THE HIGH COURT
									Record No. 1997/64 J.R.

BETWEEN

P.W.
									APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
									RESPONDENT

Judgment of Mr. Justice Feargus M. Flood delivered the 27th day of November, 1997.

	This matter comes before the Court by way of Judicial Review by Order of
Mr. Justice Morris dated February, 24th 1997.  That Order granted the Applicant liberty to apply for the reliefs therein stated.
	The reliefs sought, (inter alia), were for an Order granting the Applicant leave to apply for an Order prohibiting the Respondent from taking any further steps in a criminal prosecution entitled "The People (at the suit of the Director of Public Prosecutions), Prosecutor -v- P.W., Accused", presently pending before the Circuit Criminal Court at Portlaoise.

THE FACTUAL BACKGROUND
	The Applicant herein is charged in the statement of charges in the Book of Evidence in the said proceedings at Portlaoise Circuit Court with 13 separate charges of indecent assault on one M.T. (nee H.), a female, on dates unknown, over a period commencing on the 1st July, 1977 to the 31st December, 1983.  Each charge is effectively laid "on a date unknown" within a period of 6 months set out in the said charge, with no greater particularly.  
	The complaint which led to the said charges was made by the Complainant, M.T., on or about July 4th, 1995 to Garda Anne Boland at Abbeyleix Garda Station.  On or about that date Garda Boland took an initial statement from the Complainant, and subsequently took a more detailed statement from her on November 30th, 1995.  She pursued enquiries and ultimately she, and Sergeant Boyle, interviewed the Applicant herein and subsequently the Applicant, by appointment, attended at Abbeyleix Garda Station on December 21st, 1995. He was arrested and detained for further enquiries.  During that period of detention the Applicant was interrogated, but declined to make any statement or reply in any way to the Garda questioning.  He was subsequently charged with the said sequence of offences on or about the said date.
	The Applicant herein has at all times firmly and vehemently denied any responsibility for the matters complained of.
	The Complainant was born on September 6th, 1969.  At the period referred to in the said charges she would have been between 7 and 14 years of age.  She got married in 1991. At the date in which she made the first complaint she was 25 years old.  She is now 27 years old.  In short, a period varying from 13 to 20 years has elapsed since the said events were alleged to have happened.
	The Applicant is not directly related to the Complainant.  His wife and the Complainant's mother are second cousins.  He would have called from time to time at the Complainant's home but it is in fact alleged that the greater number of the assaults took place when he took her for drives in his car.  According to the Complainant, the Applicant would pull up her skirt and pull down her underwear and lie on top of her.  She is not clear as to whether he put his penis into her vagina or back-passage but on occasion he would put his finger into her vagina.  He used to make her touch his penis and hold it and he said to her not to tell anybody or he would "kill my family".  She says that she gave up acceding to his requests when she was 13 and thereafter refused.  She was she says, however, terrified as to what he would do to her mother and father.  She says further that she was afraid to tell her mother, as she did not know what her mother would do.  She thought her mother would kill her.  When she was 19 she got panic attacks which resulted in her being admitted to the County Hospital in Portlaoise.  Notwithstanding these attacks she did not wish to disclose the events of the past which were giving her at that point in time considerable cause for anxiety.  It was only after her husband came to know of the said events that he went to the Gardai that she ultimately made her complaint to Garda Anne Boland.
1	The Applicant says that he knew nothing about the said allegations until the Complainant's mother accused him in a public house on the June 6th, 1995.  The Complainant's mother said to him that he had "put her daughter into the mental" due to him taking her for drives and touching her.  She further says that her daughter was still "in the mental as a result of his activities".
	In a recent judgment of Mrs. Justice McGuinness delivered on the 24th July, 1997 in a Judicial Review entitled "P.C. -v- The Director of Public Prosecutions and Judge Flan Brennan", the law on this type of case is collected in very great detail.  I have read all the cases set out in Judge McGuinness's judgment and in particular the very careful judgment of Denham J. in B. -v- D.P.P., 1997 2 I.L.R.M. at 118.  This is a judgment of the Supreme Court and in it Judge Denham analyses the law on the rights of an accused to a reasonably expeditious trial in the context of alleged offences of sexual abuse of young children in years past.
	In summary, there is no limitation on time for prosecution of such alleged offences.  Denham J. cites in particular the judgment of Finlay C.J. in The State (O'Connell) -v- Fawsitt, 1986 I.R. 362 wherein Finlay C.J. says:-

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

Denham J. later goes on:-

	"The right to reasonable expedition must be assessed in each case in the light of the particular circumstances of that case.  If the accused's defence has been explicitly prejudiced by the State's delay, for example, by non-availability of material witnesses, then he is entitled on delay being unreasonable and prejudicial to an order prohibiting the trial......  The Court must look at the circumstances of each case, the issues and the constitutional interests of the parties to determine the matter.  There is no definitive time limit.  There is no exhaustive or exclusive list of factors.  There are interests which must be protected in the constitutional scheme of things....  It is not these interests only that have to be considered.  It is necessary to balance the right to reasonable expedition in prosecution of offences with the community's right to have criminal offences prosecuted.   The community's right to have offences prosecuted is not absolute, but it is to be exercised constitutionally, with due process.  If there is a real risk that (a person) would not receive a fair trial then on the balance of these constitutional issues the person's right should prevail."

	One of the factors which Courts take into account is whether or not the delay in the Complainant making the complaint is due to the dominance in her life of the Accused person - such as where he is her father or a near relative or there is some form of interpersonal relationship between the Accused and the Complainant.  I am satisfied that as a matter of fact, no such dominance existed in this case.  I am satisfied, that in the period of some 10 or 11 years between the last of these alleged assaults and the complaint being made, that the delay is the delay of the Complainant, in that she tried to set these matters aside and out of mind, that she did not want to distress her mother and father, and that it was only when real upset set in 
in her relations with her husband that the matter came to a head.  In my view, there was no element of dominion, which prevented the Complainant taking the steps so that the prosecution could proceed.
	There is, however, a further factor to be considered in this case.  There is, as I read the Book of Evidence, no evidence which could be properly described as corroboration of the prosecution's case.  It follows from that the case will be determined by the jury on their view of the credibility of the Plaintiff and of the Applicant/Accused, should he choose to give evidence.
	Mr. Michael Condon, Solicitor for the Applicant herein, in both these proceedings and the said proceedings before the Circuit Criminal Court at Portlaoise, with the permission of the State Solicitor for Laois, had occasion to see the original file of statements taken in these proceedings by the Gardai.  He found that the statement of evidence by the Complainant as served in the Book of Evidence, differed materially from the statement on the State file, namely, a statement made by the Applicant, M.T. and dated July 4th, 1995 which included the following statement:-

	"Two of them knew that the other was touching me and the other said to me are you going to see the other one now.  If Paddy had touched me, he would have said 'are you going to Liam now'."  

The Paddy referred to in the said quotation is the Applicant herein and the Liam therein referred to is one L.C. against whom, the Complainant made virtually contemporaneously that the complaints herein,  a complaint of some 16 occasions of indecent assault by him in a period from April 1977 to September 1983.  Mr. Condon is advised by the Solicitor for L.C. that L.C. wholly rejected the said allegations and it was the intention of the defence in this case to call Mr. L.C. to deny having in any way indecently assaulted the Complainant herein and thereby challenge her credibility.  Unfortunately, L.C. died on the September 11th, 1997 of natural causes.  The defence is thus deprived of a vital witness.  It is not for this Court to speculate whether L.C. was or was not a credible witness.  The fact remains that by virtue of the lapse of time a potentially vital element of the Applicant's defence no longer exists.  There is in this case, at least potentially, a major prejudice to the Applicant's defence arising by virtue of the lapse of time and for which the Applicant herein is in no way responsible.  In my view, the absence of the testimony of the witness L.C. could amount to a significant prejudice to the Applicant in formulating his defence.  He has a constitutional right to a fair trial with all evidence in his favour available to him.  The absence of evidence which could be material in a challenge to the victim's credibility could, in my view, be a very significant prejudice.
	In these circumstances, I grant the Applicant the relief sought in the statement of grounds filed in this matter.

____________________
FEARGUS M. FLOOD