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Cite as: [2002] IEHC 96

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    W. (D.) v. D.P.P. [2002] IEHC 96 (21 March 2002)

    THE HIGH COURT
    JUDICIAL REVIEW
    2001 No. 72 J.R.
    Between:
    D.W.
    Applicant
    -and-
    THE DIRECTOR OF PUBLIC PROSECUTIONS
    Respondent
    Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 21st March, 2002.
    1.      In this case the applicant who is charged with 14 offences being two of indecent assault contrary to s. 62 of the Offences Against the Person Act, 1861 and 14 counts of gross indecency contrary to s. 11 of the Criminal Law Amendment Act, 1885 alleged to have been committed between November 1985 and March 1988, seeks and order in the form of an injunction restraining the further prosecution by the respondent of the charges against him. At all relevant times the applicant was a teacher in a school attended by the alleged victim of the assaults in question.
    2.      The grounds upon which relief is sought by the applicant are:
    (a) that the lapse of time between the date of the commission of the alleged offences and the date of trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant;
    (b) that by reason of the delay complained of the applicant has been seriously hindered in an opportunity to properly defend himself in, for example, garnering evidence in order to establish his movements at the relevant times or securing evidence which would materially undermine relevant and crucial aspects of the complaint's allegations. As such, therefore, the applicant will be unable to significantly raise his defence above a bare denial on oath of the said charges.
    (c) grave concerns have arisen following upon depositions held in this case in July 2000 as to the complainant's own recollection of dates.
    3.      The applicant was born in 1940 and is a secondary school teacher who retired on the 28th January 1998. It is alleged by the complainant that he was a pupil at the applicant's school and that he was the victim of sexual abuse by the applicant. The offences are alleged to have taken place both at the applicant's home, where the applicant attended for grinds, and in a room in the school. The complainant did not report the alleged sexual abuse to the Gardaí until 19 June 1998. The applicant says that he first heard of the complaint when the complainant telephoned him at home in or about January 1998.
    4.      The applicant was interviewed by the Gardaí in August 1998 following upon his arrest and detention at his local garda station and the applicant was subsequently charged on the 24th November 1999.
    5.      It appears that the applicant has made a statement to the gardaí admitting sexual involvement with the complainant from a time when the complainant was 16 years of age
    until approximately 1990. However, he does not admit to any sexual activity at a time when the complainant was under 15 years of age.
    6.      In July 2000 depositions were taken of the evidence of the complainant and his father and it is alleged that during the course of these depositions it became increasingly clear that the complainant's memory as to dates, not specifically months or days, but particularly the years in which he alleged the offending to have taken place was highly unreliable. He answered date specific questions by indicating that he was not sure or "to the best of my knowledge". It is alleged that the complainant gauged time by reference to subjects which he was studying and it is alleged that in this regard his recollection was manifestly unreliable as it is alleged that he frequently cross-referenced dates with subjects which would have placed him at a much later age and seniority within the school curriculum. On this basis it is alleged that there is an inherent danger such as would significantly prejudice the applicant should this court permit the charges against the applicant to proceed.
    7.      The applicant states that it is extremely difficult for him to gather evidence as to specific day to day activities occurring in school (particularly the timetable of students and teachers), where those activities would have placed him and/or the complainant in the environs of the relevant room in the school where the offences are alleged to have taken place or what specific day to day usages were made of the room in question. He says that such information would enable him to test the veracity of the evidence of the complainant and to challenge it before a jury. The applicant says that given the specificity of the complainant's evidence in regard to the locus of the alleged offences at the school, the credibility of the complainant's entire account could well be seriously undermined in the eyes of the jury if he were not hindered by the lapse of time in challenging the same. The applicant says that had the trial taken place within a reasonable time of the commission of the alleged offences, there should have been little difficulty in testing the accuracy of the complainant's evidence.
    8.      The applicant says that there has been no adequate explanation as to why the complainant waited in excess of thirteen years before reporting the complainant. The complainant went to the United Kingdom after leaving school and remained there for some years. At the time of the bringing of this application the complainant was 29 years of age. He was 27 years of age when he first gave his statement to the gardaí and when the applicant was first interviewed by the gardaí. It is alleged that the complainant voluntarily activated continued contact with the applicant by letter and telephone and on occasions called to the applicant's home during his visits from the United Kingdom. It is complained that the delay in reporting is unreasonably long and remains totally unexplained or excused.
    9.      It appears that the complainant was born in April 1971 and was at the time of the alleged offences between the ages of 14 years and 16 years inclusive. In the same period the applicant would have been between 35 and 37 years of age.
    10.      In the statement of grounds of opposition it is pleaded that in regard to the complainant's recollection of dates that this is not a ground for relief for the applicant as the burden of proof rests with the prosecution. With regard to the delay complained of it is pleaded that the lapse of time is a consequence of the abuse perpetrated on the complainant by the applicant. It is further pleaded that the respondent will rely upon the applicant's efforts to prevent early disclosure.
    11.      The complainant has sworn an affidavit in which he deposes to having been contacted in May 1998 by a Detective Garda who invited him to make a statement concerning the applicant. As a result the complainant made an initial statement to the garda on 19 June 1998. He made further statements to him at his request on 17 July 1999, November 10th, 1999 and November 30th 1999. The complainant refers in his affidavit to the alleged abuse and has referred to statements made by him to the gardaí, which he says are true. He says that the applicant was at the time of the alleged offences in a position of authority over him and was a father figure. He alleges that the applicant played on his emotions like an instrument. He alleges in his statement that during his time in the school the applicant performed sexual acts on him at least 200 times.
    12.      The complainant states that the incidents had a huge effect on him both physically and mentally. He states that he was filled with guilt, shame and embarrassment that he could have let someone do the things that had been done to him. He states that he locked the images of what happened away because they were so disgusting to him that he could not bear to deal with them. He thought that his memories of these incidents would fade away of their own accord the less he thought of them. He says that he now realises that his efforts to suppress these incidents did him immense harm and they were affecting him daily. He used gambling and drinking as an outlet when in fact he should have dealt with the root of his problem, that is the constant abuse that he suffered at times on an almost daily basis during his school days. He says that his images of school are of disgust and shame.
    13.      As he became older and more experienced in life the complainant realised that what had happened with the applicant was wrong. He began to realise that he had to tackle the problems that this abuse had caused him. He began to realise that he would not survive if he did not tackle these problems. This led him on to decide to tackle the root cause of these problems: the abuse itself.. He initially disclosed the abuse to a student welfare officer at his university in England in or about October or November 1997. He first complained to the gardaí in June 1998. He says that by the disclosure he feels that a huge burden has been lifted from him. He now realises that he was not to blame and that he can cope with the abuse in a more positive manner. He says that he did not want the members of his own family to bear the shame and embarrassment of knowing what had happened to him while he was in his parents' care. He did not want them to think they had done anything wrong in the manner in which they had raised him. He says that both his parents, particularly his mother, found it difficult to deal with the fact that he had not disclosed these matters to them earlier when he was required to disclose these facts to them in order to facilitate the preparation of the applicant's prosecution.
    14.      The complainant attended Ruth Yoder, clinical psychologist of the Institute of Psychological Medicine on the 19th April 2001 and he says that to the extent that her report recounts matters of fact relating to his personal circumstances that these facts are true.
    15.      Detective Garda Trenier has indicated the background to the matter coming to the attention of the Garda Síochána. A file was sent to the Eastern Health Board referring to the alleged abuse in or about February 1998. In late February 1998 he was allocated responsibility for the investigation of this file. He contacted the complainant in April 1998 and invited him to make a statement. The complainant came to the Garda Station in June 1998 by appointment and made a complaint that he had been sexually abused by the applicant when he was a student between 1983 and 1988. The Detective Garda went to the applicant's home in or about June 1998 and learned that he was at his holiday home in the country. He made arrangements to travel there but learned that the applicant had returned to his home. He called to the applicant's house and got no response. He called daily for a week and got no response. At all times the applicant's car was parked in the driveway of the house. He then learned that the applicant was in hospital where he had undergone an operation. He waited until about one week after the applicant's discharge from hospital before approaching him. The applicant was arrested on the 17th of August 1998 and brought to the Garda Station for questioning in relation to the allegations against him. After seeing his solicitor a record of an interview with the applicant was taken and he was invited to make a written statement. This he agreed to do. His solicitor stated that he would get the applicant to call to his office, that he would take a statement from him and then contact the Detective Garda when it was ready. The applicant was then released. From September to early November numerous telephone calls were made to the solicitor's office requesting the applicant's statement. On 19 November 1998 the applicant called to the Garda Station in the company of his solicitor and the solicitor handed in a prepared statement of the applicant. After caution the applicant signed the statement in the Garda Station. On 4th February 1999 the complainant furnished the gardaí with written correspondence which he had received from the applicant.
    16.      At the outset of the investigation the Detective Garda Trenier sought to make enquiries at the school but he encountered difficulties due to the school being closed for the summer holidays. He sought to check school records and the premises. This was ultimately done on 16 February 1999 after which he took statements from the school principal and manager on the 19th February and 2nd March 1999 respectively. A garda file was then prepared and sent to the Chief State Solicitor and received by him on 8 March 1999.
    17.      On 29 April, 1999 the file was returned in order to respond to certain queries raised. These were responded to and the file was returned on 31 May 1999. The file was further returned from the office of the Chief State Solicitor on 30th June 1999 with a further enquiry. A further statement was taken from the complainant on 17 July 1999 and after this the garda sought to verify mention of a bet on a school cup team mentioned in the statement. The file was returned to the Chief State Solicitor on 21 September 1999. On the 18th October 1999 instructions were received from the Chief State Solicitor to charge the applicant and to obtain a further statement from the complainant. As the complainant was out of the country at the time the further statement was not taken until 10 November 1999 on which date a sworn information was presented to the District Court and a warrant issued for the arrest of the applicant. The further statement of the complainant together with the sworn information and arrest warrant was furnished to the Chief State Solicitor's Office on 16th November 1999 and on 24 November 1999 the applicant was arrested and charged as directed. Throughout the period of the investigation Detective Garda Trenier was involved with another investigation of a similar nature and investigations into two murders and a kidnapping in addition to routine investigations and duties.
    18.      Ruth Yoder, Clinical Psychologist is a member of the Psychological Society of Ireland and met the complainant on 19th April 2001 on foot of a request from the respondent, with a view to preparing a written report setting out (a) the effect of the alleged incidents upon the complainant, (b) the reasons for the delay in him reporting the alleged incidents and (c) her view as to whether the delay in reporting was reasonable in the light of his individual circumstances. For this purpose she was furnished with a copy of the Book of Evidence together with the statement grounding the applicant's application for leave for judicial review and the applicant's verifying affidavit.
    19.      Ms. Yoder has prepared a report which she has exhibited in her affidavit, which sets out her opinions derived from the interview and the findings and conclusions reached in connection therewith. To the extent that the report details the complainant's experiences she has obtained details of same from him and from the statements made by him to the Garda Síochána that appear in the Book of Evidence.
    20.      It appears that Ms. Yoder interviewed the applicant for one hour forty minutes. In her report she referred to the complainant's personal and social history. The complainant indicated that he had difficulty trusting authority figures in previous employment situations, in that he feels unable to allow another man to have control over him. He is now the managing director of a business owned by his brother. The complainant stated to Ms. Yoder that he is confused about his sexuality. In detailing the course of events that led him to make statements to the Gardaí the complainant stated that in 1998 he heard rumours about the applicant molesting boys in the school. He then telephoned the applicant who stated that the complainant was the only person that he had sex with.
    21.      The conclusions of Ms. Yoder indicate that as the complainant was denied the attention from his father that he hungered for, he was all the more vulnerable to the fatherly concern for which he mistook the attentions of his teacher, the applicant. She indicates that the progression from special attention including physical affection to outright favouritism , isolation from peers and gradually more sexual contact represents the classical paedophile "grooming" process.
    22.      Dealing with the effects of the alleged incidents on the complainant, Ms. Yoder states as follows:
    23.      With regard to the reasons for the delay in the complainant reporting the alleged incidents, Ms. Yoder states
    24.      In conclusion, in her report Ms. Yoder gives her view as to whether the delay in reporting was reasonable in the light of the complainant's individual circumstances. She expressed the view that the period between the occurrence of the alleged abuse and the complainant's statement to the Gardaí is relatively short compared to allegations of sexual abuse by others in her clinical experience. She states that one of the most basic psychological defences is to deny or repress material that is potentially damaging or overwhelming, or to minimise its impact on oneself. Ms. Yoder concluded that the complainant engaged in these coping mechanisms to try to move forward from these alleged assaults. She noted that he states that were it not for the phone call that he received inviting him to make a statement to the Gardaí he may never have reported the applicant. Since the applicant was a father figure to the complainant, giving him the time and attention that he needed, making him feel important and adult, it was all the more difficult to recognise the sexual encounters as abusive even though the complainant claims they were unwelcome and unwanted.
    25.      Ms. Yoder was cross-examined on her evidence. However, the complainant was not. Ms. Yoder indicated that she is employed by the East Coast Area Health Board as a clinical psychologist and maintains a private practice in addition.
    26.      Ms. Yoder was asked to provide a psychological report that addressed the long term and short term effects of the alleged incidents and to give her opinion regarding the delay. A psychological assessment can be limited as in the instant case or be wider to include an intelligence test, an IQ test, standardised personality inventory and possibly other psychometric tests, depending on the information sought.
    27.      The witness took what she was told by the complainant at face value. She did not consider it her job to decide whether or not everything she was told was true. She considered it her job to look at the psychological effects of the alleged incidents. She assumed that what the complainant told her was true. As the complainant did not wish his family to be interviewed Ms. Yoder did not seek the views of anyone else in an exercise of validating what was stated by the complainant. He wanted to avoid upset to his family in relation to the whole affair.
    28.      The witness was not aware of any psychiatric disorder affecting the complainant and besides asking him she did not carry out any tests to determine the existence or otherwise of any psychiatric condition.
    29.      The witness did not carry out any psychometric tests to see whether the complainant was malingering or telling lies. While best practice would be to interview somebody who knows the complainant, that is not always possible and was not possible in the instant case as the complainant did not want to involve his family. While the witness was not asked to conduct a comprehensive psychological report she conducted an assessment with a view to preparing a focused report as required of her.
    30.      The complainant had visited the Rape Crisis Centre and had spoken to a counsellor there for a relatively short period and as a result the witness concluded that he had not been involved in any long term ongoing counselling or therapy.
    31.      It was conceded by the witness that in assessing someone's psychological state and possible dysfunction that the psychological status of their siblings, parents, grandparents and others in their environment may be relevant. In this regard the witness enquired of the complainant in relation to his siblings. However, the witness considered it completely impractical in the instant case to carry out an assessment of the complainant's siblings. It was agreed by the witness that whether a person was inherently homosexual could be relevant to the failure or success of a relationship with a girl. The witness asked the complainant whether he was homosexual or not and asked him several questions. The witnesses established that the complainant had serious difficulties with regard to his sexuality.
    32.      The witness indicated that she did not write down everything said by the complainant as if one attempts to establish a rapport with somebody and try to write down everything they say it breaks the rapport.
    33.      The witness found that the complainant had been embarrassed and ashamed all along. The relationship between the complainant and the applicant was ambiguous. It is well documented in the literature that any relationship involving a differential of power that may include abuse is characterised by ambivalence. This is part and parcel of the complex psychological damage that occurs in these relationships and it accounts largely for why victims do not report sexual abuse.
    34.      With regard to the complainant lying, the witness indicated that she would consider it normal that he might lie to his parents about his sexual orientation.
    35.      The witness indicated that one has to get as much information as one can in a relatively short period of time in a psychological interview and piece the information together and try to form a clinical picture of the person. The witness understood that the complainant was gambling compulsively and had huge confusion surrounding his sexual orientation and indicated that lying is part of that picture.
    36.      The witness did not consider it to be absolutely necessary to explore what the complainant's current attitude to the alleged perpetrator was or his attitude at a time after the alleged abuse as she considered this to be a minor aspect. The witness indicated that if the complainant indicated that he was disgusted and confused and wanted to get away and there was some evidence to the contrary that this may part and parcel of the whole abuse picture as it is extremely common. She did not consider it necessary to go down this route in the clinical interview as she described it as a "red herring". In this regard she indicated that the complainant's current attitude to the applicant not to be something that she would explore in the interview unless the complainant brought it up or something else alerts her that it may be more relevant. The attitude of the complainant to the alleged perpetrator is no more relevant than his attitude to women or men in general or to the person he is currently in a relationship with.
    37.      She considered that the complainant's attitude to the applicant some four years after the alleged abuse is more relevant to therapy that an assessment. In this regard the witness drew an analogy with the victims of incest who may have an ongoing relationship with the perpetrator while still being able to express abhorrence with regard to the specific sexual behaviour that occurred. This is part of the ambivalence referred to by the witness.
    38.      The witness stated that she is always on enquiry in relation to the possibility that somebody is telling her lies, but she does not expect to be told lies and assumes that what she is told is the truth. If a 'red flag' went up she would act on it. She was aware that the complainant looked for money from the applicant.
    39.      Dealing with repression and denial the witness stated that these terms are frequently used interchangeably. By denial she meant pushing something out of your mind that is upsetting, saying it never happened or denying it to oneself. Like most coping mechanisms it only works some of the time. She described repression as pushing upsetting memories out of one's conscious awareness. This she understood the complainant to have done. The witness accepted the definition of repression as where an event is repressed and is not available to conscious recall, being locked away in the unconscious store of memory. The witness indicated that this was not a complete definition.
    40.      The witness indicated that while the complainant had sought to repress memories he had not entirely succeeded in this regard. With regard to denial she believed that he had attempted to engage in denial by pretending that nothing had happened but he had not succeeded. The fact that he had talked on occasions to others about his experiences indicated that he was not in denial at those times. He did attempt to pretend it never happened. Only extremely infrequently did he mention he experiences to others. The complainant mentioned it to a female friend in college who directed him to a gay and lesbian support group. The witness did not explore this matter due to time constraints. She felt that she could not investigate fully every single point that was brought up in the clinical interview. If she considered it sufficiently important she could have interviewed the complainant again. She did not consider this to be necessary. Ms. Yoder indicated that the interview process is extremely taxing for the person being interviewed and this fact coupled with the fact that she wished to gain as much relevant information as she could without undue distress to the person she was interviewing and without asking endless questions about every issue that comes up would have caused a very lengthy interview which the witness did not consider necessary. A further interview could have been arranged if necessary, but it was not necessary. There were no other relevant matters which the witness considered so relevant as requiring further investigation at the time.
    41.      At the time of the interview the witness did not have any questions in her mind as to the subjects credibility. She did not consider it her function to establish whether the witness was a credible witness.
    42.      The witness acted on the assumption that what she was being told by the subject was correct and on this basis she considered the delay in this case to be acceptable in the context of the reporting of alleged sexual abuse given the subject's individual circumstances.
    43.      While the witness did not have anyone else to interview in the context of the assessment of the complainant, she is used to conducting a psychological assessment where there isn't anyone else to interview and not having that advantage she did not consider that her report was flawed. The reality is that not always are all of the parties involved interviewed because it is impractical or it causes undue distress to the subject.
    44.      With regard to the subject's difficulty when he has a man in a position of authority over him, Ms. Yoder indicated that this is a commonly reported feature of people who claim sexual abuse - over an above what is seen in everyday life.
    45.      Under further cross-examination the witness conceded that she had been in error when she believed that she had previously seen letters referred to in questions put to her. She believed at the time that the letters were part of the Book of Evidence that she had read and in her nervousness she thought that she had read them but could not recall the full contents. In this regard she conceded that she was mistaken.
    46.      The witness further conceded under cross-examination that insofar as the complainant had engaged in conscious mechanisms to push material from his mind that this was the act of 'suppression' and not 'repression' which refers to a subconscious activity of the mind and that insofar as she had used the term 'repression' for the former activity that this was an incorrect use of the term.
    Submissions:
    47.      On behalf of the applicant submissions were made in relation to the delay and in particular to the effect that the delay complained of was such as to give rise to prejudice against the applicant in the preparation of his defence. In this regard it is submitted that there has been prosecutorial delay in bringing charges against the applicant in circumstances where 21 months passed from the time that the matter first came to the attention of the gardaí to the time when the applicant was charged.
    48.      It is further submitted that because of the delay on the part of the applicant coming forward and making a formal complaint to the gardaí that the applicant can rely on presumptive prejudice and no actual prejudice requires to be proved. It is stated that because of the lapse of time the evidence will essentially consist of the complainant's word as against that of the applicant. It is submitted that once the applicant has established prejudice presumptive or otherwise the onus lies on the prosecuting authorities to show that there is good reason why there has been delay on the part of the complainant. It is submitted that if the court finds specific prejudice that the court will be required to give the applicant the relief which he seeks.
    49.      Further it is submitted that there has been prosecutorial delay and counsel submits that the garda delay has not been adequately explained. It is submitted that the garda delay must be viewed in light of the background of the significant delay up to the point when the matter was first brought to the attention of the gardaí. It is submitted that where there has been prosecutorial delay that it is irrelevant whether the applicant has suffered prejudice as a result or otherwise.
    50.      In this regard reliance is placed upon the cases of B.F v. D.P.P. (Unreported, Supreme Court, 22 February 2001) together with the decisions of the High Court in the cases of A.W. v. D.P.P. (Unreported 23 November 2001 and K. v. D.P.P. (Unreported, High Court 6 April 2001)
    51.      It is further submitted that this court should not accept the explanation given by Ms. Yoder for the delay on the part of the complainant as it is submitted her examination was deficient. In particular counsel sought to rely upon the decision of McCracken J. in the case of M.F. v. D.P.P. (Unreported, High Court, 9 December 1997) in which the learned High Court judge stressed the importance of an expert witness ascertaining all the surrounding facts. In that case McCracken J. was critical of the expert who failed to address in his report allegations of continual rape and abuse by the father, elder brother and uncle of the complainants in circumstances where the applicant was another person outside of the family against whom complaints had been made. It appears from the judgment that the psychologist did not know of the allegations against the father and brother and was not told specifically about the uncle. He did not consider the fact that the complainants in that case had been abused by somebody else should form part of his report.
    52.      Further reliance was placed upon the decision of Kearns J., in the case of A.W. v. D.P.P. (supra) which involved the same expert as had been criticised by McCracken J. in the M.F. Case. In that case Kearns J. observed that nothing in the consultant's report provided any explanation or reliable evidence as to why one of the two complainants could not have come forward at an earlier stage to make her complaint while in the case of a second complainant she married a member of the Garda Síochána. In his conclusions in that case Kearns J. at page 31 of his judgment concluded that the expert " fell down to a significant degree" and "indeed to such an extent that matters put to him in cross-examination overshadow his entire report." In light of these authorities it is submitted that the assessment of the complainant in this case does not constitute a full, comprehensive and impartial assessment insofar as the evidence of Ms. Yoder indicates that she was asked simply to focus on a particular question and she describes her report as a "focussed" report rather than the result of a comprehensive assessment. It is further submitted that there were serious discrepancies in the assessment carried out by Ms. Yoder. In this regard it is submitted that she should have established what discussion took place between the complainant and the person from the Rape Crisis Centre to whom he spoke. It is pointed out that Ms. Yoder was unable to say when precisely the complainant went to the Rape Crisis Centre and whether he received counselling there. In this regard it is submitted that significant matters were not explored. Mr. Hartnett has referred this court to the judgment of Hardiman J. in the case of JOC v. Director of Public Prosecutions [2000] 3 I.R. 478 dealing with the role of psychological evidence and further to the judgment of McGuinness J. in the case of JL v. Director of Public Prosecutions [2000] 3 I.R. 122 similarly dealing with the nature of the psychological evidence in that case and the need for thoroughness in the investigation and in the psychological portion of it expressly in adopting the language of Hardiman J. at page 529 of his dissenting judgment in the JOC case.
    53.      Counsel relies upon the judgment of Kearns J. in the case of VD and JOF v. Director of Public Prosecutions (Unreported, High Court, 23 November 2001) in referring to the nature of the psychological assessment carried out in that case and contrast it with that in the instant case.
    54.      Counsel for the applicant complains that the psychologist in this case did not carry out any validation exercise, did not inquire into the relationship between the complainant and the applicant and was not furnished with letters sent by the complainant to the applicant. He submits that the assessment in this case was significantly flawed.
    55.      Reference is made to the depositions taken of the complainant and his father in the District Court to highlight what are stated to be discrepancies between them and to suggest uncertainty and vagueness on the part of the complainant.
    56.      On behalf of the respondent, Mr. Anthony Collins of counsel has placed reliance upon the decisions of the Supreme Court in the cases of PC v. Director of Public Prosecutions [1999] 2 IR 25 and JOC v. Director of Public Prosecutions (supra). In particular reliance is placed upon the observations of the Chief Justice in the latter case where at page 486 of the report he states as follows, having referred to the fact that the applicant's wife was dead and his state of health:
    "As for the possible absence of alibi evidence, this is a feature which arises in almost every case of this nature and is not specifically related to the time which may have elapsed since the offending conduct is alleged to have taken place. It must always be remembered that, in any event, these are all matters which can be drawn to the attention of the jury at the trial of the applicant."
    57.      With regard to directions from a trial judge, counsel referred to the decision of the Supreme Court in the case of People (Attorney General) v. Casey (No 2) [1963] I.R. 33 where at page 37 of the report Kingsmill-Moore J., in delivering the judgment of the court stated:
    "It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case and that particular types of warnings are necessary in particular types of cases."
    58.      Later at page 38 of the report, the judgment of the court continues as follows:
    "The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it."
    59.      Furthermore, counsel referred to an earlier portion of the judgment of the Chief Justice in the JOC case (supra) where at page 486 he stated:
    "It is undoubtedly the case that, in prosecutions of this nature, it is more difficult to conclude that the real and serious risk of an unfair trial can be avoided by directions to a jury designed to counteract any prejudice which the accused might otherwise suffer. That, however, of itself cannot be a reason for refusing (sic) [granting] an order of prohibition where, as here, it has not been established that there is real and serious risk of an unfair trial."
    With regard to the issue of prosecutorial delay, counsel contrasts the period in issue in this case, which was 18 months from the time of the taking of the formal statement of the complainant to the date of charging of the applicant, to the periods under review in the cases of P.P. v. Director of Public Prosecutions [2000] 1 IR 403 where a delay of 29 months was at issue and where the applicant was only interviewed some 14 months after the initial complaint and the case of A.W. v. Director of Public Prosecutions (supra) where a prosecutorial delay of 27 months existed. In the instant case the delay complained of is explained by D/Gda. Trennier and it is clear from the report of the psychologist that no complaint might have been made to the gardaí if they had not made contact with the complainant.
    60.      With regard to the delay on the part of the complainant in coming forward and making a complaint counsel stresses that the complainant has not been cross-examined on his affidavit and that Ms. Yoder did address the complainant's history in her assessment. It is submitted that this court must take into account the complainant's evidence and unlike the position in the case of VD and JOF v. D.P.P. where the complainants' evidence was contested and they were cross examined, the evidence of the complainant has not been controverted in this case insofar as it deals with the factors of delay. Counsel postulates the question does the evidence put forward by the respondent in this case render explicable the failure of the applicant to come forward at an earlier stage with his complaint?
    61.      With regard to the criticism of Ms. Yoder on the basis that she did not carry out certain tests, it is submitted that the report clearly outlines the role of the psychologist in this case and there had been no concealment on her part. The psychologist did not consider the various tests to be necessary in this case and she gives an explanation as to why she did not interview others. Her report indicates the documents which she had in her possession and it is clear that she did not have the letters referred to in cross-examination of her. With regard to the suggestion of suppressed memory syndrome, it is submitted that if the complainant had disclosed some form of repressed memory syndrome or disclosed the abuse in a counselling context that there may be some force in the submissions made on behalf of the applicant, but it is submitted that no such basis exists in this case. There is not evidence of recovered memory or matters buried in the consciousness. Counsel stresses the fact that the applicant first disclosed the abuse to the welfare officer in his university. There is no evidence of the applicant having received counselling or treatment before first making the disclosure. On this basis it is submitted that there is no basis in this case for the criticism of the psychologist in failing to consider the applicant's involvement with the Rape Crisis Centre.
    62.      With regard to a history of lying on the part of the applicant, the only reference is to be found in the letters which were not furnished to the psychologist and in respect of which the complainant himself was not cross-examined. The complainant has disclosed his problems in his own affidavit and these are noted in the report of Ms. Yoder. While the psychologist had conceded that she could have done some things better it is submitted that this is not a basis upon which her evidence should be rejected. Notwithstanding her concessions in this regard she stands over the conclusions in her report.
    63.      It is submitted that the applicant has not shown any actual prejudice other than the 9 or 10 year delay in reporting the offences in this case. It is submitted that the affidavit of the applicant and his statements to the gardaí do not disclose any difficulty in recall. He prepared a statement which he furnished to the gardaí. While there are matters which the applicant contests in his affidavit, this is not in itself a basis for restraining a prosecution. It is submitted that there is a considerable level of detail in the applicant's affidavit and statement which suggests no difficulty beyond the norm in relation to events alleged to have taken place 9 years previously. At the same time it is submitted that the applicant's admissions in regard to his relationship with the complainant must be considered in this case.
    Conclusions:
    64.      There has been a period of delay of some significance in this case amounting to some 10 to 13 years before the complainant made his complaint to the gardaí. This is clearly of a lesser period than many cases of this kind coming before the court. The case made by the applicant, on whom the onus of proof lies, that there is a real and substantial risk that he will be deprived of a fair trial if the prosecution against him is permitted to proceed, is essentially one of generalised prejudice relating to not having available particular recollections of day to day events. This case is typically one where the trial will largely depend on the credibility of the evidence of the complainant which may be seen against the denials of the applicant. The offences are alleged to have taken place in private, albeit many in the context of the school which was attended by the complainant and in which the applicant taught.
    65.      While the depositions of the complainant are characterised by some vagueness, this again is not untypical in cases such as this. However, the fact that the complainant may not be believed, or his evidence may be such that notwithstanding same the jury trying the case may not be satisfied beyond all reasonable doubt as to the guilt of the applicant, is not a factor upon which this court can conclude that the proposed trial of the applicant is one that necessarily will be unfair and be otherwise that in accordance with law. Cases such as this result in directions being given by trial judges to ensure that the trials are fair and that the jury properly understand their role.
    66.      With regard to the psychological evidence put forward on behalf of the respondent, it has to be seen in the context where it is the only psychological evidence tendered before this court and while it is largely dependant upon an assumption that what the complainant told Ms. Yoder is true, it must be observed that the complainant himself who has sworn an affidavit in these proceedings has not been cross examined in relation to same and this affidavit essentially covers the factual matters which were addressed to the psychologist and presumed by her to be true. In light of the fact that the complainant's evidence in this case has not been controverted, this court cannot proceed otherwise that on a similar assumption that what he has said is true, insofar as the court is asked to assess the explanation given for the complainant's delay in coming forward to make the complaint in this case. In this regard the court is mindful of the approach adopted by the Supreme Court in the case of P.C. v. Director of Public Prosecutions [1999] 2 IR 25 where the Supreme Court in the judgments of Keane J. (as he then was) and Lynch J. indicated how the court would approach the matter in light of the presumption of innocence that pertains to an accused. In the same case Denham J. observed that the trial of charges of this type in the circumstances of delay is in fact a trial of the credibility of the witnesses and that the delay is damaging to both parties. She observed : " It is the very nature of childhood abuse which prevents early complaint. It is the mental effect of childhood sexual abuse which causes the delay. Thus the delay is not the fault of the complainant but in fact the fault of the applicant in that it is a consequence of the alleged wrongful actions. This renders the delay reasonable on behalf of the complainant."
    67.      In the same case, Keane J. observed that the fact that the offence charged is of a sexual nature is not of itself a factor which would justify a court in disregarding the delay, however inordinate, and allowing the trial to proceed. He said that in certain cases of alleged unlawful carnal knowledge where the complainant is a girl under the age of consent, the alleged perpetrator may himself be a child. He continued, at page 67 of the report:
    "There are cases, however, of which this is one, where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she sees as wrongdoing."
    68.      Further at the same page of the report Keane J. observed:
    " The delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her e.g. as parent, stepparent, teacher or religious. In such cases dominion by the alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred."
    69.      Keane J. indicated that the court must not disregard the presumption of innocence to which an accused person is entitled. He stated the issue to be addressed in applications such as this as follows:
    "The issue in every such case is whether the court is satisfied as a matter of probability that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution."
    70.      He added that all the circumstances of the particular case must be considered before that issue is resolved. He later added:
    " The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired. In other cases, the first inquiry must be as to what are the 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."
    71.      Keane J. then indicated the test to follow if that stage has been reached.
    "[T]he 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 inquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption of the truth of the complaint, in 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."
    72.      In the same case Lynch J. indicated that one must first look at the circumstances from the applicant's point of view and on the assumption that the applicant is innocent of the charges preferred against him.
    73.      He proceeded as follows at page 78 of the report:
    "On that assumption the court should consider to what extent delay or other circumstances may create difficulties for the applicant in defending himself over and above what would be the normal difficulties to be expected in meeting charges such as those preferred against the applicant in this case. If the court finds that there are such added difficulties, then the court should consider the case on the assumption that what the complainant says is true and, if so, who has really caused the added difficulties for the defence. On that assumption if it appears that it is really the applicant who is responsible for the circumstances giving rise to the added difficulties then the applicant cannot validly complain of these difficulties in the proceedings and the prohibition should be refused."
    74.      Applying the tests propounded by the Supreme Court to the instant case, I believe that some difficulty results both for the prosecution and defence as a result of the delay complained of. However, assuming what is stated by the complainant to be true and noting that he has not been cross-examined on his affidavit, and noting the observations made by the psychologist based upon the complaints made by the complainant, I am satisfied that the delay on the part of the complainant is explained and is referable to the applicant's own actions.
    75.      In the first place the complainant was a young boy at the time of the initial activity alleged and the applicant was not only an adult some twenty years or so older than the complainant at the time, but he was also a teacher of the complainant and was in a position of trust and of whom the complainant states was a "father figure". The complainant has deposed to the difficulties he faced as a result of the abuse and indicates that he sought to suppress the memories of the abuse thinking they would recede and go away. He indicates his mistake in this regard and the damage it was causing to him. It is clear that it was only in college in 1997 that he first disclosed the abuse and it was to the student officer, about 6 months before he was contacted by the gardaí and some 7 or 8 months before he made initial statement to the gardaí.
    76.      I believe that the complainant's affidavit alone explains the delay in this case and that it is added to by the evidence of Ms. Yoder, whose evidence I accept, notwithstanding the limitations of the exercise carried out by her and the confusion on her part in regard to whether she had seen a letter allegedly written by the complainant and with regard to the use of the word "repression" when she intended to refer to suppression, in circumstances where the complainant says that the tried to suppress the incidents. In having an opportunity of hearing Ms. Yoder under cross-examination and having regard to her demeanour I believe that the conclusions reached by her are correct and that the delay in the instant case on the part of the complainant is to be categorised as reasonable.
    77.      In reaching the conclusion that the delay has been explained and is reasonable, it is now necessary to consider whether in all the circumstances it is now possible for the applicant to get a fair trial and whether the applicant's ability to defend himself has been impaired to such a degree that the trial should not be allowed to proceed.
    78.      With regard to the alleged delay on the part of the Gardaí, this court has considered the contents of the affidavit of Detective Garda Trenier and concludes that there has not been any undue delay in the criminal investigation leading to the charges being preferred against the applicant. In fact some of the period in question is accounted for by the fact that the applicant undertook to furnish a statement to the Gardaí in August 1998 but did not do so until three months thereafter.
    79.      I believe that in all the circumstances that the applicant has failed to establish this to be the case. I believe that even had the complaints been made at a stage some 3 or four years earlier that the essential difficulties of which the applicant complains would in all probability be present. In these circumstances I am satisfied that the applicant has not demonstrated that there exists a degree of prejudice such as to give rise to a real and serious risk of an unfair trial. I accordingly refuse this application.

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