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1. On 30th July, 1998 the Applicant was granted leave to apply by way of application for judicial review for an Order of Prohibition and/or an Injunction restraining the Respondent from prosecuting criminal proceedings entitled Director of Public Prosecutions -v- N.C. Bill No: 36/98 at present pending before Dublin Circuit Criminal Court on the grounds set forth in his Statement dated 30th July, 1998 and it was further ordered that the criminal proceedings be stayed.

2. In the criminal proceedings the Applicant stands charged with sixty four counts in all of indecent assault contrary to common law and as provided for in section 6 of the Criminal Law Amendment Act, 1935. Twenty of the counts allege indecent assault on the Applicant's sister, K, one count being laid for "a date unknown" and "a place unknown" in respect of each of the twenty three-month periods spanning the period from 1st January, 1961 to 31st December, 1965. The remaining forty four counts allege indecent assault against the Applicant's sister, M, one count being laid for "a date unknown" and "a place unknown" in respect of each of the forty four three-month periods spanning the period from 1st January, 1964 to 31st December, 1974.

3. The Applicant was born in December 1945. His sister K was born in April, 1957 and his sister M was born in August 1960. There is an eleven years and four months age gap between the Applicant and his sister K and a fourteen years and eight months age gap between the Applicant and his sister M. K was aged three years and nine months at the commencement of the five year time span over which the assaults against her are alleged and aged eight years and nine months at the end of that period. The Applicant was fifteen years of age at the commencement and twenty years of age at the end of that period. In the case of M, she was three years and four months old at the commencement of the eleven year period over which the allegations of assault in respect of her are laid and aged fourteen years and four months at the end of that period. The Applicant was eighteen years of age at the commencement and twenty nine years of age at the end of that period.

4. The Garda investigation into the allegations commenced in April, 1995. It is common case that the investigation was an off shoot of an investigation into alleged sexual abuse by the Applicant of his grand-daughter, who was born in September 1991. No charges have been preferred arising out of those allegations. In relation to the complaints made by K and M, the Applicant was charged with these offences in June 1997 and he was returned for trial on 12th January, 1998. As I have said, the trial was stayed by the order of this Court granting leave dated 30th July, 1998. The Applicant has averred that he intends to plead not guilty to the charges.

5. When the Applicant was charged in June 1997, thirty six and a half years had elapsed since the time of the earliest of the offences alleged against him and twenty two and a half years had elapsed since the time of the most recent of the offences alleged against him.

6. In condensed form, the primary ground on which the Applicant was granted leave was that his right to a trial in due course of law has been irreparably affected by the passage of time and, in particular, that the identity of witnesses, the availability of witnesses and his ability to properly test the credibility of witnesses has been seriously impaired. A further ground was that the right of K and M to make the complaints has been waived or lost by virtue of delay. This latter ground was not seriously canvassed at the hearing. In addition to traversing the grounds relied on by the Applicant, the Respondent has pleaded that the Applicant by his behaviour has caused or contributed in a significant fashion to the lapse of time complained of by virtue of his domination of the complainants and their family and threats made by him should the complainants persist in their allegations.

7. During the last six years or thereabouts a substantial body of jurisprudence has evolved in relation to applications such as this, in which an applicant seeks to prohibit a criminal trial involving charges of child sexual abuse where there has been a considerable lapse of time between the dates on which the offences are alleged to have been committed and the date the accused is likely to be brought to trial. The locus classicus on the topic is the judgment of Denham J, speaking for a full Supreme Court, in B. -v- Director of Public Prosecutions [1997] 3 I.R. 140, in which the underlying facts were not dissimilar to the underlying facts in this case. More recently, the topic has been comprehensively dealt with by a full Supreme Court in C. -v- Director of Public Prosecutions, in which three judgments were delivered on 28th May, 1998, by Denham J., Keane J. and Lynch J. More recently still, the topic was reconsidered by a full Supreme Court in S.F. -v- Director of Public Prosecutions in which judgments were delivered on 30th June, 1999 by Lynch J. and Murphy J. It would serve no useful purpose for me to analyse or comment here on those authorities, by which I am bound. However, I think I should and I propose to set out my understanding from them of the approach this Court should adopt in determining an application such as the instant application and I trust I will not do so too simplistically.

8. First, in relation to the nature of this application, it is a civil proceeding in which the Applicant is invoking the civil law and seeking a civil law remedy. The wrong he is alleging is that his constitutional right to a fair trial - a trial "in due course of law" guaranteed to him by Article 38.1. of the Constitution - is being infringed by reason of delay. The civil law remedy he is seeking to redress this alleged wrong is an Order of Prohibition. As in any civil proceeding, the burden of proof is on the Applicant and he must establish his case on the balance of probabilities. However, as regards the charges pending against the Applicant in the Circuit Criminal Court, the presumption of the Applicant's innocence still applies and will continue to apply if his trial is not prohibited and he will continue to enjoy all the protection which the criminal law affords an accused person, including the requirement that the case against him be proved beyond reasonable doubt.

9. In determining an application such as this, in which there is no allegation of prosecutorial delay but where, prima facie , there has been inordinate delay in making the complaints, the Court is involved in a two-pronged inquiry.

10. One element of the inquiry is that the Court must ascertain the reason or reasons for the delay and, in particular, the Court must ascertain whether, as a matter of probability, the delay is referable to the Applicant's own actions, because, of course, it would be unjust to allow the Applicant to found his claim on his own conduct. Of necessity in endeavouring to ascertain whether the delay was caused or contributed to by the Applicant, it must be assumed that the allegations are true. What emerges from the authorities is that dominance exercised by the accused over the complainant is frequently a feature in cases where there has been delay in bringing complaints of the type at issue here. Dominance is more readily inferred where certain factors, which are frequently found in this type of case, exist. These factors include the sexual nature of the abuse, the recurring nature of the abuse, the young age of the complainant when the abuse occurred, the age disparity between the complainant and the accused, the place where the alleged abuse took place and, in particular, that it took place in the home or otherwise in a family setting, that the accused was in a position of trust or authority in relation to the complainant, and that the abuse was accompanied by express or implied threats to ensure non-disclosure. While the foregoing factors, particularly in combination, carry weight in determining whether a complainant has been rendered psychologically incapable of complaining to the authorities, the Court must consider all of the circumstances of the particular case before it in determining the reason or reasons for the delay.

11. The other element is that the Court must ascertain the extent to which the Applicant's ability to defend himself has been impaired by reason of the delay and, in particular, whether there is such a degree of prejudice present as to constitute a real or serious risk of an unfair trial. Recurring themes on this aspect of the inquiry are whether the Applicant's ability to identify and marshal witnesses crucial to his defence or to establish an alibi has been impaired by the delay. However, there is a recognition in the authorities that, where the alleged act was performed in private and there were no witnesses, the determination of guilt or innocence in the final analysis will depend on the credibility of the complainant and, if he testifies, the accused, so that issues as to the availability of witnesses and alibi evidence may have little part to play. As the ascertainment of the reason or reasons for the delay is based on the assumption that the complaint is true, the ascertainment of the degree of prejudice resulting from the delay arises in every case because of the presumption of innocence.

12. Finally, one further factor which the Court is required to have regard to is whether there has been an admission of guilt on the part of the accused, but, of course, if the existence of the admission is contested that too must be considered.

13. I come now to the facts underlying the charges as alleged by the complainants. K alleges that she was abused by the Applicant once or twice a week from the time that she was about four years of age to the time she was about eight years of age. The abuse occurred in the family home, a two bedroomed house in which the family of father, mother and eight children resided. The Applicant would take her out of her bunk bed at night and take her to his bed and abuse her. The abuse ceased when the Applicant left the home on his marriage in 1968 or 1969. K alleges that after the abuse had happened a few times, in the presence of the Applicant, she told her mother about it but she did not believe her. M alleges that she was first abused by the Applicant when she was about four years of age in a lane near the family home. On the second occasion the alleged abuse occurred in a bedroom of the family home. When she was about six and a half years old, while practising for her first confession, she tried to tell her mother what the Applicant had done to her, but was slapped across the head and told she was telling lies. Subsequently, a neighbour was blamed for interfering with her. She was brought by her mother to the local priest who gave out to her. After that she never told anyone about what happened to her. Today she cannot remember anything about her family or her home from the time she was eight or nine years of age until the time she was twelve or thirteen. However she alleges also that later episodes of abuse occurred in the Applicant's home while she was baby-sitting, when she was eleven to fourteen years of age. She had not wanted to go the Applicant's house but her mother forced her.

14. Both complainants paint a picture of the Applicant having played a father figure role in the family, because their father was an alcoholic and did not involve himself with the family, and of the Applicant being idolised by their mother. They paint a picture of dominance by the Applicant over them and their fear of him. This picture is corroborated by another sibling.

15. There was what Mr. Gageby, for the Applicant, rightly called a watershed in the history of the alleged abuse around 1985. It is common case that both complainants told other members of the family about the alleged abuse at that time and confronted the Applicant. M confronted the Applicant twice, once in his own home in the presence of his wife. Both received counselling. M alleges that subsequently the Applicant threatened her through another brother, D, the threats being that the Applicant would report her to the social services as an unfit mother and that her children would be taken from her. She averred that she took the threats seriously and reported them to the Rape Crisis Centre and Tallaght Resource Centre and, in consequence of representations made by those organisations to Dublin Corporation, she was moved to alternative premises by Dublin Corporation.

16. The Applicant denies that he had a position of control in his family, although he acknowledges that, because his father was an alcoholic and he was the eldest, more responsibility may have fallen on his shoulders than would otherwise have been the case. However, he did not replace his father in the household. There was nothing strange about his relationship with his mother, although, with the benefit of hindsight, he acknowledges that he may have been her favourite. The Applicant denies all of the allegations made by M, including the allegations of his threats against her after the 1985 episode.

17. In relation to the alleged threats, M's brother, D, through whom she alleges the threats were relayed, has sworn two affidavits in the proceedings on behalf of the Respondent. In the first, he averred that when the allegations regarding the Applicant were disclosed to the family members, which I am satisfied happened in 1985, the family split into two camps. He was part of those who thought everybody should be told what happened and that it should be left at that. There were others who believed the Applicant should be taken to court, among them his sister P, and her husband T. At one point he (D) told P, that, if she pursued the issue, the Applicant would have her husband hurt and this stopped everything. He averred that the reason he said that was that he did not want his mother to be crying for her remaining years. In his second affidavit, D has clarified his first affidavit and, in particular, his earlier averment that he informed P that the Applicant would have her husband hurt, as follows:-

18. The mother of the Applicant and the complainants died in December 1989.

19. Both K and M were psychologically assessed by Michael Dempsey, a senior clinical psychologist with the Eastern Health Board, at the behest of the Respondent. Two affidavits sworn by him verifying his psychological reports on the complainants were before the Court and he was cross examined on behalf of the Applicant.

20. In relation to M, Mr. Dempsey set out the probable reasons as to why she did not report the abuse to the Gardai until 1995 in the following passage in his report of 10th May 1999:-

21. Earlier in his report Mr. Dempsey had stated that it is well documented that victims of sexual abuse in childhood often enter into relationships in order to escape the abuse only to be abused in the relationship. Mr. Dempsey was of the opinion that the counselling M had received probably contributed to enabling her to finally report the abuse to the Gardai, coupled with her determination "to stop this intergenerational cycle of abuse." At the time he interviewed her, Mr. Dempsey found that M was suffering from severe depression and that she had the symptoms of post traumatic stress disorder to a moderate to severe degree.

22. In relation to K, Mr. Dempsey recorded his conclusions in his psychological report of 30th June 1999 as follows:-

23. Having referred to severe psychological problems which K suffered during her mid teens when she was prescribed Valium and Rohypnol, to which she ultimately became addicted until her early thirties, Mr. Dempsey stated that she had reported having distorted memories of the abuse but only in relation to the time of its occurrence. Although the abuse had occurred in early childhood she had begun to think that she was abused in adolescence also. Mr. Dempsey's opinion is that this type of distortion in memory is probably as a result of her addiction during the years from middle adolescence to her early thirties but his opinion is that the factors which lead to her addiction to prescribed medications are directly related to the abuse she suffered in early childhood. Mr. Dempsey stated that a further reason why K. did not report the abuse to the Gardai until relatively recently is that she suffers severe psychological symptoms when she thinks of or talks about the abuse. He stated that it is a common observation in psychological practice that clients frequently suppress abusive experiences so as not to have to experience the traumatic psychological consequences of acknowledging and dealing with them. K refused to complete any psychological tests for Mr. Dempsey, fearing that they would be too distressing for her.

24. During cross-examination Mr. Dempsey was asked whether it was his practice to read the entire book of evidence to establish consistency, or to seek collateral evidence of what was reported to him, or to seek to validate his conclusions by external proofs. His response was that he does not see it as his function, in carrying out a psychological assessment, to establish truth. His function is to provide a psychological assessment to enable him to understand the effects of what allegedly happened to the individual. He explained that it is not so much a case of accepting what is reported to him. It is that he can understand what he is told from a psychological perspective; it makes sense, it fits in with psychological knowledge - psychological theories or models - in the area.

25. As I have already stated, Mr. Gageby characterised the events of 1985 as representing a watershed in the histories of the complaints. In essence, his argument on the first prong of the inquiry the Court has to carry out is that, on the evidence, one cannot conclude that the delay after the watershed and up to 1995 was referable to the actions of the Applicant. He submitted that on the evidence neither complainant was disempowered or disabled or in any way precluded from making complaints to the Gardai from the mid to late 1980's to early 1995. He stressed that the issue for the Court is not whether the decisions which K and M made at the beginning of 1995 to make the complaints, based on their belief, bona fide or otherwise, that the Applicant had abused his grandchild in or around 1993 was understandable. The issue is whether in the preceding years the delay was attributable to the Applicant. He highlighted the elements of the evidence which he asserted manifested the absence of dominance by the Applicant over the complainants: their reporting of the abuse to members of the family and to outsiders, including counselling services and social services; and the manner in which they were able to confront the Applicant and, in the case of M, the Applicant in the presence of his wife in his own home. He submitted that it is for Court to decide what weight to give to the psychological evidence and he invited me to have regard to any differences between my own life experience and the evidence of Mr. Dempsey.

26. Similar issues in relation to cessation of dominance arose both in C. -v- The Director of Public Prosecutions and S.F. -v- The Director of Public Prosecutions and the issues were resolved by the Supreme Court in each case on the basis of psychological evidence, and, additionally, in the C. case , on the basis of evidence of a psychotherapist. In the S.F. case , Lynch J., in his judgment, summarised the approach adopted by the Supreme Court in the C. case in the following passage:-

27. In relation to Mr. Dempsey's evidence, I have a number of observations. First, Mr. Dempsey testified as an experienced practising senior clinical psychologist giving expert evidence. It would be inappropriate for a non-expert to reject or diminish the weight to be attached to Mr. Dempsey's opinions on the basis of the non-expert's own life experiences. Secondly, in my view, Mr. Dempsey's approach to the psychological assessments of the complainants was the proper approach and it was an approach best suited to assisting the Court in addressing the first prong of the inquiry in a case such as this, given that the Court must ascertain the reason or reasons for the delay on the assumption that the complaints are true. Thirdly, while Mr. Gageby cross-examined Mr. Dempsey in depth about factors in relation to the complainants' lives which emerged from the evidence, in the case of K her addiction to Valium and Rohypnol, in the case of M her severe alcohol dependency in the past, and in relation to both the fact that they were brought up in a dysfunctional family in which they perceived that they were uncared for and unloved, to mention but three, in my view, Mr. Dempsey's oral evidence was consistent with his reports. He was specifically asked whether he directed his mind to why M could not have gone to the police in 1988 or 1989 and his response was that M was reasonably clear about that, in the sense that she felt that whenever she thought about the issues, about the abuse, she developed certain psychological symptoms which were painful to her. In concluding his evidence Mr. Dempsey held to the opinions expressed in his reports, notwithstanding the matters put to him by Mr. Gageby.

28. Assuming the allegations of abuse to be true, which I must do for the purposes of this exercise, in the absence of any contrary medical or psychological evidence, I must conclude, on the basis of Mr. Dempsey's evidence, that the delay in making the complaints even after the watershed in 1985 is attributable to the effects of the abuse, and, accordingly, that up to 1995 the delay is referable to acts on the part of the Applicant. I should perhaps add that I do not understand Mr. Dempsey's conclusions to be based to any extent on the threats M alleges on the part of the Applicant against her, which were relayed to her through her brother. I mention this because it is not possible on the state of the evidence to conclude that any such threats emanated from the Applicant.

29. In relation to the second prong of the inquiry, the main plank in Mr. Gageby's argument is that the death of the Applicant's mother in December 1989 has deprived the Applicant of a vital witness for his defence. It is to be expected that, given the inordinately long period which has elapsed since the abuse is alleged to have occured, there will be weaknesses on both sides in relation to the prosecution and defence of the criminal proceedings. Without straying into any issue of guilt or innocence, it can be noted that some of the problems the prosecution will face were highlighted in the evidence, for instance, K's time distortion in memory and M's loss of memory over four years of her childhood. It is possible that the defence might have been be able more effectively to exploit some of those weaknesses and to otherwise challenge the credibility of the complainants, particularly on the issue whether they made complaints to her, by calling their mother if she was still alive. It is also true that she might have been able to identify potential witnesses who might have assisted the Applicant. However, the issue here is whether the consequences of the delay are such as to give rise to a real risk of an unfair trial. The reality is that the majority of the offences are alleged to have taken place in or in the environs of the complainants' family home at a time when five siblings of the complainants and the Applicant, all of whom are still alive, were living there. Many of the matters which are referred to in the complainants' statements of evidence involved another sibling as well as the mother of the complainants. While accepting that, of the occupants of the household other than the Applicant, the complainants' mother would have been best versed in the dynamics of the family and most au fait with the collateral matters which are alluded to in the statements of evidence, nonetheless, I am not satisfied on the evidence that the fact that her testimony will not be available to challenge the credibility of the complainants will impair the Applicant's defence to the extent that there is a real risk that an unfair trial will ensue.

30. Moreover, in relation to the offences which are alleged to have occurred in the Applicant' home while M was baby-sitting, I am not satisfied that it has been established as a matter of probability that because of the lapse of time the Applicant's wife will not be in a position to aid his defence as she might have done if the trial had taken place in the late 1980's. The Applicant's wife has not sworn an affidavit in these proceedings as to the state of her memory in relation to events in the early 1970's. The uncontroverted fact is that M confronted the Applicant's wife with the allegations of abuse and gave her some details of the allegations in 1985. It is reasonable to infer that when that occurred the Applicant's wife jogged her memory as to events which took place eleven or twelve years previously.

31. Having regard to the conclusion I have reached on the second prong of the inquiry, strictly speaking, it is unnecessary to address the further submission made by Mr. Gageby that the specific prejudices which he contends for - the death of the complainants' mother, the inability to identify potential defence witnesses, the lack of specificity in relation to the place each offence is alleged to have occurred and general fallibility of memory after such a long period - could not be cured by directions given by the trial judge and that, in any event, the trial judge is under no duty to give any specific guidance or warning in relation to the dangers inherent in stale allegations and that this exposes the Applicant to the risk of an unfair trial and a wrong verdict. However, there is one aspect of the argument I wish to comment on. Mr. Gageby referred to the oft quoted passage from the judgment of Powell J. in Barker -v- Wingo [1972] 407 U.S 514 outlining some of the ways in which the inability of a defendant adequately to prepare his case "skews the fairness of the entire system" as follows:-

32. Mr. Gageby submitted that the last point could be argued in relation to the position of the Applicant's wife. However, this overlooks the undisputed fact that the allegations of abuse having occurred in the early 1970's in the Applicant's home did not come like "a bolt out of the blue" in 1995. As I have said earlier, the Applicant's wife was confronted with the allegations in 1985. I think it reasonable to infer that she would have been shocked by the revelations and would have tried to jog her memory at that stage. I think it is also reasonable to infer that the allegations would have remained an issue for her in the interim. While the fundamental truth of the last sentence in the quoted passage from the judgment of Powell J. must not be lost sight of, I do not think that on the facts here it comes into play.

33. There remains the question of how much, if any, weight should be given to admissions of which the Respondent contends there is evidence. This is the aspect of the matter which I find most problematical, both conceptually and evidentially: conceptually given the presumption of the Applicant's innocence, his intention to plead not guilty and that it goes to the matter of guilt or innocence which is a matter for the criminal trial; evidentially in the light of the fairly consistent thread in the evidence as to the limited nature of the admission, and, in particular, what the Applicant himself has averred to about an incident in his grounding affidavit sworn on 27th May, 1998 and what his brother D has averred to about what the Applicant told him about an incident in an affidavit sworn by him on 16th May, 1998 ( recte 1999), and the fact that none of the deponents were cross-examined as to the admissions. Having regard to all of the circumstances, I have come to the conclusion that I should not give any weight to the admissions. However, this is somewhat academic as, aside from this factor, I consider that the Applicant has not established an entitlement to an Order of Prohibition.

34. The Application will be dismissed