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THE HIGH COURT

HC 215/04

2001 No. 113 J.R.

BETWEEN

M.T.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Quirke delivered the 18^th day of June, 2004.

By order of the High Court (Finnegan J.) dated the 5^th day of March 2001 the applicant was given leave to apply by way of judicial review for an order prohibiting the respondent from prosecuting the applicant in respect of a number of criminal charges in proceedings entitled Director of Public Prosecutions v. M.T.. In those proceedings which are presently pending before the Dublin Circuit Criminal Court the applicant faces 13 charges of indecent assault contrary to s. 62 of the Offences Against the Person Act, 1861 and one charge of buggery contrary to s. 61 of the Offences Against the Person Act, 1861.

The grounds relied upon by the applicant in support of his claim for relief include the following:-

(a) that there has been inordinate and inexcusable delay on the part of the State in prosecuting the applicant in respect of the charges preferred against him and a similar delay on the part of the complainants in reporting the alleged offences so that the interests of justice required that the proceedings should be stayed and the trial of the offences prohibited.

(b) that the lapse of time between the date of the commission of the alleged offences and the date of return for trial, (almost 50 years from the date of the first offence alleged and 30 years from the date of the last) is now so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

(c) That the applicant has suffered actual prejudice in his capacity to defend himself in respect of the charges preferred against him by reason of the passage of time between the date of the commission of the alleged offences and the proposed date of the trial. It is claimed that a very large number of witnesses (including a total of some 17 Christian Brothers) who would have been available to provide evidence in support of the applicant's testimony are no longer available by reason of death or incapacity whilst the memories of other potential witnesses have deteriorated. Some of the locations where the offences are alleged to have occurred are no longer in existence and other objective or circumstantial evidence which might have further assisted the applicant and supported his testimony is no longer available.

It is also claimed that the absence of specificity in relation to the dates upon which the offences complained of are alleged to have been committed has prejudiced the applicant's capacity to challenge evidence which will be relied upon by the State and to undermine or disprove that evidence.

FACTUAL BACKGROUND

1. The applicant is charged on indictment with two counts alleging sexual offences against P.E. " … on a date unknown between the 1^st day of September 1974 and the 1^st day of September 1975 ...."

He is also charged on indictment with a further 12 counts alleging sexual offences against E.R. on various dates which are declared to be "unknown ... between the 1^st day of January 1950 and the 30^th day of September 1951."

2. The following sequence of events is relevant.

(a) P.E. first complained to An Garda Síochána on the 8^th July, 1998, in respect of two offences which were alleged to have been committed between the 1^st day of September, 1974, and the 1^st day of September, 1975.

(b) E.R. first complained to An Garda Síochána on 31^st July, 1999, in respect of twelve offences which were alleged to have been committed between the 1^st day of January, 1950, and the 1^st day of September, 1951.

(c) On 28^th April, 1999, the applicant, who was born on 27^th November, 1927, and is now 76 years old, was arrested and detained pursuant to the provisions of s. 4 of the Criminal Justice Act, 1984 in the presence of his solicitor Mr. Sheehan with whom he had attended by prior appointment at Harcourt Terrace Garda Station. He was released later on that date without charge pending the submission of documentation to the respondent.

On the 18^th June the applicant was interviewed at the office of his solicitor relative to the allegations made by E.R.

The applicant was also interviewed on 18^th August, 1999, at the office of his solicitor and, after completion of the Garda investigation a file was prepared and forwarded to the office of the respondent on 13^th October, 1999.

On 16^th November, 1999, the respondent directed that the applicant be charged with a number of offences and on 26^th November, 1999, draft charge sheets were sent to the office of the Chief State Solicitor. Thereafter further directions were received from the respondent and the applicant was charged on 20^th January, 2000, with the offences which are the subject of these proceedings.

The two offences which were allegedly committed between 1^st day of September, 1974, and the 1^st of September, 1975, are alleged to have occurred at Synge Street School at a time when the applicant was Principal at that school and P.E. was a student. The applicant claims that he has no recollection of P.E. and does not recall ever having had "... any dealings with him in my time at Synge Street …".

(d) The prefabricated buildings and the furniture which was in use in Synge Street in 1974 and 1975 are no longer in existence and the school has been extensively refurbished between 1975 and the 2^nd March, 2001 (the date of the averments complained of in the applicant's affidavit). There is a conflict in the evidence of the applicant and the evidence of Detective Garda Malachy Dunne as to the existence and extent of records from Synge Street School in relation to the period between 1^st September, 1974, and 1^st September, 1975. Four of the Christian Brothers who taught at the school at that time are now deceased and two others cannot be traced.

(e) The offences allegedly committed by the applicant between 1^st January, 1950, and 30^th September, 1951, are alleged to have been committed in St. Fintan's Primary School in Sutton. The building where the offences are alleged to have been committed was demolished after the school closed in 1983 and has been replaced by an apartment block. No part of the old building is now in existence and no plans, elevations or other documents relating to the buildings are available. No records, roll books, class lists or other documentation in relation to the school can be traced. All of the ten Christian Brothers who resided in the brothers' residence in Burrow Road, Sutton and who taught in that school between 1949 and 1951 (except the applicant) are now deceased.

The applicant recalls a housekeeper, whom, he claimed, would have been in a position to assist relative to the physical layout of the buildings and to aspects of the applicant's intended testimony. This witness cannot be traced and the applicant believes she may now be deceased.

A book which is in the possession of E.R. and which is entitled "The Howth Peninsula, its History, Lore and Legend" contains details as to St. Fintan's Primary School and photographs of students at various functions.

(f) In his statement of intended evidence P.E. refers to a severe beating which he received at the hands of the applicant which, he claims, was witnessed by a temporary commerce teacher. This teacher appears to be a Mr. Thomas Rowan. It would appear that his recollection of events in 1974 and 1975 is very vague and quite unclear.

(g) P.E. was interviewed by Mr. Robert Foley, clinical psychologist on 9^th January, 2002, for the purpose of the provision of evidence as to the effect which the alleged abuse had upon P.E. and the reasons for his delay in reporting it to the Gardaí. The interview was of two and a quarter hours duration and Mr. Foley concluded that the episodes of abuse resulted in a series of effects including loss of interest in school, under achievement, emotional withdrawal, diminished sexual interest, rebellious behaviour and the development of problematic drinking. Mr. Foley felt that the difficulties continued throughout P.E.'s adolescence and adulthood and that it was only during the years immediately preceding the interview that P.E. had begun to rebuild his life with the significant support of his wife.

In evidence Mr. Foley indicated that P.E. had in later life been guilty of sexually abusing a child and this had contributed to the break-up of his marriage.

Mr. Foley agreed that in assessing P.E. for the purposes of establishing the reason for his delay in reporting the alleged abuse of the applicant he had been instructed not to enquiry into " … that aspect of his life …".

He agreed that a psychological assessment in such circumstances was unreliable and accordingly these proceedings were adjourned to enable Mr. Foley to re-examine P.E. in a more comprehensive manner.

On 16^th June, 2003, P.E. was interviewed again by Mr. Foley and on 17^th June, 2003, P.E.'s wife was interviewed by Mr. Foley.

Arising out of these later interviews Mr. Foley saw no reason to alter his earlier opinion or conclusions but recommended that a report be requested from Mr. John Crimmins, counsellor, whom P.E. attended following his disclosure of sexual abuse over an extended period between 1998 and 2000.

Mr. Foley felt that " … Mr. Crimmins would be in an ideal position to give a comprehensive account on these matters ...".

No evidence was adduced by or on behalf of Mr. Crimmins notwithstanding the recommendation from Mr. Foley.

In summary Mr. Foley's view was that P.E.'s abuse by the applicant, together with the position of authority occupied by the applicant, inhibited him from making a complaint at the time of abuse.

Then and later he did not believe that his complaint would be believed having regard to an earlier incident where his explanations as to the causes of fire were not accepted or believed.

His subsequent decision to make a complaint was influenced by an open apology on television made on behalf of the Christian Brothers, made by a Brother McDonald, requesting abused persons to come forward. It was through the encouragement and support of Brother McDonald that he made his complaint.

Mr. Foley felt that the commission by P.E. of criminal sexual offences did not have any significant bearing on his delay in making his complaint and that the connection between the alleged sexual abuse suffered by P.E. and his own subsequent sexual offences was "tenuous".

Whilst the testimony of Mr. Foley on this issue was somewhat incomplete he was able to obtain and consider a short report from Mr. John Crimmins on 16^th February, 2004. The opinion of Mr. Foley as to the reason for the delay by P.E. in reporting the alleged abuse remains unchanged and, he believes, has been reinforced as a result of his interview with P.E.'s wife.

(h) Ms. Ruth Yoder interviewed E.R. on 7^th December, 2001, for the purpose of assessing (i) the effect of the alleged abuse upon E.R. and (ii) the reason for the delay in his reporting that abuse. She conferred with E.R.'s counsellor for the preceding three years, Mr. Keyes, by telephone and read all of the documentation contained in the Book of Evidence. Ms. Yoder was of the opinion that E.R. did not report the abuse for some forty eight years after its alleged commission because of his self-blame, his shame and the fear that he felt.

When he attended a counsellor for the purpose of addressing marital difficulties he received therapeutic assistance in relation to the earlier abuse and when this was combined with a public apology made on television by the applicant's successor Brother McDonald, he was enabled to make a complaint to the Gardaí.

(i) The applicant vigorously denies the commission of any of the offences alleged.

(j) The events which have given rise to the charges preferred against the applicant first came to the attention of the Gardaí in or around June of 1998 when an organisation known as West Court Child Protection Services which was established by the Christian Brothers contacted the Gardaí. Arising out of that contact the Gardaí interviewed a large number of witnesses including P.E. and E.R.

As a result of comprehensive investigations in relation to complaints made by P.E. and other complainants the applicant was arrested on 28^th April, 1999.

Subsequently on 31^st July, 1999, E.R. made a statement of complaint whereupon further investigations were undertaken before papers were prepared and forwarded to the respondent on 13^th October, 1999.

As has already been indicated the applicant was charged with the offences which are the subject of these proceedings on 20^th January, 2000.

THE LAW

As Kearns J. indicated in A.W. v. Director of Pubic Prosecutions (unreported, High Court, 23^rd November, 2001),

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

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

In addition a prosecution brought after a long delay may be halted if the Applicant establishes a real risk of an unfair trial. These rights must be assessed in the light of the circumstances and facts of the particular case. For the limited purpose of the task in which [the] Court is presently engaged the Court must assume what the complainant says is true".

A person charged with the commission of a criminal offence - singular enjoys a constitutionally protected right to a trial in respect of that charge "in due course of law". Such a trial must be conducted with reasonable expedition and must not carry with it a real and serious risk of unfairness "which cannot be avoided by the giving of necessary directions or rulings by the trial judge". (See P. O'C v. Director of Public Prosecutions [2000] 3 I.R. 87 at p. 94).

Although in cases such as this the onus prima facie rests upon an applicant to prove delay and/or prejudice the duration of the delay may be such as to raise a presumption of unfairness and prejudice in which case the onus will rest upon the State to justify the delay and rebut the presumption. Special considerations arise in cases, such as the instant case, where offences of a sexual nature are alleged to have been committed against young children. In such cases the court is entitled to enquire whether the delay was referable to the conduct of the accused. For the purpose of this enquiry the court must assume that the allegations of the complainants are true. This was explained by Keane C.J. in P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 at p. 94 in the following terms:

"Without such an assumption, it would not be possible for the court to conduct any such inquiry and the court would be obliged automatically to halt the trial of a person because of the expiry of a lengthy period of time, even though the failure to make a complaint was due to domination exercised by the adult over the young child during the period of abuse... since that patently cannot be the law, the presumption of innocence which applied in its full rigour to a criminal trial cannot apply to enquiries of this nature."

This assumption however, is made solely for the purposes of the enquiry into delay. In every other respect the applicant retains the presumption of innocence.

In P.C. v. D.P.P. [1999] 2 IR 25 Keane J. (as he then was) observed at p. 68:-

"Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial; that, after all, is what is meant by the guarantee of a trial in 'due course of law'. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even thought it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions.

If that stage has been reached the final issue to be determined would be whether the degree to which the accused's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary inquiry, in my view, in every such case, because, given the finding that that delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial."

THE DELAY IN REPORTING

The charges preferred against the applicant resulted from complaints made by two separate complainants P.E. and E.R.

A written complaint was made by P.E. for the first time on 8^th July, 1998. A similar complaint was made by E.R. on 31^st July, 1999. Although both complaints were made within a thirteen month period they allege offences which are separated in time by some twenty five years.

The offences of which P.E. complains are alleged to have occurred between September, 1974 and September, 1975. The offences of which E.R. complains are alleged to have occurred between 1^st January, 1950, and 1^st September, 1951.

Because different considerations apply in respect of the complaints made by P.E. and E.R. and because the period of time between the date of the commission of the alleged offences and dates of complaint I consider that it is necessary to deal separately with the two complainants and with the complaints which they have made.

1. P.E.

The applicant contends that the prosecuting authorities (deemed to include both the respondent and the members of An Garda Siochána: see P.P. v. Director of Public Prosecutions [2000] 1 IR 403 were guilty of inordinate and unreasonable delay in failing to charge the applicant in respect of the charges preferred against him until 20^th January, 2000, which was some eighteen months after the date when P.E. first reported the offences.

He also claims that the delay by P.E. in making these complaints has been inordinate and unreasonable and of such a duration as to give rise to a real risk that he will not receive a fair trial in respect of the charges preferred against him.

Finally, the applicant claims that the lapse of time between the date of the commission of the alleged offences with which he has been charged (approximately twenty five years between the date of alleged commission and the date of charge) is now so great as to give rise to an unavoidable and incurable presumption of prejudice and that he has in fact suffered actual prejudice by reason of that passage of time. He says that a number of witnesses who might have provided evidence in support of his defence are now deceased while the memories of other potential witnesses have deteriorated. In addition, he says, physical and circumstantial evidence which might have assisted his case is no longer in existence.

PROSECUTORIAL DELAY

I am satisfied that the period of eighteen months which elapsed from the date

when P.E. first made the written statement of complaint to An Garda Síochána and the date of charge was not excessive in the circumstances and cannot be said to have been of such a duration as to amount to what is been termed "blameworthy delay…" of the kind identified by Geoghegan J. in P.P. v. D.P.P. [2000] 1 IR 403 which would require that "…the court should not allow the case to proceed and additional actual prejudice need not be proved…" (See p. 411).

After the complaint made by P.E. on 8^th July, 1998, the prosecuting authorities were obliged to conduct a very wide ranging investigation which included the investigation of other complaints made by other parties and which ultimately included the investigation of the complaints made by the E.R. on 31^st July, 1999. A large number of witnesses had to be located and a very substantial number of statements taken. Records had to be sought and a great number of enquiries made. Finally, a file was prepared and forwarded to the office of the Chief State Solicitor on 13^th October, 1999, for directions. These directions were provided on 16^th November, 1999, and on 26^th November, 1999, draft charge sheets were submitted to the respondent who subsequently gave further directions by letter dated 14^th January, 2000. Thereafter the applicant was charged on 20^th January, 2000.

I am satisfied that there was no excessive or unnecessary delay on the part of the prosecuting authorities in charging the applicant in respect of the complaints which were made by P.E. on the 8^th July, 1998, and that the trial of the applicant should not be prohibited on that ground.

COMPLAINANT DELAY

The applicant was first arrested on 28^th April, 1999, and was charged with the commission of the offences against on 20^th January, 2000.

It follows that the applicant first became aware that allegations of criminal misconduct had been made against him by P.E. almost 25 years after the first such alleged offences. He denies these offences and accordingly is required to defend himself in respect of offences which are alleged to have occurred on two unspecified occasions between 24 and 25 years prior to his first arrest and probably some 30 years or more prior to the date when he can reasonably expect to be tried in respect of the alleged offences.

In B v. Director of Public Prosecutions [1997] 3 I.R. 140 the Supreme Court (Denham J.) indicated (at p. 193) that where it was sought to prohibit a trial on the grounds relied upon in this case:

"…Prima facie, the delay of approximately twenty or thirty years between the alleged offences and the pending trial is an inordinate lapse of time..."

In J.L. v. Director of Public Prosecutions [2000] 3 I.R. 122 the Supreme Court (McGuiness J.) observed (at p. 131) that:

"Prima facie, a delay of twenty years between the alleged offence and the trial would give rise to an unfair trial. However, other factors arise in a case such as the present where the allegation is of an offence against a young child."

In the instant case it is undeniable that the delay (in excess of 25 years) between the date of the alleged commission of the offences and the date of the return for trial are inordinate and require explanation.

The applicant contends that his capacity to defend himself has now been explicitly prejudiced by reason of the delay and is also inexorably prejudiced having regard to the passage of such a lengthy period of time between the alleged commission of the offences and the proposed date of trial.

The respondent contends that the delay on the part of P.E. in reporting the offences was referable to the applicant's own conduct and that he cannot in such circumstances rely upon the delay as a ground for prohibiting his trial. The respondent also argued that no prejudice has resulted to the applicant as a result of the delay and that accordingly his right to trial "in due course of law" remains unimpaired.

Accepting the truth of the allegations made (for the purposes of this inquiry) I am satisfied that the relationship between P.E. and the applicant was such that it came within the category referred to by Keane J. (as he then was) in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 where:-

"…not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but [he] occupies a particular role in relation to him or her, e.g. as parent, step parent, teacher or religious.

In such cases, dominion by the alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred."

Clearly the failure on the part of P.E. to report the offending conduct whilst the applicant exercised dominion over him was referable to the applicant's conduct.

On the evidence there was no proximate relationship between the applicant and P.E. for a period significantly in excess of 20 years prior to the date of complaint in July, 1998.

However P.E. suffered from alcohol dependency which began shortly after the age of 15 and although he married in 1985 and is the father of four children his marriage did not last (he remains on good terms with his wife).

I accept the evidence of Mr. Foley as to P.E.'s diminished self esteem and self worth and that P.E. was, and for a very long time remained, convinced that any complaint against the applicant would not be believed (having regard to earlier experiences and to his psychological state). I accept also that he saw the applicant as a figure of authority and that it was the open apology from Brother McDonald on television which enabled him to make the complaint which he made.

In the circumstances then I am satisfied that, assuming (as I must for the purposes of this inquiry) that the allegations made by P.E. are true, the delay by P.E. in reporting them to the prosecuting authorities was referable to the conduct of the applicant and the effect upon P.E. of that conduct.

Accordingly, the delay on the part of P.E. in reporting the alleged offences to the prosecuting authorities is not a ground for prohibiting the trial of the offences concerned.

E.R.

E.R. made a statement of complaint against the applicant on 31^st July, 1999, alleging the commission by the applicant of 12 criminal offences for indecent assault on unknown dates between 1^st January, 1950, and 1^st September, 1951. E.R. was 56 years old when he complained to the prosecuting authorities of 12 offences which he alleged had been committed by the applicant almost 50 years earlier. At that time no proximate relationship had existed between E.R. and the applicant for more than 45 years and it was contended on behalf of the applicant that any dominion which the applicant may have exercised over ER would have ceased more than 45 years prior to the complaint from E.R.

As in the case of P.E. I am satisfied that there was no excessive or unreasonable delay on the part of the prosecuting authorities in charging the applicant in respect of the offences alleged against him on 20^th January, 2000. The applicant was charged with the offences alleged against him by E.R. less than six months after the date of the written statement of complaint to An Garda Síochána and I am satisfied that the investigation and subsequent consultation with the respondent did not amount to unreasonable or excessive delay on the part of the prosecuting authorities in seeking to bring the applicant to trial in relation to the charges preferred against him.

It is contended on behalf of the respondent that the delay on the part of E.R. in reporting the conduct of the applicant was referable to the applicant's own conduct and, in particular, referable to the offences of which E.R. complains. Assuming (as I am obliged to) the truth of the allegations made by E.R. it is necessary to decide whether the conduct alleged by E.R. was the cause of the delay in reporting the offences alleged.

Ms. Ruth Yoder testified in relation to her psychological assessment of E.R. on 7^th December, 2001.

She was requested to carry out the assessment for the purpose of addressing (a) the effect of the alleged offences upon E.R. and

(b) the reasons for his delay in reporting them.

In summary, Ms. Yoder was of the opinion that E.R. did not report the alleged abuse until 1999 because of self blame, shame and because at the time he feared corporal punishment if he made any complaint.

This latter reason might have existed for some time whilst E.R. was at school and even after contact with the applicant ceased but it cannot be said to have been a factor during the last 40 years or more.

In summary, Ms. Yoder took the view that what precipitated the decision of E.R. to report the abuse was a combination of the fact that he was confiding in a counsellor taken together with the television invitation from Brother McDonald to which reference has been earlier made. Ms. Yoder indicated that E.R. had never completely forgotten the abuse but had attempted to bury it and to put it behind him and get on with his life.

It was acknowledged that E.R. had confided in some of his friends and in particular a Ms. Vivien Costello some years prior to the time of his complaint to An Garda Síochána.

The applicant has not exercised dominion over E.R. for more than 45 years.

Although E.R. throughout his life suffered from psychological distress which appears to be related to the alleged abuse it cannot be said that the evidence has established that he has been inhibited from reporting the abuse by reason of a psychological illness or condition. His reason for not doing so was that he wished, to bury the memory of the abuse and to carry on with his life.

That reason is insufficient to justify the deprivation by the State of the applicant's constitutionally protected right to a trial with reasonable expedition.

PREJUDICE

In D.D. v. Director of Public Prosecutions (Unreported 19^th May, 2004) Geoghegan J. cited the following passage from the judgment of Kearns J. in the same case:

"I do not think that there is either an island of fact or a demonstrable specific prejudice in this case insofar as the accused is concerned. I do accept, and it is one of the great misfortunes of this kind of case, that there is inevitably a sense of potential prejudice and general prejudice, but essentially this case comes down to a credibility contest between the complainant and the accused. That inevitably is the case across a spectrum of different cases. Notably, and I took this as an example, in a rape situation where the defence is consent and there are no other witnesses and it all hinges on essentially the resolution of a contest of that nature. That, of itself, cannot be a ground for stopping a case, the fact that there is simply one person's testimony against another."

Geoghegan J. pointed out in his judgment:

"It has never been the law that a charge of rape or gross indecency or indecent assault cannot be tried, if, to use a colloquialism, the trial is tantamount to "one person's word against another." It is quite different of course where there was some concrete and identifiable piece of potential evidence helpful to the applicant and now lost. In those cases there is a real risk of an unfair trial."

It is of course correct to say (as Kearns J. did in "D.D.") that a rape trial should not be prohibited on the grounds that the issue concerns one person's testimony against another where the defence against the charge is that consensual sexual intercourse occurred. In such a case the fact of sexual intercourse or activity is unchallenged and the only issue is the credibility of the two participants on the issue of consent.

In the instant case the sexual activity is vigorously challenged and the applicant denies that any sexual activity occurred at all.

In his dissenting judgment in J.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478 Hardiman J. noted (at p. 504) that:-

"Apart from the effect of lapse of time on the memories of those principally involved, an interval of 20 or more years makes it difficult if not impossible to clarify the surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the parties can be co-related and tested. The element of hazard or chance which this state of affairs introduces into a trial has been recognised for centuries. The more nearly a serious trial consists of mere assertion countered by their denial, the less it resembles a forensic inquiry at all."

He continued:

"If a defendant who is innocent is exposed to a trial where the only evidence is unsupported assertion and the only defence bare denial, his position is indeed perilous. When these cases have been successfully defended it has, in my experience, always been because it has been possible to show that the complainant's account is inconsistent with objectively provable facts relevant to the allegations … it has been stated … that the effect of lapse of time is 'damaging to both parties'. I do not agree with this assessment, particularly if it is intended to suggest that both parties are equally damaged. It is contrary to actual experience of these trials, where the prosecution case is often in fact strengthened, since many alleged victims may give clear evidence of the alleged offences but assert failure of memory due to lapse of time when asked about the all important surrounding circumstances. These of course are the only possible basis of an attempt to test the evidence. Moreover the effect of this inability to test evidence is compounded by two factors. First, there is no general requirement for corroboration and the prosecution may well be able to argue that the absence of corroboration is understandable and is in the nature of the case. Secondly, there is practical, if not legal, pressure on a defendant to address the question 'if this isn't true, why would he or she say it?'. If the surrounding circumstances are irretrievable due to a lapse of time and if the complainant's general credibility cannot be tested against specific facts, this question will usually be impossible to address. It is of course true that the defendant can avoid being personally asked this question by not giving evidence but experience equally shows that a defendant in these cases who does not give evidence is taking a huge risk. In any event the question will almost certainly arise in the mind of the tribunal of fact."

In the instant case the applicant is charged with the commission of twelve offences against E.R. which are alleged to have occurred at different locations, but principally in a classroom at St. Vincent's primary school in Sutton, during the class and in the presence of other students.

One incident is alleged to have occurred in a bedroom in a school which has now been demolished.

A number of incidents are referred to by E.R. in the statement grounding his complaint which presumably are relevant to the alleged commission of the offences.

As Hardiman J. has pointed out in the passage of his judgment in J.O'C Director of Public Prosecutions [2000 3 I.R. 478, which has been cited above, the physical and other circumstances surrounding the alleged offences comprise the only possible basis for attempting to test the evidence. As he pointed out (at p. 505):

"If the surrounding circumstances are irretrievable due to a lapse of time, and if the complainant's general credibility cannot be tested against specific facts, this question will usually be impossible to address. It is of course true that the defendant can avoid being personally asked this question by not giving evidence but experience equally shows that a defendant in these cases who does not give evidence is taking a huge risk."

E.R. has identified many pupils from his classroom and has provided the addresses of a number of those persons.

However Detective Malachy Dunne in evidence indicated that E.R.'s description of events "..would suggest that no other person had observed the matters that he complained of" and that none of those witnesses had been interviewed.

The offences alleged by E.R. are said to have occurred on unspecified dates over an 18 month period.

Since the school building has long been demolished, and all that remains by way of concrete evidence is the existence of a book containing details and photographs, it is difficult to see how E.R.'s general credibility can be tested against any specific facts.

The offences with which the applicant was been charged comprise bald allegations of sexual misconduct with a child some 50 years ago in the possible presence of witnesses who can apparently be of little assistance to either party in a school which has been demolished and where all of the school teaching staff are now deceased.

Should the applicant decide to exercise his right not to testify in answer to the charges the question will arise as to whether any direction from the trial judge will be capable of preventing a jury from drawing an inference which is damaging to the applicant. Should the applicant decide to testify then he will almost certainly be cross-examined and faced with the question posed by Hardiman J. "… if this isn't true why would he or she say it?."

Cases may, on rare occasions, come before the courts where there is clear and compelling evidence of criminal conduct against an accused person and every opportunity for that person to challenge such evidence. In such circumstances, where the delay has been clearly shown to be referable to the conduct of the accused, criminal charges may be properly preferred after a passage of time even as lengthy as 50 years.

However such cases are likely to be rare and insofar as the charges which relate to E.R. are concerned this is not such a case.

I am satisfied that the lapse of time of almost 50 years between the date of the commission of the alleged offences against E.R. and the date of the proposed trial is now so great as to give rise to an unavoidable and incurable prejudice against the applicant. This is likely to fatally impair his capacity to defend himself in respect of the charges preferred against him and will consequently expose him to a real and serious risk of an unfair trial.

It follows that on that ground (and on the ground that the reasons advanced for the delay by E.R. in reporting the alleged offences do not justify the deprivation of the applicant's right to a trial with reasonable expedition) I will prohibit the continuance of the trial of the applicant in respect of the charges alleged against E.R.

The applicant is also charged with the commission of two offences against P.E. in a classroom on two unidentified dates within a twelve month period almost thirty years ago.

Mr. Grehan on behalf of the applicant contends that there is a lack of specificity in relation to the dates on which the offences are claimed to have occurred. He says that this inhibits the applicant's capacity to defend himself.

Whether or not the applicant might have been in a position to provide alibi evidence in the event that specific dates had been alleged is speculative in nature. Arguments of a similar type in the past have been found to be insufficient to discharge the onus which rests upon the applicant in proving that a delay in making a complaint had given rise to a real and serious risk of an unfair trial.

What is perhaps of greater relevance to the facts of this case is whether the lapse of time alone between the date of the commission of the alleged offences and the date when the applicant was charged (and indeed the date when he may now expect to be tried in respect of those charges) is now so great as to give rise to an unavoidable and incurable prejudice so severe as to fatally impair the capacity of the applicant to defend himself against the charges and sufficient to give rise to a real and serious risk that the applicant will not receive a fair trial.

This is a troubling question for the reasons which I have outlined earlier. The answer, I think, is that each case must be approached on its own facts.

In his statement of complaint P.E. refers to a number of incidents which presumably are relevant to the commission of the offences.

The applicant contends that he is prejudiced in his capacity to defend himself in respect of the offences alleged by P.E. by reason of the fact that four of the brothers who taught at the school at the time of the alleged offences are deceased, whilst three other brothers are unable to provide assistance by way of evidence in respect of the matters alleged.

The complaints of P.E. related to two alleged offences. The applicant denies the commission of any offence.

The first offence is alleged to have occurred when the applicant detained P.E. and sexually assaulted him in a classroom at a time when the applicant was alone with P.E.

The second offence is alleged to have occurred in the classroom when P.E. was again detained after class and was alone with the applicant. On this occasion a very serious sexual offence is alleged to have occurred.

It is difficult to see how the other teachers who are now deceased would have been in a position to provide relevant testimony in respect of this offence as alleged and outlined by P.E.

Similarly it is difficult to see how physical details as to the make up of the classroom would be relevant or useful and the applicant has not adduced evidence indicating how such testimony would assist in the preparation or conduct of his defence.

It is undeniable that the applicant is faced with a bare assertion by P.E. of criminal conduct. However, on the facts, it is difficult to conclude that his capacity to defend himself would have been greatly altered if the allegation which he faces had been made on a much earlier date.

As I have indicated the physical characteristics of the building and the evidence of other Christian Brothers (now deceased) are unlikely to have a bearing upon the principal issue in this case which will be the credibility of the witnesses who testify. The applicant has not identified any specific facts or circumstances against which the testimony of P.E. could have been tested had the alleged offences been reported earlier and no such fact or circumstance springs readily to mind.

Accordingly I am satisfied that on the facts of this case the lapse of time alone between the date of commission of the alleged offences against P.E. and the date of charge (and estimated trial)of is not sufficient to give rise to a real and serious risk of unfairness such as to require the discontinuance of the trial of the applicant in respect of the offences alleged against P.E.