THE HIGH COURT
		                                             CENTRAL CRIMINAL COURT
			2000 No. 0007 CC
BETWEEN
D.P.P 
			APPLICANT
AND
J. O’C.
			DEFENDANT
JUDGMENT delivered the 27th day of July 2001 by Carney J.
	The accused in this case is charged with the perpetration of extremely serious sexual offences, including rape, against two nieces and a nephew.  The offences are alleged to have taken place more than twenty years ago.  This is a Motion to quash the indictment on the grounds of delay.  The instant Motion is concerned with seeking to stay the proceedings on the grounds of delay per se.  If following the hearing of this Motion the indictment or any part of it survives a further application will be made to halt the proceedings on the grounds of specific prejudice flowing from the delay.  
	A developing jurisprudence in relation to delay particularly in sexual cases is coming down to this Court from the Supreme Court.
	The applicable law is stated by Keane C J., in his Judgment in P.O’C -v- The Director of Public Prosecutions (Unreported) Judgment delivered the 6th day of July 2000 in the following terms:-
“While the principles applicable in cases of this nature are well settled and have been explained in a number of decisions in this Court in recent years, they must be summarised again for the purposes of this appeal.  There is not, and never has been, any statutory period of limitation in respect of the institution of prosecutions for serious crimes.  However, the requirement in Article 38.1 of the Constitution that no person is to be tried on any criminal charge “ save in due course of law” entitles any person so charged to a trial with reasonable expedition.  Accordingly, significant and culpable delay on the part of the prosecuting authorities may result in the continuance of a prosecution being restrained.  Where there is no such delay on the part of the prosecuting authorities, but there has been significant delay on the part of the victim of the alleged crime in reporting it to the authorities, a question may arise as to whether the delay is explicable by reference to the nature of the crime itself.  This question arises in cases of sexual offences allegedly committed by adults against children and particularly in cases where the adult is in a position of authority in relation to the child, e.g. as parent, step-parent, teacher or religious.
In cases coming within the last named category, the enquiry conducted by the Court which is asked to halt the trial necessarily involves an assumption by the Court that the allegation of the victim is true.  Without such an assumption, it would not be possible for the Court to conduct any such enquiry and the Court would be obliged automatically to halt the trial of a person because of the expiry of a lengthy period of time, even though the failure to make a complaint was due to domination exercised by the adult over the young child during the period of abuse and even where - as has happened in a number of cases - the abuse has been perpetrated over many years by a parent or step-parent of a child actually living in the family home with the perpetrator.  Since that patently cannot be the law, the presumption of innocence which applies in its full rigour to a criminal trial cannot apply to inquiries of this nature.
If, such an assumption having been made, the Court invited to halt the trial is satisfied that, as a matter of probability, the failure of the victim to complain of the offending conduct was the result of the conduct itself, the delay, of itself and without more, will not be a reason for halting the trial.  There remains, however, a further enquiry which must be conducted by the Court in every case, i.e. as to whether the degree to which the Applicant’s ability to defend himself or herself has been impaired is such that the trial should not be allowed to proceed.  The assumption made solely in the context of the earlier stage of the enquiry that the delay is the result of the Applicant’s own conduct ceases to have effect once that stage of the enquiry has been concluded.  In the final stage of the enquiry, the Applicant is presumed to be innocent of the offence of which he has been charged and, if he or she can demonstrate to the Court that it is probable that a specific defence which might otherwise have been open to him or her is now no longer available because of the passage of time, the Court may then halt the trial on the ground that there is now a real and serious risk of an unfair trial which cannot be avoided by the giving of necessary directions or rulings by the trial judge”

	In the course of the hearing of this Motion I have heard evidence from the three alleged victims.  In relation to B. G. and M. D. I am satisfied that they were initially silent by reason of fear and domination by the accused.  That in the ordinary course of events would have excused the delay which has taken place in the present case but further circumstances intervened.  
	B. G. said that she told her granny that the accused was having sex with her.  Her granny told her that she would sort it out and that she was not to tell anyone and she was not allowed to tell her auntie B., that it would cause so much trouble that she would deal with it and B. was sworn to secrecy.  She said she had so much fear because she could not upset her granny and she could not upset her auntie B. and she could not upset her parents.  She said she was not allowed to tell anyone secrets and was warned to be so secretive.  This on the evidence all stems from the intervention of the granny rather than the actions of the accused.  She further said that she slept in granny’s room with granny who would say go in and keep J. company, get in beside J. out of my way while I am cleaning the house.  She said she was too afraid to report this matter to anybody.  The two adults that knew about it had sworn her to secrecy.  Her granny ruled with an iron fist, she was the leader of the family and she had warned her of the hurt it would cause if she told anyone and she could not bear to hurt to anyone.  She just could not bear it.
	B. G. went on then to say that when she joined the guards in 1980 it was a male dominated force and there was no talk about sex abuse or anything like that.  She said she saw what it took to get cases to trial, to be involved in trials and everything and she was afraid of becoming a victim within the guards as well as being a victim in her personal life and she could not cope with that prospect.  She became aware of what had happened to M. but still did not report matters.  At page 33 of volume 2 of the transcript she says in terms that she didn’t report it because she didn’t want to jeopardise her position in the Gardai.  At page 47 volume 2 of the transcript she said she was worried that if she did take a step forward it was not going to assist her career in the Garda Siochana.  It may damage it.  I may be the subject of gossip from colleagues.  These were all factors in my mind weighing against speaking out.  
	M. G. said that in 1983 she was watching a tv programme with her elder sister B. about sexual abuse.  She told her elder sister B. that J.O’C. had abused her.  In 1984 to 1985 she went to the Rape Crisis Centre.  She told  her sister B. who said that because she was a garda and everything that it would effect her work and that the only thing the Rape Crisis Centre were interested in was to bring prosecutions and it would be in the papers so I didn’t pursue it then.  In 1992 when she was admitted to St. Patrick’s Hospital she disclosed the abuse but didn’t report it.  She didn’t make any complaint from 1993 to 1998 during which time she was in counselling for sexual abuse.  When she did make contact with Swords garda station she says that a garda came up to the house and more or less tried to put her off making a statement.  She reiterated that her sister was very upset and said that being a guard it would get out and get into the papers and it would effect her job.  It would effect her position within An Garda Siochana.  
	As I indicated I find that initially there was fear of the accused and domination by him which would excuse a failure to report.  This however was replaced by a fear of the granny, domination by her and a concern in relation to B’s career in and advancement within An Garda Siochana.  I do not find these latter considerations matters which come within the case law and accordingly cannot find the admitted delay excusable.  
	On the evidence of D. G. I do not find a case made out to the standard of beyond reasonable doubt which would within the considerations identified by the Supreme Court excuse the admitted delay.
	Having regard to these findings the appropriate Order is one quashing the indictment.