High Court of Ireland Decisions

1. The Applicant in these proceedings is a 64 year old man from a small town in the West of Ireland who is accused of 39 offences of rape, unlawful carnal knowledge and indecent assault involving two nieces and a nephew. Thirty counts of indecent assault, unlawful carnal knowledge, attempted rape and rape concern F W, a niece; 8 counts of indecent assault and rape concern C W, also a niece and a single count of indecent assault involves D W, a nephew. The Complainants are siblings. The offences against F W (d.o.b. 23rd September, 1961) are alleged to have occurred over a period of 5½ years between May, 1973 and December, 1978 (when F W was aged between 12 and 17 years). Those against C W (d.o.b. 29th October, 1957) are alleged to have been committed between September, 1973 and January, 1977 (when C W was aged between 15 and 18 years of age). The indecent assault of D W (d.o.b. 23rd December, 1965) is alleged to have occurred between April, 1977 and October, 1979 (when D W was aged between 11 and 14 years).

2. F W provided statements of complaint to An Garda Siochána on the 13th March, 20th March and the 3rd November, 1996. C W provided a statement of complaint on the 15th June, 1996. D W provided his statement of complaint on the 16th June, 1996.

3. The Applicant was arrested at his home on the 9th October, 1996 in respect of the allegations made by the Complainants, but was released without charge on that same date. Thereafter he was arrested on the 22nd January, 1999 and charged with the offences alleged. The Applicant was returned for trial on the 2nd July, 1999 and these proceedings were commenced by way of an application for leave made on 2nd May, 2000.

4. The Applicant seeks relief on the ground that the delay on the part of the Respondent in prosecuting these charges amounts to a breach of his constitutional rights to a fair trial and to a trial with reasonable expedition. He further claims that the delay in making the complaints was inordinate and inexcusable. He also asserts that the period between the making of the complaints and his eventual arrest and charge was unreasonable and unnecessary. He further contends that there is a real and serious risk of an unfair trial if the matter is allowed to proceed further.

5. Each of the Complainants has sworn an Affidavit for the purpose of these proceedings.

6. In her Affidavit, F W deposes that the various sexual acts of which she complains occurred between 1973 and 1978 and included touching, fondling, kissing leading up to full penetrative sexual intercourse. Most of this abuse is alleged to have taken place either in the Deponents family home or at the Applicants house in a neighbouring town. In her Affidavit, F W deposes that when the abuse began she did not realise that what her uncle was doing was wrong. She had very limited sex education. She also felt that if she informed her parents they would blame her for leading her uncle on. She alleges that her uncle manipulated her in to a position where she would not tell anyone. An example was when her father got a heart attack in 1976. Her uncle, she states, convinced her that he had saved her fathers life by rushing him to hospital and breaking all speed limits to do so. He persuaded the Deponent that she should be grateful and indebted to him for saving her fathers life and do nothing to upset him in case he could have another heart attack and die. She says she had not up to the time of making her statement to Detective Sergeant Delmar discussed exactly what her uncle did to her as she was too embarrassed and ashamed. When she was about 17 years of age, she became aware that her uncle had been asked to leave the house and not to return. On one occasion she asked her mother why her uncle wasn’t calling anymore. Her mother, she states, then informed her that her uncle had interfered with C W and asked the Deponent if anything similar had occurred to her. She replied in the affirmative but her mother sought no further details. Thereafter she went to pursue nursing studies in Dublin in or about 1978/79. She deposes that at that time she decided to write to her sister C W to inform her that her uncle had interfered with her and that she was afraid because he had turned up on one occasion in Dublin. C W wrote to her warning her not to have anything to do with him and to stay away from him as he was dangerous. She also deposed to an occasion in 1980 when she went with her mother to speak to another uncle, a brother of the Applicant, about the abuse of the Deponent and her sister. This particular uncle undertook to discuss the matter with the rest of the W family, being mainly brothers and sisters of the Applicant. The Deponent believes that the particular uncle did come back to her mother to tell her that it would be a matter of the Deponents word against the Applicants word. The Deponent says she was afraid of the W family. The Deponent met her husband, a member of the Garda Siochána in 1980. She informed him prior to their wedding in 1984 that the Applicant had interfered sexually with C W and the Deponent. No action followed. Thereafter the Applicant was invited to the Deponents wedding due, the Deponents states, to family pressure. In 1985, she deposes she told her uncle G W that she and C W had been abused by the Applicant.

7. From the early 1990’s, this Deponent spent a great deal of time looking after another sister X who abused alcohol and prescribed drugs. It appears this sister died in tragic circumstances in October, 1995 leaving a very young child. The Deponent then learned from her brother D W that he also had been abused by the Applicant. The Applicant attended the funeral of their sister X, as did her sister C W, who came home from Australia for that purpose. Some short time after the funeral the three siblings discussed their different experiences at the hands of the Applicant and agreed a plan of action to which I shall presently return.

8. In her Affidavit, C W states that she was 15 years of age when raped by the Applicant at his house in September, 1973. On various occasions between October, 1973 and January, 1977 when she was aged between 15 and 18 years, she alleges she was also the victim of various sexual assaults on her person. C W was the eldest of the four children in the family.

9. In October, 1975, C W took up a course in the Regional Technical College in Galway and subsequently moved to London in 1976. In her Affidavit she has exhibited letters written to her by the Applicant in 1979/80 in which he wrote on a regular basis proclaiming love for C W. From other material placed before the Court, it appears that C W responded to these letters and in October, 1979 went with the Applicant to New York. It appears that sexual encounters between C W and the Applicant occurred both in London and the United States which seemed to cease in 1980. In 1980, while working in London, she deposes that she received a letter from her sister F W stating that her uncle had molested her. F W advised that when she lay in hospital having her tonsils removed the Applicant had visited her and started to touch her which frightened her. C W was so annoyed she telephoned her uncle from London who essentially laughed off the accusation stating it had been exaggerated. She thereafter wrote to F W warning her to stay away from her uncle. She did not however, tell F W that she herself had been sexual abused. In 1984, her mother asked if she had thought of “doing anything ” about the Applicant. She says she felt unable to speak about it.

10. In November, 1995 she returned to Ireland for her sisters funeral and was picked up at the airport by the Applicant and another uncle. At the funeral she noted that her brother, D W, was acting strangely around the Applicant and insisting that the Applicant not act as a pallbearer. The following day she was informed by D W that the Applicant had molested him in the summer of 1977. She in turn then disclosed to D W that she herself had been the victim of sexual abuse at the hands of the Applicant. She then returned to Australia prior to the implementation of the plan of action which she had agreed with F W and D W. She there attended counselling sessions with Dr. Murray Wright, a Clinical Psychiatrist based in Australia in an effort to come to terms with what happened in her life. In her Affidavit she deposes that the combination of her brother informing her that the Applicant had abused him, combined with her sisters death, persuaded her to report the abuse. She deposes that she could not honestly say if she would have disclosed the abuse if these events had not occurred.

11. The third Complainant D W deposes that during one summer when he was between 10 and 13 years of age his uncle indecently assaulted him at his home. He was very confused as a result of the incident and could not understand what had happened. Thereafter he availed of every opportunity to avoid his uncles company. In the summer of 1995 he learned that his sister F W had been abused and he was profoundly affected. He had always felt too embarrassed and ashamed up to then to speak out.

12. At his sisters funeral he spoke with C W, who lives in Australia, and having discovered she had letters from the Applicant proving that he had abused her, he felt something could be done about what had happened. Thereafter, he prepared a statement in writing which was presented to a meeting of members of the wider W family (mainly brothers of the Applicant) convened by the Complainants and held on the 21st November, 1995 in the home of a senior member of the family. In his Affidavit, he states that nothing arose as a consequence of that particular meeting.

13. In his grounding Affidavit, however, the Applicant deposes that at this meeting the W family were given 7 days by the Complainants in which to agree to pay a sum of £50,000 to each of the Complainants and legal proceedings were threatened in default of the W family agreeing to such a course. It was stated that such proceedings “ would involve the media, a very public Court case and a trashing of the W family name ”.

14. The statement, consisting of two pages of typed script, sets out the accusations against the Applicant. What was then sought from the W family by way of financial demands or requirements were expressed as “ not negotiable ”. Furthermore, the W family were given “ until 14:00 hrs on Tuesday 28th November, 1995 to speak to the Applicant and to come to a decision on the matter ”. The Applicant was not present at this meeting.

15. The Applicants family did not agree to the demands made by the Complainants who then went to the Gardai. As pointed out by the Applicant, the meeting just referred to was not elaborated in the initial lengthy statements of complaint proffered and made to the Gardai by the Complainants. It was however referred to in the further statement of F W on the 3rd November, 1996, and must have been mentioned some time earlier to the Gardai by someone, as a reference to it appears in the memo of interview with the Applicant on the 9th October, 1996.

16. The Applicant further deposes that the most recent date upon which he is alleged to have committed any of the offences is in excess of 20 years ago. The earliest date upon which he is alleged to have committed any of the offences alleged in nearly 27 years ago.

17. The lapse of time between the latest date upon which it is alleged that he committed an offence upon F W and the date of her first statement of complaint to An Garda Siochána is in excess of 17 years. The lapse of time between the earliest date upon which it is alleged that he committed such an offence and the date of such statement is nearly 23 years.

18. The lapse of time between the last date upon which it is alleged that he committed an offence with C W and the date of her first statement of complaint to An Garda Siochána is in excess of 19 years. The lapse of time between the earliest date upon which it is alleged that he committed such an offence and the date of such statement is nearly 23 years.

19. The lapse of time between the last date upon which it is alleged that he committed an offence with D W and the date of his statement of complaint to An Garda is Siochána is in excess of 16 years. The Applicant further deposes that the lapse of time between the earliest date upon which it is alleged that he committed such an offence and the date of such statement is in excess of 19 years.

20. The Applicant further deposes that the lapse of time between the making of initial complaints by each of the Complainants to the Gardai and his arrest and interview in respect of same is as follows:-

21. The lapse of time between his initial arrest and interview and his subsequent arrest and charge is nearly 27 months. The Applicant contends that this further period of approximately 2 years and 3 months which took place following the complaints and before the bringing of charges was an unreasonable and unnecessary delay. A further period of approximately 5 months passed before he was served with the Book of Evidence. A copy of the indictment was not made available until the end of February, 2000.

22. The Applicant deposes that because of Complainant delay and prosecutorial delay he is unable to reconstruct with any degree of useful precision the circumstances of his whereabouts or conduct during the relevant period specified in the indictment in respect of the offences alleged against him. He is further unable to identify witnesses who may have material evidence concerning his presence or conduct during the relevant periods. More particularly D W, father of the Complainants, and T S, a friend of the Applicant with whom he socialised during the relevant periods, have died. He is now unable to say in any helpful way what evidence would have been given by these persons. He further contends that the counts on the indictment are so broad and cover such an extensive period of time as to be lacking in any satisfactory precision.

23. In addition to the Affidavits already referred to, Affidavits of Mr. Alex Carroll, Senior Clinical Psychologist, were placed before the Court in relation to the issue of Complainant delay. Further Affidavits of Sergeant John J. Brennan, Detective Sergeant Mary Delmar and Mr. Barry Donoghue, Deputy Director of Public Prosecutions, were placed before the Court on the issue of prosecutorial delay. These four witnesses were all cross examined in the course of the hearing before this Court.

24. In his Affidavit sworn the 12th day of February, 2001, Mr. Alex Carroll deposes that he is a Senior Clinical Psychologist of the Child and Family Centre in Portlaoise which is operated under the aegis of the Midland Health Board. On the 24th March, 1998 he met and assessed F W. He deposes, as his report indicates, that F W gave an account of her experiences to him and says that if the events described by F W are true, they amount to a betrayal of trust and an abuse of a power relationship by the Applicant. In his opinion, F W’s failure to disclose the fact of that abuse to her family or other adults at the time the events took place “or in the intervening years ” is explained by the nature of the position and authority occupied by the Applicant vis-a-vis her and the consequent effects of his abusive activities. He deposes that her perception that disclosure would have had a catastrophic effect upon her fathers health was also a powerful inhibiting factor on how reporting the matter throughout his life, i.e. Until he died in May, 1984. This inhibition thus lasted throughout the period of alleged abuse and for a period of 5½ years afterwards, up until she left home. His Affidavit does not otherwise address the intervening years up to 1995, nor does it elaborate on the ‘consequent effects’ of abuse on F W during those years.

25. He then deposes as follows:-

26. However, a perusal of his report, which contains F W’s account of events, reveals only that F W remained silent during the intervening years because “ she did not want to think about it ”. This remained the situation until 1995.

27. He further deposed to a meeting and assessment of C W on the 22nd January, 2001 in respect of whom he obtained an account of her experiences and also prepared a report. In relation to this Complainant, he deposed that the Applicant was in a legitimate position of power and authority over her at the time the alleged abuse, the subject matter, of the criminal proceedings occurred. If true, as described by C W, the events constitute a gross betrayal of trust and abuse of power by the Applicant. The attention paid to C W by the Applicant, in addition to the consumption of alcoholic beverages that she was not used to, was a sufficient incentive for her to participate in the wholly inappropriate and premature introduction to sexuality at the Applicants instigation. The power and authority enjoyed by the Applicant over C W conveyed to her that the proposed behaviour was acceptable and sanctioned. These factors, when considered in the light of the other matters described in his report, in his opinion explained C W’s failure to disclose the abuse suffered by her to her family and other adults at both the time the events took place “ and in the years prior to 1995 ”. He concluded that the lapse of time between the date of the commission of the last of the alleged offences and the making of a complaint by C W was reasonable. A perusal of his report suggests that C W did not complain to anybody during the intervening years because an aunt wrote from the U.S. saying she was a terrible person, so she determined to keep quiet. She also claimed that nobody would believe her. At some unspecified point she became a heavy drinker and needed sleeping pills go sleep. She also developed an eating disorder.

28. He also met and assessed D W on 22nd January, 2001, in respect of whom he expressed similar views about betrayal of trust and abuse of power. Mr. Carroll deposed that, as a 12 year old boy, D W did not appear to comprehend that the sexual assault perpetrated upon him by his uncle was an offence against the criminal law or was a matter that he had a duty to report. This was compounded by a feeling that something was wrong and consequent feelings of shame and guilt that he experienced. In his opinion, D W would not have complained of this incident were it not for the trauma associated with his sister’s funeral and his awareness that his surviving sisters were making complaints of a similar nature against the Applicant. For these reasons, he concluded also in this case that the lapse of time between the date of the commission of the offence alleged against the Applicant and the complaint was reasonable. The report itself does not address the intervening years from 1985 to 1995.

29. Neither Mr. Carrolls reports nor his Affidavits refer in any way whatsoever to the meeting which took place on the 21st November, 1995 at which demands were made of the extended W family for a payment of £50,000 to each of the Complainants.

30. This witness was subjected to lengthy and detailed cross examination by Mr. Hartnett for the Applicant. Commencing with F W, he indicated that he was requested in a letter from the State Solicitor “ to come up with a psychological explanation, as it were, as to why so much time had elapsed between the occurrence of the alleged offence and the making of the complaint with regard to that issue ”.

31. Mr. Carroll indicated that he spent between 1 and 2 hours in consultation with F W. He thought she related every incident of sexual assault but was not sure as he had not brought his file to Court with him. Asked if he brought the Complainant through her psychological development from the time she was 12 until the time she was 33 when she made her complaint, Mr. Carroll stated that he had no question which required an account of the Complainants psychological development. His focus was on the allegation of sexual abuse and how that impinged on her life. He did not carry out validation exercises to test the credibility of the account furnished by the Complainant. That was not really his job. He had not been asked to conduct any sort of clinical examination as to whether or not the Complainant might be suffering from any sort of illness. There was no psychological assessment involved, such as the sort of assessment one might carry out to ascertain whether or not a person is suffering from a mental illness.

32. Mr. Hartnett put to him as appropriate to follow Ney’s Guidelines for gathering information in this sort of interview, which he read from “ Memory, Trauma, Treatment and the Law ” (Brown Scheflin and Hammond) (Norton and Co/New York 1998). Mr. Carroll conceded he was unfamiliar with these guidelines.

33. Mr. Hartnett suggested that an appropriate way of gathering information relevant to the issue Mr. Carroll had to consider was to compare what had been stated to him in interview with what had been told to somebody else by the subject on a prior occasion. Mr. Carroll indicated that he did not believe he was entitled to consult any previous statements made by the Complainant in relation to the alleged offence as a result of a decision of McGuinness J. in another case in which he had been involved.

34. Asked what were the inhibitors in F W’s case to prevent her from coming forward, Mr. Carroll stated that she was a child, her uncle was a person in a powerful position within the family. As a child she was unable to fully understand or unable to give consent. Asked if he enquired as to whether she discussed the alleged abuse with anybody before leaving home, Mr. Carroll stated he was informed only that she had told her mother.

35. Specifically, F W did not inform him that she wrote to her sister in England, he got that information from C W. He was unaware that F W had married a member of An Garda Siochána. He accepted it might be relevant to have known this fact, given that she informed him of the alleged abuse. He accepted he might have told her she could go down to the local garda station and make a complaint.

36. Pressed as to why this would not have been possible, given that F W was no longer under the ostensible dominion of her uncle, Mr. Carroll stated that “ a number of dynamics come into play ” and that there is “ a carry over effect ” whereby certain people can carry the experience of sexual abuse through their lives and never tell anyone and even take it to their graves. Mr. Carroll suggested that “ perhaps there is a threshold which has to be reached before an individual decides ”. Although pressed, Mr. Carroll was unable to refer to any specific medical literature dealing with such “ carry over ” or “ threshold” aspects of sexual abuse complaints. He did in a general way refer to a Dr. Segroy, an expert from the United States, who he said had given evidence in some other case of the number of factors involved that affect different individuals and might explain why an individual might delay in making a complaint. He believed that the kernel of all his reports in terms of delay was that the Complainants are inhibited from making complaints. A person might be inhibited from making a complaint to the police but not from speaking to another person about the abuse. He accepted that if somebody made a demand for money, and if it was put in the context of some form of threat, it would be relevant and would suggest to him that there was nothing inhibiting such a person or persons from going to the Gardai.

37. He had learned during the course of his assessments that there was some suggestion of money by way of compensation being sought. He felt he was aware at the time of writing the report in F W’s case that she had been party to some negotiations within the family in relation to compensation. He didn’t think it was necessarily relevant to mention in his report. He drew a line between negotiation and demand. He would characterise a demand as a form of blackmail, but his understanding was that negotiations took place between members of the family which did not yield any result.

38. He had not asked for any specifics about these negotiations in his consultations with the three Complainants. He did not consider it particularly relevant.

39. The letter written to Mr. Carroll by way of instructions was then read out. Mr. Carroll accepted that the letter did invite a psychological assessment. However, at this point in cross examination, he maintained that the report itself was the psychological assessment. Asked to peruse his own report for evidence of the “ assessment”, Mr. Carroll accepted that the first two pages contained the Complainants account of events. In his “ summary and conclusion ” which followed he then set out a list of general factors as to why a victim of child sexual abuse may fail to make a complaint at the time the abuse takes place or for a long period of time. He accepted that the assessment did not describe the psychological “ get-up” of the Complainant.

40. In relation to C W, Mr. Carroll when asked by Mr. Hartnett if he had explored the nature of the relationship between the sisters, he accepted that he had not, although requested so to do. He was aware, however, that C W had written to her sister warning her to stay away from the Applicant.

41. He learned from C W that after the funeral on the way back from Dublin a decision was made between the three Complainants to ask the family for money. Mr. Hartnett then put the full text of the written statement and demand to Mr. Carroll, who said he had been unaware up to that moment of the detail of the document which “ably demonstrates that the inhibition, whatever it was in each individual case had ceased to have effect if they were in a position to put forward such a proposal”.

42. Had he been aware of precisely what was contained in these documents, he would have qualified his report. He was also unaware of the fact that C W’s mother had gone with F W to an uncle in the early 1980’s where a long discussion had taken place about things which might have happened.

43. He did not accept that it was important for him as a psychologist to have details of a report which another psychiatrist or psychologist might have prepared in relation to the same person. C W had not volunteered the information to him that she had seen a psychiatrist in Australia. When pressed further, however, Mr. Carroll altered his position to say that, yes, it would be advisable as a psychologist that he would be aware what went on between a previous counsellor and his subject. However, he was not aware. He did not go in to what had taken place with C W. C W had not informed him of any complaint by F W that she had been interfered with in hospital while having her tonsils removed. It was not a complaint F W had made to him.

44. Mr. Carroll accepted that in the late 1970’s C W gave him to understand that her relationship with the Applicant was by and large consensual, that C W believed that she loved the Applicant and that continued over a period of years during which she had sex with him in a flat in London and also in a hotel in the United States.

45. He accepted that this report had followed much the same format as his report in the case of F W, essentially referring to the dynamics of sexual abuse in general terms and how they affect children.

46. He met D W on the 22nd January, 2001. His assessment and report followed along the same lines as in the case of his sisters. He was certainly aware of their request for compensation when talking to D W, because he had already spoken to C W from whom he learned of the negotiation for compensation.

47. Asked in re-examination if having considered the matters canvassed in Court he was content to stand over his reports, Mr. Carroll stated:-

48. In his submissions, Mr. Hartnett submits that, by the end of cross examination, Mr. Carroll had in effect conceded that his report had been completely overshadowed by the disclosure to him in the witness box of the contents of the demand in writing put forward on the 21st November, 1995. It was now impossible to state at what time each or any of these Complainants might have been in a position to come forward and make a complaint. He submitted that in the case of F W, the evidence clearly suggested this could be as far back as 1984, when F W married a member of An Garda Siochána, from which point she was not only in association with a person who presumably give her appropriate advice, but also altogether free of the dominion of the Applicant. In C W’s case it was clear that the relationship had been consensual towards its latter stages when the Complainant achieved adulthood. Nothing in Mr. Carrolls report provided any explanation or reliable evidence as to why she could not have come forward at an earlier stage to make her complaint. The Court had been deprived of the contents or detail of consultations had between C W and her Australian psychiatrist. In relation to D W, it was apparent that his motivation in coming forward was to support his sisters. He too had been party to the scheme to demand money. The Respondent had failed to discharge the onus of proof on the issue of Complainant delay.

49. In reply Mr. Collins stated that the evidence of Mr. Carroll was not the only material the Court could have regard to. The Court was, he submitted, primarily concerned with the evidence on Affidavit of the three Complainants. It was to be noted that Mr. Carroll had not changed his conclusions despite the concessions made in the witness box. The Court should be slow to reject the testimony of the Complainants as to the reasons why they had felt inhibited from coming forward to complain to An Garda Siochána before 1996.

50. Three Affidavits have been sworn on behalf of the Respondent dealing with the history of events from 13th March, 1996 when F W, accompanied by her Solicitor, presented at Harcourt Square in Dublin where she handed a written statement outlining her complaint to Detective Sergeant Delmar. She made a further statement on the 20th March, 1996 and 3rd November, 1996. Sergeant Delmar in her Affidavit deposes that she also obtained statements from the Complainants mother in April, 1996 and from D W in May, 1996. A statement of complaint was obtained from C W in June, 1996. The Deponent also examined certain letters written to C W by the Applicant. In August, 1996 she sent a report to the Gardai in the town where the Complainants had lived.

51. Sergeant John Brennan who is located in the area where the offences are alleged to have occurred states in his Affidavit that he became involved in September, 1996. The delay of 1 month in arresting the Applicant arose because he had changed address and was living elsewhere in the same town. He deposes that “ the attitude manifested by the Applicant throughout his interrogation in no way assisted the progress of the investigation ”. He further deposes that he caused extensive discreet enquiries to be made in the local area to discover if anyone recalled the Applicant being regularly in the company of young females and in particular the two female Complainants. Interviews were also conducted in January and February, 1997 with various family members, mainly brothers of the Applicant. He also conducted “ a detailed and laborious examination of the copy correspondence from the Applicant to C W”. Other witnesses were also approached to assist the investigation in mid 1997, some of whom where unwilling to become involved. In October, 1997 he submitted the investigation file to the office of the DPP for directions.

52. In his Affidavit Mr. Barry Donoghue, Deputy Director of Public Prosecutions, deposes that his office received the Garda investigation file on the 22nd October, 1997. Initial directions were given by the then Deputy Director of Public Prosecutions on the 1st December, 1997. On the 15th December, 1997 his office wrote to the local State Solicitors seeking to have the Complainants psychologically assessed. On the 14th May, 1998 his office received a psychological report on F W. A decision then issued on the 23rd July, 1998 to prosecute the Applicant.

53. In relation to D W additional information was sought in connection therewith from the local State Solicitor on the 23rd July, 1998 which was received on the 28th September, 1998. On the 16th October, 1998 his office issued instructions directing the prosecution of the Applicant in connection with the alleged offence involving D W. His office also raised queries in relation to C W’s complaint which was answered by letter dated 28th November, 1998 and directions in relation to her complaint issued on the 10th December, 1998.

54. The Applicant was arrested on the 22nd January, 1999 and a total of 35 charges proffered against him in the local District Court. Thereafter he was remanded until June 18th, 1999 when a book of evidence was served upon him. He was returned for trial to the Central Criminal Court on the 2nd July, 1999.

55. In cross examination, Mr. Donoghue explained that some of the delay in the office of the DPP arose because efforts were being made to narrow the time span in respect of which specific offences were alleged to have occurred. Pressed by Mr. Hartnett to offer any reason as to why an enquiry of this nature could not have taken place in 1997, Mr. Donoghue replied that nothing on the file provided any assistance on that particular point. The mean time of 6-8 weeks for processing a file to decision was exceeded in this case. Sergeant Brennan was then cross examined. He stated it took about six weeks to pursue enquiries in the local area about the Applicants associations. Further, he had to examine the file and arrange for interviews with potential witnesses. Sergeant Delmar in cross examination indicated that part of the delays arose by virtue of the fact that efforts were been made by the Gardai to tighten up on dates so that alleged offences could be pin pointed as having occurred at more precise dates and times. In that regard she conducted D W in England in May, 1996. He reverted to her in August of that year. She stated that the local Gardai had up to forty such files in progress in relation to similar offences.

56. The basic principles applicable to cases of this nature are now well established.

57. Firstly, statute law places no limitation in time on the prosecution of the alleged offences.

58. Secondly, a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law under the Constitution, to a trial with reasonable expedition.

59. In addition, a prosecution brought after long delay may be halted if the Applicant establishes a real risk of an unfair trial. These rights must be assessed in the light of the circumstances and facts of the particular case.

60. For the limited purposes of the task in which this Court is presently engaged, the Court must assume that what the Complainant says is true.

61. These principles were summarised afresh by Keane C.J. in P O’C -v- DPP [2000] 3 IR 87 (at pp. 93/4) when he stated:-

62. Later at the same page, he continued as follows:-

63. Essentially, therefore, three issues arise for consideration in cases of this nature. They are:-

64. Where prosecutorial delay may be shown to have occurred, it is clear the Court should not allow the case to proceed and additional actual prejudice need not be proved.

65. This principle could not have been stated with greater clarity than it was by Geoghegan J. in P P -v- DPP [2000] 1 IR 403 (at p. 409) when he stated:-

66. The learned Judge continued as follows at p. 411:-

67. Quite obviously blame for delay cannot be laid at a Complainants door if that delay has been caused by the Applicant. This could arise in a variety of ways, such as the exercise of dominion by an Applicant, or because the Complainant was unable to come forward by reason of the psychological effects of the alleged sexual abuse. In some cases, those psychological effects can be so traumatic and devastating so as to render the victim incapable of making a complaint to the police, notwithstanding in some instances that the Complainant may speak to friends or family members about the events, although of course the latter situation would clearly be relevant in determining any issue as to whether a Complainant was inhibited from going to the police.

68. It has become the practice therefore in these cases where a delay is apparent or established for the Respondent to resort not merely to Complainant evidence, but also expert evidence, invariably that of a psychologist, to discharge the onus of proof which falls upon the Respondent in such circumstances of establishing that the Complainant was inhibited in coming forward with a complaint to the Gardai prior to the time when he or she actually did so.

69. It need hardly be stressed that the reliability and quality of such psychological evidence is of paramount importance to both Complainants and Applicants in cases of this nature.

70. That being so, the comments of McCracken J. in M S -v- DPP (unreported decision of the High Court, 5th December, 1997) are eminently sensible:-

71. This statement was approved by Hardiman J. in J L -v- DPP [2000] 3 IR 122, who, having referred to aspects of public controversy about psychological evidence in cases of this nature, stated at p. 149:-

72. While he was in that context discussing instances of “ repressed memory ” or “ suppressed memory ”, it seems to me his remarks about the overriding requirement for full and comprehensive reporting are equally applicable to all of these cases.

73. He continued as follows at p. 152:-

74. Later on the same page, he continued as follows:-

75. It follows from the foregoing that where serious ambiguities and omissions are to be found in the psychological evidence and where, on cross examination, the evidence of the psychologist fails to resolve or make good such deficiencies or is shown to contain contradictions of views previously expressed, the Court should be extremely cautious and slow to accept or act on opinions or conclusions offered by such an expert, even in the absence of evidence in contradiction called on behalf of an Applicant.

76. Virtually everything that could be said about the deleterious effects of delay or lapse of time as contributors to the risk of an unfair trial has already been said by Hardiman J. in J O C -v- DPP [2000] 3 IR 478.

77. The dominant consideration, as the learned Judge pointed out in that case, “ with priority over all others is whether a real risk of an unfair trial has been established.”

78. There is clearly a balancing exercise to be carried out between the rights of the community to have perpetrators of serious offences prosecuted and the right of the accused person to properly defend himself from an allegation which, if substantiated, may be expected to attract a lengthy period of imprisonment, “ lifelong stigmatisation and financial and familial catastrophe ”, in the words of Hardiman J. in P O’C -v- DPP [2000] 3 IR 87 (at p. 120).

79. Prejudice may be specific or general, and at times both may be present. It may be possible to identify a specific prejudice or some “ island of fact ” which would enable the Applicant to establish a real risk of an unfair trial. This specificity might lie in the death of a particular witness or the destruction, absence or removal of physical objects or locations where the offences are alleged to have taken place.

80. The significance however of what may be described as general prejudice should not be underestimated. It strikes me, as it did Hardiman J. in the case just alluded to, that lapse of time of itself can give rise to a real risk of an unfair trial as most criminal and personal injury practitioners would know only too well. This could occur, as stated by Hardiman J. at p. 119:-

81. In any case, therefore, where the Respondent has discharged the onus of proof in relation to prosecutorial delay or Complainant delay, the Court still has the further obligation to enquire if the Applicant has established a real risk of an unfair trial. In this regard, as has it been so frequently emphasised, each case must turn on its own particular facts.

82. I accept Mr. Hartnetts submission that there has been unnecessary and excessive prosecutorial delay in this case. The bulk of this delay, it seems to me, occurred whilst the matter was under investigation by the Garda Siochána, although some further delay arose, in my view unnecessarily, while the matter was been processed through the office of the Respondent.

83. A 27 month delay after an interval of so many years could only be justified, in my view, in a case of considerable complexity where far ranging enquiries were required. However, as Mr. Hartnett has pointed out, this case is essentially a simple one, involving virtually no witnesses outside the extended W family.

84. The suggestion that in a country town it took some considerable time to locate the Applicant, who had moved address within that town, is difficult to credit. I would accept it was entirely proper for the local Gardai to conduct what they referred to as “ discreet enquiries ” in the locality and through members of An Garda Siochána stationed in the town in which the Applicants resides. It seems to me however, that such enquiries could, and should, have been concluded within a matter of at most, a month or two.

85. I appreciate that Detective Sergeant Delmar gave evidence to the effect that the local Garda Siochána had something like forty files where similar investigations were in progress, but any difficulties thereby arising cannot, it seems to me, be visited on the Applicant.

86. Sergeant Brennan gave evidence of having to spend time considering the file, which of course was a perfectly proper thing to do, but again I would have thought this was a matter which could have been attended to within a matter of days, or at most a week. Detective Sergeant Delmar also gave evidence of delays arising through or as a result of enquiries made by her which were geared to narrowing the time frame when particular offences were alleged to have occurred.

87. Given the long number of years which had passed prior to the lodging of the complaints, it seems to me that this investigation demanded greater urgency than in fact it received.

88. I hold therefore, there was excessive delay during the period from the commencement of the police investigation up to the time when the papers were received in the office of the Respondent on the 22nd October, 1997.

89. Thereafter, I hold there was further prosecutorial delay, though not of the same degree of blameworthiness, in the office of the Respondent.

90. Mr. Donoghue in his evidence stated that the mean time for processing the file in his office, namely, six to eight weeks, was exceeded in this case. This was because enquiries were being made in an effort to narrow the time frame for some of the alleged offences so that the same could be dealt with with greater particularity. However, this was in effect duplicating Garda work which was already the source of delay.

91. I also accept and hold that additional delay arose from the fact that the Respondents office appears to have pursued its enquiries in relation to the Complainants in successive order, rather than at the same time.

92. I would therefore grant the relief sought by the Applicant on the grounds of prosecutorial delay alone.

93. There is clearly a delay which requires explanation in this case. Quite obviously, if that delay is attributable to the Applicant or may be shown to be due to the psychological effects of the alleged sexual offences, then the onus on the Respondent in that regard will have been discharged.

94. I would hold, firstly, that the Respondent has discharged that onus in respect of the period of time while each of the Complainants continue to reside in the family home. I accept that in that situation, having regard to the position of trust, power and authority enjoyed by the Applicant in that setting, and to the precarious state of health of the Complainants father, coupled with the immaturity of the different Complainants at that stage of their development, that this cluster of factors provides an adequate explanation for the absence of any complaint to the police at that time. The fact that letters passed between F W and C W in or around 1979 wherein disclosure of sexual abuse was made to a sibling would not alter my view. I accept that the dynamics of the family situation at that particular time were such as to effectively close off such an option, particularly when the mother of the Complainant could be seen by F W and C W to have taken no step other than to prohibit the Applicant from coming to the family home and speaking to a brother of the Applicant.

95. However, by 1984, completely different circumstances existed. Firstly, the Complainants father had died in May of that year. Secondly, F W had met and in 1985 married a member of An Garda Siochána. Thirdly, the various Complainants, having pursued different educational courses, had embarked upon careers away from the local area. Fourthly, in the case of C W, the prolongation of contact with the Applicant appears to some extent to have been consensual, given that they exchanged correspondence and met in London and the United States in 1979/80.

96. F W has deposed that she informed her husband of the alleged sexual offences, and while it does not necessarily follow that a complaint must or should thereafter have followed, certainly a major impediment to such a course would, in the circumstances, appear to have been removed.

97. This brings me to the evidence of Mr. Carroll in the case, evidence of critical importance, because it is tendered as evidence to explain why, in respect of each of three different Complainants, not one of them was able to make a complaint prior to the times when they actually did so. I have already adverted to comments contained in a number of judgments of the Supreme Court which emphasise and underline the requirement, from both a Complainants point of view and a potential accuseds point of view, for an expert psychologist to conduct assessments and interviews in a thorough and comprehensive fashion before expressing an opinion either in a report or on Affidavit.

98. Those being the requirements, I have found the evidence of Mr. Carroll in this case to be most unsatisfactory. Where and when requested to carry out a psychological assessment, it is in my view incumbent upon a psychologist to discharge such a function, in detail and depth, even if his brief is mainly to enquire into factors explaining delay. It is not sufficient, in my view, to set out a list of general principles relating to complaints of this nature and then attach them to a particular Complainant without some understanding of the psychological makeup of the individual in question which would suggest whether these general principles, or some of them, were particularly apt or appropriate, or perhaps even irrelevant to the particular Complainant.

99. It would be unfair to expect a trawl by a psychologist of every event, illness or sexual contact of a Complainant from the age of maturity to the time of complaint, but some insight into the psychological development of a Complainant in adulthood is surely relevant. In this regard, any disclosures of the particular relationship with the accused or any psychological or counselling services to which a Complainant may have resorted are surely matters of relevance. Furthermore, any piece of information which comes to light in the course of an interview which is, or should be seen as, significantly relevant should be further explored.

100. In all these respects, it seems to me Mr. Carroll fell down to a significant degree, indeed to such an extent that matters put to him in cross examination “ overshadow” his entire report. In cross examination he gave the Court to understand that he would largely accept the explanation given to him by a Complainant for not coming forward. This suggests the absence of an independent enquiring mind being brought to bear on the matter. He was unaware, because he did not ask, C W about counselling she had received in Australia. He was unaware of disclosures in a number of instances about the sexual abuse which had taken place. He had not seen the statements of evidence because of an erroneous belief on his part as to what McGuinness J. had stated in some earlier case in which he had been involved. Most significantly, he did not explore to any satisfactory degree the meeting which took place in November, 1995 at which a demand for substantial sums of money was advanced on behalf of each of the Complainants. His evidence contained a number of contradictions and expressions of opinion for which he could invoke no medical or scientific authority.

101. It is with some concern that the Court notes that evidence given by Mr. Carroll in other similar cases received unfavourable comment or criticism.

102. It is immediately apparent that the account given by Mr. Carroll to this Court of the particular decision of McGuinness J. in P C -v- DPP is quite at variance with what McGuinness J. in fact decided in that case. She did not say that a psychologist was precluded from having regard to a statement which the Complainant might previously have made. The clear import of the learned Judge’s comment is her belief that an expert in Mr. Carrolls position should go through all the details of the Complainants history with her himself as part of an in-depth psychological assessment.

103. I have come to the conclusion that I can attach little or no weight to the evidence given by Mr. Carroll in this case for the reasons already set out. However, that does not conclude the matter because, as Mr. Collins points out, the Court still has the evidence on Affidavit of the respective Complainants. However, having carefully considered those Affidavits, I cannot find in any convincing evidence of any disability or inhibition attributable to the Applicant to explain why it was not possible for any of the individual Complainants to make a complaint to the Gardai from 1984 onwards. And that being so, I must hold that the Respondent has failed to discharge the onus of proof on Complainant delay, and I would therefore grant the Applicant the relief sought on this ground also.

104. I am not satisfied that any specific prejudice to the Applicant has been made out in this case, or that the absence of two potential witnesses named would of itself preclude the possibility of a fair trial.

105. I do accept obviously that prejudice in a general, as distinct from specific, sense has taken place, but this of itself is not sufficient on the facts of this particular case to justify prohibiting the further prosecution of this matter had the Respondent succeeded on the first two grounds.