THE HIGH COURT
JUDICIAL REVIEW
			1998 No. 227 JR
BETWEEN
M.  O'H.
			PLAINTIFF
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
			RESPONDENT

JUDGMENT of O'Sullivan J. delivered the 25th day of March 1999

	The Applicant is seeking  an Order of Prohibition, or alternatively an injunction, restraining the Respondent from taking any further steps in criminal proceedings against him; secondly, he seeks an Order of Mandamus directing the Respondent to furnish reports and records of the complainant's psychiatrist.  
	The first relief is sought on the grounds of delay and the second on the grounds of fair procedures.  

THE CHARGES
	Count One:  	Indecent assault on a date unknown;	Between 31st July, 1981
		and 3rd August, 1982 at a confessional box in the Franciscan
		Church Lawrence Street, Drogheda, Co. Louth;
	Count Two:	Between 31st July, 1981 and 3rd, August 1982 in a room at the Franciscan Church as aforesaid;
	Count Three:	Indecent assault between 31st July, 1981 and 3rd August, 1982 in the room aforesaid after the occasion specified in Count 2;
	Count Four:	Indecent assault contrary to section 62 of the Offences Against the Persons Act, 1861 on a date unknown between 1st January, 1982 and 31st December, 1982 at Ballypark, Drogheda, Co. Louth;
	Count Five:	Indecent assault contrary to section 62 as aforesaid on a date unknown between 31st December, 1982 and 31st December, 1983 at Ballypark aforesaid;
	Count Six:	Indecent assault contrary to section 62 as aforesaid on a date unknown between 30th April, 1982 and 31st October, 1982 at Termonfeckin, Drogheda, Co. Louth;
	Count Seven:	Indecent assault contrary to section 62 as aforesaid between 30th April, 1982 and 31st October, 1982 at Termonfeckin, being other than the date specified in Count 6;
	Count Eight:	Indecent assault contrary to section 62 as aforesaid on a date unknown between 30th April, 1987 and 31st December, 1987 at Gormanstown College, Drogheda, Co. Louth;
	Count Nine:	Indecent assault contrary to section 2 of the Offences Against the Persons Act, 1861 between 30th April, 1987 and 31st December, 1987 at Gormanstown College, Drogheda, Co. Louth.
	As will be seen from the above, the first seven counts relate to a period ending in 1982 and the last two relate to a period between April 1987 and December 1987.  Counts two and three relate to a room at the Franciscan Church, Lawrence Street, Drogheda.
	This case was heard on Affidavit only there being no original oral evidence or cross-examination.

THE COMPLAINANT'S ALLEGATIONS
	The Complainant has supported her statement with an Affidavit.  She is a woman who has now turned her 31st birthday having been born on 3rd August, 1967.  The Applicant is a Franciscan priest now aged some 62 years having been born on 29th January, 1937.  
	The Complainant is one of four children, two sisters and two brothers, who lived with her parents and siblings at 6, Ballypark, Drogheda until she was 21 years of age when she went to live with her then boyfriend Francis Condra.  She is the eldest of the family.  She had a reasonably happy young childhood and attended school until the age of 15 but at that point she had to leave because of bad concentration and disruptive behaviour.  This was related to alcohol abuse.  She had developed the alcohol problem from around the age of 13 soon after the first alleged sexual abuse by the Applicant.  
	The Complainant says that when she was 13 years old she was attending at Saint Oliver's School and had joined the choir at the Franciscan Church in Laurence Street.  She used to sing at the 12 o'clock mass each Sunday and the Applicant used to say the mass.  They met after mass on one occasion and the following week she went to confession to the Applicant.  He recognised her and asked her how things were.  She talked about her father's drinking, got upset, and he took her around the screen, put her sitting on his knee and started to embrace and kiss her.  He then locked the door and abused her sexually.  She told him it was wrong but he said "it's o.k. but don't tell anybody".  She was about a half an hour in the room.  He told her to say ten Hail Mary's as her penance.  
	After this incident she started drinking and drank continuously every weekend thereafter.  Further alleged sexual abuses occurred in a room situated at the front of the Friary.  She was terrified of the Applicant.  She never told anybody about these incidents.  This abuse continued periodically until she left the choir when she was fifteen years old.  She left because of what the Applicant was doing to her.  Her drinking became worse.  He always took her to the front room and locked the door.  Other priests often knocked on the door if they needed something from the room:  the Applicant always had the door locked.
	The Applicant, according to the Complainant, started calling around to the family home and her parents thought he was great:  so jolly and outgoing.  They thought he was keeping her on the "straight and narrow" and became friendly with him.  She was having serious problems at school.  The Applicant started calling around to the house on Saturday evenings when her parents would be out.  Here again he abused her and this went on in the house until she was seventeen years old.  She did not tell her parents who thought a lot of the Applicant.  During this period the Applicant would take her swimming to Termonfeckin during the summertime and there again he abused her at a quiet part of the beach.  There was never anybody around the dunes.  
	The abuse stopped for a while when the Applicant had to go to hospital for open-heart surgery and the Complainant did not see him for some months.  Later she got a phone call from the Applicant who was recuperating in Gormanstown College and asked her to visit him.  She went with her father who left for work.  He asked her to go swimming with him and explained he had to swim as part of his recuperation.  He showed her around the College and then took her to the swimming pool where they both went for a swim.  He tried to have intercourse with her in the swimming pool but she pushed him away and left the pool.  In 1989 when she was approximately 21 she had a nervous breakdown.  She had a drink problem and a skin disorder.  She also suffered from anorexia.  In July 1994 she was treated for cylomatic disorder.  
	She told her boyfriend, Francis Condra in 1989 when he questioned her that she had been abused but did not mention the Applicant's name at this stage.  He suggested she report the matter but she was unwilling to do so but eventually she reported it to the Franciscan Friars in April 1995 but only after her boyfriend had first reported it to them.  A week later there was a meeting with the Applicant and she says that Father Troy told her the Applicant had admitted abusing her.  Later he said the same thing to her in the presence of her counsellor.  Fr. Loman, another Franciscan offered to pay for her counselling and other treatment that was necessary.  Subsequently, she decided to take legal advice from Solicitors in Dublin who advised her to report the abuse to the Garda Siochana.  She did so in 1995.  
	As a result of a television programme on child abuse she recalled a specific incident of abuse by the Applicant while she was kneeling at a mass being said by the Applicant at which she had read the readings.  The Complainant says that on the day after she first divulged to her then boyfriend, Francis Condra that she had been abused, she had a nervous breakdown as a result of disclosing this to him.  She was given Valium to calm her down and was later treated for depression.  Between 1989 when she first divulged her abuse to Francis Condra and 1994, she discussed it with him and he was pressurising her to report the abuse to the Guards.  She was not prepared to disclose the Applicant's name or go to the Guards because she says she felt nobody would believe her.  The Applicant had told her not to tell anybody of the abuse because God would punish her.  When her boyfriend brought up the subject it would cause an argument and she would get violent with him and hit him.  Eventually he understood that she did not wish to discuss it any longer.  
	She is unsure whether the abuse commenced when she was 13 or 14 years old but she does say that it went on until she was 20 years old, the final incident occurring in Gormanstown College in the swimming pool.  That would appear to be in the year 1987.  She has difficulty remembering exact dates.  The reason she reported the abuse to her Solicitor and to the Gardaí was because her counsellor advised her that she would have to confront that issue in her life:  it was better for her to report it to enable her to recover from her ordeal.  Reporting the matter to the Gardaí took a lot of pressure off her.  She did not report the matter to the Gardai until 1995 because she felt nobody would believe her.  A further reason for not reporting it to the Gardaí was that the Applicant had told her not to tell anybody about the abuse because God would punish her.  She was terrified of the Applicant.  She started drinking alcohol because of what the Applicant was doing to her and in order to escape from the abuse and the pain of the abuse.  She had been seeing Dr. Bereen at St. Brigid's Hospital at Ardee since 1985 (some 4 years before she divulged the fact of abuse to her boyfriend) but did not tell him about what was going on for the reasons already referred to.  It was only in or about the year 1995 that she informed him of the abuse for the first time. 

THE APPLICANT'S RESPONSE
 	The Applicant has not sworn an Affidavit.  I will return to this point later in this judgment.  In his statement, the Applicant completely denies the Complainant's allegations and says he was shocked by her statement.  He does not understand why she has made these false allegations against him.  He had been a friend of hers and her family for many years.  He says he was posted to Drogheda in August 1981, ordained a priest in 1965 and is a Franciscan.  He had a coronary complaint in 1974 and in 1987 underwent a triple by-pass heart operation.  When in Drogheda between 1981 and 1987 he was the superior of the Friary there.  He denies each of these specific incidents referred to in the Complainant's statement, and says he advised the Complainant to attend the Alateen programme on account of her father's drinking.  He points out that the room referred to in counts 2 and 3 would have been the front parlour of the Franciscan house which was constantly in use and he does not believe it had a key to be locked.  During his time there Tommy McGuinness, who is now dead, would often call to the door of the room for him to sign mass cards.  There was always a lot of activity in the Friary with people coming and going about their business.  This room was never locked nor was any other where he talked to the Complainant.  He did recall advising the Complainant about the risks of pregnancy, accepts that he was friendly with the Complainant's parents and that he did stay in her house on Saturday evenings instead of watching football with the other friars at the Friary.  He was a regular swimmer in Termonfeckin but he never went to a remote part of the beach with the Complainant.  It was always a busy place and he never abused her there or anywhere.  Play-acting in the water consisted of splashing without physical contact.  He gave her a book on the facts of life because he was aware that she was mixing with rough company and he was seeking to advise and counsel and help her.  She did visit him in Gormanstown College when he was recuperating from his triple by-pass heart operation.  He did mention the possibility of a swim in the pool.  He was then physically weak and in no condition to impose his will upon anybody.  Her allegation of attempted sexual intercourse in the swimming pool is a ridiculous suggestion.  The swimming pool is a public place and is overlooked by a gallery which is not, he believed, capable of being locked.  There was always a caretaker in the general area.  The Complainant's allegations are false and deeply hurtful to the Applicant. 
	The Applicant relies on two Affidavits sworn by his Solicitor to which I will return later. 
	
DELAY
	On 16th September, 1997 , the Applicant was returned for trial to the Circuit Criminal Court in Drogheda on three charges of indecent assault alleged to have occurred between 31st July, 1981 and 3rd August, 1982  - that is some 15 years earlier.  After his return for trial the indictment was prepared containing nine separate counts of indecent assault, three of which reflected the three charges, four additional counts relating to further incidents within the same period and the last two counts relating to two further incidents which allegedly occurred between 30th April, 1987 and 31st December, 1987 - that is some 10 years earlier.

APPLICANT'S SUBMISSIONS
	The main submissions of the Applicant are as follows:-
	1.	The delay in the institution of these proceedings has prejudiced his defence generally;
	2.	The delay in instituting these proceedings cannot be laid at the door of the Applicant because there was no question of a dominant relationship and certainly not after the Complainant left home at the age of 22 (in 1989), when she told her then boyfriend, Frances Condra, in that year;
	3.	Specifically, in relation to counts two and three, a witness, Tommy McGuinness, who died on 20th February, 1992, would have been available to give crucial evidence on his behalf to the effect that the doors in the front parlour of the Friary in Drogheda were never locked and that he came and went freely to visit the Applicant in the room when he was there with the Complainant:  this evidence would have undermined her sworn testimony to the effect that the room was locked at all times and this undermining of her credibility would have been a vital and invaluable element in his defence of which he has been deprived by reason of the delay.  Witnesses for the defence are notoriously difficult to come by in these cases, as has been acknowledged in several judgments, and the evidence of the late Tommy McGuinness would have been all the more valuable on that account;
	4.	The Applicant also seeks an Order directing the Respondent to procure all reports and records of Dr. Bereen who was the Complainant's psychiatrist since 1985.  Her pychosexual history was touched on on a number of occasions but notwithstanding this it was not until a consultation on 26th April, 1995 that she focused on a history of sexual abuse.  The Complainant has specifically given Garda Maureen McFadden permission to obtain her psychiatric reports from Dr. Bereen and the Applicant says that the principles of fair procedures and natural justice demand that the Respondent procure those reports from Dr. Bereen and furnish them to him.  

THE LAW
General
	I would make some general observations on the relevant legal principles as follows:-
	The Applicant's right to a fair trial is one of the most fundamental constitutional rights and is a superior right on the hierarchy of such rights.  Whilst a Court must give consideration to the community's right to have an alleged crime prosecuted in the usual way, the Applicant's right to fair procedures is superior to the community's right to prosecute.  

	"If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused's right to a fair trial being balanced detrimentally against the community's right to have alleged crimes prosecuted." (See Denham J. in D -v- the Director of Public Prosecutions [1994: 2 I.R.: 465, at p. 474]).

	In this context an unfair trial arises where prejudice to the Defendant 

	"cannot be avoided by appropriate rulings and directions on the part of the trial Judge.  The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."  (See per Finlay C.J. in Z -v- Director of Public Prosecutions [1994: 2 I.R.: 496, at p. 507]).

	The test in a case such as this is:-

	"... whether there is a real risk that (the Applicant), 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 light of the circumstances of the case and the law." (See Denham J. in B -v- Director of Public Prosecutions [1997: 2 ILRM: 118, at p. 127]).

	In regard to delay in cases where young children are alleging assault, then wholly different considerations apply to the consideration of the impact of such delay to ordinary cases.

	"For example, cases consisting of charges by young children in regard to assaults on them at an early age which are not brought to the attention of the authorities by such children until very many years after they occurred involve wholly different considerations from those applicable to (an ordinary) case."  (See per Finlay C.J. in Hogan -v- President of the Circuit Court [1994: 2 I.R.: 513, at p. 521]).

	In relation to the special category of cases involving young children, the same Judge said in G -v- Director of Public Prosecutions [1994: 1 I.R.: 374, at p. 380]

	"The Court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the Applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the Order."  

	The experience of these cases has shown that there are frequently two periods of delay, namely, a period commencing with the alleged episodes of abuse (themselves frequently occurring over a significant length of time)  and the first time that the Complainant divulges the alleged abuses, frequently to a close confident such as a close relative or as in the present case to her current boyfriend; and a second period commencing with this first communication and lasting until a formal complaint is made to the Gardaí.  This second period can also be of considerable extent as, for instance, in the present case where it lasted some six years.  
	In relation to both periods  the Courts have been ready to identify the exercise of dominion by the alleged perpetrator over the Complainant and where this is found to characterise the relationship, this has been held to explain the delay  in recall so that the Courts have been unwilling to hold that such delay of itself and without more can justify prohibiting a trial.
	The matter goes further, however, because even after a Complainant has become conscious of episodes of sexual abuse, at least insofar as she has been able to communicate them to a close confidante, there have also been cases where the Courts have held (as in B -v- Director of Public Prosecutions [1997: 2 ILRM: 118, at p.133]) that the dominion exercised over the Complainant continued to have such an effect over her that even after she became conscious of the alleged abuse, such dominion rendered her incapable of making a complaint to the Gardaí until such complaint was actually made, albeit a considerable time after the first communication.  In this regard the Court will, apparently, seek not only a reason for the further delay which is intelligible from the perspective of the Complainant, but some evidence of psychological disablement which asserts an incapacity on the part of the Complainant to approach the Gardaí until this had actually occurred.  (See generally [B -v- Director of Public Prosecutions]).  Again, if the evidence establishes such psychological incapacity, the Courts will refuse to prohibit a trial on the sole ground of delay.

PRESUMPTION OF INNOCENCE
	Nonetheless, even if by reference to all the foregoing criteria, a delay in reporting the alleged abuse to the Gardai is explained by reference to the dominion exercised by the alleged abuser, the Court should nonetheless proceed to consider whether, taking all the relevant factors in the case into consideration, it would be possible for the accused to achieve a fair trial.   This arises by reason of the superiority of the Constitutional right of an accused person to a fair trial over the right of the community to have alleged crimes prosecuted, and also by reason of the Accused's entitlement to the presumption of  innocence.

HEARSAY EVIDENCE AND THE PRESUMPTION OF INNOCENCE
	I consider that on this application the ordinary rules of evidence including the rules in relation to hearsay apply.  Furthermore in my view I cannot have any regard to material contained in the Book of Evidence unless the statement containing such material is itself verified by Affidavit.
	As already indicated, there is evidence of a partial admission by the Applicant.  These statements alleging an admission by the Applicant fall into two categories neither of which in my view can be taken into account on this application.
	In the first category there are statements contained in the affidavits of the Complainant or Garda McFadden of a statement by Fr. Loman or Fr. Troy averring that the Applicant had admitted some sexual abuse or had admitted abusing the Complainant.  But neither Fr. Loman nor Fr. Troy has sworn an Affidavit and in these circumstances the Affidavit of the Complainant and of Garda McFadden contain only hearsay evidence of an alleged admission by the Applicant and in my opinion I must, accordingly, refuse to take these into account.
	The Book of Evidence also contains a statement by one Rita Giblin who says that she became friendly with the Applicant who admitted to her that he was having sexual relations with members of the opposite sex including the Complainant at a time when the Complainant was under age.  This statement has not been verified by an Affidavit and accordingly I cannot take its contents into account either.  If Ms Giblin had sworn an Affidavit verifying her statement, then this would have been evidence of a direct admission to the Deponent and as such I could have taken it into account.  However, in the absence of such a verifying Affidavit, in my view I cannot do this.
	I turn now to the evidence submitted on behalf of the Applicant.  Once again I consider that the ordinary rules of evidence including the rules in relation to hearsay apply.  All the evidence submitted on behalf of the Applicant has been sworn by his Solicitor, clearly on the instructions of the Applicant.  Furthermore in his statement the Applicant denies each and every one of the Complainant's allegations against him.  His statement is not evidence and the Applicant has not put in an Affidavit.   He is, however, entitled to the presumption of innocence as the citation from the judgment of Keane J. in C -v- DPP referred to hereafter demonstrates.
	I do not think I can take into account on this application evidence sworn by the Applicant's Solicitor to the effect that the late Tommy McGuinness would have been in a position to confirm that the door to the room in which the allegations contained in Counts 2 and 3 are said to have occurred was always left unlocked and that he the late Tommy McGuinness had free access to the room and used it.  If the Applicant wishes this Court to take into account his claim that his trial would not be a fair trial due to the unavailability of the evidence of the now deceased Tommy McGuinness then I consider the Applicant should have procured an Affidavit from some deponent who could give direct evidence about the régime in operation at the church in Drogheda, or at the very least have provided evidence as to why such an Affidavit could not be sworn.  If such an Affidavit had been sworn, then the Respondent could have, if they wished, cross-examined the deponent to see if there were some other witness who could provide similar evidence, as suggested by Mr. Gaffney S.C. for the Respondent.  That is one reason why hearsay evidence on this matter is inadmissible:  another is that the hearsay evidence of an alleged admission made by the Applicant is also inadmissible.
	I turn now to consider the Applicant's case in the light of these legal principles and the admissible evidence before the Court.  Before I consider the delay itself, I must first deal with whether there is an explanation for it.

Was the Applicant in a dominant position over the Complainant?
	The Applicant was born on the 29th of January 1937: the Complainant on the 3rd of August 1967.  He was some thirty years older than she.  When the alleged abuse commenced when she was thirteen or fourteen years old, he was 43 or 44.  
	Secondly, he was her confessor, a priest, a friend of her parents, and a figure of authority who was trusted by them even to the point where the Complainant's mother was not suspicious when her daughter told her not to let the Applicant into the house and to tell him that she was not at home.
	Not only was the Applicant in a relationship of dominion vis-à-vis the Complainant but in my view, (and one must always remember that this is on the basis of the Complainant's allegations which are comprehensively denied) he exercised overt dominion when he told the Complainant not to tell anybody about the abuse because God would punish her.
	Accordingly, objectively I consider that the Applicant was in a position of dominion vis-à-vis the Complainant:  furthermore subjectively (and on the basis of the Complainant's allegations which are denied by the Applicant) such dominion was exercised in a powerful and insidious way when the Complainant was allegedly told not to tell anyone of the abuse because God will punish her.

Does dominion explain the delay?
		Does such dominion, or its after effects, explain the delay in the Complainant reporting the alleged abuses to the Gardai?
	The last alleged abuse on the indictment occurred in April of 1987.  Somewhat less than two years later the Complainant moved out of her family home and went to live with her boyfriend Francis Condra and it seems shortly thereafter she divulged to him that she had been sexually abused without identifying the alleged abuser.
	It was a further six years or so, however, before she contacted Father Troy and Father Loman in Gormanstown, her boyfriend having first disclosed the alleged abuse to one of the friars there - something according to him that was prompted when the Applicant called to their home in November of 1994 when she was out.  When she returned her boyfriend told her about this visit and she then disclosed his identity as the alleged abuser: he advised her to report the abuse to the Gardai: She did not want to because she was afraid and then her boyfriend, according to his statement, called a priest in the Franciscan House in Laurence Street, Drogheda and informed him of the situation, initially to have the Applicant prevented from calling to their house.  Shortly after that they went together and the Complainant disclosed her situation to the two Franciscan friars.  
	Evidence has been given in relation to the Complainant's psychological state by Dr. Art O'Connor, Psychiatrist, Dundrum.  In the course of his report (referred to in his Affidavit sworn herein) he says:-

	"She told me about the sexual abuse.  It started when she was thirteen.  She was in a choir in a church and the priest involved started to form a relationship with her.  When she went to confession he took her into the confessional and started molesting her breast and vagina while he had her sitting on his lap.  He also got her to fondle him under his habit.  This abuse continued on a weekly basis for about 5 years. Sometimes he inserted his fingers inside her and on a number of occasions he tried to have sexual intercourse with her.  

	She says that he often gave her a penance to say after the abuse as if she had committed some sin.  He always instilled a strong sense of guilt into her as if it was all her fault.  She still half believes this.

	The abuse stopped when she was about eighteen when he went into hospital for a heart operation.  After that he tried to have sex with her in a swimming pool once and then tried to have sex with her on an alter after mass.  There was no abuse after that".  

	In his Affidavit, Dr. O'Connor deposes, inter alia, as follows:-

	"7.	I stated in my report that (the Complainant) has been very seriously affected by the long and traumatic history of abuse.  She also developed a very serious alcohol problem.  She is depressed and has needed in-patient treatment for depression.  Her behaviour  has been typical of an abused person.
	8. 	I have been advised by (the Complainant) that she did not tell anybody of the assault perpetrated upon her until her boyfriend Francis Condra approached the Franciscan Order and told them of the sexual abuse.  Then she went and spoke to a Franciscan priest to whom Mr. Condra has spoken.  This was in 1995.
	9. 	When a person is sexually abused, as an adult, but in particular as a child, it is frequently the case that the person does not report the situation for a long time afterwards.  Many people do not even report at all.  Fear is frequently one of the issues.  The person may be afraid of further abuse or he or she may be afraid because the perpetrator is a family friend, relative or other such person.  The other issue for sexual victims, especially children, is that they sometimes believe that they are in fact the person at fault.  A child may often feel that they have done something wrong and feel very guilty.  This is the situation in this case...
	11. 	It is fully accepted by myself and other similar professionals and experts in this area that the majority of victims do not disclose the abuse.  There are many reasons for this, such as fear, the relationship within the family, guilt regarding the abuse but also their own relatives and any other permutation that one can think of.  When the victim was initially a child, these ways of looking at reality can be more ingrained.  Over the years, a child, and later an adult, may have put the abuse completely into the background or they suffered through the years not thinking that they could disclose..."
	
	Counsel for the Applicant, Mr. Rogers S.C., has criticised this report and the psychological evidence generally, in three respects, namely:-
       (a)	He says that Dr. O'Connor was not aware that the Complainant disclosed her abuse to her then boyfriend in 1989 and therefore his conclusions (if they be fairly related to this specific case at all) are based on incomplete facts and in particular, and crucially, he was unaware of the fact that the Complainant actually disclosed her own abuse some six years before she reported it to the Gardai;
       (b)	he also says that the contents of paragraph 9 and following of Dr. O'Connor's Affidavit are expressed in general terms and should not, therefore, be taken as referring specifically to the Applicant;
        (c)	thirdly Mr. Rogers points to the fact that an Affidavit sworn by Dr. Bereen who was the Complainant's psychiatrist intermittently since 1985 sits uneasily side by side with Dr. O'Connor's Affidavit primarily because Dr. Bereen refers to the fact that the Complainant's psychosexual history was touched on on a  number of occasions but that she did not disclose a history of sexual abuse until April 1995, and he specifically states "I of course cannot state as to why she did not share the information with me until the time indicated above", rather than offering an opinion, as does Dr. O'Connor after a single interview, that the delay in reporting the abuse arose out of fear (of further abuse, disclosure in the family circle or guilt).  

A further criticism is made that the Respondent did not request Dr. Bereen to address the cause of the Complainant's delay in reporting the alleged abuse to the Gardai. 
	Whilst there is clearly force in these comments, a close reading of Dr. O'Connor's Affidavit does, in my view, indicate that he must have been aware of the disclosure by the Complainant to her then boyfriend Francis Condra.  Paragraph 8 of Dr. O'Connor's Affidavit says, in part, 
	"I have been advised (by the Complainant) that she did not tell anybody of the assaults perpetrated upon her until her boyfriend Francis Condra approached the Franciscan Order and told them of the sexual abuse."

	  Clearly this sentence cannot be literally correct; the Complainant did tell somebody of the assaults perpetrated upon her before her boyfriend approached the Franciscans - she told her boyfriend who would otherwise not have known about it.  This is not explicitly stated in Dr. O'Connor's Affidavit but it is clearly implied.  Dr. O'Connor was not cross-examined as to whether he knew when the Complainant told her boyfriend;  Dr. Bereen was not cross-examined; and no countervailing psychological evidence was offered by the Applicant.  Mr. Gaffney S.C. submits in response that the allegedly general character of the observations contained in Dr. O'Connor's Affidavit at paragraphs 9 and following were clearly inserted as having a reference to the instant case; they were not simply put in there as a matter of academic interest.  
	In my view, the evidence does establish, by way of the expert professional opinion of Dr. O'Connor, that the alleged sexual abuse explains the delay on the part of the Complainant in reporting such abuse to the Gardai.  In those circumstances the authorities appear to establish that such delay cannot in and of itself be considered excessive so as to justify, without more, an Order of Prohibition.
	
Has the Applicant established a real and unavoidable risk of an unfair trial?
	The authorities establish that the Court should proceed to consider the question whether the simple efflux of time, for whatever reason, has so prejudiced the Respondent in making his defence that there is a real risk that he will not receive a fair trial.  Thus for example per Denham J. in C -v- DPP (unreported: 28th May 1998 at page 28) 	
	"The delay was caused by the Complainant's inability to make a formal complaint until 1995.  This was a consequence of the alleged sexual abuse, the alleged criminal actions.  Thus, fault lies with the alleged perpetrator of the actions - the Respondent.  The Respondent may not profit from alleged illegal actions.  Thus he is not entitled to prohibition on the ground that fault lies with the Complainant in delay in making a formal complaint.  
	
	There remains the question as to whether the simple efflux of time, for whatever reason, has so prejudiced the Respondent that there is a real risk that he will not receive a fair trial. ..."
	 
	And per Keane J. in the same case (at pp 6/7)

	"... The first enquiry must be as to whether there are reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the Court is satisfied 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.

	If that stage has been reached, the final issue to be determined will be 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 enquiry, in my view, in every such case, because, given that 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."

	The authorities acknowledge that delay of itself will pose problems to a Defendant, but also to the prosecution.  Accordingly, as a general rule mere delay will not necessarily be sufficient to justify an Order of Prohibition although there may be some exceptional cases where mere delay on its own will justify such an Order. 
 
CIRCUMSTANCES OF THIS CASE
	It has been made clear by the Supreme Court, for example in the careful judgment of Denham J. in B -v- DPP (1997  2 ILRM 118; at page 126) that the Court should look at the circumstances of each case in determining an application such as the present one.  A number of factors are therein helpfully set out and whilst these will not necessarily all apply in any one particular case and others may, I propose at this point to consider the relevant factors as follows:-

1.  The delay in the case
	No criticism, and certainly no serious criticism, have been made against the State Authorities after the complaint was made to them.  This complaint was made some thirteen years after the allegations made in the first seven counts and some eight years after the remaining allegations.  Clearly this delay poses difficulties for the Applicant but it also poses difficulties for the Respondent.  In the context of this kind of case this delay, on its own, would not justify an Order of Prohibition;  
2.  The reason for delay
 	From the perspective of the Complainant, the delay before reporting the allegations to the Gardai is explained by reference to the dominion allegedly exercised over her by the Applicant;  this is an important factor to be weighed by the Court in exercising its discretion on this application;
3.   The Accused's actions in relation to the events in issue
	The accused (i.e. the Applicant in these proceedings) has not sworn an Affidavit.  He has given a statement to the Gardai which is contained in the Book of Evidence but in my opinion in the absence of a verifying Affidavit from the Applicant this is not admissible evidence on the present application.  The Applicant, as accused, is, of course, entitled to the benefit of a presumption of innocence and, I consider that this means that it is not appropriate for the Court to expect from him on this application his own sworn Affidavit denying the allegations.  (See especially the observations of Keane J. in C -v- DPP cited above).  The Court presumes he is innocent and accordingly, in my opinion, it would not be appropriate to approach the evidence simply on the basis that the Complainant's Affidavit establishes the truth of her allegations since she has not been cross-examined or challenged.  Furthermore, in my view, the statements in the Book of Evidence and the hearsay allegations in the affidavits asserting that the Applicant has made partial admissions of sexual abuse are not matters which I can take into account because they are not proved by admissible evidence.

4.  The Accused's assertion of his constitutional rights  	
	The Applicant, as accused, is entitled to a fair trial in course of  law.  If the Court has admissible evidence that such is not available then the authorities establish that this right supersedes the right of the community to have alleged offences prosecuted.  In coming to Court, however, seeking to prohibit such a prosecution the Applicant must, in my view, tender the best evidence in relation to any claim that the delay has damaged his ability to defend himself.  At the very least he must explain why such evidence is not being tendered or is not available.  The hearsay evidence of the Applicant's Solicitor in relation to the evidence that would have been available from the deceased Tommy McGuinness is not admissible because it is hearsay evidence which deprives the Respondent of an opportunity of testing whether alternative evidence to like effect might still be available and because there is no explanation as to why only hearsay evidence has been tendered to the Court.
5.  Actual prejudice to the Accused
	Apart from the general difficulties arising from delay, which applies to both sides, there is no admissible evidence of  actual prejudice to the Applicant: (equally, I would point out, there is no admissible evidence that he has admitted sexual abuse);
6.   Special category
	The allegations of sexual assault are in a special category as recognised by the Courts in observations to which I have already referred.  In particular and of relevance to the special category in the present case, the relationship between the Complainant and the Applicant was one of trust which was allegedly betrayed;  the Applicant allegedly exercised dominion over the Complainant;  this in turn, in my view of the evidence, explains not only the Complainant's delay in divulging the alleged sexual abuse to her boyfriend in 1989 but the further delay of six years before she reported the matter to the Gardai;  the nature of the alleged offence involves a betrayal not only of a position of trust and superiority, but of the most intimate moral character where the alleged abuser was the Complainant's confessor who threatened her with God's punishment if she divulged the abuse.  According to herself the Complainant started drinking shortly after the first abuse.  Whilst this relationship is not the all prevading menacing and brutal dominion exercised by a father over a daughter which has arisen in some cases, it is nonetheless an allegation of the abuse and betrayal of a continuing and morally intimate relationship, which, from the Complainant's perspective, is associated with deeply troubling spiritual and psychological disorders.

7.   Alibi or other witness
	The Courts have noted that alibi witnesses are unlikely in cases of sexual abuse and this case is no different from several others in that respect. 
	It is proper for me to emphasise, however, that I have discounted any consideration of an alleged admission of  guilt on the part of the Applicant and equally any claim that the death of the late Tommy McGuinness constitutes a significant impairment of the Applicant's ability to defend himself on the grounds that appropriate evidence supporting these suggestions has not been tendered to the Court.

8.   Decision
	There is nothing in the evidence before the Court which distinguishes this case from others in which the Courts have refused to grant the Accused an Order of Prohibition and whilst  the Courts acknowledge that delay and the lack of specificity in the charges can cause problems to an accused (and indeed to the Prosecution) this is not a sufficient ground, in such cases, to justify the making of an Order.  Accordingly I refuse to make an Order prohibiting the Respondent from proceeding with the trial.

	I now turn to the Applicant's second claim, namely for production of Dr. Bereen's reports.

DR. BEREEN'S REPORTS
	The Complainant has given formal written permission to Garda Maureen McFadden to obtain her psychiatric reports from Dr. F.J. Bereen, Chief Psychiatrist, St. Brigid's Hospital, Ardee, Co. Louth.  She has done the same in relation to the medical and psychiatric reports of Dr. Art O'Connor, Consultant Psychiatrist, Central Mental Hospital, Dundrum.  These formal written permissions are contained in her statement which in turn is verified in her own Affidavit sworn for the purposes of this application.
	Dr. Bereen  has also sworn an Affidavit for the purpose of this application in which he says that he has been seeing the Complainant intermittently since 1985 during which time he has had time to conduct a psychosexual evaluation.  He says, however, that despite the fact that her psychosexual history was touched on on a number of occasions in particular in reference to a rather traumatic relationship she was having with her current boyfriend it was not until a consultation on April 26th 1995 that she focused on a history of sexual abuse, the outline of which is touched on in his medico-legal report of that time.
Clearly the material contained in Dr. Bereen's reports may be of  considerable relevance not to say assistance to the Applicant in the conduct of his defence.
	Counsel for the Respondent says, however, that if the Applicant requires these reports he should make an application for third party discovery in the ordinary way.  Mr. Rogers S.C. says in response to that that Dr. Bereen may raise difficulties on such an application and claim that the reports are confidential and that it is only fair that if the prosecution has access to these reports then so should the defence.  Counsel for the Applicant relies on paragraphs 12-47 and following of the 1997 edition of Archbold and in particular on the following excerpts:-

	"The duty of disclosure rests upon prosecuting Counsel, the CPS (or other prosecuting agency), the Police (or other investigating agency) and other professionals (e.g. scientific and forensic experts), all involved in the particular case:  R -v- Ward (1993) 2 AER 577". 

	And also on the following:-

	"The prosecution's duty of disclosure is governed by common law.  The Crown Court (advance notice of expert evidence) Rules 1987.... are not exhaustive and do not in any way supplant or detract from the prosecution's general duty of disclosure in respect of scientific evidence:  R. -v- Ward.."

	In relation to the test of materiality Counsel for the Applicant relies on paragraph 12-50 op. cit. as follows:-

	"The test of materiality was set out by Jowitt J. in R. -v- Melvin (Graham), ...and later adopted by the Court of Appeal in R. -v- Keane (99 Cr. App.R.1) and R.. -v- Browne (Winston) (1998 AC 367).  According to this test, matter which is prima facie disclosable is:
		'that which can be seen on a sensible appraisal by the prosecution;
		1. 	to be relevant or possibly relevant to an issue in the case;
                                    2.	to raise or possibly raise a new issue whose existence is not
		           apparent from the evidence the prosecution proposes to use;
                            	3. 	to hold out a real (as opposed to fanciful) prospect of providing
		          a lead on evidence which goes to (1) or (2)'."

	In the present case Mr. Gaffney S.C. acknowledges the materiality of Dr. Bereen's reports but says that it is not for the prosecution to procure them and that it is for the Applicant to make a third party discovery application in the Circuit Court in the ordinary way.
	I note from the foregoing citations particularly the following observation of Lord Hope of Craighead in the Brown (Winston) case at page 374:-

	"The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every Defendant to a fair trial.  If a Defendant is to have a fair trial, be must have adequate notice of the case which is to be made against him.  Fairness also requires that the rules of natural justice must be observed.  In this context, as Lord Taylor of  Gosforth C.J. observed in Reg -v- Keane (1994) 1 WLR  746, 750g) the great principle is that of  open justice.  It would be contrary to that principle for the prosecution to withhold from the Defendant material which might undermine their case against him or which might assist his defence... the statement which the police had obtained... supported his alibi.  This was information in the hands of the Prosecutor which might have assisted the defence case on an issue of fact which was relevant to the Plaintiff's guilt or innocence.
	In R. -v- Ward (Judith) ..... the Court adopted the words of Lawton L.J. in R. 	-v-  Hennessy (Timothy) ... where he said:
		'those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused  is either led by them or made available to the Defence'
	The Court went on to observe:
		'we would emphasise that all relevant evidence of help to the accused'
	is not limited to evidence which will obviously advance the accused's                case.  It is of help to the accused to have the opportunity of considering            all the material evidence which the prosecution have gathered, and from          which the prosecution have made their own selection of evidence to be             led." 
	
	The foregoing are principles developed at common law in England.  It is not surprising, then, to find somewhat similar principles recognised in this jurisdiction, as for instance, in Ward -v- Special Criminal Court (1998 2 ILRM 493, at page 500) where O'Flaherty J. said:
	"It is agreed on all sides that where the prosecution has a statement of a person who may be in a position to give material evidence, whom they do not want to call as a witness, they are under a duty to make that person available as a witness for the defence and in general, to make available any statements that he may have given.  We understand that that  is in fact the practice that has been in operation by the Office of the Director of Public Prosecutions for a very long time.  And see People (Director of Public Prosecutions -v- Meleady (1995 2 IR 517 at page 539)."

	These more recent English decisions which are well known in this jurisdiction acknowledge common law principles identified, for example, by Lord Denning M.R. in Dallison -v- Caffrey (1964) 2 AER 610 at 618) where he said:-

	"The duty of a prosecuting counsel or Solicitor, as I have always understood it is this:  if he knows of a credible witness who can speak to material facts which (tend to) show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence.  It would be highly reprehensible to conceal from the Court the evidence which such a witness can give.  If the prosecuting Counsel or Solicitor knows, not of a credible witness but of a witness who  he does not accept as credible, he should tell the defence about him so that they can call him if they wish."

	It seems to me that the principles enunciated in the foregoing cases ought to apply to the present case.  Counsel for the DPP in the present application has said that the prosecuting authorities have not in fact procured the reports of Dr. Bereen so that they do not in fact have possession of this material so that there is nothing to hand over.  They point to the third party discovery process.
	I do not think this is an adequate answer in the present case.  The Complainant has given explicit written authority to Garda McFadden to procure the reports from Dr. Bereen.  If a third party discovery application is made, Dr. Bereen may well feel obliged to raise objections on the basis that compliance with such an application would entail breach of his confidentiality obligations to the Complainant and at the very least the Applicant may be faced with delay.  Garda McFadden is in a position to require Dr. Bereen to hand over these reports on the authority of the Complainant, Dr. Bereen's own client and furnish them to the Applicant.  Accordingly, I am prepared to make an Order directing the Respondent to obtain the Complainant's psychiatric reports and records from Dr. F.J. Bereen pursuant to the explicit authority to that effect given by the Complainant to Garda Maureen McFadden and to furnish copies thereof to the Applicant upon receipt.