THE HIGH COURT
                                                      (JUDICIAL REVIEW)
	
	                                                          JUDICIAL REVIEW NO. 8 OF 1994 

BETWEEN
P. D.
		APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS 
		RESPONDENT
AND THE PRESIDING JUDGE OF THE CORK CIRCUIT CRIMINAL COURT
		NOTICE PARTY

Judgment of  McCracken J. delivered the 19th day of  March, 1997.

	On 22nd December, 1993 the Applicant was sent forward for trial to the Cork Circuit Criminal Court in respect of nine charges of indecent assault alleged to have been committed between 8th April, 1979 and 3rd Setember, 1986.  The persons alleged to have been indecently assaulted were sisters-in-law of the Applicant, being younger sisters of the Applicant's wife, and in this judgment I shall refer to them as F. and J.  Eight of these charges alleged that the Applicant committed the offence on an indeterminate date between two dates a year apart, in all such cases at the Applicant's home.  The ninth case related to a specific incident on a specific date in J.'s home.  The offences in relation to J. are alleged to have taken place when she was aged between eight and thirteen years, and in relation to F. when she was between twelve and fourteen years old.
	In his grounding affidavit the Applicant avers that he is innocent of the charges, and further avers, and in this is supported by an affidavit from his wife and from his solicitor, that because of the delay in bringing the charges:-

(a)	He is unable properly to reconstruct with any credible degree of precision the circumstances of his whereabouts and conduct at the relevant time.
(b)	He is unable to identify any witness who may have material evidence concerning his presence or conduct at the relevant time.
(c)	He is unable to identify any alibi witness or to indicate, pursuant to Section 20 of the Criminal Justice Act, 1984, the parameters of any evidence which they might be in a position to give.
(d)	He has been unable to provide any material or credible instructions sufficient for his legal advisers to mount a defence to the allegations made against him.
(e)	That the allegations made against him are so broad, and cover such an extensive period of time, and are lacking in any satisfactory precision, and are of such antiquity that he is not in a position properly to prepare a defence to the allegations.

	I have also been furnished with a statement made by J. to the Garda Siochana on 9th November, 1992, an undated statement given by F. to the Garda Siochana, and affidavits from both J. and F.  These detail regular and persistent sexual abuse over a lengthy period at the Applicant's house, and also in J's case on one specific occasion during a party for her parents twenty-fifth wedding anniversary in her parents' house.  In her affidavit J. swears:-

"My delay in reporting the matter of the abuse relates to the fact that at the time of the abuse complained of I remember feeling very confused and was afraid to tell anyone in case they did not believe me.  I was also afraid that my sister, the Applicant's wife, would blame me and would never talk to me again.  I did however try to tell one of my sisters M. but this girl misunderstood me, thinking I was describing physical rather than sexual abuse.  When fifteen years of age I told a friend of the abuse but again this friend confided in me that she was also sexually abused but took these cases no further.  I further informed a priest while on a school retreat but nothing came of the disclosure". 

She also says, in the affidavit  which was sworn on 9th May, 1996:-

"From about the age of fourteen until about three and a half years ago I tried not to think about the abuse and avoided television programmes and reading about abuse in the newspapers." 

	In her affidavit F. swears:-       

	"As a result of the abuse perpetrated against me this deponent by the Applicant I was so frightened and hated it that I sought to blot it out of my mind.  I largely succeeded in blotting it out of  my mind.  I was frightened at the time of the abuse that my sister C. (the Applicant's wife) would find out about same.  I did not want to hurt her or my parents at the time and all I wanted to do at the time was forget everything and block it out."                                                              
                                                                                                        
	Finally, I have been furnished with an affidavit from a Counsellor in the Cork Rape Crisis Centre and from a Consultant Psychiatrist.  These relate to the position of J. alone, but they confirm that J.'s attitude and her failure to report the abuses are understandable, and represent a common and normal reaction of persons who have been abused in this way.                                                                                                    
	   Finally, in her statement to the Gardai, J. said that the reason she ultimately reported the abuse was that she was worried in case the Applicant was abusing his own children.  It should also be noted that none of the deponents were cross-examined on their affidavits.
	A number of authorities were opened to me, including the unreported judgment of Budd J. in B. v. Director of Public Prosecutions delivered  on 9th October, 1995.  At the time of hearing the present case I was informed that an appeal against that decision had been heard by the Supreme Court, and that judgment was awaited, and I accordingly reserve judgment in the present case pending the Supreme Court decision, which has now been given on 19th February, 1997.  That case involved delays going back to 1963, and in her very careful judgment Denham J. considers the earlier authorities, and the rights of both parties.
	There is, of course, a principle, derived from Articles 38.1 and 40.3 of  the Constitution, that, in the words of Finlay C.J. in State (O'Connell) v. Fawsitt (1986) I.R. 362:-

	"A person charged with a criminal offence is entitled, as part of his right to be tried in the due course of law, to a trial with reasonable expedition."     

	It has, however, also been recognised in a number of cases that assaults, and particularly sexual assaults, on children form a special category when considering what is reasonable expedition.  See for example G. v. D.P.P. (1994) 1 I.R. 374.  The crux of the matter seems to me to be the question of whether the expedition with which a case is brought trial, or lack of it, is reasonable in the circumstances of any particular case.  In considering this, Denham J. in B. v. Director of Public Prosecutions  at page 8 of the judgment said:-

	"It is not these interests only which have to be considered.  It is necessary to balance B.'s right to reasonable expedition in the prosecution of the offences with the community's right to have criminal offences prosecuted.  The community's right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process.  If there is a real risk that B. would not receive a fair trial then on the balance of these constitutional rights B.'s right would prevail....

	The test is whether there is a real risk that B. by reason of the delay would not obtain a fair trial, that the trial would be unfair as a consequence of the delay.  The test must be applied in light of the circumstances of the case and the law".

	While that case concerned an allegation of sexual abuse by children against their father, and therefore concerned a relationship which was closer than the present one, and was decided on the basis of findings of fact that the applicant exercised a dominion over the children, even after they became adults, nevertheless I think the same principle can be applied to the present case.  It is quite clear that the Applicant here exercised a form of dominion over J. and F., in that they obviously had a close relationship with their elder sister, the Applicant's wife, and were afraid that this relationship would come to an end if they made any complaints, and this fear was instilled into them by the Applicant.  This is an additional factor to the natural reticence of most abused children to tell anyone of the abuse, and the natural tendency to try and block it out of their minds.  I am also influenced in the present case by the fact that on the evidence before me, neither J. nor F. were aware that the other was abused until 1992, shortly before they reported the matter to the Gardai.  I am also influenced by the fact that J. did try several times during her teenage years to tell people, but failed to get any real response.  In my view, therefore, assuming that the Applicant is guilty, the delay on the part of J. and F. in reporting the abuses is perfectly reasonable and understandable.
	I must, however, also look at the other side of the coin, and indeed I must not assume for the purpose of this judgment that the Applicant is guilty.  He has sworn that he is innocent, and I must consider whether he will get a fair trial wherein he may assert that innocence.  
	The Applicant complains that eight of the nine charges against him are so vague as to make it very difficult for him to defend them.  However, he is not seeking to set aside the charges on that basis, and I think by implication accepts that the Respondent is entitled to lay charges in this form, but he does make the case that the indeterminate nature of the charges are such as to make it much more difficult to defend them many years later.  He also complains that it will now be extremely difficult for him to find any witnesses or to produce any alibi.  I cannot see that the delay has placed the Applicant in any worse position in this regard.  The charges relate to offences which were alleged to have taken place in the Applicant's own house at a time when only he and the child were present, and it is quite clear, particularly from J.'s statement, that the allegations are that the abuse took place on a large number of occasions over a long period.  Even if the Applicant had been charged in 1986, which appears to have been the time of the latest allegation, the Applicant would have faced these difficulties.  Furthermore, while the Applicant may not be in a position to produce alibi evidence, it is quite clear that his wife will support him, and presumably will give evidence on his behalf.  
	The onus is on the Applicant to show that there is a real risk that he will not be able to have a fair trial, and in my view he has not discharged that onus.  It must be remembered that at the trial, the onus will be the other way around, and will be on the Respondent to prove beyond all reasonable doubt that these offences took place.  The lapse of time may indeed prejudice the Respondent just as much as the Applicant.  In any event, it will of course be the duty of the trial judge to warn the jury of any possible prejudice to the Applicant due to the passage of time, and to direct them that that is a matter they must take into account in assessing the evidence of the respective witnesses.  I have no doubt that the

trial judge will do so, and in my view he will be in a position to ensure that the Applicant gets a fair trial.  
	Accordingly, I would dismiss this application.