated thereafter and a file was sent to the State Solicitor on 6^th October, 1999. Thereafter directions were received to obtain psychological reports on the 21^st October, 1999 and these directions were complied with by 8^th February, 2000. After other matters were raised and addressed in the period to 12^th April, 2000, in July, 2000 the gardaí obtained directions to prosecute the applicant. It appears that the application for a summons was not made until October, 2000.

While it is clear that if the gardai were directed to give full time attention to the investigation in question that matters would have proceeded more rapidly, I am satisfied that the gardaí pursued the matter within a reasonable timeframe and that the circumstances of this case differ from those in P.P. v. Director of Public Prosecutions [2000] 1 IR 403 where there were lengthy periods of delay which were not explained. In that case the applicant was not interviewed until 14 months after the complaint was made. In the instant case the applicant was acquainted with the substance of the complaints in May, 1999, approximately 3 months after the complaints had been made. I would accordingly reject the contention of prosecutorial delay in this case such as to warrant granting to the applicant the relief which he seeks.

Having regard to the above conclusions, I am satisfied that the applicant has established circumstances of undue delay with regard to the complainant B.H. such that it is appropriate to grant to him the relief which he seeks pertaining to the charges relating to that complainant. With regard to the other complainants it is necessary to consider the prejudice alleged on behalf of the applicant.

In approaching this aspect of the case, I am mindful of the observations of Keane J. in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and to the test propounded by him in that case.

I consider it necessary to consider whether the degree of prejudice alleged is such as to give rise to a real and serious risk of an unfair trial.

I am satisfied, notwithstanding the substantial period of time that has elapsed, that in the case of the charges pertaining to the complainants I.G. and M.D., the applicant has not established any prejudice warranting a conclusion that there is a real or serious risk that he cannot obtain a fair trial. I am satisfied that the matters advanced by the applicant are not such as to suggest that his defence of these charges has been or will be seriously impaired by reason of the deaths of the persons identified in the affidavits sworn on his behalf. I am also conscious that at the stage of obtaining leave these matters were not addressed in the application for leave. It is clear that the aspect of prejudice alleged is a general assertion made by his solicitor pertaining to presumed difficulties in the defence of the applicant.

I am conscious of the matters pertaining to the applicant's health and that of his wife which have been put before the Court. I am not satisfied that these are matters which can be said to create a risk that he cannot obtain a fair trial. Were he to be convicted of any offence these matters would of necessity have to be addressed by any judge in the consideration of penalty. However, it has not been suggested on the evidence before this Court that the applicant's health is such that he cannot instruct a solicitor and no other circumstance is demonstrated whereby this Court could conclude that there is a real and serious risk that the applicant cannot obtain a fair trial.

In all the circumstances I will refuse the applicant the relief which he seeks in regard to the charges pertaining to the complainants I.G. and M.D. and I will grant him the relief pertaining to the charges based upon the complaints of B.H.