High Court of Ireland Decisions

 


HC 309/04

THE HIGH COURT

[2001 No. 441JR]

JUDICIAL REVIEW

BETWEEN

J. B.

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 14^th November 2003.

The applicant who describes himself as a retired policeman, farmer and businessman seeks:

1. A declaration that, by reason of the lapse of time in the institution and prosecution of criminal proceedings, currently pending before Clonmel Circuit Criminal Court and entitled "The Circuit Court, South Eastern Circuit, County of Tipperary, between The People (at the suit of the Director of Public Prosecutions), Prosecutor and J.B., accused", the applicant has been deprived of his rights to a trial with due expedition and will, further, suffer serious and irreversible prejudice in the defence of the said proceedings in consequence of which he has been denied his right to a fair trial in respect of the same.

2. An order of prohibition, including interim and/or interlocutory orders, by way of application for judicial review preventing the respondent from further prosecuting the applicant in the said proceedings currently pending before Clonmel Circuit Criminal Court.

3. Alternatively, an injunction, including interim and/or interlocutory orders by way of application for judicial review restraining the respondent from taking any further steps in the prosecution of the said proceedings.

The grounds upon which the applicant was given leave to seek the above mentioned reliefs are as follows.

1. On the 20^th June, 2000, the applicant was returned for trial to the Clonmel Circuit Criminal Court on fourteen counts of indecent assault in respect of five of his nieces, on various dates between the 29^th March, 1971 and the 9^th March, 1987.

2. The applicant has been deprived of his right to a trial in respect of the said alleged offences with due expedition because of the lapse of time between the alleged commission of the said offences and the trial of the same.

3. The lapse of time since the alleged commission of the said offences is such as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

4. The State, and in particular, the Garda and prosecuting authorities, has been guilty of inordinate and inexcusable delay in the prosecution of the alleged offences. The first statement of complaint giving rise to the proceedings was made by T.M. on the 7^th day of September, 1996, whereas the accused was not returned for trial until the 20^th day of June, 2000.

The applicant is now 65 years of age and in poor health. The institution of the criminal proceedings has had a severe and adverse impact on his mental health and brought an end to his working life.

The application is grounded upon an affidavit of Michael O'Connor, solicitor on behalf of the applicant, who says that on the 20^th June, 2000, at Tipperary District Court, the applicant was returned for trial to Clonmel Circuit Criminal Court on fourteen charges of indecent assault on his five nieces, four of whom were sisters, on various dates between the 29^th March, 1971 and the 9^th March, 1987. The book of evidence is exhibited by him with his affidavit. Mr. O'Connor states that the applicant was originally returned for trial to a sitting of Clonmel Circuit Court on the 5^th December, 2000, but that the trial was adjourned on that occasion when the defence had to bring a motion for discovery of certain documentation in the Garda investigation file. He says that the trial was further adjourned on a subsequent occasion on the 30^th January, 2001. The trial was thereafter listed for hearing at Clonmel Circuit Court on the 24^th July, 2001. Mr. O'Connor says that, having obtained copies of the original statement of complaint made by each of the relevant complainants, it is apparent that a full statement of complaint was made by T.M. who was born on the 4^th April, 1965, on the 7^th September, 1996. On the 26^th October, 1996, the applicant was arrested and detained at Thurles Garda Station, pursuant to s. 4 of the Criminal Justice Act, 1994, for a period of almost twelve hours. He says that during this time he was questioned with regard to the allegations made by T.M. but did not make any admissions in respect of same. Reference is made to the dates of birth and the days upon which the other complainants made complaints and these are as follows:

1. M.C.A.B., born on the 2^nd May, 1964 and who made a statement of complaint on the 12^th June, 1997.

2. E.K., born on the 24^th July, 1960 who made a statement of complaint on the 23^rd October, 1998.

3. B.B., born on the 26^th July, 1967 who made a statement of complaint on the 3^rd November, 1996.

4. M.K., born on the 29^th March, 1963 who made a statement of complaint on the 13^th November, 1998.

Mr. O'Connor points out that on the 15^th June, 1999 the applicant was arrested and charged with the relevant offences at Tipperary District Court. The matter was adjourned to the 7^th September, 1999, for the book of evidence to be served. It was further adjourned to the 7th December, 1999, when the applicant was unable to appear on health grounds. The matter was further adjourned to the 17^th December, 1999 at Clonmel District Court when the Court was cancelled and the matter was adjourned to the 10^th January, 2000. On that date the book of evidence was still not ready and the matter was adjourned back to Tipperary District Court on the 18^th April, 2000. On that date the book of evidence was finally served and the matter was adjourned to the 20^th June, 2000 for submissions. On that date, the applicant was returned for trial on fourteen of the original sixteen counts set forth in the statement of charges in the book of evidence. The learned District Judge did not consider that there was a case on which to send the applicant forward for trial on Counts Nos. 9 and 11 in the book of evidence. Mr. O'Connor says that at the time these offences are alleged to have been committed the applicant was a relatively young man and enjoyed good health. He points out that he is now 65 years of age and that his health has deteriorated. He refers to the applicant having developed septicaemia and symptoms of prostatic obstruction. He refers to a medical report in this regard. Mr. O'Connor says that the institution of these proceedings has had a severe and adverse impact on the applicant's mental health. He points out that the applicant was admitted to St. Joseph's Hospital in Clonmel with chest pains and was kept in intensive care for a period of approximately ten days in October of 1996. No physical cause of this pain was found and it was considered to be stress related. During this period of time he was treated for shock and placed on antidepressant medication. Mr. O'Connor says that following his discharge from hospital the applicant never returned to work and an auctioneering business, which he had recently established, closed in November of 1996. It is pointed out that the applicant has not worked since that date. It is stated that he has become depressed and speaks openly about suicide in the context of facing the charges, which have been made herein. Mr. O'Connor says that as a consequence of the lapse of time the applicant is now significantly less well equipped to deal with a trial on these charges than he would otherwise have been.

Mr. O'Connor has exhibited in his affidavit, documentation relating to applications made in writing and on notice to the Circuit Court for discovery in the context of the criminal prosecution pending against the applicant.

A statement of opposition has been filed on behalf of the respondent in which it is pleaded, inter alia, that, having been charged in the District Court on the 15th June, 1999, the applicant's solicitor sought and obtained two lengthy adjournments of the matter on the 7^th September, 1999 and the 10^th January, 2000. It is pointed out that on the 18^th April, 2000, the matter was adjourned peremptorily to the 20^th June, 2000, when the order was made returning the applicant for trial. It is pleaded that in the premises the applicant has not brought these proceedings promptly, nor within the time provided for in the Rules of the Superior Courts. It is further pleaded that, by the manner in which he has conducted his defence to these charges, both before the District Court and the Circuit Court, the applicant has effectively elected to pursue such remedies as may be available to him before those jurisdictions. In the statement of opposition issue is joined with the contentions made on behalf of the applicant that he has been deprived of his rights to a trial because of the lapse of time complained of and that the delay complained of gives rise to an unavoidable and incurable presumption of prejudice against the applicant. It is further pleaded that the applicant has contributed to the delay in his trial. It is further pleaded that any lapse of time in the prosecution of the charges laid against the applicant, arises as a consequence of the nature of the abuse perpetrated by the applicant upon the injured parties.

An affidavit has been sworn by Paul Fitzpatrick, State Solicitor for County Tipperary, South Riding, in which he traces the history of the prosecution. He points out that on the 7^th September, 1999, the applicant did not appear at Tipperary District Court. It is stated that his solicitor indicated to the court that his client was unable to attend because he was mentally unstable and had developed a phobia of crowded places. A medical report was handed into court and Mr. O'Connor sought a lengthy adjournment of the charges before the District Court. The District Court directed that appropriate psychiatric treatment and assessment be carried out on the applicant. On foot of this application the matter was adjourned to the 7^th December, 1999, with time extended for the service of a book of evidence. Mr. Fitzpatrick points out that by letter of the 1^st December, 1999, the applicant's solicitors wrote to Mr. Brian McGuire, Mr. Fitzpatrick's predecessor as State Solicitor for County Tipperary, South Riding, seeking to have the matter adjourned for a lengthy period by reason of the state of the applicant's health and enclosing a letter from a Dr. Lonergan dated the 30^th November, 1999. On the following day the State Solicitor addressed a response to the applicant's solicitor, informing him that the adequacy of the explanation for the applicant's absence would be contested when the matter came before the District Court on the 7^th December, 1999.

On the 7^th December, 1999 Ms. Ursula Flynn, solicitor, appeared before the District Court at Tipperary. She handed in a further medical certificate from Dr. Lonergan and sought a further lengthy adjournment of the matter. Inspector P.D. Feeney appeared for the respondent. He opposed her application for a lengthy adjournment and questioned the nature and extent of the medical certificate that had been furnished to the Court. The District Court judge adjourned the matter until after lunch in order to allow the doctor to give oral evidence of the applicant's mental state. When the matter was called on again, Mr. Philip English, solicitor, appeared for the applicant. It transpired that Dr. Lonergan was unavailable to attend court. Mr. English raised the issue of the applicant's fitness to plead. Garda D.J. Collins of An Garda Síochána tendered evidence that he had observed the applicant being out and about and conducting himself in a normal manner. The District Court judge invited the Garda Inspector to make submissions on the issue of the applicant's fitness to plead. The submission was made that if the applicant continued to press the issue of his state of mind it would be necessary for him to be committed to custody in prison, with the recommendation that he be sent to the Central Mental Hospital for assessment. It is submitted that any evidence adduced by the applicant on this issue was of a purely advisory standing and did not bind the Court. On this basis the District Court Judge indicated that he accepted this submission. He adjourned the matter to Clonmel District Court on the 17^th December for service of a book of evidence. As there was no sitting of the District Court on the adjourned dates, the matter next came before the Court on the 10^th January, 2000. On that day Mr. Michael O'Connor, solicitor on behalf of the applicant, sought to have the matter adjourned for up to four months. He advised the Court that he had received a report from a Dr. Neville. This report indicated that the applicant might be suffering from a memory loss and recommended that he be assessed by a clinical psychologist and undergo a C.T. scan. Mr. O'Connor also informed the Court that his client was contemplating taking High Court proceedings to challenge the delay in the commencement of the prosecution. The District Court Judge remanded the applicant on continuing bail to Tipperary District Court on the 18^th April, 2000 and extended the time for service of a book of evidence to that date.

On the 18^th April, 2000 the applicant was served with the book of evidence. It is indicated that Ms. Máire Hennessy, solicitor, sought to have the matter adjourned for two months in order to obtain reports concerning the applicant's health. The presiding judge of the District Court adjourned the matter peremptorily to Tipperary District Court to the 20^th June, 2000. The submission made on behalf of the applicant by Ms. Hennessy was that he had no case to answer on four of the charges. Having heard submissions Judge Riordan sent the applicant forward for trial on charges 1 to 8, 10, and 12 to 16 in the statement of charges. Bail was fixed at this time. The applicant's solicitor, Mr. O'Connor, who appeared on behalf of the applicant, informed the Court that his client intended to commence High Court proceedings with a view to staying his trial.

By letters of the 31^st July, 2000 and the 18^th November, 2000, James Reilly & Sons, solicitors for the applicant, wrote to the State Solicitor seeking disclosure of documentation in the possession of the Garda Síochána. By letter dated November, 2000, he informed the applicant's solicitors that, as one of the principal complainants resided in Australia, it might be necessary to have the date of the applicant's trial specially fixed. Further correspondence ensued on the issue of disclosure, which was ultimately resolved by letter dated the 19^th December, 2000 enclosing certain further statements sought by the applicant's solicitors.

Mr. Fitzpatrick indicates that the matter came on for trial before the South Eastern Circuit Criminal Court sessions at Clonmel on the 5^th December, 2000. As there were outstanding issues between the parties, both as regards disclosure and the attendance of witnesses, the trial was adjourned on consent and specially fixed for hearing on the 30^th January, 2001. By letter dated the 10^th January, 2001 the applicant's solicitors again raised the issue of the applicant's competence to stand trial and stated that they would seek an adjournment of the matter on the 30^th January, 2001. Mr. Fitzpatrick indicates that on the following day he responded to this letter stating that the application would be opposed. He pointed out that the applicant's trial had been specially fixed for hearing on the 30^th January, 2001, that the application for the adjournment was being made late in the day and that no medical reports had been submitted in support of this application. On the 25^th January, 2001 a further letter was received from the applicant's solicitors, to which he responded in writing on the following day. The correspondence in this regard had been exhibited by Mr. Fitzpatrick. Mr. Fitzpatrick states that on the 30^th January, 2001 all prosecution witnesses attended at the Circuit Court for the applicant's trial. His Honour Judge Haugh acceded to the applicant's application for a further adjournment of the matter to enable further psychiatric examinations of the applicant to be conducted.

Mr. Fitzpatrick says that after this adjournment the complainants and their families indicated in very strong terms to the investigating members of An Garda Síochána that they were very upset at having to attend court only to find the proceedings being adjourned. They stated that they would be unwilling to attend on any further occasion if there was a likelihood of a repeated adjournment. Mr. Fitzpatrick indicates that by a letter of the 2^nd May, 2001 the applicant's solicitors advised that they would not be in a position to deal with the matter at the June sessions of the South Eastern Circuit Criminal Court at Clonmel. The applicant's trial was then fixed for hearing on the 24^th July, 2001. Leave was granted to the applicant to commence these proceedings by order of this Court made on the 29^th June, 2001 and the originating notice of motion was issued returnable for 18^th July, 2001. Mr. Fitzpatrick points out that although all witnesses had been cautioned to attend at Clonmel Courthouse on the 24^th July, 2001, in light of past experience, the applicant's solicitors were informed that no objection would be raised to an application for an adjournment to the Michaelmas sessions of the South Eastern Circuit Criminal Court at Clonmel. In the event, Judge O'Hagan adjourned the trial to the criminal sessions of the Circuit Court to be held in Hilary Term 2002.

An affidavit has been sworn by Detective Sergeant Mary Delmar of the National Bureau of Criminal Investigation, Harcourt Square, Dublin, who is attached to the Domestic Violence and Sexual Assault Investigation Unit.

Detective Sergeant Delmar indicates that between the 11^th May and October 5^th, 1996, G.B., a niece of the applicant, reported to An Garda Síochána that she had been the victim of various acts of rape and sexual assault by ten different males over a lengthy period of time. The first of these two statements was taken while she was hospitalised. When she was discharged from hospital she made a further three statements which were more concise and descriptive. She named and identified six of her alleged assailants, including the applicant, whom she alleged raped and sexually assaulted her as a child when she visited his home. She was unable to name the remaining four. Her complaints were fully and thoroughly investigated by An Garda Síochána. The investigation included painstaking efforts to identify the four unnamed alleged perpetrators. After lengthy enquiries two of these were possibly identified. Further investigation indicated that they were deceased. The investigation also required An Garda Síochána identifying and interviewing witnesses, identifying and visiting scenes, revisiting the complainant, interviewing medical professionals and interviewing alleged assailants.

In the course of the investigation into G.B.'s complaints, five individuals came forward to report that they had also been victims of sexual assault by the applicant. These complainants are all nieces of the applicant. Four of them are sisters of G.B. On the 7^th September, 1996 a sister of G.B., T.M., made a statement of complaint to An Garda Síochána. She alleged that she had been sexually assaulted by her uncle, the applicant herein, at his home when she visited him on holidays as a young child. T.M. stated that her mother, the applicant's sister, encouraged her to make the complaint. She said that she was relieved that she had done so to try and prevent it happening to others. She claimed that the applicant's son was present on one occasion when his father indecently assaulted her. The son is potentially an important witness. Since he resided with the applicant during the period of the alleged assaults, he should be in a position to assist in proving the innocence or otherwise of the applicant. An Garda Síochána has made a considerable effort to locate him. This included making enquiries of the Gardaí in the county where the applicant resided and of other agencies, schools, the health board, etc. Despite these efforts the son has not been located to date.

On the 7^th September, 1996 Mr. K.M. who is the husband of T.M., was also interviewed and made a statement to the Gardaí. During the month of September and October, 1996, the mother of T.M. and the sister of the applicant, made a statement to An Garda Síochána. The father of both these complainants was also interviewed and made a statement.

As a result of enquiries made during the investigation it was established that the applicant no longer resided in the county where he previously resided and moved to an adjoining county. On the 26^th October, 1996 Detective Garda Owens and other members of the Garda Siochána went to the applicant's address and arrested him on suspicion of the unlawful carnal knowledge of G.B., contrary to s. 1 of the Criminal Law Amendment Act, 1935. The applicant was conveyed to a Garda station where he was detained under the provisions of s. 4 of the Criminal Justice Act, 1994, for the investigation of the offences alleged. He was interviewed in respect of the allegations made by G.B. and T.M. and ultimately, having had his period of detention extended, he was released from custody. During his detention the applicant was asked about the whereabouts of his son but is stated to have been evasive in his replies and did not want to discuss the matter.

On the 3^rd November, 1996 a further sister of the first two complainants made a complaint that the applicant had sexually assaulted her as a child and on one occasion in later life when, as an adult, he grabbed her bottom in a public house after her grandmother's funeral.

On the 13^th November, 1996 the applicant's solicitor contacted the Garda Síochána stating that on the previous day his client had been removed to hospital and was in intensive care. He claimed that his client had not recovered from his arrest. This claim was not corroborated by any medical reports.

Detective Sergeant Delmar states that in early 1997 the Garda Siochána was advised that a fourth complainant wished to make a complaint of sexual assault against the applicant. This complainant was M.B. who resided in Australia. On the 12^th June, 1997 she made a statement of complaint to a police officer in Australia. She alleged that she had been the victim of sexual assaults at the hands of the applicant. This statement was subsequently forwarded to the Garda Siochána for investigation.

During this period investigations and enquiries continued to be made into these allegations and the connected and related allegations made by G.B. against the ten males. When efforts were made to interview the applicant in relation to the allegations made by M.B. and a sister of his, it was discovered that the applicant had again changed address and no longer resided at the address in County Tipperary. In an effort to trace him, contact was made with his solicitor, Mr. Tormey, only to discover that he no longer represented the applicant and that Mr. Fitzgerald was now acting for him. Contact with Mr. Fitzgerald resulted in the applicant communicating directly with Detective Sergeant Delmar by letter. He gave his new address and supplied a telephone number at which he could be contacted. On October 14^th, 1998 D.B., mother of the four complainants, made a further statement to the Gardaí. On the 22^nd October, 1998 the applicant was interviewed at his home by An Garda Síochána concerning the allegations of sexual assault made against him by M.B. and the applicant's sister. On the 23^rd October, 1998 a further sister, E.K., made a statement of complaint of sexual assault against the applicant. On the 13^th November, 1998 M.K. made a statement to the Gardaí in which she alleged that the applicant had sexually assaulted her. She also reported that a first cousin, a niece of the applicant, had done something to her that she understood to be sexual abuse. The Gardaí contacted this women but she declined to make a statement.

Detective Sergeant Delmar states that every possible avenue was explored in the investigation of these serious allegations of sexual abuse. The investigation proved to be difficult and complex. When it could not be taken any further, in November/December, 1998 a file concerning G.B.'s allegations against the ten males was compiled and forwarded for directions to the respondent. In February of 1999 the Garda Siochána received a direction to the effect that there would be no prosecution on foot of G.B.'s complaints. A direction was given to prosecute the applicant in respect of the other complaints. Charges were prepared and each of the five complainants was contacted to establish if they could be more specific as regards the dates of the alleged offences. On the 11^th April, 1999 T.M. made an additional statement in which she was as specific as she could be in relation to the dates of the alleged offences. On the following day B. made an additional statement of a similar nature. At this point it was also established that brothers of one of the four complainants might be in a position to assist. Contact was made via Interpol to interview her brother, D.B. As a result of this, on the 10^th May, 1999 he made a statement to the police in New York, in which he recalled his sister telling him that she had been touched sexually by the applicant. This had occurred before he was thirteen years of age. A copy of this statement was subsequently forwarded to An Garda Síochána.

On the 17^th April, 1999 draft charges were forwarded to the office of the Chief State Solicitor for approval, together with copies of the additional statements. In June of 1999 the respondent issued final directions in the matter. An Garda Síochána then established that the applicant had again moved address. On the 5^th June, 1999 members of An Garda Siochána went to Tipperary District Court for the purpose of obtaining a warrant to arrest and charge the applicant. On their arrival at the Courthouse the applicant was seen in the forefront, standing erect and mixing with the crowd. When he saw the members he took on a stooped and pathetic stance. A warrant to arrest the applicant was obtained and having located the applicant, he was taken for privacy to the rear of the Courthouse. There it was explained to him what was going to occur. He was then taken to Tipperary Garda Station and charged with the offences. He was brought before Tipperary District Court and remanded to the same Court on the 7^th September, 1999.

It was learned that his visit to the District Court that morning was in respect of an application for a certificate of qualification for an auctioneer's licence. This was withdrawn. Detective Sergeant Delmar states that the investigating Gardaí are unaware of the applicant having carried on any business as an auctioneer as suggested by his solicitor, Mr. Michael O'Connor, in his affidavit sworn on the 28^th June, 2001.

A further affidavit has been sworn by Mr. Michael O'Connor, filed on the 14^th December, 2001 in response to the affidavits of Paul Fitzpatrick and Mary Delmar, previously referred to herein. In his affidavit he says that he first met and took instructions from the applicant on the 31^st August, 1999. He says that on the 6^th September, 1999 he received a faxed letter from the applicant's family doctor, Dr. M.A. Lonergan, stating that the applicant was mentally unstable and not fit to attend court. He says that on the same date he faxed a letter to the Superintendent, Garda Siochána, Tipperary Town, explaining the position to him. He says that on the 7^th September, 1999 at Tipperary District Court, Ms. Ursula Flynn, solicitor, Tipperary Town, appeared on his behalf and in the circumstances the matter was adjourned to the 7^th December, 1999. The Court directed that appropriate psychiatric treatment and assessment be carried out on the applicant. He says that the book of evidence was not ready for service on the applicant on the 7^th September, 1999.

Mr. O'Connor says that on the 7^th December Ms. Flynn again appeared before the District Court on his behalf. A further letter from Dr. Lonergan dated the 30^th November was furnished to the Court explaining that the applicant was suffering from depression and during stress developed an uncomfortable feeling in his chest. Dr. Lonergan felt that the applicant was not able to attend Court on the 7^th December. It was explained to the Court that arrangements had been made to have the applicant seen by Dr. Tess Neville, consultant psychiatrist, and that further enquiries were recommended, including having the applicant seen by a clinical psychologist and a C.T. brain scan carried out. The matter was adjourned to Clonmel District Court on the 17^th December, 1999 for the service of the book of evidence. Again the book of evidence was not available for service at Tipperary District Court on the 7^th December, 1999. Mr. O'Connor says that on the 7^th December no judge was available and all cases were adjourned automatically to Clonmel District Court on the 10^th January, 2000. He says that he was in attendance at Clonmel District Court on the 17^th December, as was the applicant in person.

Mr. O'Connor says that at Clonmel District Court on the 10^th January, 2000, he again appeared on behalf of the applicant who was again present in Court. He says that the book of evidence was not available for service on the applicant. He says that he informed the Court that further investigations had to be carried out and that arrangements for a C.T. brain scan had been arranged for the 17^th January, 2000. The applicant was remanded on continuing bail to Tipperary District Court on the 18^th April, 2000 and time was extended for the service of the book of evidence to that date. On the 18^th April, 2000 the applicant was present in Court and was served with the book of evidence. The matter was adjourned to the 20^th June, 2000, to allow the defence time to consider the book of evidence, take further instructions and prepare detailed submissions. He says that on the 20^th June, 2000 he made a number of submissions on behalf of the applicant. Having heard the detailed submissions Judge Riordan discharged the application in relation to Counts 9 and 11 in the book of evidence. The applicant was returned for trial on the remaining counts to the next sittings of Clonmel Circuit Criminal Court on the 5^th December, 2000.

Mr. O'Connor says that on the 1^st June, 2000 he wrote to the State Solicitor for County Tipperary seeking copies of certain documentation including copies of all original statements and memos of interviews in the Garda Siochána investigation file relating to this investigation. He says that the reply which he received on behalf of the State Solicitor was a suggestion that he contact the Superintendent at Tipperary Garda Station to arrange for inspection of the relevant documentation. As a result of this he wrote a further letter to the Superintendent at Tipperary Garda Station on the 9^th June, 2000 but received no response to this letter. On the 20^th June, 2000 at Tipperary District Court he asked both the investigating officer, Detective Sergeant Mary Delmar, and the State Solicitor, Mr. Brian McGuire to furnish him with the relevant documentation. On the 31^st July he wrote to the State Solicitor by way of reminder, seeking the relevant documentation. On the 8^th November, 2000 he again wrote to the State Solicitor by way of reminder and indicated that if necessary, an application would be made to adjourn the trial in the event that a satisfactory response in respect of the request for documentation was not received. By letter dated the 16^th November, 2000 the State Solicitor responded by indicating that he had been advised by the Gardaí that the matter was receiving their attention. Following consultation with counsel he was advised that certain further information and documentation should be sought and obtained in relation to the complaints of G.B., who was not in the book of evidence, and arising out of this he wrote again to the State Solicitor on the 22^nd November, 2000 seeking the information and documentation as set out therein.

He says that these documents and information were central in the preparation of the applicant's defence and were necessary in order to fully instruct counsel and advise the applicant. He says that the information and documents in relation to the said G.B. formed part of the Garda investigation file and as such were originally requested in his letter of the 1^st June, 2000. On the 1^st December, 2000 a notice of motion was served on the State Solicitor for South Tipperary, which related to the discovery in the criminal prosecution against the applicant. It appears that certain documentation was received by the defence on the 4^th December, 2000 and that on the 5^th December at Clonmel Circuit Criminal Court the State agreed to furnish the defence with copies of all statements of complaint made by G.B. He says that these statements were not received by the defence until the 21^st December, 2000. The trial was adjourned to the 30^th January, 2001. He says that he does not have any note on his file that the trial was specially fixed for that date.

Mr. O'Connor says that following a consultation with the applicant and counsel, arrangements were made to have the applicant seen by Professor Patricia Casey of the Department of Psychiatry, 63 Eccles Street, Dublin 7, on the 8^th January, 2001, having regard to concerns about the applicant's ability to properly instruct his legal advisers and cope with a trial. He says that in Professor Casey's preliminary opinion dated the 19^th January, it was felt that a further assessment was required on the applicant. He says that on the 10^th January, 2001 he wrote to the State Solicitor advising him of the position. He says that on the 30^th January, 2001, His Honour Judge Haugh acceded to the applicant's application for a further adjournment of the matter to enable further psychiatric examinations of the applicant to be conducted. He says that the applicant's trial was next listed for hearing at Clonmel Circuit Criminal Court on the 24^th July, 2001 and on the 29^th June, 2001 leave was granted to commence judicial review proceedings by way of Order of this Honourable Court. An originating notice of motion was issued returnable for the 18^th July, 2001. In the circumstances the criminal trial which was listed for the 24^th July, 2001 was adjourned by consent.

A further affidavit has been sworn by the State Solicitor, Paul Fitzpatrick, in response to this affidavit of Michael O'Connor. He says that on each of the occasions that the book of evidence was not available, applications were made at Mr. O'Connor's request to have the matter adjourned for lengthy periods of time, which had the consequence of delaying service of the book of evidence. All of the documentation sought was served to the applicant's solicitors by him under cover of a letter dated the 1^st December, 2001. An issue then arose as to statements of complaint in the possession of the Garda Siochána made by G.B. against persons other than the applicant. This complainant is a niece of the applicant and sister of the complainants. On the 5^th December, 2000 at Clonmel Circuit Criminal Court it was agreed between counsel that the statements of complaint made by this complainant against these other individuals should be furnished with the names of the alleged perpetrators expunged. Redacted copies of these statements were communicated under cover of a letter dated the 19^th December, 2000. He exhibits the correspondence with the applicant's solicitors. Mr. Fitzpatrick says that the adjournment of the trial on the 17^th July, 2001 was on consent to the next sessions of the Circuit Court only, and was done for purely practical reasons, having regard to the uncertain position which then arose and to the experiences of the witnesses when they attended at the specially fixed date for the applicant's trial in January, 2001.

Affidavits have been sworn by each of the complainants against the applicant and by Mr. Paul Gilligan, clinical psychologist. In their affidavits the complainants confirm as true the statements made by them to the Garda Siochána. The complainant T.M. refers to threats made by the applicant on numerous occasions. She states that the applicant on one occasion sent her flowers and a card and that this made her believe that he was never going to leave her alone. She says that as a young girl she was very frightened of the applicant and that she is still frightened of him to this day. She worries that he will attempt to find out where she lives and attack her. She varies routes she takes to and from work so as to ensure that he is not following her.

When she learnt that her mother was intending to send her younger sisters to stay with the applicant she approached her sister, G.B., and asked her to try and stop her mother from sending them. She says that as a result her mother took the matter up with her. She attempted to tell her mother about the incidents with the applicant. She was very much afraid that the applicant would kill her if she told anyone else about these events. She says that in the end her younger sisters were not sent to stay with the applicant. She states that as an adult she did not report the incidents to anyone in authority because she was too scared. She also believed that little could be done about them at that stage. During 1996 her mother approached her to ask if anything had happened with the applicant when she was young. This approach arose out of allegations made against him by her sister, G. She then made a complaint to An Garda Siochána. Prior to telling her mother she had only mentioned these incidents in confidence to very close friends, and without going into detail. She refers to having attended Mr. Paul Gilligan, clinical psychologist, for assessment on December 14^th and 21^st, 2001. She confirms as true details describing or relating to her personal circumstances as referred to his report with the exception of the fact that the applicant sent her flowers and a card on one occasion only.

The complainant E.K. refers to allegations of abuse perpetrated on her by the applicant. She says that he terrified her when she was a young girl and she always tried to ensure that he was not alone with her. She recalls the applicant and she is still afraid of him as an adult. She was very upset when she saw him in court in January 2002. She did not tell her parents about the incidents of abuse when she was younger out of fear of the applicant and because she thought she was the only child who experienced these incidents. She also worried that no one would believe her if she made such allegations against her uncle, particularly since sexual matters were not discussed in her family. She coped with these incidents by putting them out of her mind and getting on with her life. She says that in adulthood she did not report the incidents because she believed she was the only person in her family to have experienced these assaults. She was also afraid of the applicant. She felt that nothing could be done about the incidents and she was uncertain as to how to go about reporting them. Apart from her husband, she never mentioned these incidents to anyone until she was approached by her mother during 1998, asking if anything had happened with the applicant when she was a young girl. This approach was made on foot of allegations made against him by her sister, G. She says that she then made a complaint to An Garda Siochána on the 23^rd October, 1998. She refers to having attended Mr. Paul Gilligan, clinical psychologist, for assessment on the 21^st and 28^th November, 2001 and she says that his report contains matters of fact describing or relating to her personal circumstances and she says that these facts are true with the exception of the year of her marriage which in the report is given as 1986. She says that the correct year is 1985.

The complainant M.K. states that in 1971/72 she lived with her parents in Co. Dublin. She says that when she was about eight years of age her uncle, the applicant herein, visited her parents' home as he would have done occasionally. During one of his visits at about this time the applicant put his hand underneath the dress she was wearing and held his hand over the panties on the cheeks of her bottom. He was talking with her as he did this. She remembers feeling very embarrassed and frozen and she was unable to move. She does not know how it ended but she recalls feeling terrible at the time. She kept away from him afterwards. She put this incident out of her head until she became aware that her cousins had made formal complaints against the applicant of sexual abuse to An Garda Siochána. She decided to report the incident because she believed that the applicant's behaviour was wrong and that he should be punished for it. She is also concerned that the applicant might abuse other children. On November 13^th, 1998 she made a statement of complaint to An Garda Síochána. She confirms this as true and accurate. Having made this statement she then told her mother about it. As a consequence of these proceedings she attended Mr. Paul Gilligan, clinical psychologist, for assessment on the 6^th and 10^th December, 2001. She confirms as true with one exception matters of fact describing or relating to her personal circumstances contained in his report. She moved to a named town only about seven years ago and not in 1974 as is stated and she only told her mother about the abuse after reporting the same to the Gardaí.

An affidavit has been sworn by the complainant B.B. She refers to having been regularly touched and kissed by the applicant from the time she was five years of age until she was about nineteen. She states that while she knew that the applicant's behaviour was wrong, she was taught to be polite to adults and to do what she was told. She says there was no discussion of sex or matters of that nature in her parents' home. She did not tell them about the abuse because she feared that she would be reprimanded for doing so, and that she would not have been believed. She states that when she was sixteen she lost her temper on one occasion when the applicant touched her and she screamed at her mother to keep her brother away from her. She says that her mother never questioned her about this or any of the earlier incidents. She took from her reluctance to pursue this incident that her parents would not have wanted to know about her uncle's behaviour and that she therefore could not tell them anything about it.

As she grew into adulthood she tried to put these incidents out of her mind. She did not want to cause any trouble or distress for either her parents or her family by making a complaint concerning them. She states that while her sisters and she would never have discussed in detail what the applicant was doing to them, it was known to all of them that this was going on because general remarks and warnings would have passed between them on the need to try and avoid the applicant's company. She was approached by her mother in September/October, 1996, asking if anything had happened with the applicant when she was a young girl. That approach was made arising out of allegations made against him by her sister, G. She made a complaint to An Garda Siochána on the 3^rd November, 1996 and made a further statement on the 12^th April, 1999. Prior to making this statement to the Gardaí she never spoke in detail about what the applicant did to her. When she was about sixteen years of age she mentioned in a general way to her first boyfriend that an uncle had behaved inappropriately towards her when she was younger but she did not go into any detail. She also spoke in 1988 to her husband about what the applicant did to her.

As a consequence of these proceedings, at the respondent's request, she attended Mr. Paul Gilligan, clinical psychologist, for assessment on the 28^th November and the 6^th December, 2001. She says that the report contains matters of fact describing or relating to personal circumstances which she says are true.

An affidavit has been sworn by the complainant M.C.A.B., who complains that from the age of ten years of age until about fourteen years of age she was sexually molested by the applicant at every available opportunity. She says that details of the incidents are set out in her statement that she made to a police officer in Australia on the 12^th June, 1997. She says that this statement which is exhibited in her affidavit, is true and accurate. The abuse ceased after an incident in the summer of 1978 when she challenged the applicant at her parents' house.

She says that when the incidents first occurred the applicant made her feel special. As they continued she began to realise that this behaviour was inappropriate. She was then reluctant to disclose these incidents because of the guilt and shame she felt about them. Since sexual matters were not openly discussed in their household she felt that disclosing the assaults would have caused upset and got her into trouble. On realising that the applicant's behaviour was inappropriate she also began to fear about what he might do to her if she disclosed the abuse to her parents.

She says that as an adult she did not report the incidents because she felt that any allegations she made would be disregarded and dismissed. She had no confidence that anyone would take them seriously or that she would be believed. She found it hard to speak directly about these incidents to anyone, even her sisters, but a conversation did take place on one occasion which she remembers. The conversation arose because she knew that her sister, T. was due to be sent to assist her aunt who was then pregnant. She states that they were concerned about the fact that this was to happen as they feared that she was in danger of being abused by the applicant. She does not recall the incidents being reported to any adults. She told her best friend in school about the abuse. She also had a conversation with her mother about this time in the family home. Her mother asked her if T. could have been confusing the abuse with a hug. She was furious with her mother and retorted that the way her uncle, the applicant herein, gave hugs is not the way other people give hugs. She walked out of the kitchen. She cannot give a precise date for the conversation referred to, but that it would have taken place while she was in her early teens. She had a further conversation with her mother in 1996, asking if anything had happened with the applicant while she was a young girl. In November, 1996 her father sent her an e-mail asking her to make a statement about the incidents involving the applicant.

As a consequence of these proceedings at the respondent's request she attended Mr. Paul Gilligan, clinical psychologist for assessment on the 10^th and 11^th of December, 2001. To the extent that his report contains matters of fact describing or relating to her personal circumstances, she says that the facts are true.

An affidavit has been sworn by Paul Gilligan, clinical psychologist, who states that he is a clinical psychologist working in private practice. He holds a B.A. and M.A. in Psychology and a British Psychological Society Diploma in Clinical Psychology. He is an associate member of the Psychological Society of Ireland and a registered psychologist. He has sixteen years' experience working in the area of clinical psychology and has specialised in working with adult and child victims of child abuse. He is also Chief Executive of the Irish Society for the Prevention of Cruelty to Children. He was requested to conduct assessments of the complainants B.B., M.B., E.K., M.K. and T.M. for the purpose of these proceedings. He indicates the terms of reference given to him by the respondent. He was asked to deal with the three matters in respect of each of the complainants namely:

(a) the effect of the alleged offences upon them,

(b) the reasons for the delay in reporting the alleged offences and

(c) to offer an opinion as to whether the delay in reporting was reasonable in the light of each person's individual circumstances.

In his affidavit he refers to having met the various complainants and prepared reports in relation to them.

In his report Mr. Gilligan refers to the personal history of each of the complainants and details of the abuse. He refers to the factors influencing the impact of the alleged abuse, including the type and duration of the incidents involved, the age at the time of the abuse, the age difference between the complainant and the applicant, the relationship in question, the ongoing contact with the alleged abuser, the position of the complainant in the family and sex education within the family. He further refers under the heading 'Impact of Alleged Abuse' to the immediate impact and the delayed and current impact of the alleged abuse, psychological testing and the delay in reporting and he then states his conclusions.

In the case of E.K. it is reported that she is the eldest in a family of eight children. She reports that no traumatic experience occurred in her childhood other than the alleged incidents of abuse. As an adult she has experienced two significant traumatic events. The first was an allergic reaction to an anaesthetic having an operation on her gall bladder. Further in 1997 she discovered that she had been given contaminated blood in 1989 through a blood transfusion. E.K. described the applicant as a strong clever man who terrified her as a young girl and who still terrifies her as an adult.

The key factors identified by Mr. Gilligan influencing the impact of the alleged abuse are as follows:

1. A prolonged period of sexual harassment by the applicant throughout E.K.'s early teenage years.

2. The alleged incidents occurred primarily between the ages of 11 and 15, a crucial age for the development of healthy sexual identity and awareness and healthy gender relationships.

3. The age difference between E.K. and the applicant in circumstances where the applicant was between 35 and 40 years of age when E.K. herself was between the ages of 11 and 15 years of age.

4. By virtue of this difference the applicant was in a position of authority and trust, a fact which would contribute to E.K.'s compliance and difficulty reporting the alleged incidents.

5. The applicant is an uncle and was a close relative of the complainant. By virtue of this relationship he was in a position of authority and trust, a factor that contributed to her compliance and difficulty in reporting the alleged incidents.

6. The applicant had frequent contact with the complainant when she was between the ages of 11 and 15.

7. As the complaint was the eldest in her family she was expected to be more independent and self reliant than her siblings.

8. The facts of life or sex were never discussed in her home when she was a young girl.

With regard to the impact of the alleged abuse, Mr. Gilligan identifies the immediate impact as one of anger experienced by the complainant. He identifies the main delayed impact of the alleged abuse as unresolved anger. He expands on this in this report. Mr. Gilligan reports that despite the fact that she presented as a disciplined and controlled woman who places a great emphasis on being emotionally strong and being a source of support for the other family members, she quite frequently during the assessment reflected the fact that her feelings around her experiences as a young girl remain unresolved. He found her abrupt and irritable during interview showing impatience with some of the questions asked. The complainant admitted that she had not as yet dealt with these experiences at an emotional level.

With regard to psychological testing, Mr. Gilligan indicates that the complainant completed the trauma symptom inventory. He indicates that her profile reflects high levels on the anger/irritability scale, which measures self reported anger or irritable effect as well as associated angry thinking and behaviour, and on the defensive of voidance scale which measures post-traumatic avoidance both cognitive and behavioural. He indicates that this profile is consistent with her self-reported feeling of anger and her presentation during interview.

Mr. Gilligan refers to the complainant's delay in reporting and the fact that she did not tell her parents about the alleged instances of abuse when she was a young girl because she thought that she was the only one who was experiencing these incidents in her family and she worried that nobody would believe her or that they would make light of the incidents. She was also scared of her uncle. The first person she told was her husband, whom she told when they were dating. As an adult she did not report the incidents because she still believed that she was the only one in her family to experience such things that nothing could be done about them at this stage and she was uncertain as to how to go about reporting the incidents. She was also fearful of the applicant and did not want to upset her mother. She made the decision to report the incident when she was approached by her mother asking if anything had happened with her uncle when she was a young girl.

In his conclusion Mr. Gilligan indicates that it is clear from the assessment that to date E.K. has avoided dealing fully with the emotional aspects of her experiences as a child, choosing to place them aside and simply get on with living. It is stated that the main factors underpinning E.K.'s decision to report was a concern that the applicant might still be abusing children and her belief that she would now be believed, given the allegations being made by other family members. In conclusion Mr. Gilligan says that, given all of the factors referred to in this report, it is his opinion that the complainant's delay in reporting the alleged incidents of abuse is reasonable and understandable.

With regard to the complainant B.B., Mr. Gilligan reports that during interview she was anxious, particularly regarding who would have access to the assessment report. She was very concerned that her parents might become aware of the difficulties she currently experiences. As the interview progressed she became more relaxed.

Mr. Gilligan refers to the fact that B.B. has experienced sexual difficulty which became worse following the birth of her second child. She reports avoiding sexual activity as much as possible and finds involvement in any form of sexual activity extremely difficult. She reports that as a child her relationship with her parents was difficult. She reports that she found it difficult to discuss anything with her parents when she was a child and she learned about the facts of life from a neighbour. As an adult her relationship with her parents remained strained. She does not discuss difficulties with them and does not want them to know she has any problems. She believes her parents have let her down. She reports having low self esteem and low self confidence.

Dealing with the factors influencing the impact of alleged abuse, Mr. Gilligan refers to the age of the complainant at the time of the alleged abuse, being between the ages of 5 and 18, which he describes as a crucial age for the development of healthy self awareness, self worth, sexual identity and healthy gender relationship. Reference is made to the age difference between the complainant and the applicant in circumstances were the applicant is alleged to have been between the ages of 36 and 49 years of age at a time when the complainant was between 5 and 18 years. Mr. Gilligan says that by virtue of this age difference the applicant was in a position of authority and trust, a factor which would have contributed to the complainant's compliance and difficulty reporting the alleged incidents. He also refers to the difficulty arising from the relationship with the applicant, and the fact that the applicant had frequent contact with the complainant when she was a child, both in his house and in her family home. Further reference is made to the fact that the complainant reports that as a child she found it difficult to get attention from her parents and found it difficulty to approach them with her problems.

Dealing with the impact of alleged abuse, Mr. Gilligan indicates that the immediate impact was to make her an unhappy isolated child and to further lower her self esteem. This became more apparent in her second year in secondary school when she reports having had no friends and academically underachieving. As an older teenager she sought to deal with her low self esteem and isolation by becoming somewhat rebellious. This manifested itself through experimentation with alcohol and dating, despite her father's ban on dating before the age of 18. Mr. Gilligan says that in his opinion the main delayed impact of the alleged abuse is extremely low self esteem and significant sexual difficulties. She reports feeling very negative about herself.

Mr. Gilligan refers to psychological testing having been completed. He states that overall the complainant's profile is common amongst those who have been sexually victimised and frequently reflects an individual who has a difficult time expressing their own distress to others. He says that the results indicate a high level of psychological distress and strongly indicate the need for therapeutic intervention.

With regard to delay in reporting, the complainant alleges that she did not tell her parents when she was a child because she did not want to be disliked by them or she did not want to displease them. She reports knowing as a child that the applicant's behaviour was wrong and always being taught to be polite to adults and to do what she was told. At the age of 16 she reports loosing her temper when her uncle touched her, and screaming at her mother. She believes that her mother should have questioned her further on this occasion and should have realised that something was wrong. Because of this she did not feel she could tell her parents about the applicant's behaviour. As an adult she did not report the incidents because she did not want to cause any trouble or distress to her parents or family. She was aware that the incidents had caused her difficulties and did not want to create trouble within the family and risk becoming disliked.

She made the decision to report the incidents when she realised that her sisters had experienced the same incidents and were reporting them. Her decision to report was also influenced by her attendance at counselling, which highlighted the impact these incidents had had on her and in particular on her low self esteem. Her decision to report was also influenced by her concern that the applicant might be a risk to other children.

In his conclusion Mr. Gilligan indicates that the main delayed impact of the alleged abuse on this complainant is extremely low self-esteem and significant sexual difficulties. He indicates that her profile in the trauma system inventory is a profile that is common amongst those who have been sexually victimised and reflects an individual who has a difficult time expressing distress to others. He concludes that the results indicate a high level of psychological distress and strongly indicate the need for therapeutic intervention. He concludes that overall the assessment indicates that the alleged incidents of abuse have had a significant psychological impact on the complainant and have particularly impacted on her self-esteem. He says that given these factors it is his opinion that her delay in reporting the alleged incidents of abuse is reasonable and understandable.

Dealing with the complainant M.K., Mr. Gillgian indicates that she has a positive relationship with her parents and brothers and that as a child these relationships were also positive. As a child she felt that most problems or topics could be discussed openly. She reports being a happy healthy teenager who had a great many social outlets. As an adult she has a good relationship with both of her parents.

It is clear from the report that this complainant has alleged touching by the applicant on only one occasion when she was a young girl aged eight. She told her parents about the incident just after it occurred. While it is Mr. Gilligan's opinion that the immediate impact of the alleged abuse was to make this complainant feel extremely uncomfortable about the applicant and his behaviour, no other immediate psychological or emotional effects emerged in the assessment and she has had no significant delayed impact by reason of the alleged incident. She reports putting the incident out of her head until she became aware of the allegations made by her cousins and realised that what happened to her was an assault. She made the decision to report the incidents because she believed strongly that the applicant's behaviour was wrong and that he should be punished.

In his conclusion Mr. Gilligan indicates his opinion that the incident has had no significant impact on this complainant either as a child or as an adult. She told her parents about the incident when it occurred and then she put it out of her head. In his conclusion he indicates that, based upon these facts, it is his opinion that the delay in reporting the alleged incidents is reasonable and understandable.

In reference to the complainant M.B., Mr. Gilligan indicates in his report that she showed no emotion during the assessment and presented in an extremely controlled manner. He indicates that the complainant reports to having been a very rebellious teenager who experimented with alcohol at age 14. She has a positive relationship with her parent and as a child it was also positive. She reports that as a child and teenager she was afraid of her mother while she saw her father as somewhat withdrawn. The family did not discuss boyfriends or sex. The complainant reports of having a very independent outlook on life and is reluctant to seek help from others. She believes she has low self esteem and that manifests itself in her never feeling deserving of positive developments in her life. With regard to the details of abuse these are given in the report. She reports that, when the incidents first began, she liked the fact that the applicant was paying her attention but that as the incidents progressed she began to become afraid of him and did not want him to come near her. She began to fear for her safety not knowing what the applicant might do.

Dealing with the factors influencing the impact of alleged abuse, Mr. Gilligan refers to the prolonged period of sexual harassment, of the age of the complainant at the time of the alleged incidents, being between the ages of 10 and 14, and the age differential between her and the applicant who was between 38 and 42 years of age at the time. Mr. Gilligan concludes that the applicant was in a position of authority and trust, a factor which would contribute to the complainant's compliance and difficulty reporting the alleged incidents. His relationship with the family was such that he was in a position of authority and trust also.

Dealing with the impact of the alleged abuse, Mr. Gillgian expresses his opinion that the main immediate impact was to make the complainant a rebellious teenager with low self-esteem. He also says that it is likely that her complaint of bedwetting as a young girl was exacerbated by the alleged abuse. He believes that the main immediate impact of the alleged abuse was to teach her to hide her emotions. Dealing with the delayed or current impact of alleged abuse, he expresses the opinion that the main delayed impact of the alleged abuse on the complainant is low self-esteem, unresolved anger, an extremely negative view of men and difficulty trusting others. Mr. Gilligan expresses the view that the complainant's presentation and communication style during assessment reflected underlying unresolved anger, most likely related to her experience with the applicant.

Dealing with psychological testing, Mr. Gilligan says that there are no clinical elevations on any of the ten scales referred to in his report.

Dealing with the delay in reporting, Mr. Gilligan expresses the opinion that a key factor in her not reporting the incidents as a child was the fact that when the indents first occurred they made her feel special. As the incidents progressed she began to understand that they should not be occurring and began to become frightened of the applicant. He states that the initial feelings of being special would have created feelings of guilt thus preventing her from reporting the incidents. The complainant has reported that she did not tell her parents about the incidents of abuse when she was a young girl because she thought she would only cause upset and get herself into trouble. He also expresses the view that the culture of communication within the family was not conducive to her reporting the incidents. As an adult the complainant said she did not report the incidents because she had no faith in the judicial system and felt her allegations would be dismissed. Mr. Gilligan says that, in his opinion, these views reflect her difficulties in trusting others and her low self-esteem. She made the decision to report the incidents when she was approached by her mother asking if anything had happened with her uncle when she was a young girl. This was on foot of allegations made by another sister. The complainant reports that this approach by her mother "empowered" her as she realised that she might be believed. She was also concerned that the applicant might be a risk to other children.

In his conclusion Mr. Gilligan expresses the opinion that the main delayed impact of the alleged abuse on this complainant is low self esteem, unresolved anger, an extremely negative view of men and difficulty trusting others. He concludes that the overall assessment indicates that the alleged incidents of abuse have had a significant psychological impact on this complainant and have particularly impacted on her self esteem, her overall view of men and her ability to trust. He concludes that these have contributed significantly to her reluctance to report the alleged abuse. Given these factors, is it his opinion that the complainant's delay in reporting the alleged incidents of abuse is reasonable and understandable.

In his report, dealing with the complainant T.M., Mr. Gilligan deals with the details of abuse which are stated subject to the correction in the affidavit of T.M. herself. He refers to the fact that she reports that as an adult she continues to be extremely frightened of the applicant and that as a young girl she was very frightened of him. The factors influencing the impact of alleged abuse are similar to those of the other complainant sisters. The complainant was aged ten or eleven at the time of the alleged incidents, when the applicant was between 39 and 40 years of age. Mr. Gilligan refers to the immediate impact of the alleged abuse as making the complainant extremely nervous and insecure as a young girl. She was very frightened of the applicant. Mr. Gilligan says that the delayed impact of the alleged abuse is a chronic fear of men and a generalised fear of being killed or attacked. She still has nightmares about the incidents alleged by her and complains of flashbacks. She complains of a sense of powerlessness which she experienced, resulting from the applicant's behaviour. Mr. Gilligan says that the psychological testing suggests that in the complainant's profile there is the possibility of under response.

As a young girl she tried to tell her mother about the alleged incidents but her mother did not "pick up" what she was saying. After that she did not believe there was any point in trying to tell her mother again. She feared the applicant as an adult. She was too scared to tell and believed that there was little that could be done about the incidents at this stage. She made the decision to report the incidents when she was approached by her mother asking if anything had happened with her uncle when she was a young girl. She decided to report because she felt she should support her sisters and that they would support her. In his conclusion Mr. Gilligan says that the overall assessment indicates that the alleged incidents of abuse have had a significant psychological impact on the complainant and have particularly caused her to feel extremely frightened and insecure. Mr. Gilligan concludes that the fear and the insecurity have contributed significantly to her reluctance to report the alleged abuse. He states that, given these feelings, it is his opinion that the complainant's delay in reporting the alleged incidents of abuse is reasonable and understandable.

A further affidavit has been sworn by the applicant in which he states that with reference to the affidavit of Mary Delmar he was only asked on one occasion a question concerning his son, Jake. He says that neither he nor his wife have ever been asked by the Gardaí for his son's contact details or address. He says that, had he been asked for more specific details concerning the whereabouts or address of his son, he would have answered them.

The applicant takes issue with the statement that he took on a "stooped and pathetic stance" when seen outside of the District Court. He denies that the application for an auctioneer's licence was withdrawn as alleged. He says that the application was granted and he exhibits a copy of his auctioneer's licence dated the 27^th July, 1999. He says that he commenced practice as an auctioneer from premises situated in Thurles in the summer of 1996 which he identifies. He indicates that the premises were rented from a third party and he refers to a rent book in this regard. He says that this indicates that the commencement of the tenancy was on the 1^st August, 1996 and the last rent was paid on the 4^th November, 1996. This was shortly after his arrest and detention at Thurles Garda Station on the 26^th October, 1996. He states that he has continued to apply for renewal of his auctioneer's licence in the hope that if and when the criminal proceedings have been put behind him he will be in a position to go back to work.

The applicant denies all allegations of sexual assault set forth in the affidavit of T.M. He further denies that he threatened on any occasion not to allow her to return home when she had been staying with him, as alleged by her. He also denies the allegations of sexual assault made by E.K, M.K. and D.V. in their respective affidavits and the allegations of sexual assault made by B.B. in her affidavit and all allegations of sexual assault on M.C.A.B. as set forth in her affidavit. Much of his affidavit is argumentative in nature.

A further affidavit has been sworn by Detective Sergeant Mary Delmar in which she quotes from the memorandum of interview with the applicant in reference to her assertion that he was evasive about the whereabouts of his son. She further says that the applicant continued to be evasive when questioned about the whereabouts of his son later on the same day. She states that on the 22^nd October, 1998, when the applicant was again interviewed in response to a question as to whether his son, Jake, was in the house at the time of one of the alleged assaults, the applicant responded by stating "We reared him from eighteen months", that he was now 24 years of age and that he lives in America. Much of this affidavit is also argumentative in nature. However, with regard to the claim made by the applicant that on the 22^nd October, 1998 Detective Sergeant Delmar told him that if he did not hear from her within three weeks then he and his wife should get on with their lives, she denies having made any such comment and she adds that nothing that she said then or on any subsequent occasion would have led the applicant to believe that this was the case.

She says that on the 15^th June, 1999 the applicant's solicitor informed her that his client's application for an auctioneer's licence would be withdrawn on that date. She says that the implication was that because the applicant was due to be arraigned on the charges giving rise to this judicial review application, it was thus impossible for the solicitor to make an application for renewal of his licence. She says that it has since come to her attention that the licence was in fact applied for by the applicant's solicitor and renewed on the 1^st June, 1999.

Mr. Gilligan was cross examined on his affidavits and reports herein. He indicated that he has a small private practice, while acting as Chief Executive of the Irish Society for the Prevention of Cruelty to Children for the past three and a half years. He indicated that he sees five to six people per year for assessment in his practice. He saw each of the complainants in the offices of the I.S.P.C.C., in his own office there. He indicated that the questionnaire administered to the complainants is a standardised questionnaire which is an accepted tool used by most psychologists. He indicated that the origin of the test was an American tool. He indicated that it is ideal if the person to be interviewed can fill out the questionnaire in his presence. He can give some clarity in relation to the questions but clearly cannot influence the response. He indicated that there are approximately 100 questions on the questionnaire, which take approximately half an hour to complete. He discussed the history with each of the complainants. The assessment consists of the questionnaire and this interview.

Mr. Gilligan found each of the complainants to be normal, articulate, intelligent persons who were well brought up and educated and four out of five of these were in active employment. In the case of M.K., he indicated that there was no clinical aberration which suggested that there was no psychological deficit or ailment needing treatment. In this case there is no evidence of psychological trauma. The complaint made by this complainant to her parents resulted in the matter being put out of her mind thereafter, as it had no significance until the other complaints were made. She got on with her own life. He indicated that there was no inhibitory factor preventing this complainant from making a complaint. Nevertheless, he stands over the conclusion which he has stated in his report. Mr. Gilligan indicated that he believes that the conclusion which he has reached can be stood over in the case of each individual assessed. In this case there was a once-off situation which was handled appropriately and healthily and it was reasonable for the complainant to put the matter out of her mind thereafter. The relevance of the matter only became apparent in adulthood.

In the case of E.K. the assessment made was on the material made available to Mr. Gilligan. Mr. Gilligan indicated that he was not engaged in adjudicating upon the truth or otherwise of the complaint. He said an assumption was made that the truth was being told. He indicated that he believes that the best assessment can be made in an interview situation. He indicated that if the statement is contradicted that this may be relevant. Objectively if major inconsistencies arise one may have to re-examine the role of the assessment. He indicated that no major inconsistencies were identified in the instant case in the context of any of the complainants. He indicated that the assessment does not involve getting information from other sources. He did not seek independent verification of the matters referred to.

Mr. Gilligan indicated that the test carried out by him covers all situations and is an important assessment tool.

In the case of B.B., Mr. Gilligan indicated that she has extremely low self esteem. In this regard she is eager not to create emotional difficulties. With regard to the complainant M.B., she got on with life after going to Australia. Mr. Gilligan referred to her difficulties in trusting and the fact that she has no faith in the judicial system. What changed the picture for her was the fact that other members of the family were taking action. Mr. Gilligan indicated that her psychological makeup was not changing between 1991 and 1997.

Mr. Gilligan indicated that his interviews with T.M. lasted for approximately one and a half hours. He stated that he prepared a report thereafter, possibly on the next day. A second interview was carried out to check the report.

Mr. Gilligan indicated that he worked in his role as a clinical psychologist for sixteen years and worked for his whole career in the field of child abuse. He indicated that he has extensive experience in this field, having previously worked for the Eastern Health Board. He handles approximately six cases per year in this field, excluding court cases. Mr. Gilligan indicated that he previously worked for the Eastern Health Board in Baggot Street Hospital and was part of the psychology team there.

Mr. Gilligan indicated that there was a huge gap between discussion of abuse and disclosure at a formal level.

Submissions:

Mr. Hugh Hartnett S.C. on behalf of the applicant submits, in the first instance that there is nothing extraordinary in this case in the light of the recent jurisprudence the High Court and the Supreme Court. It is submitted that the delay is the central issue in this case and that the same is inordinate and calls for explanation of a substantial nature. It is submitted that if the delay is not explained that the Court is forced to exercise its discretion to prohibit the trial and grant the injunctions sought. Counsel refers to the principles outlined in the authorities of P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and the case of PO'C v. Director of Public Prosecutions [2000] 3 I.R. 37. It is submitted that the issue is whether the delay is explicable or otherwise. It is submitted further that there is no question of the applicant being in a general position of authority over each of the complainants. It is submitted that some inquiry must take place accordingly.

Counsel submits that certain factors are missing on the respondents' side in this case. In the first place there is no evidence of psychological inhibition as there is an absence of evidence of factors which precluded the complainants from coming forward. Counsel submits, with regard to the brief given to the psychologist, Mr. Gilligan in this case, that the correct approach was not to determine whether the delay in question was reasonable. It is submitted that the two matters to be addressed are the delay itself and whose delay is at issue. It is submitted that throughout the period of delay the question arises as to whether the delay can be visited on the conduct of the applicant. Counsel submits that the delay is not referable in this case to any inhibition on the part of any of the complainants and there is no evidence of the complainants being incapable of reporting it. It is submitted that even if the complainants were incapable of reporting, that it has not been shown that this is referable to conduct on the part of the accused, the applicant herein. Counsel is prepared to assume that there may be a natural inhibition on the part of a child up to the age of approximately fifteen years of age but submits that there is an absence of evidence of psychological inhibition thereafter. It is submitted that the evidence of the psychologist in this case does not go so far as to show that the complainants were prevented from coming forward. It is submitted that there must be some clog preventing the complaint coming forward.

It is submitted that there is no evidence of dominion as in of B. v. Director of Public Prosecutions [1997] 3 I.R. 140, and there is no continuing dominion in this case. With regard to the psychological evidence, counsel submits that this evidence does not show any wide-ranging inquiry having been carried out or that the psychologist took into account all the surrounding circumstances. Counsel further criticises the psychologist on the basis of the absence of any independent source being referred to. Counsel refers to the fact that there has been no interview of any other protagonist, including the complainants' mother or other members of their family. It is submitted further that the conclusions reached by the psychologist are based on general statements.

Counsel submits that what is relevant in any given case can only be established from an in-depth inquiry being carried out by the psychologist. It is submitted that based upon the authorities there is an obligation on the psychologist to consider all surrounding facts. Counsel refers to of J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 and S.F. v. Director of Public Prosecutions [1999] 3 I.R. 235 and submits that, based upon the authorities, the psychological evidence must be as full as can properly be adduced.

Counsel submits by reference to PO'C v. Director of Public Prosecutions [2000] 3 I.R. 87, if there is no explanation for the delay complained of, this would render the trial in question unsafe. He submits that insofar as the delay is over twenty years, there is a prima facie situation where a trial of the accused would be unsafe. It is further submitted that the psychological evidence in this case does not address the issue of whether the delay complained of is as a result of the applicant's conduct.

Counsel refers to the inevitable stress and anxiety to an accused person as referred to in P.C. v. Director of Public Prosecutions [1997] 2 I.R. 25, and P.M. v. Malone [2002] 2 IR 560.

Dealing with the effect of the delay, counsel places particular stress upon of P.C. v. Director of Public Prosecutions (Supra) and the nature of the inquiry that must be carried out by this Court. It is submitted by reference to this, that if there is no explanation for the delay it must be considered to be inordinate and inexcusable in the circumstances of the case.

Dealing with J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122, it is submitted that there has been no analysis in the instant case of the factors of non-disclosure. It is submitted that the conclusions reached by the psychologist are based on generalities and that he failed to take into account factors such as the impact of therapy being received by one of the complainants. It is submitted that it was incumbent upon the psychologist to make some inquiry as to the disclosure to the therapist in question and the impact of the therapy.

Counsel refers to the stress experienced by the applicant and refers in this context to the fact that he was not able to open his auctioneering business. It is submitted that the stress has been caused by the unnecessary and inordinate delay in the instant case.

Counsel makes specific reference to the decision of the Supreme Court in P.C. -v- Director of Public Prosecutions [1999] 2 IR 25 and to the nature of the enquiry to be carried out by the court in the context of an application of this nature. Counsel accepts that the approach adopted by the Supreme Court in this case is the same approach that should be applied to the facts of the instant case.

Counsel also refers to the case of B -v- The Director of Public Prosecutions [1997] 3 I.R. 140 and submits that in the instant case unlike the B case there was no dominion or incapacity established such as to have prevented any of the complainants making their complaints in relation to the applicant. Counsel submits that in the absence of any dominion or psychological inhibition caused by the applicant there is no fault on his part. It is submitted that there is an absence of continuing effects of the acts alleged by the complainants in this case. By reference to the decision of J.L. -v- The Director of Public Prosecutions [2000] 3 I.R. 122 it is submitted that, in the instant case, conclusions reached by the psychologist have been based on generalities and that he failed to take into account the relevant factors. Counsel submits that there has been an absence of a thorough enquiry by the psychologist in this case. It is submitted that he should have had contact with other members of the family to establish other factors which may have been present in this case.

Counsel submits that if the court is driven to enquire further in relation to the issue of delay beyond the explanation given by the psychologist, one has to consider what are the effects of the delay. It is submitted that the primary effects must be stress and anxiety which have been suffered by the applicant. It is submitted that the stress relates to the proceedings and to not having been able to open his auctioneering business. It is submitted that the stress has been caused by unnecessary and inordinate delay in this case. Counsel submits further that by reason of this there is a real risk that the applicant will not obtain a fair trial.

On behalf of the respondent Mr. Feichín McDonagh S.C. expresses criticism of the fact that it is stated that the issue of the applicant's fitness to plead is still "out there" and in this regard counsel refers to the correspondence between the parties in January 2001. Counsel refers to the fact that this is not covered by any medical report furnished as evidence to this court. Counsel refers to the delay on the part of the applicant in bringing his application in these proceedings. Counsel traces the history of the case and points to the fact, that in the first affidavit as sworn by Mr. Paul Fitzpatrick, it is stated that on the 20^th June, 2000, when the applicant was returned for trial by order of the District Court, his solicitor Mr. Michael O'Connor who appeared on his behalf, informed the Court that his client intended to commence High Court proceedings with a view to staying his trial. Counsel refers to the fact that a decision appears to have been taken not to take judicial review proceedings at that time. The application for leave was not made to the High Court until the 29^th June, 2001 which was a period in excess of one year from the date of the return for trial of the applicant. Counsel refers to the fact that insofar as the applicant has not moved promptly and in any event within the relevant period of three months to seek leave for judicial review that an obligation exists on his part to explain the delay in moving to this Court.

While issues have been raised in relation to the documentation available to the applicant in the context of his trial it is submitted by counsel that all information was available to the applicant as of the 19^th October, 2000, when full disclosure had been made. At this stage the trial had been fixed for the 30^th January, 2001. A witness attended at the court having travelled from Australia for the trial. In all of the circumstances, it is submitted that the delay on the part of the applicant requires an explanation as to why judicial review proceedings were not commenced in a timely fashion.

Counsel also refers to the fact that the decision seems to have been taken not to exhibit reports from his medical consultants including Professor Casey. Counsel submits that the issue as to the applicant's fitness to plead and the evidence that might be relied upon in that regard might have a bearing on the issue of anxiety raised in these proceedings.

Counsel refers to the decision of the High Court in the case of Redmond -v- The Director of Public Prosecutions (Unreported, High Court, Kearns J. 2003) where relief was refused to the applicant, notwithstanding the existence of substantial grounds, on the basis of delay in moving to the court.

Dealing with the issue of anxiety, counsel refers to the fact that this is a matter that has never been expressly referred to by the applicant himself and submits that this court should not ignore this factor in the case. In this regard, counsel questions the entitlement of the applicant's solicitor to raise the issue without the applicant himself addressing same in the form of any affidavit. Counsel submits that it is clear that the institution of the criminal proceedings is what has caused anxiety to the applicant and not the delay. Counsel refers to the fact that the applicant ultimately has sworn an affidavit on the 23^rd April, 2002 which does not address the issue of anxiety. Furthermore, the applicant seems to be intent to go back to work at the conclusion of the proceedings.

Counsel further refers to the memoranda of interviews with the Gardaí which were sworn to have been correct and submits by reference to same that these call into question the applicant's veracity in the case.

With regard to the course of the proceedings, counsel refers to the fact that Sergeant Delmar has sworn to the fact that the investigation was complex and that she has not been cross-examined on her affidavit in this regard.

Dealing with the evidence of the complainants, counsel refers to the fact that the five turned up for the trial in 2001, one having travelled from abroad. A notice to cross-examine the complainants on their affidavits was served in May of 2002 and it was made known thereafter that one of the complainants would have to travel from Australia at the time and that this was confirmed by a fax sent to the applicant's solicitors. Notwithstanding this, it was confirmed on the part of the applicant that her presence was required for the trial of this motion. Counsel refers to the fact that on the second day of this hearing the court was told that the attendance of this witness, who had interrupted a research project in Australia to attend the court, was unnecessary.

With regard to the evidence of the psychologist Mr. Gilligan and suggestions of inconsistency in what the complainants have stated, it is submitted that their version of events remains uncontradicted and in this regard one must assume that what the consultant psychologist was told in the version given to him was correct. Counsel refers to the fact that, while it was submitted that Mr. Gilligan did not pursue his task in an appropriate manner, no fact was put to him as having been overlooked by him in his consideration of the case and therefore nothing was put to him relating to any fact, which he failed to take into account. Counsel submits that the attempt to suggest that the task undertaken by the consultant psychologist was inappropriate was simply by reference to other cases where different facts pertained. In this regard counsel refers to the fact that in the case of P.M. -v- The Director of Public Prosecutions Professor Casey criticised the psychologist. In this case no affidavit has been sworn by Professor Casey and therefore she has not been amenable to cross-examination. The same situation applied in that case.

Counsel refers to the fact that in the authority of P.M.-v- Malone [2000] 2 I.R. 560 the Chief Justice referred to the earlier authorities of O'Flynn -v- Clifford [1989] I.R. 524. Counsel submits that the essential issue of delay is one that relates to a period following the laying of a charge. Counsel submits that by reference to the evidence in this case given by Detective Sergeant Delmar, who has not been cross-examined on her affidavit, there is no evidence before the court to show that the prosecution was in a position to commence the criminal prosecution before the time when in fact it was commenced.

Counsel submits that it is the effect of the delay which is of importance. Counsel submits that one has to contrast pre-to post complaint delay. Counsel submits that pre-complaint delay cannot stop a trial unless clear prejudice has been established. On this basis counsel submits that one cannot stop a trial on the basis of delay per se in the time leading up to the charge.

Counsel refers to P.M. -v- Malone [2002] 2 IR 560 and submits that the facts of that case were unique. Counsel refers to the fact that as in that case the concept of repression does not arise. Counsel refers to portions of the judgment in the case and in particular to the conclusions of the Chief Justice starting at p. 39 of the judgment. Counsel submits that this case is an acknowledgment of the fact that delay of itself will not give rise to a trial being stopped.

Dealing with the criticism of the psychologist's report, counsel refers to the dissenting judgment in the case of J.O'C. -v- The Director of Public Prosecutions [2000] 3 I.R. 478 where criticism was expressed of the psychologist in that case. Counsel contrasts the judgment of Murphy J. in that case with the judgment of Hardiman J. in the same case. Counsel submits that the basis of the criticism expressed by Hardiman J. in that case has no application to the facts of the instant case.

Dealing with the issue of anxiety, counsel refers to the fact that this is a factor that was not mentioned by the Supreme Court in the case of Byrne -v- The Director of Public Prosecutions [1994] 2 I.R. 236. Counsel submits that the essential issue of prejudice addressed in the authorities is the issue of prejudice to the defence itself.

Dealing with the position of the applicant, it is submitted that he was in a position of authority over each of the complainants. Counsel refers to the evidence of the psychologist and submits that it was open to the applicant to adduce further evidence to challenge that of the psychologist if he so wished. Counsel refers to the fact that in the case of P.M. -v- Malone [2002] 2 IR 560 the Court did not stop the trial because of the delay, but because of the presumed anxiety identified by the court.

Counsel refers to the authority of McKenna -v- Presiding Judge of the Dublin Circuit Criminal Court and The Director of Public Prosecutions [Unreported, High Court, 14^th January, 2000, subsequently affirmed by the Supreme Court] in which the courts while identifying the existence of inordinate delay refused to prohibit the trial in that case.

Referring to the case of B.F. -v- The Director of Public Prosecutions [2001]
1 I.R. 656, which was a case involving delay in seeking the extradition of the appellant, counsel submits that the particular features of that case are not replicated in the instant case. Counsel refers to the fact that the delay in that case was not explained.

In reply, counsel on behalf of the applicant submits that the delay in moving to the court for leave for judicial review has been adequately explained in this case. Counsel refers to the correspondence between June and December, 2000, exhibited in this case, and to the fact that the initial statements were truncated and undated, and where, until further inquires were made, the accused's advisors did not know when disclosure had been made. Counsel submits that disclosure issued as of course but also refers to the fact that some documentation arrived at a very late stage. Counsel refers to an earlier trial which could not proceed as planned. It is submitted that the State chose to bring a witness from Australia when the trial was adjourned. If there was any failure, he submits the same must fall on the shoulders of the lawyers and not to be visited on the applicant himself. In all the circumstances, it is submitted that the delay is explicable and has been explained in the affidavits sworn on behalf of the applicant by his solicitor Mr. O'Connor.

Dealing with the case of P.M. v. Malone [2002] 2 IR 560, counsel disagrees with the contention of counsel for the respondent insofar as it is submitted that it represents a new departure. Counsel submits that it represents no departure from the earlier decisions of the courts. Counsel in this regard refers to J.O'C.-v- The Director of Public Prosecutions [2000] 3 I.R. 478, where in his judgment, Hardiman J. referred to the pressures being brought to bear on an applicant.

Dealing with the issue of the delay alleged in the prosecution, it is submitted that there is no explanation for the delay and there was no complexity in this case. It is submitted that the applicant should have been charged as soon as the complaints were made and at the latest by 1998. Dealing with the approach taken by counsel for the Director of Public Prosecutions in regard to whether any delay pre-charge is relevant, counsel for the applicant relies upon the principles enunciated in the case of Byrne -v- The Director of Public Prosecutions [1994] 2 I.R. 236. It is submitted that even where no prejudice is shown that the courts may intervene to stop a trial where there has been undue delay. In conclusion, counsel submits that the existence of low self-esteem is not a sufficient basis to explain the delay insofar as it has been demonstrated to exist in the case of a number of the complainants in this case.

Conclusions.

In the first instance, applying the approach of the Supreme Court in the case of P.C. -v- The Director of Public Prosecutions [1999] 2 IR 25, it is clear that the onus lies on the applicant to prove the risk of an unfair trial. In the instant case it is clear that the passage of time may make it more difficult for the applicant to defend himself but it is clear that he has not been able to point to any clear case of prejudices in the context of defending himself at early trial for the charges preferred against him.

Dealing with the issue of the delay on the part of the complainants coming forward, it is clear that the psychologist, dealing with the science in which he is versed, has indicated that in the case of each of the complainants the delay in coming forward was reasonable and understandable. It is clear from the evidence of the psychologist that in the case of each of the complainants, with the exception of E.K. and M.K., the finding is that the alleged incidents of abuse have had a significant psychological impact on them and have contributed to the delay in reporting the alleged incidents of abuse. I am quite satisfied that the finding of low self-esteem is a sufficient basis giving rise to an inability to come forward and make the complaints at an earlier stage in the lives of the complainants who have suffered accordingly.

It is clear that in the case of M.K. the reason she did not come forward at an earlier stage was because the incident in question, being an isolated incident, was one that did not give rise to any significant delayed impact on the complainant. It is also clear from her own version of events that she did in fact tell her parents of the incident just after it occurred. In light of this fact it cannot be said that the delay in coming forward on the part of this complainant is a delay for which the applicant is responsible.

With regard to the complainant E.K. the position is somewhat different. It appeared that as a young person she felt that she would not be believed if she reported the incidents alleged. She reported also being scared of her uncle, the applicant herein. At a later stage when she might have reported the incidents she felt that nothing could be done about them at that stage and she was uncertain as to how to go about reporting the incidents. It is also clear that she was still fearful of the applicant and did not want to upset her mother. It was only after her mother in fact pushed her that she decided to make a formal complaint. While it is clear that, in the psychological context, the delay in reporting the alleged incidents of abuse concerning this complainant is also stated to be reasonable and understandable, I have no reason to reject this evidence. The issue that remains is whether the applicant can obtain a fair trial in relation to each of the complaints made by the several complainants in this case.

In assessing whether it has been established that there is a real and serious risk of an unfair trial, it is clear that, in the context of the isolated complaint made by M.K., that the applicant has not demonstrated that the capacity to defend himself would be impaired. As stated by Keane J. in P.C. -v- The Director of Public Prosecutions [1999] 2 IR 25 at p. 68 of the report:

"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."

He further indicated at p. 68 that it is a necessary enquiry in every case such as this, where findings are made that the delay is explicable by reference to the conduct of the accused, to determine whether the degree to which the accused's ability to defend himself has been impaired, is such that a trial should not be allowed to proceed. I am satisfied that what I must consider is whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial. I must state at this stage that I accept the evidence of the psychologist Mr. Gilligan and I reject any suggestion that he failed in his duty to properly investigate the issue to delay insofar as it affected each of the complainants in this case. I am satisfied from a reading of the reports that he has addressed each case individually and has indicated the different features of the case of each of the complainants. I am satisfied that the applicant has failed to satisfy me that Mr. Gilligan either took into account irrelevant material or that he failed to take into account no relevant material other than that addressed by him and which has been demonstrated to have existed at the time.

In conclusion I believe, applying the appropriate tests as expounded in the judgments of the Supreme Court in the case of P.C. v. The Director of Public Prosecutions [1999] 2 IR 25, with regard to the three complainants, where the evidence shows significant psychological impairment such as to affect their ability to report the complaints, that the delay is explicable by reference to the conduct of the accused grounded on the assumption as to the truth of the complainants in each case and related to the fact that their evidence has not been tested by cross-examination in these proceedings. I am furthermore satisfied that the applicant has failed to demonstrate a clear case of inability to defend himself in relation to these charges in the particular circumstances of the case and I am not satisfied that he has established any degree of prejudices such as to give rise to a real and serious risk of an unfair trial in the case of these complainants.

In the case of the complaint M.K. I am satisfied that in this case the delay in reporting can not be visited upon the applicant and I believe, notwithstanding the submissions of counsel for the Director of Public Prosecutions, that I should apply the approach of the Supreme Court in the case of P.C. v. The Director of Public Prosecutions [1999] 2 IR 25 and, while I am satisfied that the applicant has failed to show that in the case of this complainant that his capacity to defend himself will be impaired in any respect beyond that of the other cases, I believe that the judgments of the Supreme Court in that case suggests that the trial in respect of this single complaint should not proceed as it relates to a single event a very long time ago.

Finally with regard to the complaint E.K., I am satisfied on the evidence that the delay in question has been contributed to by the action of the applicant in these proceedings and I am not satisfied that the charges in relation to this complainant are such that the accused's ability to defend himself would be further impaired such that the trial should not be allowed to proceed. I am satisfied that the applicant has failed to establish a degree of prejudice such as to give rise to a real and serious risk of an unfair trial. It is also clear that the allegations differ from the case of the complainant M.K. as they do not relate to only one incident. Accordingly, I will refuse the applicant the relief sought but for the charge pertaining to the complainant M.K.

Approved: Ó Caoimh J.