High Court of Ireland Decisions

 


HC 144/04

THE HIGH COURT

[2001 No. 392 J.R.]

BETWEEN

S.K.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSEUCTIONS

RESPONDENT

JUDGMENT of Mr. Justice Gilligan delivered on the 26^th day of February, 2004.

The applicant in this case has been charged with four counts of rape contrary to s. 48 of the Offences Against the Person Act, 1861, which are alleged to have occurred some time in 1972, and 41 counts of indecent assault contrary to common law, alleged to have occurred between 1968 and 1973. The applicant now seeks judicial review by way of order of prohibition or an injunction restraining the respondent from taking any further steps in the prosecution of these charges. The applicant was refused leave to apply for judicial review in the High Court on the 19th of June, 2001, and appealed that decision to the Supreme Court, where judgment was delivered on the 6th of July, 2001, granting leave to apply for judicial review as aforesaid on the following grounds:

1. That the delay in the institution of the proceedings above referred to has prejudiced the applicant; is inordinate and inexcusable; and is unfair and unjust to the applicant, and has thereby violated the applicant's right to a criminal trial in due course of law pursuant to

Article 38.1 of the Constitution;

2. That the applicant has been prejudiced in his defence of these proceedings by reason of the delay in the institution and prosecution of the said proceedings;

3. That there is a real and substantial risk that the trial of the applicant will be unfair by reason of the delay and consequent prejudice resulting therefrom;

4. That the applicant has been further prejudiced in his defence in these proceedings by reason of the lack of specificity in the charges alleged.

The applicant was born in 1936 and has eight adult children. The complainant in this case was born in 1961 and is one of two daughters of the applicant and is the fourth child in the family. It is alleged by the complainant that the applicant indecently assaulted her on several occasions between 1968 and 1973 and that he raped her on several occasions in 1972. The offences are alleged to have begun prior to her First Communion, which she made at the age of seven in 1968. The rapes are alleged to have occurred in the family home, and the indecent assaults in the family home and also at another location where her father used to take her in the car. She further alleges that in 1972 at the age of eleven she became pregnant as a result of the abuse and suffered a miscarriage about three months into the pregnancy. She alleges that a Dr. M., who was the family's G.P., attended her during the miscarriage while she was bleeding heavily, but was not present or informed when she actually miscarried two days later. Dr. M. died in or around 1986. The first formal complaint to the Gardaí regarding these allegations was made on the 7^th June, 1999. The applicant was arrested on the 9th September, 1999, and was interviewed by the Gardaí. He was charged with the offences preferred against him on the 6th of June, 2000, and was charged at that point.

There is a gap of 26 years between the last alleged offence and the first formal complaint in this case. The applicant argues that the lapse of time has deprived him of the chance to seek out witnesses or collate evidence in order to controvert any material aspect of the complainant's allegations, that it has made it impossible to accurately recollect events, and in particular the lapse of time when added to the lack of specificity of the allegations has made it impossible to rely on certain defences which may have been open to the applicant such as an alibi defence. In particular the applicant argues that the unavailability of either Dr. M. or any records he may have kept in relation to the alleged miscarriage irreparably prejudices the applicant's ability to challenge the complainant on a material aspect of the charges made against him.

The applicant also argues that unfairness to him arises out of the fact that records of the counselling received by the complainant prior to her making a formal complaint have not been made available to him. He also states that the complainant was approximately 38 years of age when she made her initial complaint, whereas she left the family home in 1976 and was married in 1986 and has had little contact with her father for more than 20 years. In the circumstances, the applicant contends that there is a real and substantial risk of an unfair trial.

It is clear that a serious delay exists between the last alleged offence and the first formal complaint. In a judicial review of this nature, the court must decide whether:

".. .as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until

the initiation of the prosecution."

(P.C. v. Director of Public Prosecutions [1999] 2 IR 25, at p. 67 per Keane J.).

In particular, if the trial is to go ahead, the court must satisfy itself "...as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused's own actions" (at p. 68). It is also important to note that at this stage an assumption as to the truth of the allegations made by the complainant may be made (per McGuinness J. in J.L. v. D.P.P. [2000] 3 I.R. 122, at p. 137, Hardiman J. concurring).

In P. C. v. Director of Public Prosecutions Keane J. goes on to set out the second part of the test; after making a finding that the delay was referable to the accused's own actions, the court must then determine whether:

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

In her statements to the Gardaí, the complainant provides details of abuse lasting from 1968 to 1972. She alleges that her father was violent towards both herself, her siblings and her mother, and that she was the only one who escaped his violence. She suggests that this was in return for her compliance in the abuse. She understood that if she refused to comply, her mother and siblings would be assaulted. Her father told her that if she told anyone, everyone in the family would be in trouble. She connected the beatings of the rest of the family with her own sexual abuse. If she said she was going to tell her mother, her father would say "We don't want any trouble" and she knew what this meant. She alleges her mother after a time was aware of the abuse, and in particular knew that she was pregnant and called the doctor when she was having the miscarriage.

In 1976 at the age of 14 the complainant left the family home to work and live with her paternal aunt, who ran a nursing home in a different town. She alleges she told her aunt of the abuse while she was living with her, in 1976 or 1977. She believes her aunt told a second paternal aunt of the abuse also. She alleges that a short time after this, her father and mother confronted her, asking what she had been saying. Her father and her mother brought her to the second aunt and made her recant her story.

The complainant states that she never discussed the matter again with anyone until after she was diagnosed with breast cancer in 1997. She had a partial mastectomy in 1997 and went through chemotherapy. She underwent a 10 week personal development course, which she describes as "basic self-esteem/assertiveness

Course" in late 1998 and early 1999, which she says assisted her in understanding a lot more about herself. In May, 1999 she had an operation to remove her ovaries as a precaution against further illness. She states that in hospital she had time to think about what had happened to her as a child. In her statement to the Gardaí she states

that the experience of fighting for herself, and her apprehension that if she died her father would be at her graveside "crying crocodile tears", made her resolve to deal with the problems in her life and in her health which she felt arose out of the abuse.

After the second of the two operations she underwent, and after speaking to her mother, who she states was already aware of the abuse she suffered, she spoke to her husband about the abuse for the first time. His statement to the Gardaí puts this disclosure at mid-May, 1999. He advised her to seek counselling, which she did and which is ongoing. She made a formal complaint to the Gardaí on the 7^th June, 1999.

The court heard the evidence of Dr. Ann Leader, Consultant Psychiatrist at Bon Secours Hospital. At the request of the D.P.P., Dr. Leader conducted an interview with the complainant, which lasted an hour and a half to two hours, and produced a report which has been entered into the evidence in this case. Dr. Leader also conducted a follow-up interview with the complainant which also included the complainant's husband, and the report arising out of that interview also has been entered into evidence.

In the first report, Dr. Leader states that in her view the complainant did not have the psychological capacity to seek legal advice or remedy prior to her making her statement to the Garda. She states that the complainant as a result of the abuse was a "lonely, unhappy and confused child". When she became sexually aware she "became angry and aggressive. She had low self esteem, an inferiority complex and a poor body image. She was a disturbed young woman. ...The development of normal sexuality was seriously affected".

Dr. Leader states that after the first operation to treat her breast cancer, the complainant "had a sudden insight. She realised she might die. She made a definite decision to do something about the abuse". Dr. Leader goes on to state that "It was her experience of breast cancer that provoked the emotions that triggered her disclosure. Although she blocked her emotions as a way of surviving the abuse she always retained very clear memories of what took place".

Dr. Leader in her affidavit clarifies "the reason for my view that [the complainant] did not have the psychological capacity to seek legal advice or remedy prior to her making her statement to the Gardaí is that for many years. The complainant feared her father. She felt deeply ashamed of what happened. He was a powerful dominant man within the family and she felt threatened by him. It was the occurrence of breast cancer which finally gave her the anger and power to face the consequences of her severe abuse. Prior to this she was too intimidated to take a case and also was not strong enough psychologically to do so".

Dr. Patricia Casey, Professor of Psychiatry in her affidavit as sworn on 15^th March, 2002, is critical of the manner in which Dr. Leader carried out her enquiries as regards the reasons for the delay in the complainant making her delay. She inter alia criticises Dr. Leader for failing to obtain collateral information in order to provide insights from an objective perspective that will inevitably be lacking in any history obtained conclusively from the complainant and further that Dr. Leader did not obtain from the complainant any detailed information as regards any treating therapist in relation to emotional problems. Further Dr. Casey criticises Dr. Leader having failed to conduct an interview with the complainant's husband before reaching any final conclusion on the basis that such an interview could assist in confirming or refuting claims made by the complainant. She also criticises Dr. Leader for having failed to seek further information as regards the alleged adverse affects on the plaintiff's education of the matters complained of and further that Dr. Leader failed to obtain any information regarding the content of the self awareness course which the complainant attended. Dr. Casey is of the view that in reaching her final conclusion Dr. Leader did not present any evidence of psychiatric disorder or of dominion to account for the delay in coming forward with the allegations against her father and that in these circumstances it is unclear how Dr. Leader could conclude that the complainant "did not have the psychological capacity to seek legal advice or remedy."

In her second report Dr. Leader clarifies the situation somewhat by indicating that:

"[The complainant] told me she did not make earlier complaints about her father for the following reasons. She wanted to protect her mother. She was fearful of taking any action while her brother and sister lived at home. She realised disclosure would cause huge family stress. She felt intimidated by her father and felt if she acted before she did she would not have had the mental strength to deal with the consequences. When she developed breast cancer an awareness of her poor quality of life was triggered".

Dr. Leader was cross-examined on this evidence. She agreed that she had only read the statements to the Gardaí made by the complainant, and had not read the other statements in the Book of Evidence. She had not sought independent verification of what she was told by the complainant. She stated that the second consultation with the complainant and her husband came about because she was asked to clarify certain facts in her first report. The defendant had commissioned a report from Dr. Patricia

Casey also adduced in evidence before me which criticised the first report produced by Dr. Leader, and her second report attempted to answer some of those criticisms. She agreed that, unless asked to do so by the D.P.P., she would not otherwise have felt a second consultation to be necessary.

Dr. Leader was examined at length on her note taking procedure. She admitted that while she still retains her original hand-written notes of the consultation, they closely resemble her finished report and are not a transcription of what was said by the complainant during the consultation. Rather the notes represent the conclusions she drew while the complainant spoke. Her notes were based on what was said to her, and on her impression and interpretation of what the complainant told her.

Dr. Leader would have asked the complainant some direct questions for the purposes of clarification. She rejected the suggestion that she simply put leading questions to the complainant, based on the symptoms she would expect to find in a victim of child sexual abuse.

Dr. Leader was also cross-examined extensively on the nature of the complainant's relationship with her husband. Counsel for the applicant pointed out that while the witness stated in her report that the complainant's sexual development had been seriously affected, she also stated that the complainant had a very secure and close relationship with her husband. Dr. Leader did not see any inconsistency between these two observations. She clarified that her opinion was that the complainant had a happy and successful emotional relationship with her husband but that they had sexual problems.

Dr. Leader was also cross-examined on the question of what had triggered the complainant's decision to "do something about the abuse". Dr. Leader stated in her report and in court that the trigger of the complainant's actions was the realisation that she might die as a result of her operation for cancer. She had made this decision before she went on the personal development course. The complainant had undergone two operations, one for a partial mastectomy in 1997, and one for removal of her ovaries in 1999. It was after the second operation that she told her husband of the abuse for the first time. Dr. Leader supposed that the first episode of breast cancer would have triggered in the complainant certain emotions, and they would have been strengthened by the second operation. Dr. Leader rejected the suggestion that she was assuming that when the complainant told her husband she was in a position to deal with the abuse. Dr. Leader stated that the complainant had decided to do something about the abuse when she had developed breast cancer. From the time she developed breast cancer her awareness of what had happened increased gradually until the time she developed a reoccurrence. It was quite normal that the level of awareness of the implications of abuse increase over time, even where a person had a full memory of what had happened throughout. It was a gradual process. She agreed that the disclosure itself had happened over a short period; the complainant told her family, her husband and the Garda within the space of a month. However the psychological work had had to be done before disclosure was possible. The most difficult disclosure was the first.

It was clarified that the complainant had first spoken to her mother and had then told her husband. Before she told her husband, the complainant's brother and sister became involved at their mother's request and visited the complainant to ask her about her allegations, and she spoke with them on the subject at that time.

Dr. Leader was cross-examined on the second consultation which she conducted with the complainant together with the complainant's husband. The purpose of this consultation was to clarify certain matters and to get his confirmation on what the complainant had told him, and was sought in response to Dr. Casey's criticisms of Dr. Leader's original report. Dr. Leader accepted that the account of a complainant was not necessarily objective, and accepted the validity of Dr. Casey's suggestion that the purpose of obtaining collateral information was to obtain objective information from a perspective other than that of the complainant. Dr. Leader responded to Dr. Casey's criticism that information should have been sought from the treating therapist by obtaining that therapist's records and speaking to her on the phone before the second consultation. She did not speak to the general practitioner. She agreed with Dr. Casey's view, put to her by counsel for the applicant, that an interview with the complainant's husband would provide information on the complainant's level of functioning, her psychological wellbeing and other relevant matters, during the marriage, which issues might be important in explaining the delay in reporting the allegations. Dr. Leader felt that the interview she did in fact conduct with the complainant's husband, in the presence of the complainant, met these purposes. That interview confirmed and validated and was consistent with her previous report. She confirmed that the complainant's husband had read her first report before the consultation and agreed with it. She felt that the complainant's husband had given her an objective account of the situation as he saw it, and rejected the suggestion that the fact that he had previously read her report and that the complainant was present during the interview compromised his ability to do so. She did not feel his perception of events would be coloured by having read her first report.

Dr. Leader rejected the suggestion in Dr.. Casey's report that she should have sought to interview some family members, and in particular that she should have sought to interview the aunt to whom the complainant said she had disclosed the abuse in 1976 or 1977. Dr. Leader felt this suggestion was entirely inappropriate. Although she had not read the Book of Evidence, the complainant had informed her that the relatives did not want to become involved.

The subject of the complainant's marriage and her husband's relationship with her father was raised. Reference had been made in Dr. Leader's second report to a strained relationship between the complainant's husband and father. Dr. Leader stated that she was aware that the complainant's father had strongly objected to the marriage and had attended the wedding reluctantly, and she agreed that by marrying her husband, the complainant had acted independently of her parents. Dr. Leader agreed that she was not dominated by her father in relation to this issue. She did not see a connection between being empowered to make decisions in one aspect of her life and being completely powerless to do so in another. In many areas of the complainant's life, she could and did behave as an independent adult woman. However the relationship with her father and the issue of sexual abuse remained extremely sensitive. Dr. Leader did not feel that the fact that the complainant married against her father's wishes in 1986 had any significance in relation to the dominion factor under discussion by the court. The dominion factor related to sexual abuse; the complainant was not free to deal with that issue, and was afraid to bring it up. The complainant was not psychologically free to bring up the issue of sexual abuse, although she was not afraid to choose a partner her parents disliked.

When asked what she meant by "psychologically free", Dr. Leader stated that the complainant was terrified of her father and specifically of the consequences of disclosing the sexual abuse. Disclosure would split the family in two; she would be isolated, rejected and vilified. She was afraid both of her father and of the consequences of disclosure for her mother, for her parents' relationship and for the siblings who remained living at home for a time. She felt responsible for, and wanted to protect, her mother. Whether the resulting decision not to disclose the abuse was deliberate, conscious or unconscious, Dr. Leader could not say. It was a conscious choice the complainant made, influenced by both conscious and unconscious factors.

Dr. Leader later clarified that she felt that the issue of the complainant's marriage was probably irrelevant to the question of dominion, but if anything the marriage was a necessary first step to free herself from the influence of her father.

Dr. Leader indicated that in 1999, the complainant's life-threatening illness activated her anger, and a realisation of how serious the abuse she suffered and the consequences of it were. At this point, her desire to seek justice overcame her need to protect her mother.

Dr. Leader also clarified that the complainant had not to her knowledge presented for psychiatric or psychological treatment in the time prior to her disclosure. Dr. Leader felt that the complainant was unhappy and anxious during that period of time, and she had psychological symptoms, but she was not psychiatrically ill.

Dr. Leader also clarified what she was asked to do by the D.P.P., with reference to the letter requesting a report which the D.P.P. sent to her. The D.P.P. requested that she assess the complainant to determine the effects of the alleged abuse, and in particular to determine the reasons for delay in reporting the alleged abuse, and whether the effects of the alleged abuse contributed to that delay. She was asked in particular to consider whether any dominion existed as a result of the alleged abuse, such that the complainant was inhibited from making a complaint by the abuse and by her relationship with the abuser.

Submissions of Counsel

Counsel for the applicant highlighted the importance of a reasonably expeditious trial. In particular counsel relies on the case of P.M v. Malone [2002] 2 IR 560, where Keane C.J. at p. 572 outlined the reasons why delay may be prejudicial:

"As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.

That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial."

Counsel for the applicant admits that the Supreme Court in the cases of B v. D.P.P. [1997] 3 I.R. 140, P. C. v. D.P.P. [1999] 2 IR 25 and J. O'C v. D.P.P. [2000] 3 I.R. 478 has recognised that special considerations apply in cases of sexual abuse and that in these cases the court is entitled to enquire as to whether the delay has resulted from the accused's own actions, in particular with reference to the concept of dominion, which was outlined in Denham J.'s judgment in P.C. v. D.P.P.

Counsel for the applicant is also careful to highlight the second part of the test set out in that case, that even where the court concludes that the delay was caused by the accused, the court must then go on to consider whether the delay has caused a real

risk that the applicant would not receive a fair trial. The onus of proving such a risk is on the applicant.

Counsel for the applicant submits that in this case dominion has not been made out as a ground for excusing the totality of the delay which occurred. It is submitted that the court should consider the fact that the complainant was 38 years of age when she made her first complaint in 1999, whereas she had moved out of her parents home in 1976 and was married in 1986 against her father's wishes, an act which counsel suggests is one of independence which is inconsistent with the complainant being under the dominion of the applicant during her adult life. There is no suggestion that the applicant made any threats against the complainant after the time she left her employment in the nursing home in the late 1970s. Counsel submits that the psychological evidence is inadequate, for the reasons raised in Dr. Casey's report and put to Dr. Leader in cross-examination. Counsel submits that the ones given by the complainant for failing to make a complaint are not sound ones, constitutionally, to delay the making of a complaint. There is no indication that the situation in relation to one of her primary concerns, the protection of her mother and siblings, ceased to operate in 1999.

Counsel draws the court's attention to Hardiman J.'s remarks in the case of J. O'C. v. D.P.P. [2000] 3 I.R. 478 on the practical difficulties facing a defendant exposed to trial where the only evidence is unsupported assertion and the only defence is a bare denial, and the concerns that must arise for the presumption of innocence in such circumstances. Hardiman J. in that case concluded that in these types of cases, the dominant consideration, with priority over all others, must be whether a real risk of an unfair trial has been established.

In relation to the issue of specific prejudice counsel submits that the death of Dr. M. and the absence of any records kept by him leaves the applicant in a position where he can merely deny the allegation of the complainant that she became pregnant by him and suffered a miscarriage. It is submitted that this leaves the applicant open to precisely the kind of prejudice highlighted by Hardiman J. in J. O 'C. v. D.P.P.

Counsel regards the respondent's assertion, that the absence of this particular piece of evidence may be as prejudicial to the prosecution as to the defence, as trite. He asserts that no other members of the complainant's family who were alleged to have been involved in this incident are able to confirm that it happened at all or as the complainant claims.

Counsel for the applicant relies particularly on the case of P. O'C. v. D.P.P. [2000] 3 IR 87 in this regard. In that case the applicant was charged with sexual offences which were alleged to have occurred in a locked music room. The applicant could not locate any witnesses who were able to give evidence as to when a lock had been fitted to the room in question, nor could he locate any documentary evidence on the topic.

In the circumstances his trial was prohibited on the grounds of specific prejudice.

Apart from the issue of delay, counsel also argues that the applicant has been unfairly deprived of the chance to peruse and examine the complainant's counselling records and that gives rise to the type of prejudice which was outlined by Hardiman J. in the case of J.L. v. D.P.P. [2000] 3 I.R. 122.

Counsel on behalf of the respondent draws attention to the fact that the applicant's application for judicial review was out of time, on the basis that the applicant waited over seven months following his return for trial before bringing his application.

Counsel for the respondent argues that the court should have regard to the fact that the prosecution was brought before the courts in the usual way and in the public interest, that the community has a constitutional right to have serious crimes prosecuted, even after a lengthy lapse of time, that the complainant has a constitutional right to bodily integrity and to have her personal rights vindicated, and that there is no Statute of Limitations on criminal prosecutions.

Counsel for the respondent also argues that there is no prosecutorial delay in this case, that the delay of the complainant cannot be pleaded against the prosecutor, and that there is no obligation on the D.P.P. to explain or justify the failure of the complainant to come forward earlier.

In direct reply to the arguments put forward by counsel for the applicant, counsel for the respondent argues that in this case the two-step test outlined by Keane J. (as he then was) in P.C. v. Director of Public Prosecutions is satisfied by the evidence before the court. In particular counsel for the respondent relies upon the application of this test by Kearns J. in the case of C. (P.) v. D.P.P. (unreported, High Ct, 22^nd February, 2002) where the learned judge stated that once the first part of the test has been applied:

"…the presumption of innocence is fully restored and if the accused can demonstrate that it is probable that a specific device (sic) which was available to (sic) him is no longer available because of the passage of time, the court may then halt the trial on the ground that there is a serious risk of an unfair trial."

Counsel for the respondent argues that, firstly, the complainant's delay in making a formal complaint was entirely referable to the conduct of the applicant, and secondly that there is no specific prejudice leading to any significant unfairness in this case. in support of the first contention, counsel points to the evidence of Dr. Leader and to the complainant's statements and affidavits. In support of the second contention, counsel for the respondent points out that there are a large number of witnesses in this case who are still alive and in a position to give evidence for the defence in relation to almost every aspect of this case, as is made clear by the Book of Evidence. In particular, the complainant's mother, who would have known of the alleged miscarriage, is still alive and in a position to give evidence, as are the complainant's sisters to whom she allegedly made a disclosure of the abuse.

Conclusions

The first issue that arises is the alleged failure of the applicant to move promptly and within time as provided for by Order 84, rule 21 of the Rules of the Superior Courts which states:

"21(1) an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose or six months where the relief sought is certiorari unless the court considers that there is good reason for extending the period within which the application shall be made."

There is no doubt but that the charges proffered against the applicant are serious and he did not seek leave to apply for judicial review either promptly or within three months from the date when the grounds for the application first arose and in this regard it appears to me to be reasonable to take the view that the appropriate date upon which the ground arose was the date of the applicant's return for trial. To comply strictly with the provisions of Order 84, rule 21 the application for judicial review should have been made promptly and in any event within three months of the 26^th day of October, 2000. In the present circumstances the application was not made until the 18^th day of June, 2001.

The reality of the situation in the particular circumstances of this case is that the central issue to be determined herein is one of a particularly serious nature both to the applicant and the complainant. No serious prejudice has been identified which would be occasioned to the complainant were I to accede to the applicant's application to extend the time within which to bring the application for judicial review. In the circumstances that arise I take the view that I have to consider the exercise of my discretion as to whether or not the applicant has made out that he has an arguable case.

I propose to follow the reasoning of Hardiman J. in G.K. v. Minister for Justice [2002] 2 I.R. 418 wherein, at 423, he considers the use of the phrase "good and sufficient reason for extending the period" against the background of s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000, which provides that an application for leave to apply for judicial review in respect of any of the matters referred to in s. 5(1) shall be made within the period of 14 days unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made.

Hardiman J. stated:

"I believe that the use of the phrase 'good and sufficient reason for extending the period' still more clearly permits the court to consider whether the substantive claim is arguable. If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought, however slight the delay requiring the exercise of the court's discretion, and however understandable it may be in particular circumstances. The statute does not say that the time may be extended if there were "good and sufficient reason for the failure to make the application within the period of 14 days". A provision in that form would indeed have focused exclusively on the reason for the delay and not on the underlying merits. The phrase actually used "good and sufficient reason for extending the period" does not appear to me to limit the factors to be considered in any way and thus in principle to include the merits of the case."

I take the view accordingly that the phrase "good reason for extending the period within which the application shall be made" as set out in Order 84 Rule 21(1) does not limit the factors to be considered in any way and accordingly includes the merits of the case.

In the particular circumstances of this case I take the view that the applicant's case is clearly arguable, and in the absence of any prejudice, the interests of justice and fairness are best served by my exercising my discretion in the applicant's favour, and accordingly I extend as appropriate the time to enable the applicant to make this application for judicial review and I propose to proceed accordingly.

I must consider whether the complainant's delay in making a formal complaint in this case is referable to the actions of the applicant.

Clearly the evidence of Dr. Leader is of importance in this regard, as are the statements and affidavits made by the complainant. In evaluating the evidence of Dr. Leader, and its alleged shortcomings, I am guided by the remarks of McGuinness J. in the recent Supreme Court case of D.W. v. Director of Public Prosecutions (Unreported, Supreme Court, 31^st October, 2003). In that case similar criticisms were made of the expert evidence of the psychologist who was asked by the D.P.P. to give evidence on the question of delay and dominion. McGuinness J. outlined the ways that expert psychological evidence can be of assistance to the court.

"In certain cases there is ample ordinary evidence which would assist the court in understanding, from its own commonsense and general experience of life, why, for example, a child did not immediately report sexual abuse by an adult. The case of B. v. D.P.P. [1997] 3 I.R. 140 is one example. In such cases, it seems to me, any expert evidence could be limited to a general exposition of the reasons for delay in reporting these cases. The numbered list of factors set out by expert witnesses in the case of K. v. Judge Groarke and the D.P.P. at p. 3-4 of the judgment of Denham J. in that case is a good example.

It would then be for the court to form its own opinion of the influence of these factors within the parameters of the other evidence of the particular case.

In some cases however, the reasons for the delay are less clear and less readily ascertainable. In such cases expert evidence in greater depth may be required and further evidence may be considered appropriate.

All such evidence is open to challenge in cross-examination. It must, however, be borne in mind that it is not the task of the expert witness to assess the credibility of the complainant or the guilt or innocence of the applicant. The truth or otherwise of the complainant is to be tested at the trial of the applicant.

The evidence provided in the present case by Ms. Yoder fell somewhere between the two types of expert evidence which I have outlined above. As such, it had certain weaknesses. This was noted by the learned trial judge who spoke of "the limitation of the exercise carried out by her" (at p. 29). Nevertheless I would agree with the learned trial judge that the main conclusion reached by her, that the complainant's delay is to be categorised as reasonable, is correct. I also consider that Ó Caoimh J. was correct in emphasising in this context the evidence of the complainant himself."

McGuinness J.'s remarks on Ms. Yoder's evidence in 'D.W.' could equally be made of Dr. Leader's evidence in this case. It has certain weaknesses. However, I do feel it is important to state that it is not the expert psychologist's job to test the truthfulness of the complainant, which is, quite simply, not at issue at this stage of the proceedings because of the presumption which runs in the complainant's favour. I do not, for example, attach any significant importance to the fact that the complainant was present while her husband was being interviewed, or to the fact that Dr. Leader did not interview the complainant's family. However, Dr. Leader's evidence was, at times formulaic. I do accept the conclusion as arrived by her but in all respects, I am more persuaded by the statements and affidavits of the complainant herself.

It is clear that the complainant felt deeply ashamed of what happened and in this regard I am entitled to accept the truth of the allegations of alleged sexual abuse as made by her against the applicant. She regarded her father as a powerful dominant man within the family and she felt threatened by him. She felt intimidated by the applicant and was of the view that if she acted before she did she would not have had the mental strength to deal with the consequences. When she developed breast cancer an awareness of her poor quality of life was triggered and she proceeded to make the complaint to the Garda authorities. I am satisfied on the evidence adduced before me that the complainant's delay in reporting the sexual abuse was reasonable and against the background circumstances is explicable. It follows accordingly that the applicant is barred from arguing that the delay in this case is unreasonable.

Accordingly the further issue to be determined is as to whether or not the degree to which the applicant's ability to defend himself has been impaired is such that the trial should not be allowed to proceed. It follows that, in the light of the presumption of innocence to which the applicant is entitled, this court must still consider whether the degree of prejudice as a result of delay is such as to give rise to a real and serious risk of an unfair trial.

On the complainant's own evidence, in 1972 at the age of eleven she became pregnant as a result of the sexual abuse perpetrated by the applicant and suffered a miscarriage about three months into the pregnancy. She alleges that Dr. M. who was the family General Practitioner attended her during the miscarriage while she was bleeding heavily but was not present or informed when she actually miscarried two days later. Dr. M. died in or around 1986 and all attempts to obtain any notes or records which he may have kept have proved fruitless.

In the particular circumstances of this case I have to weigh up the presumption of innocence which attaches to the applicant, the fact that he has always denied any involvement in the alleged sexual abuse of the complainant, and the community's right to have these criminal offences prosecuted which right is not absolute but has to be exercised in accordance with the provisions of the Constitution and with due process. The test to be applied is as to whether or not 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.

It is a particular feature of this case that the applicant's wife is in a strong position to assist the applicant as the complainant asserts that her mother was intimately involved in the trauma of the miscarriage and clearly she can deny or otherwise comment on the evidence of the complainant in this regard. It is also apparent in this case that all the other relevant family members are available to give evidence, as are the applicant's two sisters Ms. B.C. and Ms. L.C., and they have

co-operated with the Garda investigation and have made statements to the Garda authorities. Accordingly, in the particular circumstances of this case the situation does not arise where there is simply a straightforward conflict on the evidence as between the complainant and the applicant. There is no doubt but that Dr. M. may have been in a position to assist the applicant in relation to his defence, but the applicant is still left with a number of witnesses who can give evidence on his behalf as regards the proofs of the evidence that will be adduced by the complainant against him.

The onus of proof rests on the applicant to satisfy me that a specific defence which might otherwise have been open to him is now no longer available because of the passage of time. Keane C.J. in P. O'C v. D.P.P. [2000] 3 I.R. 87 at p. 94 stated:

"There remains however a further enquiry 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 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 opened 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."

And Keane C.J. further at p. 96 of the judgment states:

"In the present case the applicant cannot successfully rely on the general prejudice which undoubtedly affects any person who faces a trial on a serious criminal charge many years after the happening of the alleged offence because of the nature of the particular offence and the evidence of the psychologist as to the probable effect it would have had in terms of the making of a complaint. Nor could he rely, in a case such as this, on a bald assertion that some specific prejudice has resulted to him which would give rise to a real and serious risk of an unfair trial. In the present case his solicitor placed before the High Court material which went beyond such a bald assertion. Had the trial taken place within a reasonable time of the commission of the alleged offence there should have been little difficulty in testing the accuracy of the complainant's version of events as to the locking of the room. It was open to the respondents once this matter had been raised to avail of their resources to investigate the matter further and place before the High Court material which might or might not have shown that there was no substance in the difficulties in which the applicant sought to rely. There was, however, in my view, no obligation on the applicant to go further than he did in indicating to the court the nature of the defence which he would have hoped to make, the materials on which it was based and the difficulties which, on his behalf, it was alleged now arose in presenting that defence to a jury. To ask him to go any further would be to place him in a different position from other persons charged with serious crimes and to erode the presumption of innocence to which he is entitled to a degree which was not justified even by the special nature of the offence with which he is charged. As has been repeatedly emphasised by this court, the public interest in ensuring that every person charged with a criminal offence receives a fair trial must where a conflict arises take (sic) precedence over the unquestionable public interest in the prosecution and punishment of crime."

In the particular circumstances of this case, while I accept that the applicant has suffered a degree of prejudice by reason of the death of Dr. M. in 1986, I am not satisfied that the prejudice as suffered is such as to deprive the applicant of a specific defence which might otherwise have been open to him and which is now no longer available nor am I satisfied that the extent of the prejudice as suffered is such as to give rise to a situation where 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.

I take the view in the particular circumstances of this case that the trial judge should be well capable of giving the trial jury appropriate directions with regard to any matter touching on delay subject to the nature of the evidence as actually adduced at the trial of the applicant herein.

The applicant also relies on the lack of specificity with regards to the charges. The essence of the complaints against the applicant is the systematic sexual abuse of the complainant and in my view having regard to the age of the complainant at the time of the alleged abuse it would be unrealistic to expect that she is in a position to give specific dates of each alleged incident. In my view these are matters which can be addressed in cross examination and I am satisfied that any lack of specificity could if necessary be dealt with by the trial judge to ensure fairness.

In these circumstances I decline the reliefs as sought by the applicant and dismiss the application.