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Cite as: [2004] IEHC 138

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THE HIGH COURT

JUDICIAL REVIEW

[2002 No. 72JR]

BETWEEN

DAVID CHAMBERS

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 9^th July, 2004.

By order of this Court (McKechnie J.) made the 13^th February, 2002, the applicant was given leave to apply by way of application for judicial review for the following relief:-

1. A declaration that the delay between the dates of the alleged offences and the dates of making of complaints by the complainants herein is inordinate and inexcusable and in breach of the applicant's right to a fair trial and a trial with due expedition;

2. A declaration that the prosecuting authorities including the respondent herein have been guilty of unnecessary and excessive delay in bringing the said prosecution and have failed to vindicate the applicant's constitutional rights to a fair trial in accordance with natural and constitutional justice;

3. An Order of Prohibition or alternatively, an injunction by way of judicial review restraining the respondent herein from continuing to prosecute the applicant in respect of 18 charges alleging offences contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935 which offences are alleged to have been committed between 1^st June, 1967 and 30^th April, 1968;

4. An Order of Prohibition or alternatively an injunction by way of judicial review restraining the respondent herein from continuing to prosecute the applicant in respect of 3 charges alleging offences contrary to common law and s. 6 of the Criminal Law (Amendment) Act, 1935 which offences are alleged to been committed between the 1st June, 1972 and the 31^st August, 1972.

The grounds upon which this relief is sought are as stated to be as follows:-

1. The delay in the institution of these proceedings has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland.

2. The delay in the institution of these proceedings has violated the applicant's right to a trial with reasonable expedition and to basic fairness of procedures and constitutional and natural justice.

3. The delay in the institution of these proceedings is inordinate, inexcusable and excessive.

4. The delay in the institution of these proceedings has prejudiced the applicant in defence of these proceedings.

5. The delay in the institution of these proceedings has created a real and serious risk that the applicant would be denied a fair trial or subjected to an unfair trial.

6. The delay in the institution of these proceedings has prejudiced the applicant in being able to call upon witnesses, who are no longer living, whose evidence would be of relevance to the matters at issue in this case.

7. The delay in the institution of these proceedings has prejudiced the applicant in that he has not been given details of the reason for the lengthy delay in the making of any complaint against him.

8. The applicant has been prejudiced in his defence of these proceedings for reason of a lack of specificity in the charges alleged.

9. The delay in the institution of these proceedings has allowed the applicant to belief that he would not be prejudiced in respect of allegations made by M.D. and B.J.

An affidavit has been sworn by the applicant on the 12^th February, 2002, in which he indicates that his trial was listed before Carlow Circuit Court in February 2002. He indicated that the return for trial was made at the District Court on the 11^th June, 2001.

The applicant indicates that at the time of swearing his affidavit he was 58 years of age having been born on the 8^th October, 1943. He indicates his background and the fact that he previously transferred a 50% interest in his lands to his wife while retaining ownership of the family home on the lands. He says that he and his wife no longer reside together having separated due to unhappy differences arising sometime in or around July of 1998. The applicant indicates that the prosecution is on foot of complaints made against him by M.D. and B.J. both being nieces of his wife and being the daughters of his wife's brother. He refers to the fact that the complainant B.J. complained to Garda Brendan Murphy sometime in or around 1999 that he had perpetrated various offences of a sexual nature against the complainant in the summer of 1972. He refers to the complaint of M.D. having being made on the 4^th August, 1999, in respect of various alleged offences of a sexual nature alleged to have occurred from in or around 1967 and subsequent four to four and a half years. The applicant indicates that he was arrested on the 10^th August, 1999, and brought to Carlow Garda Station for detention and questioning in respect of allegations made by the complainants. He says that on the 6^th February, 2001, he was once again arrested by Garda Murphy, taken to Carlow Garda Station where he was charged with the 21 offences the subject matter of these proceedings. He points out that on the 9^th April, 2001, he was served with a Book of Evidence and was returned for trial on the 11^th June, 2001. Having referred to the period in which the alleged offences are stated to have been committed the applicant then comments upon the Book of Evidence and refers to the fact that he was not aware of the complaints made by the complainants until the 10^th August, 1999. He indicates that no detail is given in the Book of Evidence as to why no complaint was made by the complainants at an earlier stage and no sufficient reason is offered as to the lengthy delay being a period of approximately 32 years in respect of M.D. and 27 years in respect of B.J. The applicant further comments upon the fact that prior to making formal complaints the complainant M.D. made certain disclosures to her sister some six years previously. He observes that no reason is offered to explain the delay in making the formal complaint to the gardaí being six years subsequently.

In his affidavit the applicant identifies a number of people whom he says cannot now be called because they have died in the intervening periods, the eldest of whom was identified as having died in 1969 and the last of whom apparently died in or about 1994/1995. The applicant also identifies a niece of his wife who he says was resident at the farm during the summer of 1967 and had slept in the room in which one of the complainants alleges that he had sex with her. He expresses belief that this lady resides in Northern Ireland but he does not know her address. He also refers to his parents-in-law having resided in the house and expresses his belief that the alleged events could not have occurred without their knowledge. He complains that these persons are no longer available to give evidence. It should be stated however that much of this affidavit is in the nature of a submission and not of statement of fact. Finally, the applicant suggests that a Statement of Evidence contained in the Book of Evidence relating to what was allegedly said by him to the gardaí is inaccurate. He denies a number of the utterances alleged to have been made by him.

The applicant has sworn a further affidavit in which he seeks to address his delay in moving to this court and he expresses the view that it was reasonable for him to wait until he was served with the indictment to see what counts were selected thereon. He further states that he was suffering severe ill health since in or around 1998 and as a result he says he was not in a position to continuously instruct and make himself available to his solicitor. He further refers to the fact that he has suffered some depression since in or around 1999 and takes anti-depressant tablets on a daily basis. He also refers to physical problems that he has had including the fact that he suffers from osteoarthritis and as a result he has had a hip replacement. He refers to periods of time which he was hospitalised in an orthopaedic hospital including a matter of two weeks in July, 2000 and a period of twelve days and six days respectively in November, 2001. He also refers to a brief period in Waterford Regional Hospital for three days in September, 2000 and other outpatient visits to the hospital on diverse dates in 2001 and one date in January, 2002. He refers to other attendances in the hospital in relation to his hip. He refers to the medication which he is currently taking and further refers to judicial separation proceedings between himself and his wife issued in or around June, 1999 and states that he has found himself overwhelmed by the events of the past three years. He states that he has little or no formal education having left primary school at the age of 13. A Statement of Opposition has been filed on behalf of the Director of Public Prosecutions which somewhat inappropriately is consisting largely of denials which are inappropriate in the context of the Statement of Opposition. It is pleaded further that the delay in the institution of the proceedings results partly or wholly through the nature of the offences alleged and in particular the effect of the offences on the complainants such that the complainants were inhibited from reporting the alleged offences earlier or such that the effects and nature of the offences on the complainants provides a reasonable excuse for the alleged delay.

It is further pleaded that the offences of the nature and according to the statement in the Book of Evidence in fact took place in private and consequently witnesses would not have been in a position to give relevant evidence had the trial of the applicant come on sooner.

Further reliance is based upon admissions allegedly made by the applicant which are not denied in these proceedings save for the variation of some parts of the statement. On this basis it is pleaded that in the light of the admissions the passage of time is irrelevant.

An affidavit has been sworn by Desmond S. O'Mahony who is a clinical psychologist in private practice and an associate fellow of the Psychological Society of Ireland and a registered psychologist with the Psychological Society of Ireland. He was head of clinical psychological service for the Northern Ireland and Social Service Board between 1966 and 1980. Between 1980 and 2001 he was Director of Psychology at the Department of Justice, Equality and Law Reform.

Mr. O'Mahony interviewed each of the complainants and prepared a report setting out his findings, his professional opinion and the facts recited to him by the complainants.

In the case of the complainant M.D. he states that she is a forty-nine year old woman who has made a complaint of sexual abuse against the applicant her uncle. She indicates that the complaint is that he introduced her to sexual intercourse while acting in loco parentis. The sexual intercourse happened regularly over a long period when she was between the ages of 14 and 18. He states that in telling of the story of these events her emotions were congruent with the development of the story so that it appeared entirely believable to him. He formed the view that the delay was reasonable in the circumstances. He addressed the matter under the headings of close family relationship, the inhibition due to the position of her uncle and the element of dominion. He refers to the family history of the complainant M.D. including the fact that she married in 1973 at the age of 20 years. There are four children of the marriage aged between 27 and 20 years. He referred to the education of the complainant who stated that she was unsettled at school and wanted out. She did not know whether this related to the abuse alleged. He refers to the employment record of the complainant and her health which he describes as unexceptional.

Dealing with the complainant's personality he points that she does not suffer from anxiety, other than the stress surrounding this case, depression nor does she show any signs or symptoms of a psychosis. Since making the complaint against the applicant and the consequent need to go over these early sexual experiences on a number of occasions with different people, her emotions about the abuse have been closer to the surface. He refers to the fact that during the two interviews she was cheerful on a number of occasions. He refers to the fact that these emerging emotions were always appropriate to the context of the discussion. He said that apart from these different incidences she is a stable, competent woman. When she has to deal with the detailed events of her abuse she is emotionally labile and often distressed. Since the termination of the abuse in her 18^th year, she has put these events "on the back burner". He states that over the past three years, her previously successful defences against dealing with the abuse have been brought down. She did not want to deal with the abuse and indicated the difficulty of dealing with same.

Mr. O'Mahony indicates the instructions that he received from the Chief State Solicitor which was to find whether the complainant's delay in making the complaint was attributable to:-

1. The effects of the alleged abuse,

2. The relationship of the accused to the complainant, or

3. Whether the complainant was inhibited

(a) by the acts,

(b) by the effect of the acts, or

(c) by the position of the applicant

4. Whether there is another reasonable explanation for the delay

5. If the is inhibition or other reasonable explanation

(i) for how long did the acts, the effects of the acts, the position of the applicant

(ii) and/or any other reasonable explanation accounting for the delay

6. If the cause ceased

(a) when did it cease

(b) when the delay ceased to be explicable by the above reasons and/or

(c) or explicable for any other reason.

7. Was there an element of dominion if so

(1) to what degree

(2) for how long

(3) if it ceased what was the explanation for the delay between the cessation and the actual complaint.

Mr. O'Mahony indicated that the headings under which there was no explanation found for the delay were the following Nos. 1, 3(a), (b), 4, 5(ii). On this basis he indicated that he was proposing only to address the remaining headings. Dealing with the factor for which the delay was attributable he expressed the view that the family relationship of the applicant to the complainant seemed to him to be at the core of the explanation for the delay in making the complaint. The applicant is married to the complainant father's youngest sister. He indicated that the issue of disclosure came in the context of a large and closely-knit family. He indicates that the family relationship was a potent reason for non-disclosure right up to the time of the complaint. The events which lead the complainant to make the complaint were the twin realisations that the applicant was acting as a babysitter for his son's daughter aged two years in circumstances where the complainant feared for the safety of this child and in circumstances where she considered that the applicant had already breached the boundaries of propriety of sexual contact with her as an under aged girl and within the family. He was also employed as a school bus driver. Mr. O'Mahony further refers to the fact that the complainant's parents never encouraged their children to discuss any matters of a sexual nature. On the contrary they actively discouraged such discussion. Mr. O'Mahony further refers to the fact that as time passed the relationship issue became more complicated by virtue of the fact that the applicant and his wife had two children with whom the complainant formed a strong relationship. She questioned how she could tell them what their father had done to her in or around their home for four years.

Mr. O'Mahony referred to the fact that while the complainant is the eldest of eight girls in her family the process of disclosure began in 1993 with her sister P and later with her sister B. Mr. O'Mahony said he was aware that the applicant alleges that the reason for his nieces making their complaint at the time when this was made was his serving a Civil Bill in separation proceedings on his wife seeking part ownership of the family farm. He states that whatever the virtue of this allegation the reason proffered by the sisters for bringing the complaint at this time, namely, the fear for the safety of the applicant's grand-daughter is arguably equally cogent. He refers to the fact that the complainant stated that she feared that revealing her early sexual experience with the applicant would put her marriage at risk and would be the cause of her losing the love and respect of her children. These relationships and all the close relationships forged over a lifetime could be put at risk by publicly revealing her experiences with her uncle, the applicant. She indicates that his continued presence within the family circle was the basis of this fear. She had a significant fear for this reason that she would not be believed primarily by her large family but also by everyone else. She had a reasonable fear that the revealing of the abuse would disrupt and fracture the whole family. He refers to the fact that the complainant indicated that the fact that the applicant was the "man of the house" in her grandparents home placed him in a position of influence within the family such that she might not be believed if she complained. It is stated that the applicant had a solid social standing within the family and within his community. This inhibited the complainant from acting sooner. Mr. O'Mahony indicated the fact of his being the "man of the house" continued to act as a powerful inhibition to the complainant right up to the time of the complaint. The applicant continued to be a member in good standing of the extended family in that there was no hint of any criminal behaviour right up to the making of the complaint. Mr. O'Mahony indicated that the applicant was in a significant position of trust within the family and by extension the community at large. He describes this to amount to a significant element of dominion which persisted right up to the time of the complaint. He concluded that there was no cessation of dominion prior to the making of the complaint.

Mr. O'Mahony in his report on the complainant B.J. describes her as a forty-four year old woman who has complained that the applicant indecently assaulted her at the age of 13 years while she resided in his home and while he was acting in loco parentis. Mr. O'Mahony said that she told her story in an emotionally congruent way consistent with telling a true story. He concluded that the delay on the part of the complainant in making a formal complaint is reasonable because of the family relationship that existed between the parties and the position of the applicant and the element of his dominion over her. This complainant is an unmarried mother with one son of about 24 years. She has had a good relationship with her mother and has a relationship with her father which was not close. Her mother was informed about the complaint against the applicant about three years previously. She was angry at first that she did not know that her children had been subjected to sexual abuse and that she had not been told about the abuse earlier. Mr. O'Mahony refers to the complainant's education and employment. Under the heading of health he refers to the fact that she attended the local offices of the Rape Crisis Centre in mid-1999 for three sessions. Her prime motivation was to find an answer to the question "how do I tell my son?" She was able to tell someone the whole story. She was surprised when her counsellor told her that she had done nothing wrong. She had always felt guilty about what had happened with the applicant. After the third session she realised that the more she talked the more she hurt. So she ceased attending the Rape Crisis Centre. She was, at different times throughout the interviews, tearful or angry. The emotions were quite appropriate to the history that she was relating.

Under the title of Personality, Mr. O'Mahony describes her as presenting as a person who is dependable, caring and giving. He refers to her involvement in the community in a way that is valued by others and shows persistence.

Dealing with the sexual abuse alleged he refers to her story being consistent with the account in the Book of Evidence. The abuse largely consisted of fondling of her breasts and vagina and insertion of his fingers into her vagina by the applicant. The abuse happened over a period of one week in the applicant's home or in his car. The complainant refers to having felt disgusted that she let it happen. She felt that she should have stopped it happening and that there was no one to tell. He refers to her experiences that internalised guilt as strongly today as at the time of the alleged abuse. She anticipated that her mother and especially her grandmother would respond in a very negative way to her if she disclosed her experience. Talking about anything sexual was actively discouraged in her home. She described graphically her experiences with the applicant and described how she could still feel his hands on her body and how she gagged when he put his tongue into her mouth. She could re-experience the dread in her stomach for fear of what he was doing to her.

Mr. O'Mahony refers to the fact that this complainant had a relationship with a boy her own age at 17 years of age which relationship lasted for one year. She refers to having met the love of her life at 18 years and after three years she found that she was pregnant. However when the father of her child learned of the pregnancy and that she was expecting twins he panicked and left her.

Mr. O'Mahony followed a similar pattern of approaching the issues as in the case of the first complainant M.D. and indicates that he found no explanation for the delay under a number of the headings. As in the case of the complainant M.D. he indicates his view that the relationship of the accused to the complainant is at the centre for the explanations for the delay in a complaint being made. He refers to the fact that the applicant's role as an uncle became so established and accepted within the complainant's family over the years that it made disclosure of the abuse out of the question. This remained so until the complainants became aware that the applicant was babysitting for his granddaughter. This was the impetus for the disclosure.

Mr. O'Mahony refers to the fact that the complainant was inhibited by the position of the applicant as uncle and "man of the house". This inhibition continued right up to the time that the complaint was made. The applicant continued to be a member of the family and community in good standing until then. The position of the applicant did not change during the period of the delay and continued to be a reasonable explanation for the delay. Mr. O'Mahony says that because of the close relationship between the applicant and the complainant he was in a significant position of trust within the family. The position of trust placed him in dominion over the complainant his niece to a significant degree.

Each of the complainants has made affidavits which they confirmed the truth of their statements in the Book of Evidence and the facts as recited by them to Mr. O'Mahony. The complainant M.D. refers to the fact that about nine years previously her sister P. asked her about the applicant and if he had ever interfered with her. She told her that the applicant had interfered with her also. She indicates that in the spring of 1991, she called to her aunt and saw the child's playpen and discovered that the applicant had access to his grandchild and would baby-sit and take her out in the car. She feared for the child's safety because of what had happened to her and it was then that she decided to tell her aunt and to seek help for herself on how to deal with the whole situation and to tell her mother, her husband and her family. She also learned at this stage that the applicant was driving school buses and she states that she could not knowing what had happened to her and her sisters allow him to have access to young girls regardless of the consequences for her.

The complainant B.J. confirms as true her own statement in the Book of Evidence and the facts as recited by her to the psychologist and referred to by him in the body of his report. She indicates that she has given a statement to the Garda Síochána setting out the reasons for the delay in the complaint and she confirms this is true. She states that the reason she did not personally come forward to make a complaint before 1999 was there were just so many people to hurt. She describes the family as a close-knit family and she was afraid she would drive a wedge between them. She indicates that she was very young at the time of the alleged abuse and no one spoke about sex or sexual matters. Her parents had not even discussed the facts of life with her. She asked rhetorically so how could I tell my parents that my uncle had been fondling and kissing me. She says that she put all this to the back of her mind and it would surface now and again. She says that her father had a heart condition and she always kept putting it on the long finger. She says there never seemed to be a right time to do it.

Mr. O'Mahony was cross examined on his affidavit and confirmed that while he freely approached the matter he did so following the terms of the letter received from the Chief Prosecution Solicitor indicating the nature and inquiry sought.

He confirmed that in his assessment of each of the complainants he spent in the order of six to seven hours split in two parts. The first part being a clinical interview to see whether there was any mental health issue in the cases. There was none. He found that there was no significant pathology and that this is an important starting point. He then moved on to the questions put before him. He indicated that there was a degree of overlap between the two interviews. He indicates further that the structure of the two interviews, that is involving each of the complainants mirrored one another. He expressed the view that in following the format of its instructions that this did not point to any conclusion.

Mr. O'Mahony conceded that the break-up between the applicant and his wife could have contributed to the making of the complaints but he has no way of assessing this. This was something he asked but was denied by the complainant.

The applicant himself was cross-examined and in particular in regard to the statement which he made to the gardaí and signed. He conceded that he was happy at the time to sign the statement as correct but in hindsight he was not. He suggested that on the day he signed the statement he was in a lot of pain and was on drugs. He did not take issue with the assertion that he had a sexual relationship with the complainants but he indicated that the where and how and when were matters that he did take issue with.

SUBMISSIONS

Mr Conor Devally S.C., on behalf of the applicant relies essentially upon the test propounded by Keane J. in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 and it is submitted that the court must consider whether the degree of prejudice is such as to give rise to real and serious risk of an unfair trial. In this regard counsel further refers to the judgment of Hardiman J. in P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 where he indicated that there was no necessity on the part of the applicant to demonstrate the certainty or an overwhelming probability. Counsel refers to the fact that Garda Murphy did not question the complainant on the presence or otherwise of the applicant's wife or F.J. or E.J. both of whom resided in the house where the alleged abuse took place. Counsel further refers to the fact that the complainant was not requested to comment on the presence of other persons now deceased. Counsel further submits that physical evidence pertaining to the scene of the alleged offences has been destroyed and that the applicant is deprived of any opportunity of testing the credibility of the complainants' evidence against any "island of fact" that might emerge at the trial with regard to this location.

Counsel stresses that the applicant's right to a fair trial must prevail over the community's right to have offences prosecuted.

Counsel refers to the observations of Hardiman J. in J.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478 and to portion of the judgment at p. 515 where he deals with the risk of death or unavailability of witnesses. Counsel submits that the subsequent investigations conducted by Garda Murphy regarding the usefulness or otherwise of the potential witnesses who are now deceased does not go far enough in establishing that a fair trial can now be had. He submits that this is particularly the case in regard to the witnesses F.J.and E.J. who resided in the house at the time when some of the alleged offences are stated to have occurred. Counsel submits that the suggestion that they would not have been potential witnesses for the applicant as indicated by Garda Murphy ignores the fact that an unspecified number of the offences are alleged to have occurred "around the farmyard." It is submitted that Garda Murphy's attitude completely ignores the reality of what occurs in jury trials and demonstrates a complete lack of understanding of the effect that credible witnesses for an accused can have on juries. Counsel speculates on the effect that evidence of deceased witnesses such as Mr. & Mrs. James could have on a jury.

Counsel further refers to the judgment of McCracken J. in M.F. v. Director of Public Prosecutions (Unreported, High Court, 5^th December, 1997). Counsel submits that in the instant case in the absence of any witness the applicant in this case would almost certainly have to give evidence thus depriving him of his inherent right not to give evidence. In this regard counsel stresses that the applicant is entitled to the presumption of innocence and the right to silence.

Counsel refers to the absence of the applicant's wife to give evidence in circumstances where he is estranged from her. Counsel submits that F. and E.J. would have had much to say about the circumstances of the complainant's visits to the house where the offences are alleged to have occurred, if they happened as alleged. Counsel submits that to require the applicant to prove affirmatively that these persons had specific evidence to give, when no allegation had been made in their lifetime, is to require him to attempt the impossible. Counsel submits that experience strongly suggests that they would have some relevant and perhaps vital evidence in circumstances such as those in this case.

Counsel submits that the applicant was not in a position of dominion over the complainants. It is submitted that this is particularly so in the case of B.J. whose complaints relate to one week in the summer of 1972. Counsel submits that the mere fact that the applicant is an uncle and was seen as the "man of the house" does not, especially in the case of B.J., justify the unconscionable and excessive delay in her making a complaint to An Garda Síochána and it is submitted that the applicant cannot be held responsible for the length of this delay.

Counsel questions the exercise carried out by Mr. O'Mahony and suggests that he has failed to consider in the context of the complainant B.J., the existence of an ulterior motive for making the complaint and it is submitted that the whole issue of dominion would have to be re-examined in this light. In this regard, counsel refers in particular to the existence of the Family Civil Bill in the context of the dispute between the applicant and his estranged wife. Finally counsel submits that the complainant M.D. made a conscious decision not to report the matter out of consideration for her mother, and not as a result of the dominion purportedly exercised by the applicant. He submitted that this involved a conscious choice and not a situation of inability to make a complaint.

On behalf of the respondent it is submitted by Mr. Diarmuid Rossa-Phelan, S.C. that the delay contained of in the instant case is sufficient as to warrant an investigation and an explanation. Counsel submits that the evidence in the instant case of the psychologist Mr. O'Mahony and the general circumstances of the case including the evidence given by the complainants is sufficient to explain the delay in the instant case. With regard to the allegations of specific prejudice contended for by the applicant it is submitted that these are insufficient and do not "hold water" when examined. Counsel refers to the fact that there is no countervailing evidence to the evidence of the psychologist in the instant case.

Dealing with the methodology adopted by the psychologist counsel refers to the terms of reference given by the psychologist and submits that it is the matters themselves which were addressed by him which led to his conclusions. Counsel submits that each of the matters addressed by the psychologist in his report including the significance of the break up of the applicant's family relationship were relevant. Counsel further refers to the fact that the applicant had made a statement admitting sexual relationship with one of the complainants. Counsel submits that obviously what is at issue is the age of the complainant at the time when the relationship was stated to be in being. With regard to the second complainant counsel refers to the admission of horse play on the part of the applicant when cross-examined. Counsel submits, having reviewed the psychological evidence in the instant case, that it is quite clear and that this court is in a position to access the evidence of the witness in question. Counsel refers to the suggestion of inherent bias in the form of the instructions given to the psychologist and to the fact that there is no suggestion of any professional or personal bias on his part. Counsel submits that in the absence of any countervailing evidence that this court must take account of his evidence. Counsel submits that the psychologist Mr. O'Mahony was in the instant case scrupulous and independent in his assessment. Counsel submits that the fact that the psychologist addressed the issues identified is a strength rather than weakness in his report because it relates to relevant matters. Counsel refers to the facts identified by him including the close knit family, the alleged sexual relationship which it is stated to have continued into adulthood and the effect on the complainants including B.J. notwithstanding a once off situation.

Counsel refers to the witnesses who are not available to the applicant in the context of the case of prejudice advanced by him. Counsel submits that on closer examination the case of any prejudice disappears. Counsel incidences the case of the witness Audrey Clarke whom he alleged could not be tracked down by him. Counsel refers to the fact that on closer examination she is a person who is giving evidence on behalf of the gardaí and is clearly available to be examined.

Counsel refers to the statement signed by the applicant and given to the Garda Síochána in the context of their investigation. It is submitted that this is a matter that must be taken into account. Counsel refers to the nature of the relationship which was one carried out in private in regard to the complainant M.D. in particular. Counsel submits that the issue of prejudice insofar as it has been addressed, is one relating to the age of the complainant and is a matter that must be left to a court trial in any event to resolve.

With reference to the decision of the Supreme Court in D.W. v Director of Public Prosecutions (Unreported, Supreme Court, 31^st October, 2003) counsel addresses the psychological evidence in the instant case. In that case McGuinness J. emphasised that it was not the role of the expert witness to assess the credibility of the complainant or the guilt or innocence of the applicant, which were matters to be tested at any proposed trail. Counsel further refers to the judgment of the Supreme Court delivered by Keane C.J. in P.O'C. v Director of Public Prosecutions [2000] 3 I.R. 87 where at p. 94 of the report he stated:-

"There remains, however, a further inquiry which must be conducted by the court in every case, i.e. as to whether the degree to which the applicant's ability to defend himself or herself has been impaired is such that the trial should not be allowed to proceed. The assumption made solely in the context of the earlier stage of the inquiry that the delay is the result of the applicant's own conduct ceases to have effect once that stage of the inquiry has been concluded. In the final stage of the inquiry, the applicant is presumed to be innocent of the offence with which he has been charged and, if he or she can demonstrate to the court that it is probable that a specific defence which might otherwise have been open to him or her is now no longer available because of the passage of time, the court may then halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge."

Counsel indicates further that in the instant case an issue arises as to whether there was a conscience decision on the part of the complainants not to report the alleged abuse and further whether there is prejudice which has ensued by reason of the passage of time such as to result in the situation where there is a real and serious risk that the applicant cannot obtain a fair trial.

Counsel submits that on the facts of the instant case the applicant has failed to establish that there is a real or a serious risk that he cannot obtain a fair trial.

Counsel submits that it is only in exceptional circumstances that the Superior Courts should intervene to prohibit a trial from taking place, in circumstances where it may not be taking place until five, ten, fifteen or twenty years after the events alleged. Counsel submits that in the applicant seeking such 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 submits that one should not complete the issue of a trial with reasonable expedition and the issue of whether the proposed trial would be an unfair trial.

Counsel has submitted written submissions to this court on the issue of whether the applicant is entitled to rely on the complainant's delay as against the prosecuting authorities. In reply counsel for the applicant submits that the psychologist Mr. O'Mahony did not seek to ascertain from the complainants the influence that the applicant had on their lives since the time that they became adults. Counsel submits that insofar as something may be reasonable in a psychological context, that that is not sufficient and the court should go behind the finding of reasonableness in regard to the delay by looking at the methodology deployed by the psychologist and seek to unravel the real reasons for the delay. Counsel submits that the delay on the part of the complainants in making their complaints relate to private decisions on their part unrelated to the applicant. Counsel submits that in the instant case there has been enormous delay which calls for an explanation and that there has not been any reasonable explanation for same.

CONCLUSIONS

In the instant case there has been a significant period of delay from the time when the abuse alleged against the applicant is stated to have been committed by him on the complainants and the stage when the complainants made their formal complaints to An Garda Síochána resulting in the prosecution of the applicant. I am satisfied that no issue of prosecutorial delay arises in this case and the essential issue that arises is whether by reason of the lapse of time there is a real or serious risk that the applicant cannot obtain a fair trial in all the circumstances. It is clear on the evidence that the trigger that led to the formal complaints being made was the observation by M.D. of a child's playpen and the discovery that the applicant had access to his grandchild whom he would baby-sit and take out in his car. This element of a trigger is not unique to this case but is undoubtedly a feature of a number of these cases. I must conclude on the evidence of the complainants themselves that no conscious decision was taken not to report the abuse prior to this time and M.D. has indicated that she often thought of doing something about it but the thought of telling her husband, her mother and her father was off-putting. The complainant B.J. has confirmed that the family was a close knit family and she was afraid that she would drive a wedge between them. She indicated in her statement that she thought that if she stayed away from the location in question that the applicant would have no reason to see her. She says that she was very young at the time and no one spoke about sex or sexual matters. I believe in the assessment as to whether there is a reasonable explanation for the delay that I should take into account in the instant case the evidence of the psychologist, Mr. O'Mahony. Under cross-examination he revealed the methodology employed by him and the fact that he had been guided somewhat by the terms of the brief furnished to him. I am unable. however, to conclude as submitted on behalf of the applicant, that this approach compromised the exercise being carried out by him. I am satisfied that in the context of the brief given to him he was not precluded in relation to an appropriate inquiry and that the matters identified in the letter sent by the Chief Prosecution Solicitor to him did not in any way suggest that he should overlook relevant matters or that he should take any irrelevant matters into account. I believe that other matters addressed by him, albeit in line with the terms of reference given to him, were relevant matters to be addressed by him. I am satisfied having heard Mr. O'Mahony and observed him under cross-examination that he carried out an appropriate inquiry in this case and did not fail to address relevant matters such as would call into question his conclusions. In this light, I accept his evidence without reservation. I believe that his evidence does amount to an explanation for the delay in the instant case and explains the delay on the part of the complainants in coming forward to make a formal complaint. He concluded that the delay was reasonable in the circumstances in the case of each of the two complainants. This he did in each case by reference to the close family relationship, the inhibition due to the position of applicant being the uncle of the complainants and what he refers to as the element of dominion. In these circumstances I believe that the explanation given on behalf of the Director of Public Prosecutions for the delay on the part of the complainants in coming forward has been explained and must be attributed to the conduct of the applicant in the first place having regard to the test propounded by Keane J. in P.C. v Director of Public Prosecutions [1999] 2. I.R. 25 at p. 68 of the report.

The further element that I must look at in this context is the element of prejudice. It is clear that the passage of time itself is a factor which must render it more difficult, not only for the prosecution to present its case but, undoubtedly, for the defendant in the defence of any charges of the nature in question. I have considered the elements of prejudice or specific prejudice advanced by the applicant and on his behalf. I believe that the death of the persons identified by him cannot be stated to result in a situation of clear prejudice such that a fair trial cannot be obtained. It is entirely speculative as to what these people might have said were they alive today. The applicant has failed to satisfy me that these persons are persons who would as a matter of probability have been in a position to give evidence in support of the applicant in any defence of the charges against him. A number of persons are still alive including his estranged wife. While he may be reluctant to call her as a witness, the fact remains, that her evidence and the evidence of other persons aside from those who have died, is available to the applicant if he wishes. Of course I am prepared to accept that it is unlikely that they will be in a position to give evidence in support of the applicant in his defence. Nevertheless it is possible that the will, if called to give evidence, will give evidence which may in some way assist the applicant but it is somewhat idle to speculate in this regard.

While the question of admissions is a matter that may be taken into account by court in the instant case, I accept that an issue arises at to whether what is alleged to have been stated by him when interviewed by the gardaí is as recorded. Nevertheless, there are clearly matters admitted by him which will have some bearing in any trial. It does appear, even on the basis of his affidavit, that the applicant is not asserting that the events that took place are ones that he simply cannot recall. With regard to the persons identified by the applicant, I am not satisfied that the former residents of the house or other persons identified by the applicant and who are now dead are persons in respect of whom it can be said that the applicant has established that, were they alive, they would be in a position to give clear evidence in support of him. I believe, notwithstanding what is asserted by the applicant, that the position of these persons is entirely speculative in nature. Essentially the activity the subject of the charges against the applicant is alleged to have taken place in private between the applicant and each of the complainants. In these circumstances, I do not believe that the applicant has established prejudice such as to warrant a finding that a fair trial is no longer possible or in other words that he has established to the satisfaction of this court that there is a real and serious risk that he will not obtain a fair trial.

In conclusion, in application of the tests propounded by Keane J. in P. C. v. Director of Public Prosecutions [1999] 2 IR 25 to the facts of the instant case I conclude that the applicant has failed to establish the existence of a real or serious risk that he will not obtain a fair trial or any other circumstances warranting the granting to him the relief which he seeks.