High Court of Ireland Decisions

 
THE HIGH COURT

JUDICIAL REVIEW

[2001 814 JR]

BETWEEN

C.K.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 27th May, 2004.

By order of this court dated 3^rd December, 2001 the applicant was given leave to apply by way of an application for judicial review for the relief by way of an order of certiorari of the indictment against the applicant herein. The grounds upon which the relief is sought are:

1. The unexplained delay between the alleged occurrences of the alleged offences, which offences are denied, is of such duration that, by reason of that delay alone, the trial of the applicant herein should not be allowed to proceed. A period of 26 and 22 years respectively elapsed between the alleged commencement and termination of the activities in question and the making of the complaint.

2. Further or in the alternative, the delay is such that, if the trial herein were conducted, the applicant would not be in a position to properly present his defence and would thus be denied his right to a trial in due course of law as guaranteed by Article 38.1 of Bunreacht na hÉireann. In particular, the applicant is unable to present the oral evidence of:

(a) Ms. King, grandmother of the complainant, as to the nature of the childminding and babysitting duties in relation to the complainant's family. Mrs. King is now deceased.

(b) Ms. Kitty Clinch, owner of a field at Onagh at which an alleged incident occurred, for the purposes of giving evidence to the effect that the applicant only visited the said field in the 1980's i.e. outside the said period. Ms. Clinch is now deceased.

(c) Dr. Gaffney, family doctor to the applicant and his wife regarding the complainant's assertions that the applicant's wife frequently suffered and displayed bruising to her face and arms. Dr. Gaffney is now deceased.

(d) Mr. Johnny Maguire, regarding events at the tug-of-war, after which an alleged incident occurred. Mr. Maguire is deceased.

The applicant is further impaired in the conduct of his defence by reason of his inability, due to the lapse of time, to adduce documentary evidence regarding the ownership and period of ownership of certain vehicles in which the incidents alleged occurred.

The applicant has sworn an affidavit in which he indicates that on the 8^th August, 2001 he was charged with offences contrary to common law as provided for by s. 6 of the Criminal Law Amendment Act, 1935 to the effect that he did indecently assault one P.K. between the 4^th day of October, 1974 and the 3^rd day of October, 1978. He says that he appeared on a number of occasions on foot thereof before Bray District Court and was ultimately returned for trial on 2^nd November, 2001. He says that the matter was thereupon remanded to Wicklow Circuit Court on 4^th December, 2001. The applicant refers to the Book of Evidence in the prosecution against him. He says that the complainant first approached a member of An Garda Síochána on or about the 20^th day of May, 2000 for the purposes of making a complaint in relation to the alleged conduct of the applicant. On this basis he says that almost 26 years and 22 years elapsed between the alleged commencement and termination of the alleged offences and the making of the complaint herein. He says that the delay of itself, and without more, is of such duration that the trial should not be permitted to proceed. He says that it is now in excess of 27 years and 23 years since the alleged commencement and termination of the activities. He denies all the charges.

The applicant says that between 1970 and approximately 1984/1985 he resided at (address) in Co. Wicklow. He states that the complainant lived next door during those years and continued to reside there until 1987 whereupon she moved to England. He says that while his wife was indeed a friend of the mother of the complainant he did not have a close relationship with the parents or other family members of the complainant and was not a regular visitor to their home. He says he did not exercise any dominion over the complainant. He says that the absence of dominion is particularly pertinent, given that he moved from the area in which the complainant resided in or about 1984 or 1985. He says that after that time he continued to visit the family home on a weekly basis.

The applicant says that the delay between the alleged occurrences of the offences and the making of the complaint is unexplained. He says that the delay and lack of explanation regarding same is particularly pertinent as he believes and is informed that the complainant previously made a complaint regarding a sexual offence while resident in England in or about 1987 and was accompanied at the prosecution of the said offence in England by a member of An Garda Síochána based in the area in which she and her parents reside.

The applicant complains that he is prejudiced by reason of the lapse of time between the occurrences of the alleged activities and the making of the complaint in the presentation of his defence to the charges in question. He says that in view of the lapse of time, he is not in a position to adduce oral and documentary evidence necessary for the purposes of the conduct of his defence.

He says that in this regard, the complainant alleges in her statement of proposed evidence as set out in the Book of Evidence, exhibited herein, that a number of alleged activities occurred in the applicant's blue van. He says that he did not own or otherwise have the use of a blue van in the period between the 4^th October, 1974 and the 3^rd October, 1978, being the dates between which the alleged activities occurred. He says that he did in fact own a blue van between the years 1967 and/or 1972/1973, whereupon the said van was burned out. He says that as a result of the passage of time he is not in a position to adduce evidence of ownership nor of the period of ownership of the said blue van in the form of a log book or otherwise. Upon inquiry at the Wicklow Fire Brigade, in relation to the maintenance of records of vehicles destroyed by burning, he learned that the fire brigade only retains records from 1985 onwards.

The applicant refers to a statement made by him contained in the Book of Evidence. He says by reference to this statement that it is recorded therein that he indicated that he acquired a blue van in or about 1977. He says, however, that he clearly stated to the garda in question that he acquired in or about 1967 and, due to the unavailability of his reading glasses and attendant poor sight, and furthermore due to the fact that the services of a solicitor had not been made available to him, he could not read said statement properly and thus failed to notice that the guard in question had in fact recorded the year 1977 in place of 1967 as directed. He says further that due to the lapse of time he cannot recall the registration numbers and letters of said vehicle and is thus not in a position to make inquiries of the insurance company insuring same, nor of the office regulating motor taxation in order to establish ownership of same.

The applicant says that the mother of the complainant herein refers in the statement of her proposed evidence as set out in the Book of Evidence to a photograph exhibited in which a Hiace truck used by the applicant and owned by his then employer is visible. He states that this model of Hiace truck only became available on the Irish market in 1979 and that his employer acquired it in or about 1980. He says however that as a result of the lapse of time he is denied the opportunity of adducing documentary evidence in the guise of log books or otherwise for the purposes of establishing the period of ownership of the Hiace truck.

The applicant refers to the complaint that a sexual assault was committed by him upon the complainant during his visit to a secluded spot at Onagh, which visit occurred for the purposes of collecting wood. He says that he did visit Onagh for this purpose of collecting wood but that such visits only commenced after 1980. He says, in this regard, that the land in question was owned by a Ms. Kitty Clinch, an aunt of his who gave permission to him to collect such firewood in return for domestic and household maintenance and repairs which he undertook. He says that this arrangement only commenced in the 1980's being outside the period at issue herein. He says, however, that Ms. Clinch is deceased having died within the previous two years.

The applicant refers to a complaint that he fondled the complainant in her home in her parents' absence on dozens of occasions during the period in question. He says that the complainant alleges that when he thus visited her home on the dozens of occasions he did so for the purpose of babysitting. He refers to the fact that she alleges that her parents were unaware of the state of affairs and believed that his wife was babysitting the complainant and her siblings. He says that he did not visit the home of the applicant (sic) on dozens of occasions and he says further that his wife was not the regular babysitter on behalf of the said children. His wife did babysit on occasions but he says that Mrs. King, grandmother of the complainant, was the person who carried out most of the evening babysitting duties for the complainant's family. He says however that Mrs. King is deceased, having died in or around 1995.

The applicant refers to the complainant's statement where she alleges that his wife regularly sustained terrible bruising to her face and arms as a result of blows which the applicant inflicted. He denies that he assaulted his wife thus and he says that his wife likewise denies that she suffered in the same manner. He says that for the purpose of the conduct of his defence and more particularly for the purposes of challenging the applicant's credibility in relation to these assertions it would be necessary for him to present the evidence of Dr. Gaffney, general practitioner, who acted as a family doctor to the applicant and members of his family, as to his wife's attendance, if any, during the period of alleged assaults. He says, however, that Dr. Gaffney died within the past year, namely in the period of 2001. He also refers to the complainant's allegation, as set forth in her statement of proposed evidence, to an assault in the applicant's car on a journey from a tug-of-war game in which her father participated. He refers to the fact that the complainant alleges that he volunteered to take the complainant and the other children home, while the other adults stayed behind at the tug-of-war match. He says that he and a Mr. Johnny Maguire attended the said game and was present when the complainant's father asked him to bring the children home. Mr. Maguire is deceased. He says that his right to a fair trial in due course of the law could not be vindicated by means of directions issued by a trial judge in the course of the conduct of the trial.

The applicant has exhibited the Book of Evidence which sets forth 48 charges of indecent assault against the complainant on a monthly basis between the 4^th October, 1974, to the 3^rd October, 1978, inclusive.

The Book of Evidence includes a statement of the complainant which details allegations of habitual sexual abuse perpetrated upon her by the applicant. In the statement she indicates that, at the time of reporting the abuse, it was because she had at last come to terms with it. She states that she had spoken to both her husband and her close family about it. She stressed the view that other children may be in danger from the applicant. In the statement the complainant states that she still felt intimidated and horrible when she saw him until she made her formal complaint.

In the statement the complainant states that she went to London to work when she was 21 years of age. She lived in London for about 1 year. She returned and lived with her parents up to the time when she got married in June of 1995. She states that in relation to the allegations she has made against the applicant she rang the Rape Crisis Centre on a number of occasions over the previous 3 or 4 years and spoke to different people about the matter. She indicates that she had not attended one to one counselling for this issue but she was then going to seek help. She first recalled having spoken about the issue to a boyfriend she had at around 14 years of age. She states that this boy is now living in England. She indicates in her statement that she only told him little bits of the story at the time. He advised her to tell her mother but she did not tell her mother the full detailed story until about 6 months prior to making her formal statement of complaint. She gives as her reason for this, firstly, the fact that her mother and the wife of the applicant were reared together and grew up together when they were young. Both of them got married and have lived next door to each other for 31 years. She felt that because the applicant's wife was her mother's best friend she would cause too much upset between both families. She states that having told her mother she was still hesitant about reporting it to the gardaí. She indicates in her statement that she remembers telling her mother when she 14 years of age that she should not let her little sister go into the applicant's house as the applicant was not a very nice man. She states that she was trying to ensure that anything did not happen to her sister but she could not bring herself to tell her mother the story. She felt she would not be believed as the applicant was supposed to be such a good person who went to mass every Sunday with his wife and children.

The complainant in her statement states that the applicant was always so good to her parents' and to other neighbours that no one would believe her. She felt she missed out so much in life over this abuse. She felt ashamed of her body and herself over this. When she was going to school she used to look for notes from her mother so that she would not have to go to P.E. or swimming lessons as she felt people would know first by looking at her what was going on. She states that she felt so ashamed. She always had the fear that her body would be marked and people would know that she had been abused. She did not like the idea of people looking at her as she always had the fear people would find out she was being abused. She continued to avoid situations where she had to remove her clothing in front of anyone until about one year prior to making the statement. She states that she never got involved in sport in school over this and she felt she missed out so much in life over it. She indicates in her statement that over the previous two years she had made a decision to come to terms with this. She joined a gym and swam a couple of times a week. She felt so much better since she did this. She no longer felt ashamed to get into her swimming outfit and now realised she had missed out so much over the years. She loved sport but she used to look for notes to avoid it all the way through primary and secondary school. She felt her parents were certainly influenced, if not manipulated, by the fact that the applicant lived next door to them and that he was such a good neighbour. She indicated that he always fixed heaters, washing machines and whatever went wrong. He would always be the handyman to call. She states that when her parents went out they felt they could trust the applicant and they could see no wrong in him. She states that she just felt that because they knew him so well and were friends for years, that they were influenced or manipulated.

A statement of opposition has been filed on behalf of the respondent in which it is pleaded inter alia:-

1. That there has not been the alleged or any delay by the complainant.

2. That if there has been any delay it has not of such duration that, by reason of the unexplained delay alone, the trial of the applicant should not proceed.

3. That if there has been any delay in the making of the complaints against the applicant, the applicant has been responsible for this delay. It is pleaded that the applicant was, at the time of the offences, in a position of dominion over the complainant.

4. It is pleaded that the applicant prevented the making of complaints by threats and intimidation of the complainant.

5. It is stated that there is no time bar to the prosecution of such offences as are charged herein.

6. It is pleaded that the applicant has not established that the alleged delay has caused or will cause him to suffer prejudice in the preparation or presentation of his defence to the charges laid against him.

7. It is denied that the particulars relied on in the applicant's pleading would constitute a violation of his right to a trial in due course of law.

8. It is denied that the prosecution, or the taking of any further steps for the purposes of the prosecution of the applicant, would constitute a violation of the applicant's right to a trial in due course of law as guaranteed by Article 38.1 of the Constitution.

An affidavit has been sworn by the complainant herein who refers to a statement contained in the Book of Evidence and says that the contents of this statement are true and accurate. She indicates that she attended Michael Dempsey, Senior Clinical Psychologist on the 6^th March, 2002, and on the 14^th March, 2002. She states that she did not tell anyone about the abuse perpetrated on her by the applicant at the time because she was afraid of him. She indicates that he told her not to say anything about the abuse to her mother. She felt intimidated by his size. Even now she remains afraid of him and she feared that he would attack her parents after she had complained to the gardaí about the abuse. Another reason that she failed to complain about the abuse at the time was because she felt that she was responsible for it. She felt dirty because of the abuse and did not want to tell her parents because she was afraid of what they might think of her. She felt that no one would believe her.

The applicant was a family friend, he was trusted by her parents and he was regarded as a pillar of the community. She states that the friendship between her mother and the applicant's wife was another reason why she did not complain at the time of the abuse. His wife spent a lot of time in their house, covered in bruises inflicted by the applicant and she did not want to distress her more by reporting the abuse. She was also concerned not to hurt the applicant's three children by reporting the abuse.

The applicant used to show her pornographic magazines and another reason why she did not tell anyone about the abuse was that she was afraid that people might think that she was like the women in the magazines. She states that as a consequence of the abuse she felt ashamed of her body throughout her later life. She became distressed and ran out of the room when her mother attempted to tell her the facts of life. Any talk about any part of her body would trigger memories of the abuse and she would react hysterically. She grew up in adolescence feeling different from all her friends. She felt that she had an awful dark secret that she could not tell anyone. The abuse affected her concentration in school. She states she was always fearful when alone in the company of men as she grew up. The abuse made her less trusting of people, especially men. She states that the abuse stopped when she was 12, after she made a conscious decision not to let it happen again. She states that when she was 14 she told her mother not to let her sister into the applicant's house as he was not nice and had dirty books.

The complainant states that she experienced a serious sexual assault when she was 21 years of age. This revived memories of her childhood abuse. It was totally different to the child abuse she suffered as she was no longer a child and was 21 years of age. She had just got away from her attackers and was running down the street naked when she was spotted by a passing motorist who phoned the police. She was rescued by police from the nearby police station shortly afterwards on that day. She was left with no alternative but to tell them what had happened. At that time she had thought about telling someone about the abuse so she could deal with it.

She states that she can remember clearly that while she was in the police station in Birmingham, following the second attack, she was dressed in a forensic suit, and she thought that if she told anyone then about the child abuse that they would think she was insane. She says there was no connection between her family and the attackers in the second incident, as there had been in relation to the first incident. She states that she complained about the abuse when she was visiting her family's home and would see the applicant in the company of children who she understood were his grandchildren. She was worried that he might have used them or his own nieces or nephews.

An affidavit has been sworn by Michael Dempsey, Senior Clinical Psychologist of the Eastern Area Health Authority at St. Brendan's Hospital, Dublin 7. He describes himself as a senior clinical psychologist and sets forth his qualifications. He is an Associated Fellow of the British Psychological Society and a Registered Chartered Clinical Psychologist of the British Psychological Society. He is an Honorary Tutor on the Doctoral Program in Clinical Psychology at Trinity College, Dublin where he is a part time lecturer in the Department of Social Studies. He also states that he is a part time lecturer in the Department of Psychiatry at the Royal College of Surgeons in Dublin. He refers to the fact that he has 22 years experience in the practice of clinical psychology in the health services of England and Ireland including working in forensic settings. He states that he has provided psychotherapy to people who have been sexually abused. He has also worked with people who have committed sexual offences. He has provided psychological reports in relation to the delay in reporting alleged sexual abuse at the request of the Director of Public Prosecutions in the past.

Mr. Dempsey indicates that he met the complainant at the respondent's request on the 6^th March, 2002, and on the 14^th March, 2002. He indicates that he was requested to interview her with a view to assessing whether the abuse complained of has had any affect and if so what effects, including long and short term effects on the complainant of dominance or otherwise, and in particular whether any and if so which effects may have inhibited her from complaining of the said abuse until recently and in particular complaining to the gardaí and what the reason for the delay has been. He indicates that for the purposes of this task he was provided with a copy of the notice of motion, statement of grounding application, affidavit and exhibits supporting the application for judicial review and a copy of the order granting leave to apply for judicial review. He says that he also received a report from Garda Jim O'Sullivan and a brief report from Aurelie Silverlock, a psychologist/councillor who met the complainant on two dates in April, 2001.

Mr. Dempsey indicates that following his two meetings with the complainant, he prepared a report which he exhibits with his affidavit. He says that this report represents a true and accurate record of his meetings and the opinion formed by him as a result thereof.

In his report Mr. Dempsey refers to the nature of the abuse alleged by the complainant and the fact that she knew that what the applicant was doing was wrong. One of the reasons why she did not tell anyone about the abuse at the time was that she was afraid of the applicant. She reported that he used to tell her not to say anything about the abuse to her mother. She felt intimidated by his size and this sense of being dominated by the perpetrator is a common reason for not reporting abuse in childhood. She reported that even as an adult she remains afraid of the applicant and she feared that he would attack her parents after she had complained to the gardaí about the abuse. Mr. Dempsey indicates that the literature on the subject indicates that this fear of the perpetrator often continues into adulthood. He states that she was further inhibited in telling her parents about the abuse because she felt at the time of its occurrence that she was responsible for the abuse. Mr. Dempsey reports that clinical experience and the literature on child sexual abuse indicates that this belief of being responsible for the abuse is a common reason for the child not to report the abuse. He also refers to the complainant's reported feeling dirty because of the abuse and he states that this is a common reason for not reporting childhood abuse. With regard to her reporting her concern that she would not be believed if she reported the abuse insofar as the applicant was a family friend and was trusted by her parents, Mr. Dempsey indicates that the literature on the subject of sexual abuse in childhood indicates that the child's fear of not being believed is a frequent reason for not reporting the abuse. He also refers to the complainant's further reason that she did not report the abuse as a child is that she felt the applicant's wife had suffered enough and she did not want to distress her further by reporting the abuse. Mr. Dempsey indicates that the literature on child psychology indicates that children will often seek to protect adults from emotional distress. Mr. Dempsey indicates that all of the factors identified by him and referred to by the complainant could have operated into adulthood and inhibited the complainant from reporting the alleged abuse until relatively recently.

Mr. Dempsey refers to the complainant's feelings of being different, of being set apart from others as a result of abuse and indicated that these feelings are indicated in literature as being one possible consequence of child sexual abuse. He also indicates that the literature on trauma stress indicates that thoughts about a traumatic event might intrude into consciousness following a traumatic experience. A further reported consequence of the abuse was that the complainant was always fearful when alone in the company of men as she grew up. She reported that the abuse made her less trusting of people especially men. Mr. Dempsey indicates that such a lack of trust is commonly reported in people who have been abused.

Mr. Dempsey indicates that on assessment the complainant reported experiencing the symptoms of intrusion, avoidance and arousal that characterise post- traumatic stress. She reported that she experiences these symptoms most of the time and believes them to be a direct consequence of the abuse she experienced as a child. Avoidance of thinking or talking about the event is characteristic of people experiencing post traumatic-stress and this may also in part account for her delay in making the complaint to the gardaí. He states that it is probable that she is experiencing these symptoms more intensely at the moment because of the stress associated with making the complaint and the ongoing legal proceedings. He states that the Impact of Events Scale, a self-report measure of symptoms people might experience following a stressful life event was administered and her responses confirmed that she is reporting the intrusive, avoidance and arousal symptoms of post-traumatic stress. He states that the Beck Depression Inventory, 2^nd ed., a self-report measure of depression was also administered and her responses indicated that she is reporting the symptoms of depression to a moderate degree. He states that the severity of the symptoms of depression she is reporting is again quite likely related to making the disclosure and confronting memories of the abuse.

At the conclusion of his report Mr. Dempsey states that in his opinion the complainant's account of the alleged abuse is credible. The effects of the alleged abuse on her and her reasons for not reporting the abuse earlier reflect his own clinical experience of people who have been sexually abused in childhood and research into the area.

An affidavit has been sworn by Garda Jim O'Sullivan. He indicates that he is the investigating officer in this case and he is familiar with the file. He states that on the 20^th May, 2000, he was approached by the complainant who made a complaint of child sex abuse by the applicant. She alleged that the abuse took place over a four to five year period during the late 1970s up to around 1980. She said the abuse stopped when she was about 13 to 14 years old. She subsequently returned to the station accompanied by her husband and made a full statement to him, which she duly signed in his presence. He commenced an investigation into the matter. He states that he established the applicant's address and met him by appointment at Enniskerry Garda Station on 30^th July, 2000. He arrested him and took him into to the station where he detained him under s. 4 of the Criminal Law Act, 1997. He was released that evening. Garda O'Sullivan indicates that he subsequently interviewed Mrs. Ann Dodd, Bray, who is a friend of the complainant and she made a signed statement on 9^th November, 2000. He also took a signed statement from Leonie P., a sister of the complainant, on 11^th November, 2000. He also spoke to another sister who could not recall anything to have come to her notice during the complainant's childhood. On 7^th March, 2001, he interviewed the complainant and took a statement in writing from her. On 13^th April, 2001, he took a written statement from the wife of the applicant from whom he had also taken a statement on 30^th July, 2000. On 14^th April, 2001, he interviewed the applicant when he came to the station voluntarily. The applicant was cautioned and made a short statement. On 8^th August, 2001, he arrested the applicant and took him to Enniskerry Garda Station where he was charged with the charges he currently faces. He was cautioned and denied the charges. He was then taken immediately before Bray District Court where he was remanded on bail for the service of a Book of Evidence.

With regard to the applicant's affidavit, Garda O'Sullivan indicates that both the complainant and her mother are adamant that the applicant did have access to the their home while the parents were absent and did have dominion over the complainant on a number of occasions. Garda O'Sullivan also confirms the fact that the complainant made an allegation of rape in Birmingham approximately five years previously. He stated that this resulted in four people pleading guilty before a court and they are serving a sentence for this incident. He states that no member of the An Garda Síochána based in the area in which the complainant resides was involved in this prosecution and the suggestion that she was accompanied by a member of the Gardaí is simply untrue.

Garda O'Sullivan indicates that he has checked the local tax office with a view to tracing any vans owned by the applicant but was unable to find any records one way or the other. With regard to the assertion by the applicant of a van owned by him having been burnt out he indicates that he has been informed by the complainant's family that no fire brigade attended the scene of the fire but it was extinguished with the help of the neighbours, including the complainant's father. He indicates that he could not find any records at Wicklow County Council Taxation Office in respect of the registration of the van in question. With regard to the dispute by the applicant in relation to the accuracy of the statement made by him in the presence of Garda O'Sullivan, Garda O'Sullivan states that he wrote the statement as dictated by the applicant, word for word. He says that he was extra careful to note the dates mentioned by the applicant about the ownership of vehicles as he realised that this could be crucial in the event of a prosecution. Garda O'Sullivan indicates, with reference to the applicant's assertion that the services of a solicitor had not been made available to him, that both he and Garda Patton were present when the applicant was offered the opportunity to phone a solicitor or anybody else he wished, both of which he declined. He states that the applicant did not read his statement in the station as he, Garda O'Sullivan read it over to him slowly and clearly in the presence of Detective Garda Patton. He recorded the fact that he requested him to make any changes to it. This he declined to do and signed the statement in the presence of himself and Garda Patton.

Garda O'Sullivan confirmed the fact that Kitty Clinch is dead and that Mrs. King referred to by the applicant has been dead for about eight years. He states that there is no doubt that she did babysit for the family on a regular basis. He indicates however, that both the complainant and her mother are adamant that the applicant did have access to the home while the parents were absent and did have dominion over the complainant on a number of occasions. Garda O'Sullivan indicates that there is no allegation of any assault having been committed while Mrs. King was in the house.

Garda O'Sullivan confirmed that Dr. Gaffney died on August, 2001. Garda O'Sullivan expresses the view that the applicant's wife who is a witness in the Book of Evidence is the person in the best position to give evidence on the issue whether or not she was assaulted by her husband, the applicant herein. He refers to her statement which includes an assertion that she was struck on the bottom lip by her husband on one occasion.

Garda O'Sullivan confirms that the Mr. Maguire referred to the by the applicant is deceased. However, Garda O'Sullivan indicates that in the course of an interview of the applicant on 30^th July, 2000, the alleged incident was put to him and he replied by indicating, inter alia, that "picking her up at the competition is true".

With regard to the effect on the applicant's memory, Garda O'Sullivan refers to an other passage from the interview of the 30^th July, 2000, in which the applicant when asked had he a good memory and does he suffer from memory loss answered, "a little but nothing like this type of stuff. If I done something I certainly remember it."

Other portions of this affidavit are argumentative in nature and it is not proposed to refer to same.

A further affidavit has been sworn by the applicant which is argumentative in nature. He asserts that Garda O'Sullivan is a friend of the family of the complainant and socialises with members of that family. The applicant refers to other evidence relating to insurance pertaining to his van. He says that it is apparent from same that he cannot prove the period of his ownership of the relevant vehicle and thus is denied the opportunity to defend himself against the allegations made by the complainant in the course of the criminal proceedings herein. The applicant further complains about the failure of the gardaí to assemble evidence and re-iterates that he was denied access to a solicitor and was not in a position to read over the statement that he made to the gardaí as he did not have his reading glasses with him.

A supplemental affidavit has been sworn by Garda Jim O'Sullivan. Contrary to what is asserted by the applicant he states that at no time did the applicant ask him to interview his family doctor, Dr. Niall Gaffney. He indicates that the Dr. Gaffney was personally known to him prior to his death in August, 2001. Garda O'Sullivan denies that he is a friend of the complainant's family and that he has ever socialised with them. On this basis he says that what the applicant states is untrue in this regard. He says that by reason of having been stationed for many years in the locality it is inevitable that most of the complainant's family is know to him. He states that this is on a professional basis only. Garda O'Sullivan also denies that the applicant requested him to interview the vet or Mr. Tony Tyndall referred to in his affidavit. He denies having responded to an offer to furnish the names of witnesses by saying that he had enough witnesses already. He states this never occurred. With regard to the apparent contradiction as to the time when the abuse is alleged to have stopped, Garda O'Sullivan says that the reference to 13 or 14 is an error.

Contrary to the assertion by the applicant that the reference to 1977 as the date when he owned the blue van being a typographical error, Garda O'Sullivan says that this does not represent a typographical error. He again asserts that he wrote down the statement as dictated to him by the applicant. The applicant signed the statement after it was read over to him and after he had been invited to make any changes to it. He denies that the applicant made any mention of his reading glasses one way or the other to him. He says that if he had been asked he could have arranged for him to get them. He says that at no stage during his dealings with the applicant was the applicant denied access to a solicitor and it is simply not true to suggest otherwise. With regard to the reference to five years being the time when the complainant was allegedly raped in England, Garda O'Sullivan says that the reference to five years in his earlier affidavit is a typographical error and should read approximately fifteen years ago.

An affidavit has been sworn by Detective Garda David Patton. He is stationed at Enniskerry Garda Station and confirms the evidence of Garda O'Sullivan in relation to the statement made by the applicant to the gardaí on 14^th April, 2001, when he was present with Garda O'Sullivan in the garda station . He denies that the date of 1977 represents a typographical error. He confirms that the applicant made a statement in which he said he owned a blue pick up van in 1977.

SUBMISSIONS

On behalf of the applicant it is submitted by Mr. Peter Finlay S.C. that one must bear in mind that the applicant is a man in his sixties having been born in January, 1942. Counsel refers to the fact the complainant is a thirty six year old married woman with two children. It is submitted that the only evidence against the applicant is that contained in the statement of the complainant contained in the Book of Evidence. Counsel refers to the fact that the applicant's family and those of the complainant's lived next door as neighbours. Counsel refers to the complainant's affidavit and the reasons advanced by her for not making a complaint sooner. Counsel identifies the issues as in the first place the right of the applicant to a fair trial. Counsel refers to the provisions of Article 38.1 of the Constitution and the entitlement of the applicant to a trial in due course of law. Counsel refers to the interpretation given to this article including the right to a trial with reasonable expedition. Counsel submits that there is a constitutional duty on this court to ensure that the accused person is not returned for trial in circumstances where there has been considerable lapse of time. Counsel submits that the principles applicable to delay in criminal cases have not qualified or lessened the constitutional right acknowledged by the superior courts. Counsel submits that it is the function of these courts to restrain prosecutions and the courts are required to do so if such prosecutions meant a deprivation of the constitutional right to an accused person. Counsel submits that while justice delayed may not amount to justice denied, extreme delay can amount to justice being diminished.

Dealing with the reasons for the delay counsel refers to the fact that the complainant states in her statement contained in the Book of Evidence that she discussed the matter at the age of 14 with a boyfriend who subsequently moved to England but did not bring the matter any further. Counsel further refers to the fact that she indicates that at the age of 21 years of age she suffered a serious sexual assault which revived the memories of her childhood abuse. It is stated that the she however, took a conscious decision not to disclose the alleged childhood abuse at that time as she believed the police in the station would think she was "insane". Counsel submits that there is no allegation that there was any impediment or obstacle placed in the way of the complainant at the time or subsequently that would have inhibited her from making a complaint of sexual assault. Counsel submits further that there is no evidence placed before this court that the accused man had dominated her or exercised some degree of influence or control over her in the intervening years so as to disable her emotionally or psychologically.

In reference to the report of Mr. Michael Dempsey, Senior Clinical Psychologist, Counsel submits that this report does not offer any evidence on which a court could rely for the purposes of explaining the delay in the making of a complaint. Counsel submits that the facts recounted by Mr. Dempsey are accompanied by theoretical and speculative comments. In this regard counsel refers to his references to literature on traumatic stress and other matters which may be characteristic of people experiencing post traumatic stress. Counsel submits that the remarks are qualified and are all the more significant in light of the fact that in the penultimate paragraph of the report the author acknowledges in one line only:-

"She experienced a serious sexual assault when she was twenty one years and this revived memories of her childhood abuse".

Counsel states that apart from the fact that there was no effort made to complain on foot of these revived memories there is no effort to analyse in detail a sexual experience which is highly significant and quite likely to have lead to serious trauma. Counsel refers to the fact that the details of that event concern a rape which occurred in 1987 in Birmingham.

Dealing with the requirements of a witness such as the consultant psychologist in this case counsel refers to the decision of this court in F. v. Director of Public Prosecutions, (Unreported, High Court, McCracken, J., 5^th December, 1997) in which he stated, inter alia, as follows:-

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

Counsel states that while those comments referred to the further sexual abuse that had been occurring contemporaneously, committed by other persons in that particular case, it is nevertheless equally applicable to what was meant by "all the surrounding facts".

Counsel further refers to A.W. v. Director of Public Prosecutions (Unreported, High Court, Kearns J. 23^rd November, 2001).

Counsel further refers to the judgment of Keane, J. in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 in which he indicated that circumstances may arise where the delay is so unreasonable and so inexcusable that in order to observe the constitutional imperative contained in Article 38.1 of the Constitution, the trial should not proceed, notwithstanding the failure of the accused to demonstrate that he is impaired in his defence. Counsel further refers to the judgment of Hardiman J. in P.O'C v. Director of Public Prosecutions [2000] 3 I.R. 87.

Dealing with the issue of prejudice it is submitted by counsel that the accused faces a serious risk of an unfair trial which cannot be corrected by appropriate directions by trial judge to the jury. It is submitted that apart from the general prejudice upon which the accused in this is entitled to rely, there is a more specific and particular prejudice which removes from him a capacity to put a defence which otherwise would have been available to him before the court. In this regard reference is made to the grounding statement of the applicant and the witnesses alleged to be unavailable today. It is submitted that these witnesses, individually and cumulatively, form critical parts of the accused man's defence had this prosecution taken place within a reasonable period of time. It is submitted that even in 1987 or shortly thereafter each of these witnesses would have been available for the purposes of offering objective and independent evidence. It is submitted that the trial now proposed will result in mere assertions followed by bald denials. It is submitted that returning the accused for trial with the only evidence that is currently available, is such that he is denied the opportunity of being tried according to the evidence that would have been available if he had been tried in accordance with the provisions of Article 38.1 of the Constitution. It is submitted that this amounts to prejudice to the applicant.

Counsel accepts that the absence of a particular witness in criminal trials need not necessarily be fatal. It is submitted however, that any scrutiny of such absence has to be done in the context of (a) what evidence would have been available to the accused had the trial taken place with reasonable expedition and (b) the failure by the accused to demonstrate prejudice of a particular kind arising from the absence of a particular witness does not necessarily mean that there is no prejudice suffered by him. It merely proves that he is unable to demonstrate it. Therefore, applying the presumption of innocence and all the attendant standards that attach to it, most notably the benefit of the doubt to the accused person, it is submitted that it follows that the issue of prejudice ought not to be analysed by reference solely to the examples of missing evidence but to the more fundamental issue of the accused's inability to prove, on the balance of probabilities, that the evidence no longer available to him is critical to his defence.

It is submitted on behalf of the respondent by Mr. Paul Anthony McDermott having referred to the evidence of the complainant and other statements in the Book of Evidence served on the applicant, that there is sufficient evidence for the court to be satisfied that the complainant was under the dominion of the applicant. In this regard counsel refers to the affidavit of the complainant herself and to the report of Mr. Michael Dempsey. It is submitted that the report of Mr. Dempsey provides a compelling reason for refusing the applicant the relief sought herein. Mr. Dempsey has interviewed the complainant and also applied the Beck Depression Inventory on her. Counsel refers to his conclusion that the effects of the alleged abuse on the complainant and her reasons for not reporting the abuse earlier, reflect his own clinical experience of people who have been sexually abused in childhood and research into the area.

Dealing with the alleged prejudice of the applicant, it is submitted that none of the absent witnesses would have been in a position to say anything of any weight about the alleged incidence of abuse. It is submitted that the alleged abuse occurred when no one else was present. Counsel refers to the complainant's statement in the Book of Evidence which makes it clear that the applicant abused her in her home when nobody else was there. In respect of his van, the applicant would drive to a secluded place and send his own children away so that he could abuse the complainant. On this basis it is submitted that when assessing the applicant's asserted prejudice, it should be noted that there were no witnesses to the assaults. With regard to the van itself it is submitted that this only relates to some of the assaults. Many of them took place in the applicant's home. It is submitted that the trial judge will be in the best position to determine the relevance of the van and to provide the jury with any directions that may be appropriate.

Counsel submits that the passage of time does not appear to have affected the applicant's memory. Counsel refers to an incident that allegedly occurred after a tug-of-war game which was put to the applicant where he appears to have been able to remember such details as, "stopping in the wood is true but there were plenty of cars in the car park." It is submitted by counsel that these answers are indicative of a person who has an excellent memory of the relevant events insofar as he wishes to recall them.

Counsel submits that this court should also note the manner in which the applicant has approached this application. He has purported to impugn the investigating gardaí by suggesting that he was denied access to a solicitor, that an incorrect date was put in a memo of interview and that Garda O'Sullivan is friendly with the applicant's family.

Dealing with the applicable law, counsel stresses that every judge presiding over a criminal trial will take all necessary and appropriate steps to ensure that the trial is conducted in due course of law. It is submitted, that it follows from this, that it is only in exceptional circumstances that the superior courts should intervene to prohibit such a trial from taking place. Counsel stresses that the applicant seeking the relief carries the onus of establishing, on the balance of probabilities, that there is a real risk that he will not receive a trial in due course of law in accordance with Article 38.1 of the Constitution. Counsel refers to Z. v. Director of Public Prosecutions [1994] 2 I.R. 476.

Counsel refers to B. v. Director of Public Prosecutions [1997] 3 I.R. 140 where the delay in question was between a period of twenty years and thirty years. Counsel refers to portion of the judgment of Powell J. in Barker v. Wingo (1972) 407 U.S. 514 in which he indicated at p. 532 that prejudice should be assessed as follows:-

"Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This court has identified three such interests:

(i) to prevent oppressive pre-trial incarceration,

(ii) to minimise anxiety and concern of the accused;

and

(iii) to limit the possibility that the defence will be impaired."

Counsel also refers to the particular factors analysed and identified by Denham J. in B. v. Director of Public Prosecutions. It is submitted by counsel that there is nothing in the affidavits filed in this application on behalf of the applicant that would establish a risk of an unfair trial. Counsel stresses that the courts have pointed out that similar difficulties to the ones alleged by the applicant herein might well arise even where a trial had occurred a short time after the commission of the alleged offences. In J.O'C v. Director of Public Prosecutions [2000] 3 I.R. 478, the applicant contended that the death of his wife some years earlier had deprived him of an important witness. A majority of the Supreme Court responded by holding that even if his wife had still been alive, it was improbable that she would have been present in the house when the alleged offences were committed and she would therefore have been of little assistance to the applicant. In reference to the case of P.O'C v. Director of Public Prosecutions [2000] 3 I.R. 87 counsel indicated that this case amounted to an exception to the general rule.

Counsel submits that the applicant has not identified any material factors that indicate, to the required standard of proof, the existence of a real and serious risk of him not obtaining a fair trial as a result of the passage of time. It is further submitted that if the applicant is put on trial he will be in a position to put before the trial judge all of the matters which he alleges to be prejudicial to his defence. In respect of the applicant's right to a trial with reasonable expedition, it is submitted that this court should engage in a balancing process. In circumstances where the applicant cannot show that his ability to defend himself has been impaired it is submitted that this court should weigh up the competing interests of the accused to be protected from stress and anxiety, caused by an unnecessary and inordinate delay, with the public interest in the prosecution and conviction of those guilty of criminal offences. Counsel submits that in all the circumstances the applicant should be refused the relief which he seeks herein.

Conclusions

In the first place, I believe that in approaching this case I should approach same on the basis of the law as stated by the Supreme Court in P.C. v. Director of Public Prosecutions [1999] 2 IR 25.

I am satisfied that by reason of the passage of time from the date when the offences against the applicant are alleged to have been committed and the time when he was charged with the offences in question, that an explanation for the delay should be forthcoming from the Director, irrespective of the prejudice as such alleged by the applicant, in regard to the absence of records pertaining to a van owned by him and further records, assuming that they may have existed, in relation to the involvement of the fire brigade, in extinguishing a fire. I believe that the passage of time of itself is such that it will present some difficulty to the applicant in the defence of the charges against him.

The complainant's evidence is to the effect that the applicant was in a position of authority and was trusted by her parents and that she suffered shame as a result of the abuse alleged. Her evidence also relates to the fear of the applicant which has survived up to the present time and the fact that he told her not to tell anyone of the abuse. It is clear that she felt guilty for the abuse perpetrated and she felt responsible for the abuse and further she felt that no one would believe her.

I am satisfied, both by reference to the evidence of the complainant and also by reference to the evidence of the psychologist, Mr. Dempsey, that the delay on the part of the applicant in coming forward has been adequately explained and the circumstances are such that this delay must be attributed to the applicant himself. I do not accept the criticism of the evidence of Mr. Dempsey which has not been controverted and I believe that I should accept same and this I do.

I also believe that the further period up to the formal charging of the applicant has been adequately explained in the affidavit of Garda O'Sullivan.

Dealing with the aspect of prejudice alleged by the applicant, it is clear that records relating to vehicles may no longer exist. However, the relevance of the material is questionable, in light of what is alleged to have been stated by the applicant when he was interviewed by the Gardaí. If a vehicle was not available in Ireland at a time when it is alleged that an offence was committed in a vehicle of that nature, then I believe that such evidence should be available from the motor industry in relation to same. The relevance of fire brigade records is also questioned in light of the evidence that the fire in question was not extinguished by the fire brigade at all.

With regard to the persons identified by the applicant who are dead, I am not satisfied that the applicant has demonstrated that these persons, if alive, would be able to give relevant evidence. The offences are alleged to have been committed in private and not in the presence of any third party and this is an almost invariable feature of cases of this nature. In light of this fact, it is extremely doubtful that these persons would be able to give relevant evidence at the trial of the applicant. With regard to the death of Dr. Gaffney, there is no evidence of the applicant's wife having attended him for any injury alleged to have been inflicted upon her and in these circumstances I am satisfied that the applicant has failed to demonstrate that, if alive, he would be in a position to give relevant evidence. I also believe that the absence of Ms. Clinch is not such as to deprive the applicant of relevant evidence as there is no reason to believe that he could not have visited the field in question at any time. With regard to Mr. Maguire, such evidence that he might have been able to give would in any event have been peripheral.

In all these circumstances, I am not satisfied that the prejudice alleged by the applicant is such as to deprive him of the opportunity of having a fair trial.

I believe that the passage of time is a factor that will have to be addressed at the applicant's trial and that any prejudice of a general nature can be adequately addressed by the trial judge as indicated in the judgment of the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v. R. B. (Unreported, Court of Criminal Appeal, 12^th February, 2003)

In all the circumstances, having regard to the appropriate test as indicated in the case of Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 and D. v. Director of Public Prosecutions [1994] 2 I.R. 465, I am not satisfied that the applicant has established that the proposed trial will be a trial other that in due course of law and such that there is a real and serious risk that he cannot obtain a fair trial, namely a trial where any unfairness cannot be avoided by appropriate rulings and directions on the part of the trial judge.

In all the circumstances, applying the tests propounded by Keane J. in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 at pp. 67 and 68 of the report, I believe that the applicant has failed to satisfy this court that there is a real and serious risk that he cannot obtain a fair trial and in the circumstances I refuse this application.