High Court of Ireland Decisions

 
THE HIGH COURT JUDICIAL REVIEW

2001 No. 336 JR

BETWEEN/

D.K.

APPLICANT

AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Roderick Murphy dated the 2^nd day of April, 2004.

1. Pleadings

By order of Kinlen J. made the 28^th May, 2001, the applicant was given leave to apply by way of judicial review for an order of prohibition or, in the alternative, an injunction restraining the respondent from proceeding with a prosecution entitled D.P.P. v. D. K., Bill CC 167-00, before the Central Criminal Court.

The matter was heard by this court on 2^nd March, 2004. The grounds for the leave given were as follows:-

1. 2 Grounds
2. 2.1. The delay in the institution, investigation and presentation of the case was unjust and unfair, violated the applicant's right to a trial with reasonable expedition, violated his rights to a trial in due process of law and was contrary to natural and constitutional justice.
3. 2.2. The delay in bringing the proceedings, including the delay by the alleged injured parties, had been excessive and prejudicial so that it prejudiced or unduly affected the applicant's right to a fair trial and disables or injuriously affected him in the preparation, research and conduct of his defence.
4. 2.3. The lapse of time from the alleged date of the commission of the offences to the applicant's return for trial or a trial date gave rise to the presumption of incurable prejudice or, in the alternative, is such as to entitle the applicant, in limine, to the relief.
5. 2.4. The want of specificity as to the time in most of the charges debarred the applicant or, in the alternative, gave rise to an unavoidable and irredeemable difficulty in gathering any or sufficient material, collateral or otherwise, so as to rebut, discredit or query the evidence.
6. 2.5. Insofar as some charges are date specific, it was wholly unfair in the circumstances to expect the applicant at this remove to be able to sufficiently rebut, discredit or query the same by material, collateral or otherwise.
7. 2.6. Insofar as some offences are alleged to have occurred on particular dates or are placed in time by reference to particular facts, the prosecution has in the preparation of it's case, failed to ensure that a fair trial will occur or at least a fair preliminary examination by reason of it's failure to garner or seek to garner relevant evidence, whether that of witnesses, or in documents, who, or when, on any reasonable perusal of the book of evidence or statements, would be relevant and in the circumstances this prosecution is not in accordance with law.
8. 2.7. The applicant was prejudiced by reason of the delay of the alleged injured party and, in particular, by the death on the 1^st October, 1995, of his wife, Theresa, whose central position in the family and knowledge of the facts would have been relevant to the defence of such a case. Otherwise the deaths of Dr. Patrick Murray (a psychiatrist, to whom the children were referred) and a part time worker had prejudiced the accused.
9. 2.8. The prosecution appeared to attempt to rely on evidence of the injured party, which, in the particular case, she had difficulty in recalling in extent or nature and apparently such difficulty being explicable by the defence mechanism of repression. If such is fact, the use of such "memory" did not conform to the constitutional norm that evidence be of a person's recollection.
10. 2.9. The preferment of such a number of charges which were wanting in specificity and, in particular, whether they were alternate to each other or different offences on different dates, was unfair and was an invasion of the accused's right to due process under Article 38 of the Constitution.
11. 2.10. The book of evidence in it's nature and content offended the Criminal Procedure Act, 1967, by reason of a great amount of matter clearly inadmissible thereon or, if admissible, only by reason of an alteration of the law unknown to the applicant or his advisers so as to be without jurisdiction or, in the alternative, contained errors on the face of the record.
12. 2.11. No leave had been granted in relation to ground 9: the alleged circumstances that the injured party's recollection had increased and improved in the course of her hospitalisation, therapy, counselling or other from of treatment, without the prosecution making available all (material) concerning same (sic).

2. Applicant's Affidavit

The applicant, having exhibited the book of evidence, stated that he was charged with 39 offences, of which 38 were proceeded with, in relation to his daughter, being offences of rape and indecent assault. He denied the allegations contained in a number of statements by the injured party, his daughter, who was born on the 2^nd July, 1968. As appears from the book of evidence, the applicant's daughter was between the ages of 4 and 13 at the time of the alleged offences.

The applicant says he first became aware of his daughter's allegations in 1991 (when she was about 23 years of age) when she was hospitalised in a psychiatric unit under the care of Dr. Martin Lucey. He said that he assumed that the allegations were part of her illness which was, he believed, one of manic depression and that she was expressing ideas of a grandiose and persecutory nature. He noticed that her first allegation was made on the 17^th April, 1991, when she complained of having been sexually abused when she was 12 or 13 years of age "but that she was unable to recall the nature and extent of these clearly".

The applicant said that when he saw her in the psychiatric unit she was scarcely coherent but seemed glad to see him. There was a girl of 15 or 16 years, named Emily, in the adjoining bed. He subsequently learned from his now deceased wife that Emily had been claiming to have been raped over a period of time by her father.

The applicant said that from 1991 until 1997, as appeared from the book of evidence, no step was taken against him or any complaint made to the Gardaí until the 31^st October, 1997, when, he said, his daughter made her first statement. A statement was also made on the 23^rd May, 1999, and in September, 1999. An additional statement of the 8^th December, 1999, was served on him, as a statement of additional evidence, on the 8^th March, 2001. In that statement the injured party clarified a period subsequent to the end of August, 1976, when the abuse stopped. That was instead when she left primary school in June, 1981. She said that she was raped and sexually interfered with on numerous occasions – on more than one occasion each year – subsequent to the summer of 1976. In August, 1976 she would have been eight years old and almost 13 in June, 1981 when she left primary school.

The applicant says that he was arrested on the 12^th February, 1999, interviewed and released without charge and arrested later on the 9^th December, 1999, and ultimately returned for trial on the 6^th June, 2001.

After his daughter's initial complaints on the 17^th April, 1991, he said he was extremely distressed, anxious and depressed and his relationship with his wife and the general worries of life got him down to the extent that he was assessed and given medication by his G.P. He said that at no stage did he admit sexually abusing his daughter and that the inference taken from Dr. Lucey's statement as to what occurred at a consultation between him, his daughter, his wife and Dr. Lucey was untrue. He said he made no response whatsoever as his daughter was extremely upset and he felt that denying it at that time might only make matters worse. After his daughter was released from the hospital in 1991 relations were amicable. He assumed that her complaints were not factually based and were an emanation of her illness. She was not always hospitalised as an in-patient or incompetent in her affairs. He described how she became pregnant in 1986 and that he, at her request, became the godfather of her child. She worked at his business and took out a loan which he and his wife guaranteed. He looked after his daughter while she was in hospital and took her to the doctor and psychiatrist.

The injured party's second child was born in February, 1995. His wife, the injured party's mother, from whom he had separated, died on the 1^st October, 1995. The applicant denied that he was oppressive, cruel, drunken, violent or a selfish tyrant. There were complex tensions within the family, not all of his making.

Having analysed the charges of rape and indecent assault from September, 1972 to the 5^th June, 1981, the applicant said he was completely unable to give any evidence or even contemplate what evidence he could use of a collateral nature, for reasons of lack of specificity and clarity in the charges. Even if he could establish who occupied the room with his daughter at the time of some of the alleged offences, he averred that there was no guarantee that an argument would not be made against him at the trial that that child was asleep or temporarily absent.

He says the prosecution paid no attention to the gathering of material facts and instances the allegation against him, of having full sexual intercourse with his daughter three times before her 5^th birthday. There was no attempt to address the issue of such violent acts on a girl of aged 4 to 5 years not being evident to his G.P., who was a relation, or to his wife. The G.P. referred the children to a psychiatrist, Dr. Patrick Murray, in the mid to late 1980s, after the alleged abuse. His wife would have known the sleeping arrangements and been au fait with the injured party in regard to any unusual injuries. No attempt was made by the prosecution to obtain medical records from a subsequent G.P.

The applicant also referred to the absence of any reference in relation to a live-in home help whom the applicant said lived in the same room as his daughter. He said that he was able to trace her and exhibited a proof of her evidence. She said, in the evidence exhibited that she had been employed from May, 1972 to May, 1975 and that she slept in the basement which had a single bed and a double bunk which were always occupied by two of the girls, including the injured party. She believed that the relationship between the children and, in particular, with the applicant, at all stages were good and that in the three years she spent with the family she saw nothing that would lead her to believe that the applicant's behaviour towards his children was in any way inappropriate. She slept in the same room and it would not have been possible for the applicant to enter the room without her knowing. (The period May, 1972 to May, 1975 covered the three allegations between September, 1972 and July, 1973 and overlaps with the period from January to December, 1975 when one instance is alleged to have occurred.)

The applicant said that the part time worker who had worked from 1983 to 1988 in the garden centre of the applicant, died in 2001, aged 30, and would have been in a position to give evidence of his relationship with his daughter and her daughter. In a supplemental affidavit he referred to an alleged remark made by the injured party to a friend of his, whilst the family were on holiday in Denmark when she was six years old, where she says she told that friend that she would sleep with him if he were to buy her a toy. He had learnt from his friend's employer in Denmark that this friend had died three or four years ago, and that his widow was in a nursing home. It was not possible to contact her or to obtain a birth certificate without having the exact date and place of death. He has not been able to trace any other witnesses.

3. Statement of Opposition

The respondent opposed the application for judicial review on the following grounds:

13. 1. The applicant was returned for trial before the Central Criminal Court on the 6^th June, 2000. Leave to seek the relief sought was obtained on the 28^th May, 2001, almost twelve months later. The applicant had not brought the proceedings promptly or within the time period provided for in the Rules of the Superior Courts.
14. 2. The lapse of time in the institution, investigation and presentation of the charges upon which the applicant had been returned for trial was not unjust or unfair and did not violate the applicant's right to a trial with reasonable expedition or in due course of law and was not contrary to natural and constitutional justice, either as alleged or at all.
15. 3. There had been no excessive or prejudicial delay in the commencement of the proceedings.
16. 4. The applicant's right to a fair trial was not prejudiced or injuriously affected.
17. 5. The applicant was not prejudiced, disabled or injuriously affected in the preparation, research and conduct of his defence, as alleged or at all.
18. 6. The lapse of time from the alleged date of the commission of the offences to the date of the applicant's return for trial did not give rise to any presumption of incurable prejudice, nor was it such as to entitle the applicant to the relief sought.
19. 7. It was denied that the alleged want of specificity as to the time in most of the charges debarred the plaintiff or gave rise to an unavoidable or irremediable difficulty in gathering any or sufficient material in order to rebut, discredit or query the evidence.
20. 8. It was denied that it was unfair to expect the applicant to meet the charges laid against him.
21. 9. It was denied that the respondent had failed to comply with its duty in law to have acted in such a manner as would not deprive the applicant of a fair trial.
22. 10. The applicant was not prejudiced in the preparation of his defence by the death of the persons referred to or, alternatively, had failed to demonstrate how the death of those persons resulted in any material prejudice to the defence of the charges against him.
23. 11. The injured party was at all times conscious of the abuse perpetrated upon her by the applicant and her inability to disclose the facts of the abuse to others did not affect the quality of her recollection. There was no basis whatsoever for any allegation that the injured party would give evidence of recovered memory. The evidence to be adduced would comply with any allegedly relevant constitutional norm.
24. 12. Any alleged discrepancy in the nature and content of the book of evidence (which was denied) was incapable of vitiating the jurisdiction of the court to hear and dispose of the charges before it.
25. 13. The book of evidence did not form part of any record capable of being relied upon to vitiate such proceedings.
26. 14. Insofar as there had been any lapse of time in the prosecution of the charges laid against the applicant, it was asserted that the lapse of time arose as a consequence of the nature of the abuse perpetrated by the applicant upon the injured party. The respondent would rely on the affidavits filed on his behalf for greater particularity regarding the affect of the abuse on the injured party and the reason why she did not make an earlier complaint in respect thereof and would also rely on the applicant's dominion over the injured party to explain why she failed to disclose these matters at an earlier date.
27. Affidavit of Injured Party

The injured party averred that she was the applicant's daughter and was born on the 2^nd July, 1968, as the third of seven children. She referred to the book of evidence in relation to the eighteen counts of rape and eighteen counts of indecent assault between the 1^st September, 1972, and the 5^th June, 1981, at the family home.

She said that on the 10^th April, 1991, she was admitted to St. Finan's Hospital and within a week disclosed to Dr. Martin Lucey, Consultant Psychiatrist, that her father had sexually abused her during her childhood. She subsequently told her mother of the abuse during one of her mother's visits to the hospital. Dr. Lucey arranged for her parents and herself to meet in his office, in his presence, and asked her to repeat the allegation in front of her parents. She said that her father had replied "I suppose that is possible". Her mother reacted by saying, "Of course it is possible, it explains everything". She was then 23 years old and said that she was so shocked she did not recall what else was said. Matters got worse at home and her mother decided to separate from her father. The injured party said that she took an overdose and was admitted to hospital. Between 1991 and 1998 she said she was regularly admitted to hospital for psychiatric treatment. She attempted to recount the sexual abuse to Mr. Colm Downey, Senior Clinical Psychiatrist, and to Dr. Darra Phelan. She felt unable to continue with a course of treatment with Mr. Downey and found it easier to write about the events than speak about them. She could barely speak about the events to the persons entrusted with her medical care let alone complain to the authorities. She was afraid of her father and what he would do if she made a complaint. She also felt ashamed and blamed herself. Her mental condition impeded her living any kind of regular settled life. She said she was also responsible for the care of her two children. It took enormous effort for her to make any complaint. Her mother, having separated from her father, died in 1995. She contacted her mother's solicitor and informed him of her complaint and understood that he would contact the Gardaí about the matter. On the 31^st October, 1997, Garda Mary Clifton visited her at home and she made a statement, the first statement. Soon afterwards she had a breakdown and was admitted to the psychiatric ward, was in contact with Garda Clifton during her stay and told her she did not wish to proceed with the complaint at that time as she had to cope with her illness and care for her children. In July, 1998 she telephoned Garda Clifton and asked her to proceed with the investigation. She made further statements on the 14^th September, 1999, (the second statement) and the 8^th December, 1999, (the third statement).

She said that at the request of the respondent she attended Dr. Martin Lucey, Consultant Psychiatrist, on the 6^th September, 2001. She was later shown a copy of his report in relation to the facts of which she says are true.

She was brought up in a home in which, she says, her father was a domineering bully and would undermine her mother's ability to control her and her three brothers and three sisters. She was the third eldest. As far back as she could remember she was woken up at night time, hearing shouting and screaming coming from her parents' bedroom and that inevitably one of her parents would end up leaving the bedroom. Her mother would go down to her brothers' bedroom or her father would come to her bedroom. The children would try to stop their father hitting their mother. The earliest recollection she had of such an incident was when she was four years old.

According to her statement dated the 31^st October, 1997, she says that when she was four years old her father came into her bedroom after having given her mother another beating. He came in beside her in her bed. She didn't remember if any of the other members of the family were sleeping in the room with her at the time. She then describes awakening and "feeling an awful weight on top of me. He was moving up and down on top of me. I was squashed and did not know what was going on".

She says that between that time and up until she was eleven years old she can remember being sexually interfered with by her father on at least ten different occasions. She could remember having full sexual intercourse on some occasions, which she described. She recalled most of the times getting a smell of drink from her father. She recalled getting severe beatings and described them. She recalled occasions when her mother would cry when bathing them, when she would see the black and blue marks they had as a result of their father's beatings. She remembered several occasions when she saw her father beat her mother and occasions when her mother called out for them to call the Gardaí or the mother's sister-in-law, who was a G.P., who would always come, even if it was in the middle of the night.

She was first admitted to a psychiatric hospital in 1991 when, she said, she ended up extremely disturbed at eleven or twelve years old as a result of all the turbulence in the house.

She was brought by her parents to a psychiatrist, a Dr. Murray, to whom she related the fighting and tension but not the sexual interference. She became depressed and blamed herself for the abuse and the friction between her parents.

She was sent to boarding school, did not settle and ran away and was brought home. She detailed how she became troublesome, depressed and even suicidal. At fifteen she tried to run away from home. She became involved with the school caretaker and became pregnant and gave birth in January, 1987, became depressed and saw Dr. Clarke Finnegan but did not tell him about the sexual interference.

It was not until 1991 when she was admitted to a psychiatric hospital that she told Dr. Martin Lucey about the sexual interference. She later told her mother while she was in hospital. A meeting was arranged between Dr. Lucey and her parents, as already referred to.

With the help of certain nurses, psychologists and Dr. Lucey, she was able to come to terms with much of what had happened.

Her second statement, made on the 14^th September, 1999, referred to the sexual abuse stopping when she was twelve years old, in June, 1981, when she left primary school. She referred to the first incident in the winter of 1972 which she associated with her sister's birthday on the 19^th October, 1972, and said that there were at least two more incidents of full sexual intercourse prior to July, 1973 when she went to Denmark with some of her family. A Danish friend or her father's told her that she couldn't have a rocking horse that she wanted and she said that she would go to bed with him if he would buy it for her. The statement continued with more detail of the alleged abuse and to the difficulty she had in making her original statement which caused her to feel dirty, degraded, ashamed, hurt, anxious and extremely angry. She wanted her father to love her but was afraid that if she did not sleep with him he would not love her any more. She was terrified that her father might abuse her own daughter.

She did not tell Dr. Murray or Dr. Clarke Finnegan because her parents were sitting outside the door and did not have confidence to tell the doctor.

The injured party's third statement was made on 8^th December, 1999, wherein she referred to the final incidence of abuse which she said was between the 1^st May, and July/August, 1976. She said the applicant had sex with her on at least four occasions and that she was used to the abuse by this time. In her third statement she wanted to clarify the period subsequent to that period when the abuse stopped, when she left primary school. She said she was raped and sexually interfered with on numerous occasions –on more that one occasion each year subsequent to the summer of 1976.

5. Evidence of Dr. Martin Lucey

Dr. Lucey's affidavit, sworn the 9^th October , 2001, referred to the interview on 17^th April, 1991, when the injured party disclosed that the applicant had sexually abused her when she was twelve or thirteen years of age: she had been "hurt" by her father in her genital area. On the 8^th May, 1991, he had interviewed the applicant and his wife in their daughter's presence when her hypomania had settled. The applicant had stated that he had not sexually abused his daughter. His wife commented that that explained everything. Dr. Lucey had the clear impression that something improper had occurred between the applicant and his daughter.

Dr. Lucey referred to the return of the injured party to his care on the 13^th August, 1993, until the 30^th June, 1996. He had referred her to Dr. Colm Downey, Senior Clinical Psychologist, on 17^th February, 1994, for cognitive/behaviour therapy and for the explanation of the alleged childhood abuse by her father.

Dr. Lucey made an initial report dated 26^th January, 1999. He believed her allegation of childhood sexual abuse to be true.

She had maintained her allegations of sexual abuse over time and when she was well mentally, although she had difficulty in recording her experiences, resorted to writing as she was unable to verbalise them. Her memory was volunteered spontaneously when she was in a hypomanic state. He said that her delay in reporting the abuse was reasonable in the light of all her circumstances which he detailed.

In his opinion she was suffering from bipolar effective disorder, aggravated by an underlying vulnerable and unstable personality which was consistent with her having undergone emotional trauma during her personal development.

At the request of the Director of Public Prosecutions he conducted a further assessment and prepared a report dated the 8^th September, 2001.

6. Psychiatric report

Dr. Lucey interviewed the injured party on the 6^th September, 2001 when she was mentally stable. Initially she had poor recall.

He noted her explanations for the delay as her fear of her father, her shame and unrelenting self blame and her mental instability.

He interviewed her parents on the 8^th May, 1991, some four months beforehand. His impression was that the applicant's wife believed something had happened.

In cross-examination Dr Lucey believed, from his assessment, it was clear that the injured party's memory was always present not just recovered. It was volunteered spontaneously when in a hypomanic state and elaborated over time. Her difficulty in recalling the nature and extent of the allegations could be explained by the mental mechanism of repression, a mechanism of dealing with unbearable aspects of her life and, specifically in the present case, emotional trauma.

He had not referred to the book of evidence. He was not aware that the injured party had complained of intercourse when she was four years old.

7. Affidavit of Mary Clifton

Following a report made in September, 1997, by the injured party's solicitor to the Gardaí, Garda Clifton visited her on the 31^st October. In her affidavit Garda Clifton said that she took a statement from the injured party in which allegations were made of being subjected to sexual abuse, including full sexual intercourse and masturbation, by her father when she was aged between four and eleven years of age. She also described her admission to the psychiatric hospital in 1991 and her disclosure of the abuse to Dr. Martin Lucey.

Shortly after making the statement the injured party suffered a breakdown and told Garda Clifton that she was reluctant to proceed with her complaint at that time - she had enough on her plate coping with her psychiatric illness and caring for her two children and would be unable to cope with the pressures and stress that would ensue from the investigation of her complaint.

Garda Clifton met with her clinical psychologist on the 27^th March, 1998, and her consultant psychiatrist, Dr. Darra Phelan on the 21^st April, 1998, as requested by the injured party. She said Dr. Phelan had diagnosed bipolar affective disorder resulting from a traumatic life experience, emotional disturbance, dysfunctional family situation and consistent sexual abuse.

At the beginning of July, 1998 the injured party telephoned Garda Clifton with a request to proceed. The applicant failed to keep a number of appointments with Sergeant Peter Kearns who then called on him on 22^nd July, 1998, and proceeded to take a statement which was not completed despite the applicant's stated willingness to co-operate. The applicant then moved to another town where, on the 20^th January, 1999, the incomplete statement was signed by the applicant.

Garda Clifton also interviewed the applicant's son and the applicant's sister-in-law, the family G.P., after the children had been interviewed. On the 21^st January, 1999, a statement in writing was received from Dr. Martin Lucey which was referred to in his affidavit. A further statement was taken from the brother of the applicant's deceased wife.

On the 12^th February, 1999, together with Sergeant Kearns and Garda Scott and the deponent, the applicant was arrested under s. 4 of the Criminal Law Act, 1997 for the offence of rape. Further statements were taken. A Garda file was transmitted to the Director of Public Prosecutions in July, 1999, further information was requested and given and, on the 5^th December, 1999, directions were received from the Director of Public Prosecutions to charge. Having taken a further statement from the injured party the applicant was arrested on the 9^th December, 1999, and sent forward for trial on all charges on the 6^th June, 2000.

8. Cross-examination of Dr. Martin Lucey

Counsel for the applicant cross-examined Dr. Lucey regarding the complaint made on the 10^th April, 1991. Dr. Lucey said he had access to the documents from the hospital in relation to the period when the injured party was under his care. She had paranoid and grandiose ideas and was given to fantasising. She believed that she had cured her own short-sightedness by plucking her eyebrows. He believed that the literature indicated that this indicated possible sexual abuse.

In an interview with her on the 17^th April, 1991, she disclosed that she was the victim of sexual abuse, by her father, at the age of 12 to 13 years, by indicating that she had been "hurt by her father in the genital area". She suffered from hypomania and was elated and exhibited bipolar effective disorder and past depression. He interviewed her with her parents on the 8^th May, 1991, believing that confrontation and acknowledgment might be beneficial to all. He put it to the applicant that sexual abuse of his daughter had occurred since she was12 or 13 years of age. He denied it but said that he may have gone into the bedroom intoxicated. His wife became angry.

The applicant came to see him on two occasions later that month and the following month for assessment and psychotherapy but failed to attend further sessions. He was discharged to another doctor.

He denied that he had breached confidentiality and said that the injured party had difficulty in recalling and disclosing abuse and had to resort to writing down her complaints. He denied that the notes were made after the cognitive therapy sessions with Dr. Downey. He said he had the case notes from 1991 to 1996 and got the consent of the patient to get the case notes. The hospital records were read for but not referred to in the reports.

He agreed that there were differences between his report which stated that the abuse had started at the age of about twelve and her statements which stated that they began earlier. He was not aware in 1996 that complaints had been made of abuse occurring that early in her childhood.

He said that he saw her again in 2001 but did not have access to the case notes from 1996 to 2001. He was asked to give a report but did not read the book of evidence so he acknowledged that on the 22^nd August, 2001, the letter from the Director of Public Prosecutions to him included the book of evidence.

He said that memory involved registration, retention and recall. Registration of the events were always with the injured party though there was a problem with her recall. He had not made out references to allegations of abuse at age four. He was only aware of two statements, that of the 26^th January, 1999, and of the 8^th September, 2001.

9. Cross-examination of Garda Clifton

Garda Clifton did not know who the woman garda was who visited the injured party in February, 1994.

She did not get the notes of the applicant's sister-in-law, the family G.P., who was a regular visitor to the house. The records of Dr. Murray, who had seen the children, were not sought.

The Gardaí sought medical records since age four but got no reply as the injured party refused the Health Board's request to release her notes.

In relation to the Danish incident, the Gardaí did not try to trace the Danish friend, to whom the injured party had allegedly made the remark regarding sleeping with him if she were to get a toy.

Garda Clifton said that she had not seen the affidavit of Mr. K., which was referred to in her affidavit, or the affidavit of the applicant's solicitor.

10. Submissions of the applicant

Mr. Gageby S.C., submitted that there was delay which was attributed to the prosecution and prejudiced the applicant's right to a fair trial.

Both the applicant and his solicitor filed affidavits, including the book of evidence relating to the extension and change in the statements made by the injured party.

He referred to the death of the applicant's wife, the absence of any statements from the applicant's Danish friend, Dr. Murray, and the father's employer who had worked with the applicant as a teenager, all of whom had died.

Mr. Gageby submitted that the extension and change in the injured party's statements came after she went to the psychological sessions and was visited by an unknown Garda in early 1990s.

There were issues of retrieved memory and absence of collateral circumstances, such as the girl called Emily, who was in the bed beside her in the psychiatric hospital, which were not followed up by the Gardaí.

There was a difference between Dr. Lucey's evidence and the Garda evidence. Dr. Lucey confined himself to matters other than what was requested by the respondent which was to address the reasonableness of the delay.

The events of 1991 to 1996 referred to by Dr. Lucey were not in the book of evidence or in the judicial review papers. In 2001 he did not take a full history nor read the book of evidence nor the full range of complaints.

Garda Clifton had said that the injured party refused to have her records released. This was a matter that should have been followed up and was not. Mr. Gageby categorised this as a casual effort by the State where no attempt was made to get collateral evidence. The Health Board records were important and went to her ability to make a complaint and, indeed, indicate when she could not make a complaint.

There was prosecutorial delay in that the injured party was visited by the Gardaí in 1992 and, it would appear, that the State was not aware of it. It had never been disclosed. There was a strong burden on the State. The injured party did not refer to the Garda visiting her. The refusal of permission to hand over the Health Board notes was not mentioned in Garda Clifton's affidavit. Complaints of prejudice were not being treated seriously and no effort had been made to get other medical records.

It was his submission that Dr. Lucey's evidence was not well-grounded and did not deal with repressed memory phenomenon. He should have read the statements in the book of evidence.

There was a real risk of facing an unfair trial in the circumstance of the death of important witnesses such as Mrs. K. and a nurse who had bathed the injured party and who knew sleeping arrangements. The respondent was to lead the evidence regarding the remark made in Denmark. The children had been referred by the applicant's sister-in-law, their aunt, to Dr. Murray, the psychiatric specialist, in mid 1980s and it was the duty of the Gardaí to find evidence in relation to that consultation.

The applicant had employed the injured party in the garden centre, had taken her to the doctor and psychiatrist, was the godfather of her child whom his daughter left with him on occasions.

The applicant did attempt to get documents and to ascertain if his Danish friend was available.

In the circumstances there was a real risk of an unfair trial. There had been a delay of two and a half years from the first complaint in October, 1997 to the book of evidence in June, 2001 and a further delay of seven months from arrest to serving of the book of evidence.

Mr. Gageby relied on PO'C v. D.P.P. [2000] 3 I.R. 87 at 91, where relief sought by way of judicial review was given on the 23^rd January, 1998, in circumstances where a trial date of the 23^rd July, 1997 and later, of the 16^th October, 1997, was given but the applicant's case was not reached.

Reference was made to JL v. D.P.P. [2000] 3 I.R. 122, at p. 147 to 151. Reference was also made to the decision of McCracken J. in MF v. D.P.P, 5^th December 1997 at p. 3. .

In B.J. v. D.P.P., (Unreported, Supreme Court, 17^th December, 2003), reference was made to prejudice resulting from the evidence of a Garda talking to a complainant and omitting forgetting to recount that conversation.

At p. 29 of that judgment Hardiman J., referred to PO'C v. D.P.P. [2000] 3 I.R. 87 and stated that it was not difficult to establish a specific prejudice.

If there were a cure for the want of information and the absence of evidence because of death of potential witnesses, a trial judge cannot direct or rule in a way that could be meaningful. A direction could not repair the loss of the evidence of the injured party's mother or the Danish friend.

11. Submissions on behalf of the D.P.P.

Mr. Anthony Collins S.C. said that the applicant lacked promptness which was a fundamental principle in judicial review. He referred to The State (Byrne) v. Frawley. [1978] I.R. 326.

Delay could be explained in this case by reference to the psychological status of the injured party. There was no prosecutorial delay. The complainant's delay was not only explained but attributable to the applicant himself. Dr. Lucey's care ended in June, 1996. The complainant made her complaint on the 1^st October, 1997.

DW v. D.P.P. (Unreported, Supreme Court, 31^st October, 2003) restates the law and firms the factors to be considered in considering delay. Those include the length of the delay, the relationship between the victim and the alleged perpetrator, dominion, the relative ages of the parties, the availability of evidence and witnesses, an admission of guilt and any psychological evidence.

If the cause of the delay is attributable to the applicant then in justice he will get as fair a trial as circumstances permit.

In relation to the missing documents, it was submitted that the duty of the Gardaí must be interpreted as reasonable.

Mr. Collins referred to Redmond v. D.P.P. [2002] 4 I.R. 133; Connolly v. DPP, (Unreported, High Court, Finlay Geoghegan J., 15^th May, 2003), in relation to missing evidence where the normal rules applied and MQ v. DPP, (Unreported, High Court, McKechnie J., 14^th November, 2003), at page 39, paragraph 48, where he found for the applicant at page 30 where there was a return for trial of 18 months (check).

Mr. Collins also referred to Dekra Eireann Teo (Unreported, Supreme Court, 4^th April, 2003).

12. Decision of the Court

12.1 General

The court must balance the right of the applicant to an expeditious trial with the rights of the public to have complaints investigated, charges laid where appropriate, and a trial conducted in due course of law.

The Court has to consider various factors including those referred to in a number of Supreme Court judgments. These are the length of delay, whether by the complaint or of the prosecution, and the reasons offered in relation thereto. The relationship between the complainant and the accused, their relative ages and the question of dominion is a further consideration. The availability of evidence and witnesses will affect both complainant and accused. However, the conduct complained of will have taken place in private. Accordingly, witnesses will have a limited role in corroborating circumstantial evidence rather than giving evidence of the alleged offence.

The question of psychological evidence in relation to the reasonableness of a complainant's delay and the nature and extent of that evidence is also relevant.

Finally the extent of the investigation by the Gardaí so as to make available to the defence all relevant evidence is another element that the court must take into account.

12.2. Length of Delay

In this case there has been considerable delay since the earliest offence alleged and the likely date for trial. Several statements of complaint were made. Thirty-two years have elapsed since the injured party was aged four, at which age according to her last statement, she alleged full penetration occurred. It is of some significance that Dr. Martin Lucey does not refer to that earlier date in his report for the court. Indeed, when the original complaint was made first to him in 1991 it was in relation to the time when the complainant was aged eleven or twelve.

The injured party had become mentally ill and was hospitalised. She became pregnant in 1994 and, as is clear from the evidence of Dr. Lucey and Garda Clifton, felt unable to pursue the complaint she made to the Gardaí on the 31^st October, 1997, until July, 1998. She made further statements on the 14^th September, 1999 and 8^th December, 1999, after her mother had died. The delay from that date to the date of return for trial on the 6^th June, 2000, was the prosecutorial delay which is referred to by the applicant.

12.3. Relationship/Dominion

The next set of factors to be taken account of by the court are the relevant ages of the parties, the relationship between them and whether this can give rise to dominion. It seems clear to me that the reference by the applicant to family tensions strongly suggests, though does not conclusively prove, dominion. It was uncontroverted that the family rows led to the applicant, and on occasions his wife, leaving their bedroom and sleeping elsewhere.

The court has also to consider the evidence of the applicant in that he had brought the injured party to a doctor and psychiatrist, and subsequently was the godfather of her child and was entrusted with that child when the complainant was away and provided work for the injured party in the garden centre.

During this period she would appear to have been a troubled young woman. Her evidence that her father, the applicant, admitted the abuse in the meeting Dr. Martin Lucey had with herself and her parents is at variance with the evidence of Dr. Lucey. Both coincide in their memory of the reaction of her mother. Her mother some short years later decided to separate and died shortly thereafter. The injured party suffered as a result of tensions, lacked support, required psychiatric help and was dependent on the applicant.

12.4 Availability of evidence in witnesses

The court must have regard to the death of the applicant's wife and mother of the complainant who would have been a key witness. The complaint was not made to the Gardaí or to her mother's solicitors until after her mother's death. The probable demise of the Danish friend in relation to whom the complainant had stated at age six or thereabouts that she would have sex with him if he brought her a toy is, of course, very relevant to the charges at age four. If these earliest charges were not proceeded with then, of course, the absence of such a witness would no longer be as relevant to the alleged assaults but would be relevant to credibility.

The absence of notes from Dr. Murray, the psychiatrist that interviewed all the children at an earlier period, is also significant. I understand that no attempt would seem to have been made to ascertain if his records were still available. The death of the person who had worked in the Garden centre in his teenage years does not appear to me to be significant.

Against that the court has to bear in mind that offences of the nature complained of take place in private, in this case in the family home at night time. Given the relationship of father and daughter, it would seem to me to be less significant than in other cases.

12.5. Psychological evidence

Dr. Lucey's affidavit exhibiting his report, together with his evidence in cross-examination, refers to a complaint made to him in 1991 in the course of his treatment of the complainant. He believed the complaint to have foundation, attempted to bring the matter to a head in a meeting with the applicant and his wife and commenced the assessment of the applicant.

His report, following a consultation with the complainant on the 6^th September, 2001, referred to his statement to the Gardaí. While he would appear to conclude that the delay was reasonable in the circumstances, he did not give consideration to the later statements of the complainant. Indeed, he did not appear to have considered the book of evidence.

To that extent he did not comply with the instructions of the respondent. In some ways his previous involvement as the treating specialist for the complainant and in his knowledge of the applicant and his wife, while of great benefit to the court, did make it difficult for him to address, in the context of the series of complaints, matters subsequent to the date of his treatment of the injured party.

Notwithstanding the lack of reference to the book of evidence and the lack of assessment of the subsequent complaints, it seems to me that the evidence given by Dr. Duffy established the reasonability of the delay while she was under psychiatric care.

12.6. Obligation on the prosecution to investigate

Objection was also taken to the prosecution not following up on evidence as to the hospital companion of the complainant, the Health Board notes, psychiatric notes and the circumstances surrounding the statement made in Denmark by the complainant.

There is no doubt that the prosecution and the Gardaí, in particular, have an obligation to preserve potential evidence, including releasing of vehicles involved in crime (Murphy v. D.P.P. [1989] I.L.R.M. 171; Rogers v. D.P.P. [1992] I.L.R.M. 695; McKeon v. Judge and D.P.P., (Unreported, Supreme Court, 9^th April, 2003); and Bowes v. D.P.P., (Unreported High Court, 6^th February, 2003)) and the obtaining and preservation of video tapes (Braddish v. D.P.P. [2001] 3 IR 127).

Mr. Justice Lynch in Murphy v. D.P.P. [1989] 1 L.R.M. 171 stated that the obligation was to preserve evidence, so far as was necessary and practicable. Mr. Justice Hardiman went further in Braddish v. D.P.P. [2001] 3 IR 127, by stating emphatically that items of evidence could not be destroyed or rendered unavailable because the prosecution was based solely on an alleged confession. He continued at p. 131:

"It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not."

He qualified that somewhat at p. 35:

"A duty so qualified cannot be precisely or exhaustively defined in words of general application. Certainly it cannot be interpreted as requiring the Gardaí to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case."

The extent to which the Gardaí must take all possible steps in an investigation was referred to by Hardiman J. in PO'C v. D.P.P. [2002] 3 I.R. 87 at 112.

In my view, there is a duty on the prosecution concerned with cases such as this, and in particular on the Gardaí by reason of their unique investigative role, to take all possible steps to establish as many as possible the facts surrounding the allegation of sexual abuse. If it is not possible to establish a particular fact that should be clearly stated, no matter what party it may favour.

In Dunne v. D.P.P. [2002] 2I.L.R.M. 241, also, as in Braddish, involving a video tape, Hardiman J. emphasised the duty of the Gardaí not only to preserve evidence but to seek out and preserve material evidence. However, he went on to say at p. 259, that no remote, theoretical or fanciful possibility would lead to the prohibition of a trial.

McCracken J. for the Supreme Court in McKeon, at p. 9, stated:

"It is the duty of the court to keep a reasonable balance between the obligation of the prosecution to prove as strong a case as possible against wrongdoers, and the right of an accused to defend himself and in so doing, by all legal means, to attempt to show that there may be a reasonable doubt as to his guilt or innocence."

He accepted that these principles must be tempered by the application of the concept of reasonableness. The test was not a question of blame but of whether the applicant had been deprived of a real opportunity to rebut the case against him.

In that case the applicant had alleged that his right to a fair trial had been violated by the failure of the Gardaí to preserve, examine (either visually or forensically), or make available to the applicant a motor vehicle and also for failing to remove a petrol can, which had been used in an alleged assault on a Garda, and to retain it.

The Supreme Court held that, as the applicant's advisers had not requested an independent examination for fingerprints, the applicant had not made out an arguable case that there was a real risk of an unfair trial and, accordingly, dismissed the appeal and affirmed the order of the High Court, refusing leave to apply for judicial review.

There emerges from the consideration of the above mentioned cases the consideration of the extent to which the prosecuting authorities should go in investigating any particular crime. The paramount test must be that of relevance and reasonableness, having regard to the seriousness of the alleged offence and the possible penalty, the effect on the injured party or parties and the resources available to the prosecution and to the Gardaí.

There seems to me no doubt that leads should be followed, not just for the purpose of the prosecution but also for the defence. The objective of the investigation is to do justice. It does not seem to me that this involves a disproportionate expenditure of resources into an exhaustive investigation but it clearly does not justify not following leads which are relevant to the innocence as well as the guilt of the accused. There is also a resource constraint. There must be a balance between a thorough and an expedition investigation. This is a matter for the prosecution authorities. It is not the function of the court in a Judicial Review.

The applicant complains of prosecutorial delay from the date of complaint to the date of the serving of the book of evidence. It does not seem to this court that, in the circumstances of that case this was unexplained or unreasonable.

The Court expresses concern at the averment of the Garda witness who had referred to the applicant's affidavit in her affidavit but, on cross-examination, stated that she had not read it.

12.7 Availability of Records

The carrying out of the investigative functions by the prosecution should, accordingly, be assessed on the basis of reasonableness. It is not for this Court to substitute its opinion from that of the Gardaí or the Director in relation to directions to the Gardaí as to how to conduct an investigation.

Moreover, it would seem to me that if there were any deficiency, such would be a matter for the trial judge, either in the assessment of admissibility of related evidence or in the warnings to be given to the jury.

The applicant had submitted that the respondent has not made records available from the Health Board nor attempted to follow up on psychiatric records or to discover the identity of the patient whose bed adjoined that of the injured party when she was hospitalised. The respondent had indicated that the injured party did not wish to authorise the release of such records. This may, indeed, be a matter for the trial.

Leave was not granted on the grounds that it would be unfair to an accused person to require him to defend a case without the prosecution making available all matters concerning same. The circumstances where this grounds was sought, but was refused by the court was where "circumstances admitted of the fact that the injured party's recollection had increased and improved in the course of her treatment".

In the circumstances, as no leave was given, this court in any event, does not have to consider the matter.

12.8 The Court is concerned with the prosecution purporting to lead evidence in relation to the remarks made in Denmark which, it is assumed, would corroborate the earlier allegations. The prosecution would appear not to have investigated this allegation. The applicant and his solicitor attempted to contact the family friend. The best evidence before the Court is that he had died and that his widow was not in a position to give evidence.

Because of this concern and in the circumstances, the Court will prohibit any prosecution in relation to the earliest offences when the complainant was four or five.

The Court has already expressed its concern in relation to the affidavit of the Garda in relation to comments on the applicant's and his solicitor's affidavits.

12.9 It is the very nature of the offence of childhood sexual abuse which prevents early complaint. It is the mental effect of childhood which causes the delay of fault applies. This renders delay reasonable as referred to by Denham J., in P.C. v. D.P.P. (1999) 2 IR 25 at 64, 65.

In relation to the other allegations and, notwithstanding the period of time and the possible prejudice, which can be subject to appropriate warnings by a trial judge, it seems to me that having considered the factors summarised at 12.1 above, there is no real or substantial risk to the applicant not receiving due process. It seems to me that the balance of justice lies in the continuation of the criminal process with regard to the remaining allegations.

Accordingly, save as to the extent of the earliest allegations, I refuse the relief sought.