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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'D. (J) v. D.P.P [2004] IEHC 85 (2 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/85.html Cite as: [2004] IEHC 85

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THE HIGH COURT
JUDICIAL REVIEW

[2001 No. 501 J.R.]

BETWEEN

J. O'D.

APPLICANT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice O'Higgins delivered the 2^nd day of April 2004

On 8^th May, 2000, the applicant was sent forward for trial on a total of 32 counts of offences of assault of a sexual nature against seven different individuals. The assaults were alleged to have been committed on different dates between 1975 and 1989. All of the offences are alleged to have been committed in or about the area in Co. Donegal where the applicant resides. The applicant is now aged fifty-four and at the time of the offences alleged he was between twenty-six and forty-one years of age. The complainants were aged between seven and fifteen years at the time of the assaults alleged. The following is a schedule of the offences alleged:

(1) AW – Born 1971 – aged 11 in 1982 – 1 count indecent assault.

(2) AMO - Born 1967 – aged 8 in 1975 - 1 count indecent assault

(3) DG - Born 1977 – aged 10 – 11 in 1987/1988 - 2 counts indecent assault

(4) SG - Born 1974 – aged 7 in 1981 - 1 count indecent assault

(5) AD - Born 1970 – aged 7 – 10 in 1977/1980 - 3 counts indecent assault

(6) JOD - Born 1974 – aged 14 – 15 1988/1989 - 16 counts indecent assault

2 counts assault with intent

to commit buggery.

(7) DOD - Born 1972 – aged 9 – 13 in 1981 – 1985 - 5 counts indecent assault

1 count assault with intent to

commit buggery.

At the outset of these proceedings counsel for the respondent indicated that it was not intended to proceed with any counts in relation to DOD.

On the 23^rd July, 2001, Butler J. granted leave to apply by way of application for judicial review to the applicant therein. The relief sought in the originating notice of motion and in the light of the order made of 23^rd July, 2001, may be summarised as follows:

I. A declaration that the delay in the institution of criminal proceedings charging the applicant herein with the charges set forth in indictment entitled "Bill No DL0032/2001 The People at the suit of the Director of Public Prosecutions v JOD", which said offences were alleged to have occurred on dates unknown between the 1^st September, 1975 and the 3^rd September, 1989 and which are presently pending before the Circuit Criminal Court has irreparably prejudiced the prospect of the applicant herein obtaining a fair trial and is in breach of the applicant's right to a trial in due course of law and to a trial with reasonable expedition.

II. A declaration that the failure on the part of the prosecuting authorities to institute criminal proceedings earlier than the 12^th day of October, 2000, in circumstances where the Gardaí had been on notice of the alleged offences concerning one or more of the complainants including DG since the summer of 1989 is in breach of the applicant's right to a trial with due expedition and to a fair trial.

III. An order preventing the respondent from taking any further steps in the criminal prosecution of the applicant.

IV. An injunction restraining the respondent from taking any further steps in the prosecution of the applicant.

V. Further and other relief.

The grounds on which the relief was sought were to the effect that the delay:

i. Violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution.

ii. Violated the applicant's right to a trial on serious charges with reasonable expedition.

iii. Prejudiced the applicant in the defence of these proceedings.

iv. Created a real risk that the applicant would be denied a fair trial or would be subjected to an unfair trial.

v. Irreparably prejudiced the applicant in being able to identify and contact witnesses who might be of relevance to matters at issue in the case.

vi. Allowed the applicant to believe that he would not be prosecuted in respect of allegations by one or more of the complainants including DG.

The Law

In this case it is accepted by the respondent that the delay is prima facie inordinate,

1. That being so, it is incumbent on the respondent to show that the delay from the time of the offence alleged to the initiation of proceedings was explicable in all the circumstances.

"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, step-parent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and the degree of trust on the part of the child may be more readily inferred. This is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled. But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. 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. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved" per Keane J. (as he then was) in P.C. v. Director of Public Prosecutions [1999] 2 IR 25 at p. 67.

2. "Explicable in all the circumstances" does not merely mean reasonable. The explanation must be substantially connected with the actions of the applicant. The reason for this and the rationale behind the provision for the explanations of otherwise inordinate delay is that the applicant should not be allowed benefit by reason of a delay which was brought about by the actions alleged against him:

"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."

per Finlay C.J. in G v Director of Public Prosecutions [1994] 1 I.R. 374 at p. 380.

3. For the purposes of ascertaining whether delay is explicable in all the circumstances – and for those purposes only – the court proceeds on the basis that the allegations are true.

4. If the delay is explicable in the sense set out above, the court will proceed to enquire as to 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 . . .

"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"

per Keane J. (as he then was) in PC v Director of Public Prosecutions [1999] 2 IR 25 at p. 68.

If there is such a risk, the right of the applicant to a fair trial is jeopardised and the proceedings will be halted.

As was pointed out by Denham J. in D v Director of Public Prosecutions [1994] 2 I.R. 465 the applicant's right to a fair trial would necessarily outweigh the community's right to prosecute.

5. "If the delay is not attributable to the actions of the applicant, nonetheless the delay may be such that depending on the nature of the charges the 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"

per Keane J. in PC v Director of Public Prosecutions [1999] 2 IR 25, at p. 67.

6. If the case is not one where the circumstances are such as to give rise to a presumption that even in the absence of specific prejudice his capacity to defend himself would necessarily have been impaired the court has another matter to resolve. In those circumstances there remains the question

"As to whether the inarguable violation of the constitutional right of the applicant to a reasonably expeditious trial was of such a nature as to necessitate the prohibition of a trial at this stage" P.M. v Malone [2002] 2 IR 560 at pp. 580/581.

"The essential issue for resolution is, accordingly as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage . . .where . . . the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side there is the public interest in the prosecution and conviction of those guilty of criminal offences," per Keane C.J. P.M. v Malone [2002] 2 I.R. at p. 581.

Prosecutorial delay

The following is the sequence of events:

1. On the 7^th April, 1998, the father of one of the complainants approached Garda Dooley alleging that his son had been sexually assaulted by the applicant.

2. On the 10^th April Garda Dooley met the complainant by appointment. He interviewed him and kept a note of the interview in which the complainant alleged that he was sexually assaulted by the applicant herein. He signed a note of the interview but informed Garda Dooley that he was not yet ready to make a written statement of complaint. He agreed to contact Garda Dooley when he was ready to do so.

3. On the 25^th September, 1998, AW contacted Garda Dooley and informed him that he was now ready to make a statement. A statement of complaint was made on the 29^th September, 1998.

4. On 26^th October Garda Dooley took statements from AW's wife and from his father. At the time he was involved in two further investigations of sexual abuse against minors unrelated to the present allegations.

5. In January, 1999 he made Garda Burke aware of the complainant and at that time he was in the process of typing up the complaint. In about February he forwarded the statements to Sgt. Burke. Sgt. Burke commenced his investigations at that stage.

6. On 12^th March, 1999, Sgt. Burke took a statement from KO, a sister of one of the complainants herein, in which KO alleged that she had been sexually assaulted by the applicant. On the 14^th March he took a written statement from EO, a sister of KO, in which he alleged that she had been assaulted also. On the same day, the 14^th March, he took a statement in which AMO alleged she had been assaulted by the applicant in 1975. To the best of his knowledge and belief this was the first occasion on which these complaints had come to the attention of An Garda Síochána. On the 18^th March he took a written statement from DG in which he made a number of allegations of sexual assault concerning the applicant.

7. On the 17^th of April he took a written statement from one ND. In April he requested and was given permission to search the applicant's home and workshop. This search was carried out by members of the Garda Síochána including Sgt. Burke on the 27^th April, 1999. On the same date the applicant was arrested and detained under the provisions of s. 4 of the Criminal Justice Act, 1994. He was interviewed and made a cautioned statement. Arising from this statement a further written statement was made from AMO on the 5^th June, 1999. On the 6^th June, 1999 Sgt. Burke took statements from AD and SG in which they alleged they were both victims of indecent assault by the applicant. On the 13^th of June Garda P. Crehan took a statement from DOD in which he made complaints of sexual assault against the applicant. On the 14^th October, 1999 Sgt. Burke took a written statement from JOD. This was the first occasion on which the Garda were made aware of his complaint.

8. In November, 1999, the investigation file was completed and forwarded to the district office for onward transmission to the director of public prosecutions. In January, 2000, additional statements were requested and they were forwarded to the director of public prosecutions in February, 2000.

9. On July 23^rd directions in respect of charges to be preferred were received and on the 27^th July clarification was sought in relation to those directions. On the 1^st August a reply was received in respect of the clarification. There was no sitting of the court in August and the sitting of the court in September is merely the annual licensing court and also the first sitting after a number of festivals in the area. The applicant was then charged on the 10^th October, 2000. The applicant was returned for trial in May, 2001.

In relation to prosecutorial delay Mr. Devally relies on the dictum of Geoghegan J. in B.F. v DPP [2001] 1 I. R. at p. 656, where he stated as follows:

"I take the view that where there is culpable delay on the part of the State authorities, then having regard to all the circumstance of the case, the delay itself may entitle the accused to an order preventing the trial, irrespective of whether there is actual or presumed prejudice",

and he relies on another passage of Geoghegan J. in P.P. v DPP [2000] 1 IR 403 where he stated, at p. 409:

"It is not acceptable and, in my view is, a breach of the defendant's rights under Article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this, involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate, but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the prosecuting authorities. I am using the expression 'prosecuting authorities' to cover the Director of Public Prosecutions and An Garda Síochána . . . the whole investigation appears to me to have been conducted in a lackadaisical and slovenly fashion".

Counsel also relies on a passage in Toal v Duignan and others (No 2) [1991] I.L.R.M. 135, at p. 143 where it was indicated that the court was of the view that the jurisdiction to strike out a claim for delay permitted the court to consider:

"the length of time which has elapsed between the event out of which it, the claim arises, and the time when it comes for hearing".

The applicant also relies on a passage in the Supreme Court decision in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459 where Hamilton C.J. cited Diplock L J. in the case of Brickett v James [1978] A.C. 297 with approval, at p. 469 stating:

"a late start makes it more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had started sooner inexcusable in light of the time that has already passed before the writ is issued".

Although that passage applied to civil proceedings Mr. Devally submits that it has relevance in the present case and I accept that submission.

In my view there was no undue delay in the prosecution of the present case; once the Garda authorities had been notified and complaints had been made, the prosecution was not responsible for any improper or excessive delay. This was a difficult and a sensitive enquiry involving interviewing a large number of witnesses in quite difficult circumstances. There are no less than seven complainants involved. In the circumstances I do not think that any blame attaches to the Garda authorities or to the officials in the office of the Director of Public Prosecution in their advancing the case. I do not accept the submission of Mr. Devally that in the case of A.W. the time runs from 10^th April, 1988, the date when the complaint was made informally, rather than the end of September, 1998, when the written complaint was made. (see the observations of Gannon J. in O'Flynn v Clifford [1988] I.R. 740 at p. 745 (see page 39 infroa.)

Non-prosecutorial delay

In this case it is appropriate to review the evidence in respect of each complainant seriatim.

There are, however, certain features common to all cases. In all cases the children were under 15 at the time (with the exception of JOD who was fifteen during part of the period in which he alleges he was assaulted). The assaults are alleged to have taken place in a small close knit rural community. Dominion in the sense referred to in the case law was not a feature, in that the applicant was not a person in authority over the complainants, although in the case of A.M.O. he was a babysitter.

(1) A.W. The complainant was born on the 2^nd June, 1971, and claims to have been assaulted in the autumn of 1982, when he was eleven years of age. In his affidavit he states he was indecently assaulted by the applicant when in a caravan. He was ordered to take off all his clothes and sit on a double bed. The applicant started rubbing his body in the area of his chest and legs and then he started rubbing his penis and testicles with his hands. He was told to lie across the bed on his stomach, facing the wall and he felt the applicant place his body between his legs. Following that assault, A.W. says that the applicant took photographs of him just before the applicant drove him home and just before he got out of the applicant's van, the applicant told A.W. not to tell anyone about what happened in the caravan. In his affidavit, the deponent says he was more ashamed than afraid to tell his parents or anyone else about what the applicant had done to him. When he came to know the full facts of life he realised that what the applicant had done to him was wrong. He then felt even more guilty which had the effect of preventing him telling anyone about what happened. He met his wife in 1987, and he told her about the abuse in 1993, but he told nobody else thereafter. Despite this, he was constantly thinking about what the applicant had done to him, particularly since local and national news items began to appear regarding sexual abuse and paedophilia. The appearance of these items was the subject of conversations, which had the effect of dragging up the abuse he had suffered in his own mind. Nevertheless, he felt so embarrassed, ashamed and frightened at the possible reaction if he were to disclose the abuse that he made no disclosure to the Gardaí until 1998.

A.W. said that his wife heard from his brother about rumours that the applicant had committed sexual offences and on hearing this she burst into tears and told the deponent's brother what he had mentioned to her.

"On returning home from work that evening my wife told me of her conversation with my brother. I then summoned up the courage to tell my father, which I did the same evening."

He was interviewed by the Gardaí on the 10^th April, 1998, but he was unable to go through with making a formal complaint to An Garda Síochána. On the 25^th September, of the same year he contacted Garda D. by telephone and told him he was now ready to make a statement, which he did some days later.

Ms Ruth Yoder, a clinical psychologist, met and assessed A.W. on the 29^th January, 2002, and compiled a report on the 30^th January, 2002. The purpose of her report was to address the effect of the alleged incident upon A.W. and the other reasons for the delay in reporting the alleged incident, and say whether the delay was reasonable in the light of A.W.'s individual circumstances. She interviewed A.W. and his wife on one occasion for an hour. She had possession of the Book of Evidence. In her report she details the short and long term affects of the abuse alleged as follows:

Dissociation: She found evidence of dissociation, which she described as a coping mechanism commonly reported following significant trauma in which the victim splits or dissociates from the traumatic situation from which there is no actual or perceived escape. She noted that A.W. reports frequently feeling distanced from his physical surroundings and the people present. His wife also told Ms. Yoder that she frequently observed him in a withdrawn state, apparently unaware of his surroundings.

Anxiety: She noted that this complainant reported experiencing anxiety attacks two or three times a month, waking up suddenly from sleep in a sweat, feeling extremely agitated and upset. He reported to her that this occurred every second night around the time of the period that he gave his statement to the Gardaí. His wife reports that those anxiety attacks were sufficiently alarming to waken her also.

Depression: A.W. reported that he frequently experienced a very low mood with confusion and lack of concentration when he "cannot think right". He could not sleep and had a poor appetite. He reported bouts of crying, especially around the time of the Garda statement. During the interview with the psychologist, both Mr. and Mrs. W. became tearful as they spoke about the negative impact the disclosure of the alleged sexual assault had on Mr. W.'s parents and siblings.

Flashbacks: Mr. W. stated that he experienced intrusive, unexpected and unwanted sensory memories of the alleged incident which had increased in frequency over the last four years.

Hypervigilance: Mr. W. described how he frequently experienced extreme discomfort when a man was in close physical proximity. This discomfort was more severe when he was changing in the shower rooms in a sporting facility where all the men were naked.

Self-blame, shame and guilt: Mr. W. reported believing that he must have brought the alleged sexual assault upon himself, and experienced extreme shame and guilt. The report noted furthermore that Mr. W. did not report the alleged assault until 1998 because of the shame, guilt and self-blame which he felt.

Ms. Yoder's opinion was that the delay in reporting the alleged incident was reasonable in light of his individual circumstances for the following reasons:

"Mr. W. projects an introverted unassuming and differential (sic) personality, unlikely to initiate activity, a follower rather than a leader, who lived under the shadow and protection of his father. . . Apart from nine months in Galway, he has never lived outside of the close proximity and support of the extended family system. He described his upbringing as one in which co-operation in carrying out requests of others was good manners and expected behaviour, and this is why he felt unable to oppose [the applicant's] alleged sexual assault."

In the opinion of Ms. Yoder, it would have been out of character for Mr. W. to initiate reporting of the alleged assault without the long period of preparation by heightened local and media exposure of sexual offences, as well as the support and direction of his immediate family.

The reasons given by this complainant for the delay in reporting, namely feelings of guilt, shame, and embarrassment, are matters that are attributable to the actions of the applicant (assuming, as I must for the purpose of this application, that these allegations are true). It appears from this affidavit that his difficulty in reporting the matter to the gardaí continued even after his first interview with the gardaí. The psychologist's findings in her report are consistent with the explanation given by the applicant.

In my view the respondent has satisfied the court that the delay is explicable by reference to the actions of the applicant.

(2) A.M.O. was born on the 24^th August, 1967. Her allegations are contained in two statements exhibited in her affidavit sworn 18^th December, 2002, and the contents of which she deposes to be true and accurate. She complains of one indecent assault which she alleges took place in 1975 when she was about eight years of age. She alleges that prior to Christmas of 1975 the applicant was a babysitter. She describes in her statement his asking her to take off her vest, which she eventually did. She thinks she took off her underpants and that she was sitting on the couch beside him. He started feeling her between her legs in the vagina. He put his fingers inside of her. He brought her into her parent's bedroom and made her lie down on her back. He took out his penis and told her to spread her legs when he lay on top of her and put his penis in her vagina. The applicant deals with the delay in paragraphs four, five and six of her affidavit as follows:

"(4) After the incident described the applicant was told that if I told anyone about what had happened he would return and kill my parents. I was afraid to tell anyone about what the applicant had done to me. I also attempted to black out the incident from my mind. When I was about sixteen years of age, I told my brother P. When I was seventeen years old, I told my mother about the abuse. She told two of her sisters and my grandmother about what I had said. My aunt E then confronted the applicant, who denied anything had happened. My mother and my aunts refused to believe me. My mother also told me that nothing could then be done about the abuse. My grandmother stated that I should say nothing because of the shame that it would bring on the family. I was also afraid to bring the matter to my father's attention since I believed that he would kill the applicant and end up in prison.

(5) On completion of my secondary education I moved to London, where I trained as a nurse. I felt I would not be believed if I was to report what the applicant had done to me so I did no more about it.

(6) The reason I did not report the matter was that I was led to believe by my mother that there was nothing I could do about it and to report it would have brought shame on the family name. As I have previously stated I was about sixteen when I became aware of what JOD had done to me and I became a wild child with no self-esteem and little or no self-confidence. I had been in the United States working and when at home on a visit in March 1998, as my grandmother was ill, I first discussed the matter with my cousins . . . Following my return in October of 1998 to reside in Ireland I again discussed the matter with my cousins. After this I made up my mind that I was going to report the matter and did so in March 1999 to Sgt. G. Burke, who I was aware was investigating complaints against JOD."

Ms. Yoder the psychologist interviewed this complainant on 21^st January, 2002 for an hour, and separately interviewed her husband for approximately twenty minutes. She describes the short and long terms effect as being

a) Hyper-vigilance.

b) Sexual risk taking

c) Flash backs

d) Shame guilt and self blame

e) Defensiveness

f) Lack of confidence.

a) Hyper-vigilance - She stated that she had intense fear in reaction to sudden noise for several years following the alleged incident believing it was the applicant coming to kill her parents as he had allegedly threatened.

b) Sexual risk taking - She reported having no self respect for several years as a young adult, engaging in self destructive behaviour in relation to alcohol abuse and sexual intercourse with men whom she hardly knew.

c) Flashbacks – She reported experiencing unpleasant intrusive sensory memories of the alleged abuse, in particular vivid images of the applicant's hands. She reported experiencing flashbacks of the alleged sexual abuse during intercourse for about six years after she first became sexually active.

d) Shame, Guilt and Self-Blame – She stated that she believed for many years that she must have brought the alleged sexual abuse upon herself and is still extremely embarrassed over the alleged incident. Her guilt is being exacerbated by her family's negative reactions to the alleged abuse, in that they have expressed sympathy for the applicant's relatives rather than the complainant.

e) Defensiveness – The complainant's husband reports that his wife is excessively defensive of children in the hospital where she works who have been sexually abused. She has to be in control and she is afraid that anyone would see a weakness in her.

f) Lack of confidence – This complainant reported struggling to believe that she had any significant self worth.

The complainant told the psychologist that she told about the sexual abuse when she was seventeen years old that her mother then told two aunts and her grandmother and that one of her aunts confronted the applicant and he denied the allegations. The complainant reported that her mother and aunt then branded her a liar and she concluded no one would believe her. Furthermore her grandmother told her not to tell anyone because of the shame it would bring on the family name. She also reported believing that if she told her father about the alleged abuse he would kill the applicant and would then be sent to prison. She also reports that at the age of seventeen her mother told her that it was too late and nothing could be done about the allegations at that stage. Ms. Yoder was of the opinion that the delay in reporting the alleged offences was reasonable.

The matters described in the report of Ms. Yoder are all consistent with the veracity of the complainant's allegations. That, however, is not the issue for this court to decide. The issue here is whether the delay is explicable in terms of the applicant's conduct (on the assumption that the allegations are true). Hyper-vigilance which lasted several years, sexual risk taking, defensiveness and lack of confidence have not in themselves been advanced as reasons in this case for the delay. Indeed it is hard to see how those matters (other than lack of confidence) could be so advanced. However they are background factors relating to the person of the complainant and may throw light on the reasons for the delay.

The failure of the mother of the applicant to believe her, the fact that her grandmother told her not to tell anyone because of the shame it would bring on the family name, her belief that her father would kill the applicant and be sent to prison if the applicant told him about the abuse, and the fact that her mother told her when she was seventeen years old that it was too late and that nothing could be done about the allegations at that stage, are all understandable reasons for not making a complaint. They are not however, in my view, matters which make the delay attributable to the actions of the applicant and which render the delay explicable in that context.

The assault alleged of a very young child by a babysitter was one of the utmost gravity. It is alleged that it was accompanied by threats to kill the complainant's parents. The complainant was understandably afraid. She deposes that she tried to black out the matter from her mind. This is hardly surprising and provides an explanation for not talking about the incident for many years. The applicant however told her cousin when she was sixteen and her mother were when she was seventeen. Her reasons for not reporting the matter after she had told her mother because her mother led her to believe that there was nothing she could do about it and furthermore her grandmother told her not to tell anyone because of the shame it would bring on the family name.

It is clear that as Denham J. observed in P.C. v. Director of Public Prosecutions [1999] 2 IR 25, at p. 64:

"Our knowledge of the extent and dynamics of child sexual abuse is of very recent origin and is growing".

It is also true to say that the human psyche is complex. It is difficult, and perhaps even unwise, to over-compartmentalise the working of the human mind. However, the reasons advanced by the complainant for the delay in reporting are not explicable by reference to the actions of the applicant and their effects on the complainant (assuming her allegations to be correct), but by virtue of family concerns and representations made by her mother that she would not be believed.

Shame, guilt, and self-blame, however, are matters which are attributable to the actions of the applicant. The fact that the complainant is still extremely embarrassed about the incident is a factor to be taken into consideration. The court accepts also that a misplaced sense of guilt is a factor to be taken into account. The fact that that guilt is exacerbated by the actions of the family of the complainant does not mean that the feelings of guilt are not due to the actions of the applicant. It is not necessarily true that the complainant herself would know all the reasons for the delay in making the complaint. The fact that she herself did not advance either embarrassment or self-blame as reasons for the delay in making the complaint is not necessarily conclusive evidence that such were not factors in the delay. It is, however, significant.

Ms. Yoder's report ends:

"Given Ms. O's individual and family circumstances (disbelief and lack of support) it is my opinion that the delay in reporting the alleged offences was reasonable".

It would appear that she is attributing the delay to the effect of disbelief and family support on the personality of this complainant. I am not satisfied that the delay was due to self-blame or embarrassment to any substantial extent. That being so, in my view the respondent had failed to discharge the onus cast on her by the length of delay to show that the delay is explicable in terms of the actions of the applicant, at least from about the time when she told her mother at the age of seventeen. The period of delay not explicable in terms of the conduct of the applicant from in or about 1984 until 1999, a period of approximately 15 years.

(3) DG complains of indecent assault on two occasions in 1997 and 1998 when he was ten/eleven years of age having been born on the 6^th July, 1977. The allegations of assault are set out in an exhibit to his affidavit sworn 22^nd October 2002. The applicant knew the complainant's parents and used to baby-sit for them. The applicants workshop was almost beside where the complainant lived. In the summer of 1987 when he was about 10 years old he visited the applicant's work shop to help him to move something. He was accosted by the applicant. He alleges that the applicant caught him by the arms and opened the complainant's trousers. The complainant started screaming and shouting and the applicant opened his own trousers. He pushed the complainant to the ground, pulled the complainant's trousers around his ankles, dropped his own trousers and underpants, and put his penis between the complainants legs below his knees, and started rubbing up against him until he ejaculated. The complainant says that the applicant warned him not to tell anybody because if he did he (the applicant) would get into terrible trouble and so would the complainant. He told him not to tell his parents or friends. The applicant would not allow him to leave the workshop until he promised not to tell. On the occasion of the second alleged assault he was sent to the applicant's workshop by his mother. The plaintiff showed him some dirty magazines and told him to look at the magazines. He told him to take his trousers off. The applicant took off the complainant's trousers and underpants. He opened his own trousers and dropped them along with his underpants around his ankles. He came up behind the complainant and started rubbing himself against his buttocks. He tried to force his penis inside the complainant. After the incident he warned the complainant not to tell anybody. The respondent requested a report from Ms. Yoder the clinical psychologist but no such report has been furnished to the court.

In his affidavit sworn 22^nd October 2002 the complainant deals with the circumstances of the delay in paragraphs 3, 4, 5 and 6 of his affidavit as follows:-

(3) After each of these assaults, the applicant warned me not to tell anyone, including my parents and friends, about what had occurred. Some weeks after the second assault, the applicant attempted to pull down my trousers on two other occasions.

I refused to humour him and told him I would tell if he tried to do anything. Although he remained a friend of my parents, I sought to avoid the applicant insofar as was possible. I told no-one about either the assaults or the subsequent attempts to repeat his behaviour.

(4) Some time in the summer of 1989 my friend ND told me that the applicant had interfered with him. I did not tell him that I had been interfered with. Some days later my mother had heard about ND. She come into my room one morning and asked had "Wee J" tried anything with me. I said yes. We both started crying and she gave me a hug. She asked me to visit a counsellor in the hospital in Dungloe. She accompanied me on the first visit. Afterwards I returned on three or four occasions. I told him some of what happened but I did not tell him everything since I thought it was my fault. Nor did I discuss the matter in any detail with my mother, either at the time or prior to making my statement in March 1999.

(5) I was approached by Sgt. Gerard Burke who informed me that he was investigating complaints of sexual assault against JOD and he was of the opinion that I was a victim of such assaults and it was then that I made a statement.

(6) Prior to making my statement in March 1999 to Sgt. Gerard P. Burke, I had never disclosed what exactly the applicant did to me on the occasions described therein. I was ashamed as to what had occurred and felt that I was somehow to blame. It was only at the time I was finally able to make a statement that I realise I was not to blame in anyway (sic) for what happened on those occasions."

This affidavit is unsupported by the opinion of a psychologist. However the contents of the affidavit have not been challenged. In my view there is no requirement that evidence of a psychologist or other professional be furnished to the court in all applications such as the present one. The explanation provided in the affidavit and in paragraph 6 in particular is in my view a reasonable explanation for the delay in reporting the matter to the gardaí in all the circumstances. Assuming the allegations to be correct, the explanation furnished is attributable to the actions of the applicant. The respondent therefore has discharged his obligation to show that the delay in reporting is attributable to the actions of the applicant and furnish an acceptable explanation for the delay.

(4) SG: This complainant was born on the 23^rd January 1974. He alleges that in the summer of 1981 when he was about 7 years of age he was indecently assaulted by the applicant in a caravan. The detailed allegations are set out in the statement of the complainant. It is alleged that the applicant started by feeling his chest muscles down to his stomach muscles. He started to undo the complainant's trousers and he threatened the child. He proceeded to undo his own trousers and started to fondle the complainant's penis for about 10 minutes and started to masturbate him. This complainant's mother furnished an affidavit in which she says that she went to the Garda Station in 1981 to report the incident and when asked if she wanted to make a formal complaint and have the matter investigated she told the garda officer that she did not wish to make a formal complaint and all that she wanted done was that the applicant be given "a damn good fright". She says that the reason she did not make a formal complaint was that her son was quite young at the time. Moreover her family, her husband's family and applicant's family knew each other and had grown up together. In those circumstances she did not want to create any difficulties for them in the local community at the time. Ms. Yoder a clinical psychologist assessed S.G. on 8^th February 2002. In her report she states that this applicant had told her that the alleged abuse had no lasting damaging effects on him, however, that he felt intense anger and aggressive feelings towards Mr. OD as a teenager, and that he often shouted threats to him as he passed by.

This applicant swore an affidavit on the 19^th November 2002, paragraphs 3 and 4 of which are relevant to the matter of delay.

(3) "After the incident described in my statement had taken place, the applicant told me not to tell anyone about what had occurred since it was natural and was what grown men to. He also drove me to the golf club on Cruit Island and told me that he would buy me a new set of golf clubs if I said nothing about what happened. Later that same evening, I told my mother that 'Wee J' as he was known, had been playing with my 'dickie'. I never went near the applicant again, for fear of what might happen.

(4) For a number of years thereafter I thought no more about the assault. It was only when I began to mature that I realised what had happened to me and it made me feel sick. Once I realised the nature of the assault I felt too embarrassed and ashamed to report it. To my embarrassment and shame were added the fact that my father was related to the applicant, like all persons from Owey Island. It would have been too upsetting for all concerned, including my father, to have reported the incident to An Garda Síochána. I would probably never have reported the assault but for the fact that I was approached to make a statement by Gerard Burke".

It is noteworthy that this complainant in his own affidavit does not mention that he thought it would be fruitless to make a complaint. The reason for the delay given by the complainant is embarrassment and shame coupled with family considerations. Family considerations - however understandable and reasonable - do not of themselves constitute the type of explanation necessary to explain the delay. They are, however, relevant in assessing the embarrassment deposed to by the applicants. That embarrassment and shame which were the primary reasons for delay in reporting the abuse were caused by the actions of the applicant (on the assumption that the allegations are true). In my view the complainant has furnished an explanation which adequately explains his delay in complaining to the gardaí. The respondent has discharged the onus on him to justify what would otherwise be inordinate delay in respect of the complainant.

(5) AD – this complainant alleges three indecent assaults over the period of 1977 – 1980 during which period she was between 7 and 10 years old. The applicant lived next door to the complainant's grandmother. She said that after the summer of 1977 and before the summer of 1978 she was on an errand to the applicant's house with her brother. The applicant requested both of them to take off their clothes and proceeded to fondle both of them. The applicant said that he put his penis in her mouth and raped her. She said that some three weeks thereafter the applicant raped her again and that this occurred on three or four more occasions thereafter. She says in November 1980 the applicant indecently assaulted her.

Her explanation for the delay is given in paragraphs 4 and 5 of her affidavit as follows:

(4) "When I was about 11 years of age my mother explained the facts of life to me. It was only afterwards I realised what the applicant had done to me. I was ashamed and embarrassed about what had occurred. I didn't tell anyone else since I thought it was my fault and I wouldn't have been believed. The first person I told about the assault was ----- --------- since she disclosed to me she had had similar experiences with the applicant. When I was about fifteen years old I started drinking and I became pregnant at sixteen years. I felt that the assaults caused me to behave in such a wild fashion. As I became older I felt less embarrassed about the assault but continued to be reluctant to come forward in that I felt my parents would have to become involved. They would have found it difficult to deal with these allegations in the light of all they had been through and so I thought it unfair to put that additional burden on them.

(5) I disclosed the assaults to my husband prior to our marriage but neither he nor I suggested that I report the matter to An Garda Síochána. Subsequently I was approached by Sgt. G. Burke of Burtonport Garda Station and interviewed in relation to the alleged assaults made by J O'D . It was only after a number of visits from Sgt. Burke that I made a statement of complaint".

Ms. Yoder the clinical psychologist assessed this complainant on 22^nd February, 2002, and prepared a report dated 25^th February, 2002, which is exhibited in her affidavit. She gives the reasons for the delay in reporting as follows:

"Ms D stated that she did not report the alleged assaults to the Gardaí until about two and a half to three years ago, because she believed her parents had endured severe and prolonged suffering following the disappearance of her twin sister. As there was never any resolution to the child's disappearance, there still had be no emotional closure on the issue. Ms. D stated that she felt reporting the alleged sexual assaults would necessitate the involvement of her parents and cause more suffering then she believed they could bear. In addition, Ms. D reports that her embarrassment, shame, guilt and self blame also inhibited her from reporting".

Her conclusion was

"given Ms. D's individual and tragic family circumstances my opinion that the delay in reporting the alleged offences was reasonable".

The primary reason for the delay in this case was due to a very understandable desire on the part of the applicant not to subject her parents to further suffering as they had already had tragedy in their lives. This however is not an appropriate reason in legal terms. It is in no way attributable to the effect of the conduct of the applicant on the complainant. The complainant told the physiologist that embarrassment shame guilt and self blame also inhibited her from reporting the matter to the gardaí. In her own affidavit however the complainant states that as she got older she became less embarrassed and she attributed her reluctance to come forward to the gardaí to concerns about her parents. The other matters reported to Ms. Yoder are of secondary importance although they were real factors contributing to the delay. Those matters i.e. embarrassment, shame, guilt and self-blame, are attributable to the actions of the applicant if the allegations are correct.

Although those factors alone could well be sufficient in themselves to explain the delay in some cases, the respondent has not satisfied the court on the balance of probabilities that in the facts of the present case as outlined the delay is explicable by reason of the actions of the applicant and their effects on the complainant, rather than the understandable concern to spare her parents further suffering.

Although in the present case concerns for the family were not the only reason for the delay in making the complaint, in my view those concerns were clearly the main reason and the other matters were of very much less importance in the decision.

In this context it is worth noting that in the case of PM v. Malone [2002] 2 IR 560, at p. 577, Keane C.J. said

"The sole ground advanced for deferring the complaint until 1998 was the complainant's concern that it might cause problems with the family. That is not an appropriate ground for delaying the applicant his right to a reasonably expeditious trial".

(6) JOD: This complainant complains of fourteen indecent assaults between 1988 and 1990. He was fourteen or fifteen at the time. The applicant was known to his family and called in about once a month at about the time this complainant was twelve or thirteen years old. Between June 1988 and May 1990 this complainant alleges that he was abused at least on a fortnightly basis by the applicant, and over a period of about 2 years.

The abuse alleged consisted of the applicant fondling the complainants penis with his hands and allegations that the applicant would lie on top of the complainant and put his penis between his legs close to his back passage and he would move on top of him until he ejaculated. There are also allegations that the applicant performed oral sex on the complainant on numerous occasions and allegations of assault with intent to commit buggery. He deals with the delay in paragraphs 3 and 4 of his affidavits sworn on 4^th November, 2002 as follows:

(3) "During the entire of this period of time I told no one about the abuse I was suffering at the applicant's hands. I could not handle it. I felt I was to blame and that I would not be believed if I were to make a complaint. The abuse stopped only when he left Belcruit to work in Clare in 1990. When I returned to Belcruit in November of that year. I worked for the applicant for a number of months, but can say that he made no approaches towards me during that time.

(4) I did not report this matter earlier as I tried to get my life in order. I also moved away from the area, settled down and got married. In the course of another investigation by the Gardaí into allegations of sexual abuse of minors I was interviewed as part of that investigation and as a result of this charges were proffered (sic) against another individual in respect of assaults on me, among others. My wife was unaware of the abuse suffered by me. As a result of this investigation reopening old wounds I turned to alcohol for solace. This resulted in the break-up of my marriage. I did not report the incidents in respect of the applicant as I felt that I had suffered enough and it was only when approached by Sgt. Burke, in the course of his investigation into the allegations made against the applicant, that I decided to make a written complaint".

Although it appears that the respondent requested Ms. Yoder the psychologist to examine this complaint, it seems that no such examination took place. The only evidence in relation to the delay is that furnished in the affidavit of the complainant himself. He has not been cross examined on this and the explanation furnished by him is not contradicted. However, Mr. Devally for the applicant points out that it appears from his affidavit that there were sexual assaults by other persons on this complainant investigated by the Gardaí and there is no evidence before the court dealing with the effects of those assaults on the complainant.

The failure of a psychologist to deal with such matters was the subject matter of judicial criticism in other cases. In M.F. v. The Director of Public Prosecutions (unreported, 5^th December, 1997, McCracken, J.) a psychologist did not mention in his report other abuse which the complainants had suffered (which were not the subject matter of the application in respect of which the examination took place) McCracken, J. said

"I cannot accept that the background of those complainants was not relevant and consequently I would give very little weight to the evidence of the psychologist".

In the case of J.O'C. v. D.P.P. [2000] 3 I.R. 479, at page 529, Hardiman, J. referred to the judgment of McCracken, J. as highlighting:

"One such background matter which is clearly relevant: past sexual abuse other than by the applicant".

In my view since the evidence of the complainant in this case has been un- contradicted and untested in cross examination, I am entitled to conclude that the reason for his failure to disclose as set out in his affidavits furnishes a satisfactory explanation for the delay in reporting. Furthermore, (assuming it to be true) the matters are directly attributable to the conduct of the applicant. The respondent has therefore succeeded in explaining the delay by reference to the actions of the applicant in this case.

(7) D.O'D: as has already been mentioned this respondent has indicated that he does nor intend to proceed with any charges in respect of this complainant. No affidavit has been furnished by the complainant not has a psychologist's report been furnished. In these circumstances the court does not have to consider the charges in respect of this complainant any further.

In the case of A.W., D.G., S.G, and J. O'D., I have concluded that the delays were explicable by reference to the effect of the actions alleged on each of those complainants; that being so it is not open to the applicant to procure advantage by virtue of the delay for which he was responsible. In those cases the delay was

"Explicable and ultimately the result of the applicant's own actions"

to adopt the words of Keane J. (as he then was in) P.C. v Director of Public Prosecutions [1999] 2 IR 25 However, in these cases having established the foregoing it is necessary to conduct a further enquiry. The question now arises as to whether the applicant has proved on the balance of probabilities that there is a real and serious risk that he will not obtain a fair trial by reason of the delay. There is no doubt that the delay is very substantial in terms of years. In the case of A.W. he was born in 1971, aged 11 at the date of the offences, and complained to the Guards in 1999. In the case of D.G. he was born in 1977, was 10/11 in 1987/1988, and made a statement in 1999. S.G. was born in 1974, was aged 7 in 1981 and complained to the Gardaí in 1999 (delay of eighteen years). J.O'D was born in 1974 was 14/15 in 1988/1989/1990 at the time of the alleged offences. The delay was therefore nine years.

I am not satisfied that in the circumstances of the present case

"The degree to which the accused's ability to defend himself or herself has been impaired is such that the trial should not be allowed to proceed",

to use the words of Keane C.J. in P.O'C. v. D.P.P. [2000] 3 I.R. 87, at p. 94. The applicant has not referred to any factor to support such proposition.

The court has not been referred to any factor caused by reason of the delay that could disadvantage him in his defence. He does not assert that he is prejudiced by reason of non availability of potential witnesses, nor does he alleged the loss of potential evidence and his solicitor merely avers that because of the lapse of time he is in a less favourable position to test and evaluate the evidence without being more specific. He does not even aver that his memory is impaired. In those circumstances – the applicant has not shown any specific prejudice. He has not discharged the onus of showing that there is a real risk that he will not obtain a fair trial.

In the case of the complainants A.W., D.G., S.G. and J.O.D. therefore, the court will refuse the relief sought.

The delay in the case of AMO and AD do not fall within the special category of cases where the delay is explicable because of the accused's own conduct. The delay was not explicable in terms of dominion nor was it explained by terms of the effects of the actions of the accused. Therefore it appears to me that the constitutional right of the applicant to trial within reasonable time has been breached. There remains the question as to whether the violation was of such a nature as to necessitate the prohibition of the trial. In P.C. v DPP [1999] 2 IR 25 Keane J. (as he then was) at p. 68 stated:

"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 PM v Malone [2202] 2 I.R. 560 the same judge at p. 581 stated of that case:

"Nor can it be said that, in the circumstances of this case, it is to be automatically presumed that, even in the absence of specific prejudice to him his capacity to defend himself would necessarily have been impaired".

It is difficult to define all the circumstances of the offence in which it is to be automatically presumed that even in the absence of specific prejudice a person's capacity to defend himself would necessarily have been impaired. This presumption has not in my view been fulfilled by the mere passage of time, lengthy though it is. The applicant has not pointed to any other circumstances which would tend to support such presumption in either the cases of A.M.O. or the case of A.D. In this regard I am entitled to have regard that the applicant in his statement to the gardaí purports to deal with the allegations in some detail. While in both the cases of A.M.O. and A.D. the alleged admissions could constitute the crime of indecent assault, they differ from the allegation and it would therefore not be appropriate to take them into account as being admissions. The making of the statement by the applicant in which the allegations are dealt with in some detail contra-indicates a finding of presumptive prejudice. Accordingly these cases do not fall into the category of cases to be prohibited on the basic of a presumption of prejudice. He has not shown any real risk of an unfair trial.

The duty of the court in those circumstances is set out in the following passage in the judgment of Keane J. in P.M. v Malone [2002] 2 I.R. 56, at p. 581:

"The essential question for resolution is accordingly as to whether the stress and anxiety caused to the applicant is a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage".

He goes on to say:

"if this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there was a real a substantial risk of an unfair trial, then as pointed out by Denham J. in D v DPP [1994] 2 I.R. 465 the applicant's right to a fair trial would necessarily outweigh the community's right to prosecute".

Where, as here, the violation of the right has not jeopardised the right to a fair trial but has caused unnecessary stress and anxiety to the applicant the court must engage in a balancing process. On one side of the scales there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay; on the other side there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases the court will necessarily be concerned with the nature of the offence and the extent of the delay. In engaging in this balancing process referred to, the court must balance the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay on one side against the public interest in the prosecution and convicting of those guilty of criminal offences on the other side. In all such cases the court will necessarily be concerned with the nature of the offence and the gravity and extent of delay. In this regard it is incumbent on the court to deal with each of the complainants separately.

Mr. Devally referred to a passage from the judgment of Keane C.J. in the case of Barry v The Director of Public Prosecution and ors. (Unreported, Supreme Court, 17^th December, 2003), at p. 18:

"The delay from the events alleged to have occurred and which were the subject matter of the complaints in this case was in many instances such that, applying the principles laid down in B v DPP and subsequent cases, the applicant would be entitled to an order restraining the continuance of the prosecution unless it was established as a matter of probability that the delay was explicable and excusable in the particular circumstances of the case".

He points out that the passage makes no reference to the necessity of a balancing exercise. Although that is undoubtedly true, it does not alter my view that in circumstances where (a) the right of the applicants to have a trial with reasonable expedition has been breached, (b) there has been no finding of specific prejudice amounting to a real risk of an unfair trial (c) the nature and circumstances of the case are not such that it may be presumed that even in the absence of specific prejudice his capacity to defend himself would necessarily be impaired (see P.M. v Malone [2003] 2 I.R. 560 at p 581), the court should embark on a balancing exercise.

The allegation of AMO is in fact one of an eight year old child being raped by a babysitter, although the admissions of the applicant are to the lesser offence of indecent assault. It had serious repercussions on the life of the applicant as set out in the report of the psychologist already referred to. In assessing the stress and anxiety, I consider that it is appropriate to take into account the fact that the applicant is facing other charges of a similar nature. In my view, therefore, the stress and unnecessary anxiety caused by the delay has to be assessed as the additional amount of stress and anxiety caused by the delay in this particular proceedings.

In balancing the effects of the violation of the right of the applicant to have a trial with reasonable expedition, I have to consider the length of the delay, the reason for the delay and the anxiety and concern caused to the applicant by reason of the excessive delay. (I have already found that the applicant has not demonstrated any specific prejudice to be present in this case).

The delay in the case of AMO was about 25 years, which even by the standards of these type of cases is a very long time. Although I have concluded that in respect of this applicant the primary reasons for the delay were not attributable to the actions of the defendant after the time when the complainant was approximately seventeen years old, the applicant was responsible for the delay up to that time. Thus the period of delay for which the applicant is not responsible is in the region of 15 years, still a considerable time. There is nothing to suggest that the applicant can be held to have waived his right to speedy trial from the time when the complainant was about seventeen years old.

In cases where neither actual nor presumptive prejudice [has been demonstrated] the court must have regard to other interests which the right to trial with reasonable expedition was designed to protect, namely the avoidance of excessive pre trial incarceration and the avoidance of any necessary anxiety concern. In the present case the question of excessive pre-trial incarceration does not arise. The question of avoiding unnecessary stress, anxiety and concern is easier to assess in cases of prosecutorial delay then in cases such as the present one. In cases of pre charge delay the fact that the applicant may have been interviewed about the matter long time prior to charging could be a relevant factor. In this case the complaint was made in March, 1999. There is no evidence to suggest that the applicant was interviewed in connection with this matter prior to that time. Moreover any unnecessary anxiety must be taken in terms of the extra stress and anxiety referable to this charge. It would be unrealistic to ignore the fact that the applicant is facing other charges of a similar nature. Balancing all those factors it seems to me that having regard to the extreme gravity of the offence and taking all other factors, into account, the rights of the community to prosecute must outweigh the violation of the rights of the applicant which were violated.

The complaints of AD are one that the applicant sexually fondled her and she also complains that he put his penis into her mouth and raped her on a number of occasions in the years 1977 – 1980 when she was between seven and ten years old. These are allegations of the utmost gravity. The admission contained in the Book of Evidence are to different and lesser sexual abuse. The psychological effects of those assaults are set out again in the report of Ruth Yoder exhibited in her affidavit that she continues to suffer from flashbacks and lack of confidence and low self-esteem. She has also suffered in the past from sexual risk taking, alcohol abuse and a sense of shame. It would be difficult to ascribe the default in reporting the matter other than to being substantially due to the actions of the applicant at least until the time when AD was perhaps her late teens. Although it is difficult to state at what time she would have been able to make a complaint – because she felt ashamed and embarrassed, furthermore she thought it was her fault and she would not be believed. The relevant period of time therefore in this case also is approximately fourteen or fifteen years the plaintiff (this complainant was born in 1970). In this case also it appears to me that the interest of society in having the crime prosecuted outweighs the extra stress and anxiety caused to the applicant by virtue of the delay in reporting in this particular case.

In light of the findings above, and despite the breach of the applicant's right to a trial with reasonable expedition, I refuse the relief sought in respect of AMO and AD.

Other Matters:

There are other matters on which the applicant relies. They are as follows:

1. An incident in 1981 referred to in the affidavit of Mrs. AG. She says that in 1981 she went to Dungloe Garda station to report an incident involving her son and the applicant. At the Garda station she was asked if she wanted to make a formal complaint and have the matter investigated as it was a serious allegation. She told the Garda officer she was speaking to she did not wish to make a formal complaint and that all that she wanted done was that the applicant be given "a damn good fright". She did not make any formal complaint as her son was quite young at the time. In addition her family, her husband's family and the applicants family were from the same island and would have known each other. Also her family had just returned to the area and she did not want to create difficulties for her family within the local community. The applicant complains that there is no record of this available to him and that he is therefore potentially embarrassed in his defence regarding to charges in relation to SG in 1981.

2. The applicant says that in about 1989 he was approached by the gardaí in Dungloe and was cautioned in relation to allegations made against him by certain people including one of the complainants, SG. No prosecutions or action was brought against him subsequently and he was of the view that after such a significant lapse of time that no such prosecution or action would be brought. In these proceedings, however the applicant has not pursued any suggestion that there was an implied promise that he would not be prosecuted. Mr Devally, however, on behalf of the applicant, suggests that in 1989 following such a complaint the applicant should have been given a chance to account for himself. In his affidavit Sgt. Burke says that no complaint was made by SG to the Garda Síochána prior to June 6^th, 1999. It is difficult to see how the applicant could have been cautioned in relation to any allegation made by Mr. G. He points out that in the affidavit made by the solicitor for the applicant he relies on the statement from Mrs. MG that appears in the book of evidence to establish that his client was approached in 1989 in relation to allegations the subject matter of these charges. Sgt. Burke says

"I would simply observe that the only matter that was brought to the attention of An Garda Síochána at that time was the incident involving MD which as then reported did not involve any allegation of criminal misconduct".

Mr. Devally argues that the fact that the matter was brought to the attention of the Gardaí in 1987 meant that they had a duty to investigate it and that the prosecutorial delay arises as and from that time. I cannot accept this submission. If, as was the case, there was a refusal to make a formal complaint, the Gardaí could not be faulted for not investigating the matter.

In this context the observations of Gannon J. in O'Flynn v Clifford, [1988] I.R. 740 at p. 45 are opposite

"A person who is a mere suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor to have some legal process diligently or expeditiously pursued, by arrest or by summons to bring him before a court. The public interest and good sense require that every crime be properly investigated and that the offender be expeditiously brought to justice. But the public interest also requires diligence and conscientious care in the investigation of crime, and the assembling and presentation for cogent evidence in support of a prosecution. It is no part of the function of the courts to participate either in the investigation of criminal offences or in the supervisory direction of those engaged in that work. The courts must remain detached and independent in relation to all matters antecedent to the laying of a charge against a person of a criminal offence".

No record remains, if one ever existed, concerning the complaints of the mother of this complainant on foot of which she wished the applicant to be given a 'damn good fright'. As is clear from her affidavit dated 16^th February, 2004, there was no formal complaint on which to base a garda investigation. That might be regrettable but it does not avail the applicant. If there was a duty on the gardaí to keep that informal transaction in writing – and if there was breach of that duty, the court is not satisfied that the applicant is prejudiced by such a failure.

Mr. Devally on behalf of the applicant also complains about lack of disclosure, relying on the affidavit of his solicitor. However this court is not concerned with the disclosure in the court of trial, although it has been informed that some type of order was made. In these proceedings there has been no motion for discovery. In those circumstances the applicant cannot be heard to complain of lack of disclosure.