THE HIGH COURT
		                                                                      1997 No. 144 JR
BETWEEN
MICHAEL FITZPATRICK
			APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
			RESPONDENT
JUDGMENT of Mr. Justice McCracken delivered the 5th day of  December 1997.
	On 7th January, 1997 the Applicant was charged that on some date unknown, but prior to 28th September, 1981, he raped A.P., with a further charge that on someday prior to 20th September, 1981 he indecently assaulted A.P.  He is further charged that on some date unknown prior to 16th March, 1984 he indecently assaulted P.P.  The charges in fact relate to two alleged incidents, both of which are alleged to have taken placed in the home of A.P. and P.P., who are sisters.  The Applicant is not related to A.P. and P.P., but did at one time have a business relationship with their father and lived nearby.  At the time of the alleged offences, A.P. would have been approximately twelve years of age and P.P. would have been ten years of age. 
	The Applicant was subsequently returned for trial before the Central Criminal Court and has brought these proceedings by way of Judicial Review seeking to prohibit the trial.  He alleges that, by reason of the delay which is taking place, it would be unjust and in breach of his constitutional rights to allow the trial to take place and that there is a real risk that he would not receive a fair trial.  
	This case has a very sad background.  A.P. and P.P. are two of a family of twelve children largely brought up in care due to the inability of their parents to look after them.  Their mother was an alcoholic and their father appears to have been totally unable to cope with the situation.  During visits home as children they, and indeed at least one of their sisters, were consistently sexually abused and raped by their father, their elder brother and particularly by an uncle.  They did make some complaints at the time, including complaints to the Sisters in charge of the home in which they were being cared for, but they were not believed, no action was taken and the abuse continued.  
	On 21st June, 1995 a sister of A.P. and P.P. who was then married and living in Northern Ireland, made a complaint to a member of the Royal Ulster Constabulary.  They in turn contacted the Gardai who instigated an investigation.  By this stage, the father of A.P. and P.P. had died and the uncle who was responsible for a great deal of the abuse was living in England.  He has also since died.  As a result of the investigations by the Gardai, both A.P. and P.P., and several of their sisters, made statements to the Gardai which largely dealt with the abuse by members of their family, but also alleged abuse by the Applicant.  A.P. alleged that she was raped by him on one occasion, and P.P. alleged that she was indecently assaulted by him on one occasion.  The Applicant was first arrested for questioning on the February, 1996.  The Applicant swore an Affidavit to support his application, and the Respondent filed Affidavits sworn by A.P. and P.P., and also an Affidavit sworn by Alex Carroll, a Senior Clinical Psychologist with the Midland Health Board.  All of these persons were cross-examined on their Affidavits.  There were also two Affidavits sworn in relation to a missing witness, which I will refer to later.  While I have great sympathy for A.P. and P.P., I have to say that I was not particularly impressed with their evidence, although this is not a deciding factor in my decision.
	The purpose of the Affidavit by Alex Carroll was to give expert evidence to explain, from a Psychologist's point of view, why such a long period of time elapsed between the alleged abuses and the ultimate complaints.  In the body of his Affidavit he sets forth a number of general principles relating to complaints of sexual abuse, most of which I am sure would be generally accepted.  However, when it comes to dealing with the individual Complainants in the present case, the Affidavit is far from satisfactory.  Indeed, some of the general principles have no application whatever to the present case.  Mr Carroll has annexed to his general Affidavit two separate reports, one on A.P. and one on P.P.  These reports are drawn up as a result of one meeting with each of the Complainants, and I have been told that each meeting lasted between one and two hours.  Each report is in fact less than two pages long and relates only to the one incident of abuse alleged against the Applicant in each case.  Quite astonishingly, there is no mention whatever of the continual rape and abuse of the Complainants by members of their family, and the psychological effect which this might have had on them. Under cross-examination he said he was not told specifically about their uncle and did not know of the allegations against their father or brother.  He maintained that he did not see that the fact that the Complainants had been abused by somebody else should form part of his report.
	It is my strongly held view that where a witness purports to give evidence in a professional capacity as an expert witness, he owes a duty to ascertain all the surrounding facts and to give that evidence in the context of those facts, whether they support the proposition which he is being asked to put forward or not.  I cannot accept that the background of abuse of these Complainants was not relevant, and consequently I would give very little weight to the evidence of Mr Carroll.
	There is no doubt that the Applicant is entitled to a fair trial with reasonable expedition.  Where there is excessive delay, a prosecution may be dismissed.  It is also well settled that, while the community has a right to have criminal offences prosecuted, this right is always subject to the accused's right to a fair trial. D -v- D.P.P. (1994) 2 IR 465.  
	It is also a settled principle that the onus of proving the probability that the accused would not get a fair trial lies on the accused.  It was also said by Finlay J. in the same case at page 467:-

	"The fundamental nature of the constitutional right involved and the incapacity of the Court further to intervene to defend it leads, in my view, to the conclusion that the standard of proof which the Court should require from the applicant in this case concerning his allegation of the unliklihood of an unfair trial is that he should be required to establish that there was a real or serious risk of that occurring."

	There have been a number of reported cases in the last few years dealing with delay caused by the failure of complainants in sexual cases to make a complaint, particularly where the abuses alleged took place when the Complainants were of a very young age.  The parties here both rely on the tests laid down by the Supreme Court in the recent case of B. -v- Director of Public Prosecutions (1997) 2 ILRM 118.  In her judgment in that case Denham J. reviewed the authorities and said at page 127:-

	"The test is whether there is a real risk that B. by reason of the delay would not obtain a fair trial, that the trial would be unfair as a consequence of the delay.  The test must be applied in the light of the circumstances of the case and the law.  

	The extant case law on the constitutional right to reasonable expedition, as developed, applies to this case.  However, in addition there must be analysis of new factors."

 	She then held that delay in cases relating to allegations of sexual abuse of children and young people were in a special category and set out seven factors which ought to be considered in that case.  Before considering these factors individually, I would make two comments.  Firstly, in that case the Applicant was the father of the children who were alleged to have been abused.  Secondly, it seems to me that there is one overriding factor which ought to be taken into account which is not specifically mentioned by Denham J., although no doubt she had it in mind.  This is that, in considering whether a person may or may not have a fair trial, the circumstances must be viewed on the basis of the assumption that the accused is innocent, as this is an assumption which must be made by the Court conducting the trial.  It is on this basis that I propose to consider the individual factors referred to by Denham J.  These are:-

A.	 Relationships
	In the present case there is no family relationship between the Applicant and the Complainants.  He was a neighbour and for a short time worked in partnership with the Complainants' father.  He was certainly a visitor to their house, although there is a conflict as to how frequent were his visits, and as to the overall nature of his relationship with their father.  There does not seem to have been any special relationship of trust between the Applicant and the Complainants. 

B.	 DOMINION
	Denham J. stated that "if dominion is found to exist between the accused and the Complainants it is a kernal factor for the Court."  She also said in this regard at page 130:-

	"It is clear on the evidence that the learned trial Judge could, as he did, find 	that dominion was exercised in the family relationships by B. over the Complainants.  This dominion places this (and similar cases) in a special category as by the said control the accused's actions prevented the Complainants taking steps so that the prosecution could proceed within a more usual time frame.  B. is barred from arguing that the delay is unreasonable while such dominion existed.  Any delay that continued during this time of dominion is reasonable.  Consequently, any prosecution commenced within that time or within a reasonable time thereafter is commenced with reasonable expedition."

	There is no evidence of dominion in that sense by the Applicant over the Complainants in this case.  The furthest that it is put is that the Complainants are afraid of the Applicant.  Even Mr Carroll does not suggest that there was any dominion in the sense of the Complainants having believed the Applicant to be in any special position in relation to them.  Furthermore, even if one assumes that the Applicant was a frequent visitor to their parent's home, the fact remains that the Complainants were not brought up in their home, they were brought up in an institution, and therefore would have not been in regular contact with the Applicant.  

C.	WHOSE DELAY ?
	There is no question of the State or the Director of Public Prosecutions having delayed in this case.  They appear to have acted with reasonable speed once the matter was reported to them by the Royal Ulster Constabulary.  However, I think it may be relevant that neither of the Complainants in fact voluntarily made a complaint, and if their sister had not made a complaint in Northern Ireland, it may well be that the Complainants would never have complained.  One of the strongly influencing factors in the B. case was that it was held that the dominion exercised by the applicant continued long after the complainants grew up.  In the present case, the Complainants have left their home town for some years, and indeed A.P. has lived in Manchester for some years.

D.	ALLEGED SEXUAL ABUSE IN THE HOME
	The alleged abuses in the present case were committed in the Complainants' home, but were not committed by a member of the Complainants' family.  Denham J. said of this factor at page 131:-

	"The fact that the acts were alleged to have been committed in the home by a parent or trusted figure purports to establish a family dynamic that mitigates against disclosure.  However, each case must be viewed in the light of its own circumstances.  B. retains his constitutional rights, they are not negated by the allegations.  His constitutional right to a trial with fair procedures supersedes society's right to prosecute."

	There is no evidence whatever that the Complainants would have regarded the Applicant as "a trusted figure".

E.	ALIBI
	In the B. case there were allegations of sexual abuse of a child by the parent in the privacy of the home, when nobody else was present.  It was pointed out that the very nature of cases such as that were that an alibi is not generally a relevant defence, as obviously the parents are in the house most of the time.  The present case is somewhat different.  While it is alleged that the Applicant was a frequent visitor to the house, it is only alleged that two incidents of abuse took place.  However, I would accept that it is unlikely that the Applicant would have established an alibi even had a prosecution taken place shortly after the alleged incidents.

F. 	WITNESSES
	The Applicant alleges that he will suffer serious prejudice by reason of the absence of two witnesses who would have been available had the complaints been made at the time.  In the case of the alleged abuse of A.P., she alleges in her Statement in the Book of Evidence that she told her father what the Applicant had done, and the next day her father met the Applicant and asked him what he had done to A.P..  It is then alleged that the Applicant said that A.P.'s mother had given him permission to go upstairs whereupon her father hit him in the face.  A.P.'s father is now dead, and the Applicant alleges that this never took place.  It is, of course, a vital piece of evidence against the Applicant, as it would amount almost to an admission on his part immediately after the alleged incident.  The Applicant also said that, if A.P.'s father was alive, he would confirm that this incident never took place. 
	The second difficulty in relation to a witness concerns the alleged indecent assault against P.P..  According to her statement, this assault took place in the presence of a witness, namely one Patrick Reilly, who had come into their home with the Applicant and P.P.'s father.  The Applicant has given evidence that he only knew Patrick Reilly by reason of having purchased a van from him on one occasion, and on that occasion he did go back to the house with the Applicant's father and Patrick Reilly.  However, he says that this took place in February 1985, and that he did not know Patrick Reilly at the time of the alleged incident.
	Patrick Reilly is a member of the travelling community, and both the Applicant and the Gardai have unsuccessfully tried to find him.  It is now sixteen years since the alleged incident, and I think it unlikely that he will be found.  On the other hand, if the complaint had been made in or about the time of the alleged events, then it is quite likely that he would have been traced, and would have been in a position to give evidence.
	It is urged by the Respondent that nobody knows what evidence would have been given either by the Complainants' father or by Patrick Reilly.  This is, of course, true, but I can only repeat that I must view this application having regard to the presumption of innocence.  If the Applicant is innocent, he has been deprived of two witnesses who could contradict the prosecution evidence.  Without these witnesses, the only way in which he can defend himself is by his own evidence.  This is highly unsatisfactory for two reasons, firstly because his evidence is not independent, and secondly, and perhaps more importantly, because he has an inherent right not to give evidence.  To put him in a position where the only way he can answer the prosecution allegations is to give evidence, because witnesses are unavailable due to delay, is to take away that inherent right, which in my view would be unjust.

G.	ADMISSION OF GUILT 
	In the present case the Applicant has at all times maintained his innocence.  
	
	Taking all these matters into consideration, the Applicant has satisfied me that  there is a serious risk that he would not obtain a fair trial, because of the delay which has taken place.  The circumstances of this case are very different from those of the B. case, and indeed of many of the other cases.  The Applicant is accused of two one-off incidents several years apart.  The Complainants were not living at home, but were in care living in an institution, and these incidents are alleged to have taken place during brief intervals when the Complainants were allowed home for a few days.  I do not think that those circumstances are such as to lead one to the conclusion that a neighbour was in such a position of trust or dominion over them as to influence them not to report the abuse, I also think it relevant that neither of the Complainants did in fact even report the alleged abuse.  Finally, I think the absence of the vital witnesses, if one assumes the innocence of the Applicant, constitutes a serious risk of an unfair trial and a miscarriage of justice.  I will hear the parties as to the exact nature of the Order to be made.