C. (P.) v. D.P.P. [2002] IEHC 44 (22 February 2002)

THE HIGH COURT
2000/116 JR

Between
P. C.
APPLICANT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT delivered the 22nd day of February, 2002 by O’Neill J.
	On the 13th day of March, 2000 O’Higgins J. gave leave to the Applicant to apply by way of judicial review for:-
(i)	An order seeking leave to apply for judicial review by way of prohibition for an order prohibiting the respondent from taking any further steps in the bringing of a prosecution against the Applicant in respect of the charges set out upon the statement of charges dated the 16th day of November, 1999, the District Court, District Court area of Dublin Metropolitan, charge sheets Nos. 1056 - 1060 of 1969, bearing the title Director of Public Prosecutions and P.C., Accused being five charges of offences contrary to Section 62 of the Offences against the Person Act, 1861, the offences referred to on charge sheet nos. 1056 - 1060 of 1999 prepared at a Garda Station in Dublin.
	The Applicant obtained leave upon the grounds set out at paragraph (d)(i) of his statement grounding the application for judicial review.  The nature of the complaint made by the Applicant is that as a result of the delay between the committing of the alleged offences some time between 1971 and 1973 and the ultimate prosecution of these offences some twenty-seven years later, that the Applicant is generally and specifically prejudiced by that delay, in that he cannot now locate all the necessary witnesses to his whereabouts during the years 1971 - 1973, and that two of his work colleagues from the shop, the location to which four of the five allegations relate have now died, and that by reason of all of this the Applicant contends that his ability to challenge the allegations now made against him is severely impaired.   He further complains that he has been unable to acquire all the necessary documentary evidence as to his activities in the years in question so as to corroborate his defence to these allegations and he says that the only defence that is now available to him is a bare denial on oath of the charges which cannot now be properly supported or corroborated because of the inordinate delay.   In consequence of all of this he contends that the further prosecution of these charges would constitute of a breach of his right to a trial in due course of law contrary to the requirements of Article 38.1 of Bunreacht na hÉireann.  
	In his affidavit the Applicant sets out a history of the matter.   The charges relate to offences alleged to have been committed by him against one named complainant.   The Applicant was questioned by the Gardaí in connection with the complaint made by this named person and was interviewed on the 17th April, 1997.  He was arrested on the 23rd June, 1999 in relation to these alleged offences.  The nature of the allegation made against the Applicant is that while he managed a shop in the City of Dublin, between the 1st January 1971 and the 31st December, 1973 and that while he ran a club during the same period at a location unknown within the State, that he indecently assaulted a young boy who worked in the shop and was also a member of the club.  The Applicant vehemently denies these charges.
	The criminal proceedings came before the District Court sitting in the Dublin Metropolitan area on the 23rd June, 1999.  The charges related to five offences contrary to Section 62 of the Offences against the Person Act, 1861.  The Applicant was remanded on his own bail on the 23rd June, 1999.  The case was adjourned to the 14th July, 1999 and then until the 19th October, 1999, and on the 16th November, 1999 the Book of Evidence was served on the Applicant.  The Applicant was sent forward for trial to the Circuit Court and was due to be arraigned on the 17th February, 2000.   The matter was adjourned on that date to the 16th of March, 2000.   These judicial review proceedings were then commenced, leave being granted by the order of O’Higgins J. on the 13th March, 2000, and as part of his order all further proceedings in the prosecution were stayed pending the determination of these proceedings. 	
	The Applicant describes in his affidavit the difficulty he and his solicitor experienced in preparing a defence to the allegations in question.  In a form of reference which he still has in his possession he is able to say that while the charges relate to dates commencing on January 1st, 1971, that he did not begin work in the shop until the 19th August, 1972.   From August of 1972 to May 1983 he managed the shop and that there were approximately six people employed there at any one time, three of these people being part time.   Both full time staff of the shop between 1971 and 1973 are now dead.  Both would have worked every Saturday.   The Applicant says that one of these, who lived near the complainant, was well acquainted with him and might have had a particular awareness of his period in the shop for that reason have valuable evidence for the defence.
	The accounts administrator in the shop then, the Applicant now believes to be living somewhere in Europe.  So far as temporary staff who worked in the shop are concerned, the Applicant cannot now say who they were, and he feels himself hopelessly handicapped in any effort with which he might earlier have made to contact and interview any of these people to get the benefit of what assistance their evidence might have given him.
	The Applicant says that from 1969 to 1984 he was one of three leaders of a club which was then located in the City of Dublin which provided leisure activities, for example pool tournaments and other games, during the week for members in the area, and at weekends took the members to various places in Wicklow on outings and to hostels where they engaged in hill walking and other outdoor pursuits.  The Applicant describes how his efforts to locate potential witnesses whom he either associated with or who worked in the shop or in the various hostels where the club members stayed over the alleged period in an attempt to trace such people who would have been in a position to give supporting or corroborative assistance to assist his defence, has been thwarted by the great lapse of time and he also points to the fact that any witnesses who might have been around at that time could not reasonably be expected to remember events which do not directly concern them, nearly thirty years later.
	The Applicant points to the fact that there is no allegation made by the complainant of any attempt by the Applicant to dominate, intimidate or prevent him from reporting any of the alleged offences, and he says that there is no allegation that he was requested or threatened or induced in any manner to remain silent in relation to any of these allegations.   He goes on to refer to an allegation made by the complainant in his statement to the effect that he, the complainant, alleges that he called to see the Applicant in the early eighties approximately ten years after the alleged offences took place when the complainant alleged that he warned the Applicant that if he opened a club in the Arbour Hill area that he would report the Applicant to his neighbours.  The Applicant denies any recollection of this meeting taking place, but highlights the fact that the complainant’s statement makes it clear that there was no contact between 1973 to the early eighties and again since then to 1997 when the complainant made a report to the Gardaí.
	The Applicant interprets the complainant’s statement to be to the effect that he was not inhibited consciously or subconsciously within his family in any way which could have prevented him from divulging the allegations which he now makes twenty-seven years later.  It is contended that the complainant has not since 1973 been under the dominance of the Applicant, or otherwise incapable of disclosing the allegations now made.  He points to the fact that the complainant reported the alleged offences to his mother as far back as 1973 and he says that it is clear that no action was taken by the complainant’s mother.   The Applicant complains that because of the failure of the mother of the complainant in the first instance, and then the failure on the part of the complainant, to bring these allegations to the proper authorities at an early stage, or at the very least on the part of the complainant on reaching the age of majority, when on his own admission he was free from any fear of the Applicant; these failures, the Applicant contends, have prevented him from defending these proceedings in line with his constitutional right to so do.  He contends that the delay has severely hampered his ability to dispute the allegations with the aid of corroborative evidence.   The Applicant asserts that nowhere has the complainant explained the inordinate delay in bringing these allegations to the proper authority.
	The Respondent in his statement of opposition denies that the lapse of time between the commission of the alleged offences and the date of trial would give rise to an unavoidable and incurable presumption of prejudice against the Applicant, or that the Applicant has been prejudiced in his defence of the proceeding; that the Applicant is unable to challenge the allegations made in respect of the alleged offence or that his ability to so do has been compromised; that the alleged lack of specificity in the dates of commission of the alleged offences and the number of offences alleged gives rise to an unavoidable and incurable presumption of prejudice, that the only defence available to the Applicant is a denial on oath of the charges which denial cannot now be supported or corroborated because of the delay, that any prejudice suffered by the Applicant (which is denied) would not lead to a trial otherwise than in due course of law because of the measures and directions which could be taken or issued by the trial judge during the course of the trial, and that the Applicant has failed to make this application for Judicial Review within the time limited by Order 84 Rule (21) of the Rules of the Superior Court.  The Respondent further contends in his statement that the Applicant has failed to disclose any or any adequate evidence to establish that he is not now in a position to locate alleged witnesses for the purpose of establishing a defence or that he has failed to establish the relevance of witnesses whom he now alleges are not available, and that he has failed to establish in evidence that relevant documentary evidence which was available to him prior to the date of which he would otherwise have been tried were it not for the commencement of these proceedings, is not now available to him as a result of delay.
	Three Affidavits are sworn for the purpose of verifying the facts set out in the statement of opposition and in support of that statement.  The first in time sworn was the Affidavit of P. D. a psychologist in which he exhibits a report of his containing a psychological assessment of the complainant dated the 14th of October 2000.  In this report Mr. D. inter alia says the following 
	“Psychological Assessment indicated Mr. D. has not suffered any serious psychological problems as a direct consequence of the alleged abuse.
	He reported that he considered the matter closed after his mother confronted Mr. C. as the abuse stopped, he left the club where Mr. C. was leader and as far as
Mr. D. was aware at the time the club closed down.  He reported that his mother never even told his father about the alleged abuse until three years ago approximately.  He reported that Mr. C. contacted him on one occasion when he was between the ages of 18 and 20 years and invited him to assist him in opening a new club but he refused and warned Mr. C. not to do this or he would inform people in the neighbourhood of the proposed club that he was a child molester.  Between the ages of 21 and 22 years he heard that Mr. C. was attempting to open a club for children and Mr. D. visited him with a friend in the shop he managed and warned him that if he persisted in attempting to set up a new club that he would inform the neighbourhood that he abused young children. At that stage it did not occur to him to complain to the Gardaí.
	Mr. D.  married at 27 years and has two sons  now aged seven and eleven years.  Early in his relationship with his wife he told her of the abuse and she had encouraged him to see a counsellor about it but he did not go.  As a result reports in the media approximately four years ago about people being brought before the Courts on charges of sexual abuse committed many years before, he began to have nightmares which would appear to have been prompted by feelings of guilt that Mr.C. could have assaulted other boys.  He phoned the Rape Crisis Centre and he was advised to go to the Gardaí which he did.
	When the alleged abuse occurred when he was between 11.5 and 12.5 years Mr. D.  eventually told his mother which was the appropriate course of action for a 12 year old to follow.  His mother confronted Mr. C. and the abuse stopped.  Mr. D.  appears to have learnt from his mother that confronting the alleged perpetrator was the course to follow and this is  reflected in him confronting Mr. C. on two separate occasions as an adult.  He learned to confront the perpetrator rather than report the matter to the authorities resulting in the delay in making the complaint to the Gardaí.
	It is perhaps of significance that his mother did not tell his father about the alleged abuse until relatively recently following on a television programme on abuse.  Mr. D. may have learned from his mother that it was best not to talk about the abuse and this may well have inhibited him from reporting the matter to the gardaí until relatively recently.  
	More recently he became aware through the media of complaints of abuse being made that may have occurred many years previously, the media coverage highlighted his awareness that it was possible to make a complaint to the gardaí about events that happened many years ago”.

	An Affidavit was sworn on the 5th day December 2000 by C. K. an Inspector of an Garda Siochána who appears to have been the member of an garda síochána responsible for the investigation of the alleged complaint.  In this Affidavit he gives details of the conduct of the investigation and avers to the fact that in the course of the investigation 12 former member of the Club were located in connection with the investigation into the complainants allegations against the Applicant, 6 of whom were members of the club roughly around the same time as the complainant.  Based on this experience Inspector K. avers to the belief that the Applicant who was so involved with the club would be able to locate and identify witnesses who might be of assistance to him in his defence,  and hence would not  be prejudiced in the conduct of his defence.  
	The third Affidavit is that of the complainant himself and was sworn on the 30th day of March 2001.  The purpose of this Affidavit is to set out the reasons for the lapse of time between the alleged assaults and the making of a complaint to the gardaí.  In it inter alia he says the following 
“Following the assaults my mother noticed something was wrong as I set out in my statement and she appeared to me to deal with it.  After that Mr. C disappeared from my world and I stopped thinking about it.  I did not realise that what had happened was a criminal offence.”

6.	I beg to refer to paragraph 8 of the Affidavit of Mr. C. and his assertion that there was contact between us until he received a complaint.  Around 1980 Mr. C telephoned me in work to ask me to assist in the setting up a club.  This was the first time that Mr. C. had contacted me since the abuse.  I refused and warned Mr. C. not to do this or I would inform people in the neighbourhood of the proposed club that he was a child molester.  I heard nothing more from him and no club was set up so far as I was aware.  I beg to refer to the report of Mr. D. exhibited in his Affidavit.  When I heard indirectly that Mr. C. was opening a club in Arbour Hill in the early 1980’s I confronted him for fear that he would be put back in a position of molesting other children.  Again I  beg to refer to my statement.  The steps taken by my mother seemed to have been an effective way of stopping the abuse and by confronting the Applicant in the early 1980’s appeared to be an effective way of preventing further abuse.  This appeared to me to be the appropriate and effective way of dealing with it.  I was not aware of any club in North Dublin.
7.	Making a complaint to the gardaí did not occur to me.  It did not occur to me that this might be the way to deal with this matter or to prevent Mr. C.  re-offending.  These kind of things were not widely known or talked about in my neighbourhood or among the people I knew, nor were the gardaí looked to to solve such things.
8.	It was only in the summer of 1996 when I saw a number of reports in the media of other child sexual abuse and  effective garda investigation and action in relation to them that I realised that a complaint to the gardaí was the way to deal with it in the light of the possability of re-offending”.

SUBMISSIONS
        For the Applicant, Mr P.O’H. SC submitted as follows.
1.	That there had been no dominion exercised by the Applicant over the complainant nor 	was the delay in this case caused or contributed to by any action on the part of the Applicant nor was it the result or any inherent effects of the alleged crime on the complainant.
2.	The Applicant suffered general and specific prejudice in defending himself by reason of;
	[A]	The lack of precision or specificity in the dates of the alleged offences.
	[B]	Witnesses who could give evidence which would establish the improbability of the alleged offences, if tested against the background surrounding detail, were no longer available, being either dead or uncontactable.
	[C]	All the charges are very vague as to details of the acts alleged and now are not susceptible to testing by reference to a concrete set of facts,
	[D]	Hostel documents from to the time of the alleged offences were no longer available.
	[E]	These deficiencies could not be cured by any direction which the Trial Judge might give.
	[F]	In consequence of the foregoing, the Applicant would not get a fair trial.

3.	That the difficulties for the defence caused by the delay could not be cured by any direction given by the trial judge, as the trial judge could only direct the jury to consider the evidence actually adduced and could not invite the jury to engage in a consideration of evidence that might have been available as this would lead the jury into speculation.
	The Applicant relies on the following aurthorities, State [O Connell] v Fawcitt 1986 I.R. 362, P.O.C v The DPP [2000] 3 IR 87, O Domhnnaill v Merrick [1984] 1 IR 151, Dowd v Kerry County Council [1970] IR 2, Sheehan v Amond [ 1982] 1 IR 235 as establishing his right to a trial with reasonable expedition and as generally supporting the proposition that delay of the kind involved in this case, would mean, in the words of Henchy J speaking of a 24 year delay in the O Domhnaill case.
	“ While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this it puts justice to hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial.”

	Mr O Higgins submits that the Courts in dealing with cases of this kind have evolved a multiple test as follows, and that authority for this is to be found in B v DPP [1997] 3 IR 140; PC v DPP [1999] 2 IR 25; JOC v DPP [2000] 3 IR 480; POC v DPP [2000] 3 IR 87
	[a]	whether as a matter of probability assuming the complaint to be truthful the delay in making it was referable to the accused own action;
	[b]	if the delay has been occasioned by the conduct of the Applicant are the circumstances such as to nevertheless impair the Applicants ability to defend himself or herself such that the trial should not be allowed to proceed;
	[c]	are there specific grounds shown whereby although the delay in general would not cause prohibition on ground [b], the proceedings should be brought to an end by reason of specific prejudice arising in the particular circumstances of the particular case.
	Mr O’Higgins also relies on the case of Regina v Telfords Justices, Ex Parte Badhan [1991] 2 QB 78 where at p.91 the court held;
		“ Where a period of delay is long, then it can be legitimate for the court to infer prejudice without proof of specific prejudice.”

	In that case the delay was between 15 and 16 years.
	Mr. O’Higgins also relied on the following passage from the judgement of Hardiman 	J, in POC v DPP [2000] 3 IR 87 at p. 115;
		“If the case is to be tried at all it must be tried on the evidence actually available and not on the evidence [that] might have been many years earlier.  But the prejudice of which the accused complains relates precisely to the distinction between the two. If there is a real risk that he is prejudiced by this difference there is, I believe, a real risk of an unfair trial.”

	In this case Mr O’Higgins submits the lapse of time has eliminated a great deal of evidence that would have been available had the charges been brought in timely fashion and as this evidence could have been valuable to the defence the Applicant is now prejudiced by the non availability of that evidence and hence there is a real risk of an unfair trial.
	For the Respondent Mr F.McD. submits as follows;
1.	There is no Statute of Limitations for crimes.
2.	There is a well established right in the people to have criminal offences tried and the respondent is the person established by statute to exercise this popular right.
3.	The onus rests on the Applicant to show why a lawfully brought prosecution is otherwise unlawful.
4.	The Applicant has no specific legal or constitutional basis in attempting to assert that the current prosecution is unlawful. He relies on Art 38[1] of the Constitution and the judicial interpretations thereof. Although there are dicta in various cases to the effect that aside from any consideration of there being a trial in due course of law possible, the courts may also stop a trial where there has been a failure to ensure a trial with reasonable expedition from the date on which the alleged offence occurred, but it is not clear that any case before the Superior Courts has been decided on that basis.
5.	The right to a speedy trial flows from the right to a trial in due course of law. This is clear from the State [O Connell] v Fawcitt, and in that case and in the leading American case of Barker v Wingo 407 US 514, the delay involved was from the commencement of the prosecution and not from the date of the alleged offences.  Hence it was submitted by Mr. McD. the right to a speedy Trial under Art. 38.1, could only be invoked to complain of delay occasioned in the course of the prosecution and could not be relied on in respect of delay or lapse of time from the alleged offences to the making of a complaint to the relevant authority. In this respect Mr McD. relied on the judgment of Murphy J in the Supreme Court in the case of SF v DPP [1999] 3 IR 235 at p. 237. 
6.	The task of the court is to examine the circumstances of the case to see if the delay from the commission of the alleged offences to the date of complaint is “explicable” and not to see whether the delay is excused by reference to some criteria set by the court.
7.	The psychologist in the case whose evidence was unchallenged and was affirmed by the evidence of the complainant, was to the effect that it was reasonable for the complainant not to have made his complaint to the Gardai until he did, because the effect of the alleged offences on the complainant was to keep him silent until noticed by his mother and the situation was then dealt with by his mother by confronting the Applicant. The complainant learned this as the appropriate way of dealing with the alleged crimes and this method was the result of the alleged crimes. This was a reasonable approach having regard to the state of knowledge of crimes of this kind in the complainants community at the time these offences are alleged to have occurred. Publicity surrounding the issue of child sex abuse brought to his attention the fact that he could have made a complaint to the Gardai. Upon that realisation he acted promptly as did the prosecution.

DECISION
	From the judgments of the Supreme Court in the following cases DPP v Byrne [1994] 2 IR 236, B v DPP [1997] 3 IR 140; PC v DPP [1999] 2 IR 25; JOC v DPP [2000] 3 IR 480; POC v DPP [2000] 3 IR 87 and SOC v DPP [ Supreme Court unreported 10th December 2000], I discern the following propositions of law relating to a complaint of lapse of time as distinct from a complaint of prosecutorial delay.
1.	The right to a speedy or expeditious trial derived from Art 38.1 of the Constitution is not confined to the prevention of delay from the time a formal complaint of the alleged offence is made to the relevant authority, i.e the Gardai. This right also comes into play where a complaint is made about lapse of time from the commission of the alleged offence to the making of a formal complaint. The following passage from the judgment of Finlay CJ in DPP v Byrne at p. 245, makes that clear where he says:
	“ ... I am driven to the further conclusion that, of necessity, instances may occur in  which a delay between the date of the alleged commission of an offence and the  date of the proposed trial identified as unreasonable would give rise to the necessity for the court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved oppressive pre-trial detention, or that it created a risk or probability that the accused’s capacity to defend himself would be impaired. This must lead of course to the conclusion that, on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined ...”

	This statement of principle was accepted by all members of the court.
	In the light of this I must reject the respondent’s submission to the effect that the right only applies in respect of delay commencing after the initiation of the prosecution.
2.	Delay or lapse of time may be of such an inordinate degree as to give rise to an inference or presumption of prejudice such that a fair trial cannot be expected to ensue.
3.	In certain circumstances a trial may be prohibited as a result of inordinate delay even though the accused has not shown either actual or presumptive prejudice. [See 11below]
4.	Child sex abuse cases are in a special category, in so far as the treatment of delay or lapse of time is concerned.
5.	In a child sex abuse case where there is a complaint by the accused of inordinate delay in the making of the complaint, the courts will excuse that delay and permit the trial to proceed, where in other cases it would not if the following test is met
	[a] That it can be shown that the delay was the result of the dominion of the accused over the victim or the inherent psychological effects of the alleged crime either of which has continued to have during the period of delay, the effect of preventing the victim from reporting the alleged offence to the Gardai.
6.	The rationale for this departure from normal jurisprudence on delay is that it would clearly be an unjust failure to use the criminal law in this area to achieve its central purpose namely to protect children from sexual abuse, and also an infringement of the right of the community to prosecute alleged crimes to trial, if it were the case that the perpetrators of crime of this kind could escape justice, by means of their own wrongdoing. Thus the essential ingredient of the test is that it can be shown that the delay is fairly attributable to the accused ’s own actions and their inherent effect on the victim.
8.	The mere fact that the case involves an allegation of child sex abuse is not of itself sufficient to satisfy the test. The court must examine the evidence adduced to see if in fact the complainant was prevented from reporting the alleged offence by the matters referred to above.
9.	Proof of the relevant aspects of the test presents very real practical problems. It could be said that in the ordinary way the onus should rest on the prosecutor to prove all elements on the balance of probabilities. This however would involve proving on the balance of probabilities that the alleged offence was in fact committed and that the  perpetrator exercised dominion over the victim and/or that the inherent effects of the crime were such, as to prevent the victim from reporting the alleged offence. This  approach would have the wholly undesirable and indeed impermissible result of having the guilt of the accused proved in civil proceedings on the lesser standard of proof, i.e. balance of probabilities, which would clearly overthrow the accused ’s presumption of innocence and make a fair trial subsequently virtually impossible. On the other hand if this approach is not permissible, then, unless the accused is to be permitted to have his trial prohibited by default, it is necessary, in the interests of justice and in order to preserve the community right to prosecute, to devise a stratagem which allows the issue of delay to be evaluated in isolation in applications of this kind. This is achieved by the court hearing these applications, assuming that the allegation of the victim of the offence or offences are true, solely for the purpose of reaching a determination on whether the prosecutor has satisfied the above test. Once that is done the presumption of innocence is fully restored and if the accused can demonstrate that it is probable that a specific device which was available to him is no longer available because of the passage of time, the court may then halt the trial on the ground that there is serious risk of an unfair trial.
10.      In the event that the court is satisfied that the test has been met, the court does not automatically permit the trial to proceed, but must achieve a just balance the community right to prosecute and the accused ’s right to a trial in due course of law. To do that the court must look to see what prejudice [if any] the accused will suffer in the conduct of his defence. For the reason that the accused cannot be permitted to escape justice by virtue of his own criminal behaviour, the court in approaching the balancing task, denies to the accused the benefit of presuming prejudice simply by the lapse of an inordinate period of time and casts on the accused the onus of pointing, to a particular defence that is no longer available to him or is significantly weakened by the absence of evidence which would have been available at the earlier time. If the accused is unable to point to such specific prejudice, the trial will be allowed to proceed. In an imperfect world the balance thus struck, best secures the interests of justice.
11.	 On the other hand, if the prosecutor fails to satisfy the test set out above, then the case fails to be considered as if it were not in the special category. Thus it must follow that the lapse of an inordinate period of time may give rise to presumptive or inferred prejudice, depending on the length of time involved and the nature of the case. The presumption of prejudice might not arise in a documents case as readily as in a case, the outcome of which depended on oral evidence. A distinction arises here between cases involving lapse of time from the commission of the alleged offence to the reporting of same and cases involving prosecutorial delay. So far as the former are concerned, the circumstances of the case must give rise to either presumptive prejudice or actual prejudice. In the latter case, as was alluded to by Finlay CJ in DPP v Byrne,  there may be rare cases where the court will prohibit the further prosecution of the alleged offence even though no prejudice is shown.
12.	 The difficulties created by long delay for the defence cannot be cured by directions to the jury from the trial judge. The problem that arises from long delay is that relevant evidence becomes unavailable. It would seem impossible to direct the attention of the jury to this problem while at the same time cautioning them against speculation. Bringing this problem to the attention of a jury would inevitably lead them to speculate as to the nature and quality of evidence which they cannot hear.

	Turning now to the fact of this case, the first issue I must decide is whether the respondent has satisfied me on the balance of probabilities, that the delay on the part of the complainant in reporting the alleged offences to the Gardai was the result of the dominion of the accused or the inherent effects of the alleged crime which prevented the complainant from making a complaint at an earlier time.
	The first feature of the psychologists report to be noted is that he says:
		“Psychological assessment indicated that Mr. D. has not suffered any serious psychological problems as a direct consequence of the alleged abuse.”

	It is clear to me from this report and from the Affidavit of the complainant that reason 	for the delay in reporting the alleged offences to the Gardai, is that the complainant did not know or realise until the summer of 1996 that making a complaint to the Gardai so that a prosecution could ensue, was an appropriate way of dealing with the alleged offences. Up to that time he appears to have been content that his complaint to his mother and her response to that and his alleged challenges to the Applicant in the early 80s, when he had reached adult status was the appropriate way of dealing with the matter. He explains his lack of knowledge up to 1996 on the basis that these kind of things were not widely known or talked about in his neighbourhood or among the people he knew and he goes on to say in paragraph 7 of his affidavit; 
		“... nor were the Gardai looked to to solve such thing.”

	I am satisfied that the complainant was not at any stage from 1973 onwards under any dominion of the Applicant and indeed so much is conceded by Mr. McD. I am equally satisfied that the alleged offences did not create in the complainant any psychological disturbance or change which had the effect of inhibiting him from reporting the alleged offences to the Gardai. It would seem to me, that the real reason he did not report the alleged offences to the Gardai was mainly because he felt that the problem was effectively dealt with, without any recourse to the Gardai, in the first instance by his mother and later by himself in the making of the alleged approaches to the Applicant. In 1996 he became aware of another way of dealing with the matter, which he then resolved to pursue.
	The evidence on affidavit falls significantly short of persuading me that as a matter of fact the complainant was inhibited from reporting the matter to the Gardai by anything that could fairly be attributed to the Applicant.
	That being the case, I must now consider whether the delay in the reporting of the alleged offences until 1997 is such as to give rise to presumed prejudice.
	The delay of 24 years at least is quite inordinate. As is only to be expected, because of that delay, the Applicant complains that much evidence which was available at an earlier time is now lost forever. In particular two of the permanent employees of the shop are now dead. One of these had a particular acquaintance with the complainant as he lived near him and thus might have been in a position to have given valuable evidence for the defence. The great difficulty that arise with so great a lapse of time, is that the whole landscape of the alleged offences changes and disappears in whole or in part. Many of the people who were in the environment of the alleged offences die or are no longer contactable. The location or locations may be altered beyond recognition. The detail of the day to day life of the Applicant and others who might be relevant to the enquiry is lost in the fog of distant memory.
	I am mindful of the fact that Inspector K. in his Affidavit says that the Gardai have located a number of members of the club that the Applicant ran and therefore the Applicant with his knowledge of the members of the club should not have a difficulty finding helpful witnesses. Inspector K. does not address the nub of the problem. The problem is not finding former members of the club. The problem is finding people who were either involved in the shop at the relevant times or were participants in outings to Wicklow at the relevant time. I note that in his Affidavit he does not say that the persons he has contacted can shed any light on these events or on the detail of the surrounding environment. He does not depose to the existence of any evidence as to “islands of fact” which could be used to test the credibility of either the complainant or the Applicant. Some opportunity for this would appear to arise from the fact that the complainant alleges that the offences that took place in the shop are alleged to have taken place in a part of it served by a lift. This would appear to be in the part of the premises at Cope Street. The upper floors of this part of the premises were according to the statement of P.P occupied by a Club and a Designer. There is nothing in the Affidavit of Inspector K. which would indicate that any evidence is available from these sources relevant to the enquiry or indeed conversely, that there is no such evidence available. The absence of any evidence from sources such as these, illustrates the futility of attempting to regain a picture of the physical and human environment, in which it is alleged these offences occurred after a delay of a quarter of a century.
	In cases where the delay is as long as this case, it becomes very difficult to say where presumed prejudice ends and specific prejudice begins. The loss of evidence is such that the opportunity to pursue enquiries which would point up a specific defence, is lost. It would seem to me that this problem is best addressed by the approach taken by Hardiman J in the passage in his judgement in POC v DPP at p 115, relied on by Mr O’Higgins and quoted above.
	In this case I am satisfied that a substantial amount of potentially relevant evidence has been lost as a result of the lapse of time. One cannot at this stage say that this evidence would have helped the defence of the Applicant. There is a real possibility that it could have and that being so, I am satisfied that a trial now without that evidence carries with it the real risk that that trial would be unfair to the Applicant. At the very least, I am quite satisfied that the circumstances of the case give rise to presumed prejudice.
	That being so, I must prohibit the further prosecution of these offences.

jc(Cashin .v. DPP)O’N