THE HIGH COURT  

JUDICIAL REVIEW

[2002 No. 67 JR]

BETWEEN/

PHILIP GAYNOR

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Roderick Murphy delivered the  11th day of June, 2004.

1.	Pleadings

	The applicant seeks an order restraining the Director of Public Prosecutions from prosecuting certain charges in respect of complaints of sexual abuse and rape alleged to have been committed by the applicant between 1st September, 1977 and 16th July, 1982 against the applicant’s nephew in relation to the circuit Book of Evidence and between the 25th June, 1980 and 25th June, 1985 in relation to the Central Book of Evidence against the applicant’s niece.  

1.2	By order of the High Court (Ó Caoimh J.) dated 11th February, 2002 the applicant was given leave to apply for judicial review for such relief on the grounds following:
(1)  	That the delay in bringing the said prosecutions and that the delay by the prosecuting authorities in proceeding with the said prosecutions against the applicant amounted to a breach of the applicant’s constitutional right to trial in due course of law and/or trial within reasonable expedition.
(2)  	That the complainants had failed to supply the respondent with all information relevant to the said proceedings.
(3) 	That the respondent was unable to obtain evidence (the) disclosure (of) which was necessary for the purpose of the defence of the applicant upon the said prosecutions.
(4) 	That the said prosecutions of the applicant amounted to a breach of the applicant’s constitutional right of a fair trial in due course of law in that the applicant was unable to properly defend himself.
(5) 	That the prosecution of the applicant on the charges stated in the said prosecutions amounted to a breach of the applicant’s right to fairness of procedure and natural justice.

2.	Grounding Affidavit
	Mr. Robert Eagar, a solicitor in the firm of Garrett Sheehan & Co., having carriage of the proceedings on behalf of the applicant, verified the facts stated in the application and distinguished between the two prosecutions. 
	There were two books of evidence.  The first, dated 10th April, 2001, was in relation to the Central Criminal Court and the second, dated 29th May, 2001, was in relation to the Circuit Court proceedings.
	The deponent says that the applicant had instructed him that he was pleading not guilty and was contesting the allegations made against him.
	He analysed the charge sheets.  The applicant’s niece made no formal complaint before 1999 and then made three statements of complaint to the Gardaí in 2000, on 19th February, 5th June and 29th November.  The third statement clarified the dates upon which she alleged certain events had taken place.  
	Their mother stated that her daughter, the applicant’s niece, complained when she was 15 of interference by the applicant.  In March or April of 1999 the niece had told her mother that she was going to make a statement about what happened to her and had received counselling from a therapist from Ms. Rosemary Troy, about April, 1999.
	Ms. Rosemary Troy said that the niece first attended with her for psychological therapy on 15th May, 1999.  The niece had been referred by her acupuncturist, Ms Bagnall.  She made various statements to Ms. Troy in the course of therapy concerning alleged sexual abuse perpetrated on her by a family member.  
	The nephew had independently sought help from a therapist, Mr. C.A. Hopper, on 20th May, 1998 until 18th August, 1999.  The niece, his sister, had told him about her abuse in December 1999.   He made a complaint to the Gardaí on 25th March 2000.  
	The niece was engaged to be married at the time of the making of her statement of complaint to the Gardaí and the nephew was already married for approximately two years prior to making his statement of complaint to the Gardaí. 
	The applicant was arrested on 25th March, 2000 (the day of the nephew’s complaint) and charged with the offences.
	Mr. Eagar believed that the complaints made prior to the statements to the Gardaí were matters of significance in relation to the lapse of time between the dates of the offences alleged and the making of the statements.  His firm sought details pertaining to the niece’s acupuncturist on 31st October, 2001.  On 24th February, 2002 the chief prosecution solicitor indicated that she was not in a position to disclose any report from the acupuncturist who was declining the request for disclosure on the grounds of confidentiality to her client.
	A letter was also sent on 31st October, 2001 seeking particulars relating to Mr. C.A. Hopper.  On 26th November, 2001 Mr. Hopper’s qualifications were outlined together with an indication that he was not prepared to make the disclosure requested.  A statement of the proposed evidence of Mr. Hopper was disclosed to the respondent in July, 2000, which was extracted from a letter dated 5th July, 2000 to the Gardaí, a copy which had been disclosed.
	The disclosure sought was, in the deponent’s belief, a central issue in relation to the lapse of time between the offences alleged and the making of complaints which extended from 16 to 22 years to the date of the affidavit. 
	The lapse of time between the making of a complaint by the niece to the Garda Síochána and the applicant’s subsequent arrest was more than thirteen months.  No indictment had yet been furnished.
	The deponent referred to and expanded the grounds referred to above.

3.	Statement of Opposition
	The Director opposed the application for judicial review on the grounds that the lapse of time between the perpetration of the alleged acts and the prosecution of the applicant did not amount to a breach of his rights as alleged.  Such lapse of time arose as a consequence of the nature and effect of the offences perpetrated.
	With regard to prosecutorial delay, this did not amount to a breach of the applicant’s rights.
	The complainants were not party to the proceedings and, accordingly, the applicant was not entitled to rely on the grounds that the complainants had failed to supply the respondent with all information relevant to the prosecutions as outlined in (E)(3) of the grounds.
	The fact that the respondent was unable to obtain evidence which the applicant alleged was necessary for the purpose of his defence did not entitle him to seek the relief sought.  The applicant had been furnished, by way of disclosure, with all of the information available as might be relevant to the prosecution.  There was no breach of his rights and he was not unable to properly defend himself.

4.	Replying Affidavit
	Sergeant Anthony McHugh had been responsible for the investigation of the complaints since March 1st, 2000.  He related that in late November, 1999 the niece contacted Detective Sergeant Lorraine Stack of the Domestic Violence and Sexual Assault Unit of An Garda Síochána in Harcourt Square, Dublin, to report a hypothetical case of child abuse.  An arrangement was then made for the niece to call to her local garda station on 19th February, 2000 and a statement of complaint was made against the applicant.  The nephew also made a statement of complaint on 25th March, 2000.  Six further witness statements were taken from members of the family between March 1st and May 5th, 2000.  On 25th March, 2000 the applicant was arrested and interviewed.  A memorandum of those interviews appears in the book of evidence exhibited on behalf of the applicant.
	On 5th May Sergeant McHugh sent the file to the Director’s office.  On 23rd May the Director raised seven queries which required further enquiries.  Further questions were raised by the Director on 22nd July, 2000 and directions were received to charge the applicant on 23rd November, 2000.  A further statement from the niece was taken on 29th November, 2000.  Further directions were required.  On 1st February, 2001 Sgt. McHugh sought final directions.  He received a response in late February or early March, 2001.
	He says that since his involvement in the investigation he had been in regular contact with the applicant and his solicitor.  He arranged for the applicant to meet him on 26th March, 2001.
	He said that Dr. Melissa Darmody, Registered Psychologist, had been in contact with both Ms. Troy and Mr. Hopper in the course of preparing her report on which she relied.
	He says that the alleged prejudice to the applicant was of a general and vague character.  There was no specific prejudice other than a bare assertion that a lapse of time entitled the applicant to the relief sought.  He says that medical evidence was unavailable because of the youth of the complainants at the time the alleged offences were perpetrated.  There was no exculpatory evidence that could have been put before the court if the complaints had been made at an earlier date.  The injured parties’ evidence was that the alleged activities took place in private. 
	
5.	Affidavit of the Applicant’s Niece
	In addition to the statement contained in the book of evidence, the niece swore an affidavit on 1st November, 2002.  There was, she said, a lot of contact between the two families.  She says that between the ages of eight and thirteen she was sexually abused by the applicant and describes in some detail the nature of that abuse.  The incidents occurred when they were alone and that the applicant took great care to ensure that no-one else knew of the abuse.  She was cajoled by him into silence by saying that it was “our secret” and that she was not to tell anyone about what had happened.  She said she was bribed and threatened.  She felt very guilty and ashamed considering, at one stage, that it was normal behaviour.
When she had her first period in 1985 and was told, by her mother, about the facts of life, she realised that what her uncle had been doing was wrong but was afraid to tell anyone what had happened because she thought she would not be believed and would be taken away from her family and friends.  She says that when she was fifteen years old her mother, on the advice of a family member, warned her about the potential sexual threat posed by her uncle, the applicant.  She broke down and told her mother that he had abused her for years and begged her mother not to tell her father. 
	In May, 1999 she referred to her attendance on Ms. Rosemary Troy for the purpose of receiving psychological therapy prior to her wedding.  She said she gathered strength to discuss the abuse with her father and to report the abuse to An Garda Síochána.  Prior to attending Ms. Troy she was unable to speak of the abuse with other persons and was certainly unable, she says, to make any complaint to the Gardaí.
	At the request of the respondent she attended Dr. Melissa Darmody on three occasions during the summer of 2002.  She averred that, to the extent that her report recounted matters of fact, that these facts were true.
	She said that as part of the process of confronting the facts of abuse she disclosed to her brother, the applicant’s nephew what the applicant had done to her in December, 1999.
	She exhibited her statement of evidence detailing the alleged incidents extending to nine pages.

6.	Affidavit of Nephew
	The nephew says that when he was between six and eight years of age the applicant approached him in the back garden of his parents’ home and trapped him between the shed and the trees, pulling the deponent in to him to make him the deponent feel him in a sexual manner.  He told the deponent that this would be their secret and not to tell anyone.  Later, a similar incident occurred.  He felt very confused, was quite shy and did not mix with other boys of his age and did not dare to report his uncle’s abuse to other family members.  He felt ashamed, as if he had done something wrong, and believed he was the only person who had been abused.  
	He left the family home when he was about seventeen years of age and tried to deal with the effect of the abuse by putting it to the back of his mind.  He found it increasingly difficult to cope with the effects of the abuse, suffered uncontrollable anger which affected his marital relationship.  He became anxious and began to develop irrational fears.  In 1998 he commenced counselling with Mr. Christopher Hopper, his psycho-synthesis therapist and counsellor, based in Guildford, Surrey, whom he attended until August, 1999.  He was able to speak to Mr. Hopper about the abuse he had suffered and this allowed him to come to terms with it.
	In December, 1999, his sister, the applicant’s niece, asked him to go to her home to discuss an important matter with her.  She told him that she had been abused and that she intended to report the abuse to the Gardaí.  He discussed the matter with his wife and he decided to report the abuse to the Gardaí which he contacted on 25th March, 2000.  He exhibited the statement he had made.   
	He attended Dr. Melissa Darmody on 18th and 19th June, 2002 at the respondent’s request and averred to the matters of fact relating to his personal circumstances which he says are true.

7.	Affidavit of Reporting Psychologist
	Dr. Melissa Darmody, a registered psychologist with the Psychological Society of Ireland, an accredited member of the Irish Association of Counselling and Therapy, had published an article on child sexual abuse.  Her primary degree was in psychology from the Florida State University.  She graduated as a Master of Science at Georgia State University and proceeded to a Post MSc. in counselling psychology and to a Doctorate in the City University, London.  
	She said that at the respondent’s request she met the nephew on 18th and 19th June, 2002 and the niece on 17th and 24th July and 8th August, 2002 and prepared a written report setting out (a) the effect of the alleged offences on the interviewees, (b) the reason for the delay in reporting the alleged offences and (c) her opinion as to whether the delay in reporting was reasonable in the light of the individual circumstances.  She was subject to cross-examination by counsel on behalf of the applicant in relation to both reports.
	In respect of the nephew, it was her opinion that it was reasonable in the light of his particular circumstances that he did not make an official report to the Gardaí until 2000.  The initial domineering influence of the applicant, his uncle-in-law, and the ongoing family relationship between his parents and the applicant and his wife would, in her opinion, had significantly influenced the nephew’s decision to delay making a complaint or reporting the matter to the authorities.  
	In relation to the niece, she was of the opinion that the delay in reporting the alleged offence was reasonable in the light of the niece’s life circumstances.  During the time of the alleged abuse and while she was living in the family home, it was understandable that she would not have been in a position to make a report for two main reasons: 
(i)	during the time of the abuse she was a child and the alleged abuser was an adult who made threats against her, and
(ii)	the closeness of her family to the alleged abuser’s family inhibited her ability to be in a position to make an official report. 
Although she disclosed to her mother at the age of fifteen years, approximately 1987, she did not make any formal complaint to the authorities at this time.  It was Dr. Darmody’s understanding that the mother did not take any action at that point, being asked by her daughter not to do so, for fear of shame and disgrace, particularly from her father.  Dr. Darmody did not feel that the niece was in an appropriate mental state at that time to make a report to the authorities.  It was not until she received the support of her counsellor that she was in an appropriate mental state to be able to make the difficult disclosure to her family, and then to the authorities.  In her opinion the report to the authorities was made at the soonest that the niece was able.

8.	A notice to cross-examine was served on 11th February, 2004 in relation to Sergeant McHugh, Dr. Darmody, and the niece and nephew.

9.	Cross-examination of Deponents
9.1.	Sergeant Anthony McHugh was cross-examined regarding the request for notes from the therapist who had declined to furnish his notes.  He could not say whether the notes were requested to help in his defence.  Dr. Darmody spoke to both the acupuncturist and the therapist.  Both had declined on the grounds of confidentiality.  The D.P.P. was relying on evidence from other witnesses.  He would have supplied that information if it had been made available.
	 Charges, particularly a rape charge, could not be proffered unless there were sufficient evidence.  The applicant was interviewed in March 2000 and the D.P.P. proceeded in November 2000.  There was a problem regarding the jurisdiction of the District Court.  The D.P.P. needed to make sure and hence the delay from 23rd November, 2000 to the beginning of March 2001 when the applicant was charged in Kilmainham rather than in Naas.  He could not explain the delay from July to November, 2000.  The D.P.P. had been given files of fifteen or sixteen witness statements.
	9.2 Dr. Darmody, in cross-examination on her affidavit, believed that the delay was reasonable.  There was no suggestion of the respondent proposing any norm.  
	She referred to the American Psychological Association publication in 1998 as to delay being the most common feature in complaints regarding sexual abuse of children.  She was aware of the standard tests and the dangers of false and distorted memory in counselling.  In neither of the complainants was there any “suggestive seed”.
	Memory was not factual.  She agreed it was subject to distortion and affected by suggestion, especially with distance of time.  Psychologists can only test for consistency.  They do not lead with information.  In the present case there was no recovered memory.  Where facts have been suppressed it took time for recall and further time to report.  In this sense disclosure was a process.
	She did not understand, in relation to Mr. Hopper, what psycho-synthesis was other than to say there were many different models of psychotherapy.  She had read Mr. Hopper’s report before she talked to him.  He was a member of the British Association of Counselling.  She did not ask him for his notes – she had enough from him in his report to be able to talk to him.  She did not believe she was deprived of the notes in relation to the nephew whom, she believed, had a clear memory of the abuse when he went to see Mr. Hopper.  However, it was not for some time that he felt able to talk to him.  She believed that events of the incident had been suppressed from his conscious mind. She did not know what Mr. Hopper meant by “suppressed”.  He would be able to clarify the matter.  Therapy stopped in 1999 and restarted in 2000.  She agreed that it would have been useful to have had Mr. Hopper’s notes.
	She said that memory was not a camera.  There was significant debate regarding the status of memory in child sexual abuse.  Memory was not factual – she looked for consistency of the story with other stories of those who had been sexually abused (evidence of withdrawal, bed wetting, etc.).
	She had looked at and was satisfied with the consistency in the book of evidence.  She was aware of the debate regarding unfounded allegations. 
	She said that she did not speak to Mr. Hopper regarding the complaint but did talk to him about the nature of the sexual abuse.  She found consistency with regard to the complaint but did not follow up regarding the allegation of oral sex.  Her role was to examine the reasonableness of the nephew’s complaint.  She felt it was reasonable.
	Dr. Darmody was further cross-examined on the complaint of the niece, the first complainant.  The complaint was made first of all to her mother and then to her acupuncturist who referred her to Ms. Rosemary Troy.  She believed that the niece had a clear memory before she met the acupuncturist.  She did not ask her for detail but, in her opinion, it was reasonable that she delayed.  
	It was a conscious decision on the nephew’s part not to go to the Gardaí and to get on with his life until his sister complained.  Dr. Darmody believed that some choose not to come forward, not out of a clear conscious decision, but rather out of shame or embarrassment particularly regarding incidents involving family members.
	The niece had discussed it with her mother and not her father.  This was consistent with other processes of disclosure which required a process of overcoming a psychological barrier.  She was increasingly fearful that she could not come forward as it would shame her father and her cousins.
	Dr. Darmody did not interview the complainants’ mother.

10.	Submissions on behalf of the applicant
10.1	Mr. Hartnett S.C., in his submissions to the court, specified the failure of Sergeant McHugh to procure and provide notes from the acupuncturist and the therapist and also referred to Dr. Darmody’s failure to have those notes.  He referred to Dunne v. D.P.P. [2002] 2 I.R. 305 and to Braddish v. D.P.P. [2001] 3 I.R. 127 regarding the failure to disclose material evidence.  In relation to Dr. Darmody’s evidence he said that second class evidence is, at best, just that.  The failure to disclose such evidence could lead to a trial judge halting the trial as was the case of The People (D.P.P.) v. Derek Sweeney [2001] 4 I.R. 102.
	While the D.P.P. normally gives notes, this was not done in this case, resulting in a real risk of an unfair trial.  Counsel referred to Hardiman J.’s judgment in Dunne at 315 regarding the procuring of a video tape in relation to an allegation of a criminal offence at a filling station: 
“It seems to me that the video tape is certainly relevant material on a commonsense basis and also relevant within the meaning of the United Kingdom guidelines . . . It is plainly capable of ‘having a bearing or potential bearing on the issue of guilt or innocence’ to use the form of words employed in Braddish v. D.P.P. [2001] 3 I.R. 127.  Having regard to the uncontradicted evidence to the effect that the video surveillance system existed, it appears to me that the phrase ‘all reasonable lines of inquiry’ would include a simple question to the staff of the filling station as to whether the video surveillance system was in operation and a request to be given the tape if it was.”

	The second submission made was the failure of expedition with regard to the delay of the complaint.  The delay was not reasonable.  There was an obligation on the D.P.P. to have an objective system and tests, especially where there was a possibility of retrieved memory.  Counsel referred to P.C. v. D.P.P. [1999] 2 I.R. 25 and to J.L. v. D.P.P., [2000] 3 I.R. 122 and N.C. v. D.P.P. (Unreported Supreme Court, Hardiman J., 5th July, 2001).
	There was, he submitted, a limited abeyance of the presumption of innocence in the assumption that the complainants were both truthful.
	There was a necessity for thoroughness in the investigation generally.
	Dr. Darmody did not examine the type of therapy which was used.  This was the requirement regarded as essential in New Hampshire v. Hungerford [1995] 142.
	The niece made a complaint to an acupuncturist, Ms. Bagnall, and the nephew complained to a psycho-synthesis therapist and counsellor, Mr. Hopper, in England.
10.2 	The nephew had made a decision not to report and then changed his mind, having spoken to his solicitor.  The niece also made a decision not to complain until her father died.  In P.M. v. Malone [2002] 2 I.R. 560 at 576, Keane C.J. referred to B. v. D.P.P. [1997] 3 I.R. 140, which referred to the dominion exercised by the applicant over the complainant until the complainant’s mother died.  The Chief Justice continued at 577:
“The contrast with the admitted or proven facts in this case is clear.  Here, there was no question of dominion at any stage, still less of the consequences persisting until the year 1998.  On the contrary, the sole ground advanced for deferring the complaint until 1998 was the complainant’s concern that it might cause problems within the family.  This is not an appropriate ground for denying the applicant his right to a reasonably expeditious trial.”

	The Chief Justice concluded at 580 as follows:

“It is clear that, in the light of the legal principles already set out, this case does not fall within the special category	of cases of sexual abuse where the delay is explicable because of the accused’s own conduct.  In this context, no blame can be attached to Sergeant Moran for not seeking directions from the second respondent at that time.  In the light of the professed unwillingness of the complainant to press the matter at that stage, because of the effect it might have on the family, that was a perfectly sensible decision.  The position of the complainant is, however, entirely different.  She made a conscious decision as an adult, not to proceed with the complaint for reasons which seemed good to her at the time but which were not the result of any dominion exercised over her by the applicant.  It cannot be too strongly emphasised that the mere fact that the case involves an allegation of sexual activity with a child does not absolve the court from its obligation to inquire into the actual cause of the delay in the particular case.”

	Mr. Hartnett concluded that the evidence of a decision by both niece and nephew not to report, or not to report until the father died, was a reasonable decision.  There was no evidence of dominion.  Accordingly the applicant should not be denied his right to have the trial prohibited.

11.	Submissions on behalf of the respondent
11.1	Mr. Anthony Collins S.C. submitted that the case was a straightforward one.  Neither complainant forgot and there was no evidence of recovered memory.  There was no cross-examination of the complainants.  The delay was, in the opinion of Dr. Darmody, reasonable.
	The criticisms against other psychologists were not applicable.  There was no realistic evidence of prosecutorial delay nor any evidence of prejudice.
	While acknowledging the right to a speedy trial, delay works to the advantage of the applicant.  The respondent has to apply a balancing test.
11.2	In relation to the delay the applicant relied on J.L. v. D.P.P. [2000] 3 I.R. 122, the absence of a caravan where the sexual assault was alleged to have taken place was held to have prejudiced the applicant.  Counsel submitted that the remarks of McGuinness J. and Hardiman J. were obiter.  Moreover, in D.W. v. D.P.P. (Unreported decision of the Supreme Court  31st October, 2003) a clear statement is given at p. 34 et seq. of McGuinness J.’s judgment outlining the custom of the D.P.P. to proffer evidence of a clinical psychologist regarding delay by way of report for the court.  McGuinness J. then continues at 35:

“In a number of cases this has given rise to prolonged, detailed and technical cross-examination of the psychologist in question by counsel for the applicant.  It might almost be suggested that counsel are developing an expertise in this area of psychology with a view to cross-examinations of this type.  As I pointed out earlier, (the psychologist) was subjected to just such a lengthy cross-examination in this case; this cross-examination was carefully considered and analysed by the trial judge in the court below, one might be forgiven for questioning whether certain aspects of this cross-examination, particularly those relating to the technical meaning of particular words, were really necessary or were of much assistance to the court.

11.3	Counsel further submitted that Dr. Darmody had contacted both Ms. Troy and Mr. Hopper.  It was not the task of the expert to test the credibility.  Accordingly, having other reports to assess consistency was not necessary.  The quality of the evidence of Dr. Darmody was complete.  Her conclusion that delay is reasonable was correct.  Moreover, of greater importance was the sworn evidence of the complainants themselves.
	There was no case of real or implied prejudice.  The balancing test applies even if there were some prejudice.
	Moreover, the lack of disclosure complained of was not rooted in delay.
11.4	The criticism of the niece’s conscious decision not to complain had to be balanced with the final page of Dr. Darmody’s report where it is stated: “She made the complaint at the soonest she was able to”.   This statement was not subject to cross-examination.
	There was no evidence of recovered memory in relation to the nephew.  The incident was in the back of his mind some time before he was able to speak to Mr. Hopper.  This was not contradicted.  Dr. Darmody said it was reasonable given the domineering behaviour of his uncle.  The nephew was only able to speak of the abuse in 1998 and spoke to Mr. Hopper in 1998 and 1999 and to his sister in the latter year.  There was no delay other than the twelve months.  The reasons he gave were that of anger and shame.  Significantly he was not cross-examined.
	Mr. Hopper was a member of a national registered body of which Dr. Darmody was also a member.  His report had no bearing on the psychological evidence advanced from both complainants which Dr. Darmody was satisfied was reasonable.  
11.5	It was submitted, in relation to the disclosure of evidence, that the documents were relevant to the trial and not to the application for judicial review.  Notwithstanding that it was clear that when first disclosure was made was relevant to judicial review.  
The applicant knew of the existence both of Mr. Hopper and Ms. Troy.   Both of their statements were in the book of evidence. The applicant could, in these proceedings, have looked for third-party discovery, given the importance that the applicant places on these documents.
The complainants, as appeared in open correspondence, agreed to undergo psychological examination by the applicant’s experts but were not so examined.
In his submission, there was a limit to the respondent’s obligation as is evidenced from Dunne v. D.P.P. at 308-309 in relation to the Garda Síochána failing in their duty to “seek out” evidence which had “a bearing or potential bearing on the issue of guilt or innocence”.  McGuinness J. held:

“Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person.  It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.

The duty to ‘seek out’ evidence which had a ‘bearing or potential bearing on the issues of guilt or innocence (Braddish v. D.P.P. [2001] 3 I.R. 127 at 133) is, according to Fennelly J. a ‘very significant new step in the law’ creating a danger that ‘there will develop a tendency to shift the focus of criminal prosecution on the adequacy of the police investigation rather than the guilt or innocence of the accused’ and that trials would be prohibited where a court can be persuaded that the Gardaí had failed to seek out any identifiable evidence which might even possibly tend to exonerate the accused.  
McGuinness J. believed that anxieties in this regard were reasonable and that the duty on the part of the Gardaí to seek out relevant evidence should not be too widely interpreted.  
Hardiman J. in Braddish at 135 said that such a duty ‘cannot be interpreted as requiring the Gardaí to engage in a disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence.  The duty must be interpreted realistically on the facts of each case. 
The statements of Ms. Troy and Mr. Hopper are in the book of evidence.  
12.	Applicants reply:  there was no obligation to get third party discovery.  Moreover, discovery for the purpose of judicial review proceedings would not be discovery for the purpose of the trial.  The respondent carries the onus of requiring timely disclosure of notes for the preparation of the case.  There is the same principle regarding documents as there is to witnesses.  Indeed the third party discovery could have been initiated by the D.P.P.

13.	Decision of the Court
13.1	I have carefully considered the written submissions on behalf of the applicant and of the respondent together with the cross-examination of Sergeant McHugh and Dr. Darmody.  
	The applicant, in his written submissions outlines the right of the applicant to trial with reasonable expedition, analyses the lapse of time between the dates of the alleged offences and the earliest date of trial, deals with the cause of the lapse of time, the prosecutorial delay, psychological evidence and the issue of disclosure.  
Submissions in relation to the cross-examination made to the court centred around the respondent’s failure to provide notes from the therapist and acupuncturist, the failure of expedition and the decision of the complainants not to report or to postpone reporting the alleged abuses.
	The respondent’s extensive written submissions stress the balancing exercise referred to in the case law, the absence of any evidence of recovered memory and the psychologist’s report that delay was reasonable.  The submissions also refer to the general principles relating to the right to a fair trial.
	Many of these matters have been dealt with extensively in the decision of the Supreme Court in D.D. v. D.P.P., judgment of Geoghegan J. delivered 19th May, 2004, with whom Murray and Fennelly JJ agreed,  which had been handed down since the hearing of this application.  There is nothing new other than a summary of the case law. The judgment refers particularly to PM v. Malone as not bringing about any change. 
13.2	In DD v. DPP Fennelly J. held (at page 15 of the unreported judgment) that: 

Assuming that pre-complaint lapse of time is relevant and that the as a corollary to that it become relevant as to whether the applicant has contributed to the lapse of time, it is certainly not the case on the authorities that the applicant can only be held responsible if there has been an element of dominance.  The authorities certainly show that it is a main ground but it is not the only ground.  By the same token, however, I am equally satisfied that the authorities do not in any way go so far as to excuse lapse of time or delay merely because the complainant had a good reason for not complaining earlier.  For the reason to be relevant it must arise from an inhibition of some sort on the part of the complainant preventing him or her from complaining where such inhibition arises directly from the offence.     
It does seem to me, that from their own evidence in this case, that both complainants were inhibited preventing each of them from complaining and that such inhibition had arisen directly from the offence.  The evidence of the psychologist both on affidavit and on cross examination was entirely consistent with her report that the delay was reasonable. 
	The citation of the decision of the Chief Justice in PM v. Malone referred to by Mr. Hartnet which is quoted extensively at 10.2 above applies in the absence of dominion.  It seems that the inhibitions suffered by both complainants in this case arises from such dominion.  The decision not re report arose from such inhibition.  The court is obliged to enquire into the actual cause of the delay in each particular case.  Having done so it seemed to the psychologist reporting to the court that, given such inhibition, and in the absence of countervailing evidence, that the delay was reasonable.   
13.3.	In relation to the so called island of fact argument (the dormitory issue in that case; the supply of keys for the piano room in the music school in PO’C v. DPP [2000] 3 I.R. 87 and the caravan or mobile home in JL v. DPP [2000] 3 I.R. 1 22 the car and the video in Dunne v. DPP [2002] 2 I.R.L.M. 241 and Bradish v. DPP [2002] 1 I.R.L.M. 151) more specific and separate grounds for judicial review are required  Geoghegan J. held, in DD v. DPP that that should have been a separate ground for judicial review.  
In the present case the grounds at E.3 and E4 do refer generally to the failure to supply the respondent with “all relevant information to the said prosecutions” and the “inability of the respondent to obtain evidence the disclosure of which was necessary for the purpose of the defence”.  It does seem to me that reference to previous reports of therapists in the statements in the book of evidence were know to the applicant on 11th February 2002 when the statement to ground the application for Judicial Review was filed and are, indeed, exhibited in the grounding affidavit of Mr. Robert Eager, sworn on the 8th February 2002.  
	Even if I were wrong in holding that the grounds were too general and should have been specified separately, it does seem to me that it was reasonable for Dr. Darmody to have limited her enquiries to Miss Troy and Mr. Hopper. Her conclusions regarding the reasonableness of the delay did take account of her conversations with both.  While she admits frankly that it would have helped to have had the notes of Mr. Hopper this did not cause any reservation in the conclusion of the psychological report in relation to the nephew. 
	In any event the lack of disclosure was not rooted in the delay and cannot, accordingly be subject to judicial review. 
13.4 	No evidence of particular prejudice was advised such as was referred to by Mann L.J. in R.v. Telford  JJ, ex parte Badhan [1991] 2 QB 78 at 91 in relation to delay by the prosecuting authorities; which was citd by Blayney  J. in DPP v. Byrne and by Geoghegan J. in DD v DPP: 
As in a case of delay, we think the onus would normally be on the accused to show that on the balance of probability a fair trial is now impossible.  How the accused is to discharge the onus upon him must depend on all the circumstance of the case. 
	Geoghegan J. adds a rider to his judgment in DD v. DPP as follows:
The length of time since the alleged offences, the age of the applicant, the distress which he has suffered especially with regard to publicity and media attention etc. may all be relevant to sentence in the event of conviction notwithstanding that these factors of themselves do not render an injunction appropriate.  
	There are no such factors as such as media attention or, even, of distress other than the ordinary distress of delay in prosecution in the present case.  It seems, accordingly, that the length of time since the alleged offences may be relevant to sentence in the event of a conviction rather that forming grounds for a prohibition of the trial.  
13.5.	 The submission in relation to prosecutorial delay was not pressed before this court.  Indeed where there was delay it has been, to my mind, adequately explained by Garda McHugh in relation to the balance and to the caution in relation to charges of this nature, particularly in relation to charges of rape.  
13.6 	The careful analysis by Dr. Darmody in relation to both reports seem to provide a firm basis for her conclusions that delay was reasonable.  The remarks by McGuinness J. in DW v. DPP, Supreme Court, unreported decision of the 31st October 2003 at 35 refer not alone to the ample ordinary evidence which would assist the court in understanding, from its own common sense and general experience of life, why, for example the child did not immediately report sexual abuse by an adult.  Moreover, in this case, both complainants in addition to making full statements, also agreed to be subjected to psychological examination on behalf of the applicant.  Moreover both swore affidavits.  While there was an application for cross-examination of the deponents in relation to the averments therein the applicant did not proceed to do so.  No contrary evidence was given either in relation to the complaints nor in relation to the inhibitions of both complainants and the categorisation of these being reasonable by the psychologist.  
	There is a practical limit to the obligation on the gardaí to seek out evidence and on the respondent to provide evidence to a psychologist.  Moreover, there would appear to this court to be a greater restriction on a psychologist to seek out evidence.  The psychologist’s role is to have sufficient information to come to a conclusion on the balance of probabilities that that delay is reasonable and not to prove same beyond a reasonable doubt.  In Dunne v. DPP [2002] 2 I.R. 305, relied on by the applicant, McGuinness J. held that for a prosecution “it would have to be shown that any such evidence would be clearly relevant, and there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person”.
In DW v DPP (unreported decision of the Supreme Court 31st October, 2003: It is also true that from time the time the reports in evidence from experts in these cases have been quite severely criticised by judges; some examples of these criticisms were opened to the court by counsel.

It seems to me that there are two ways in which expert psychological evidence can be of assistance to the court in these cases.  

In certain cases there is ample ordinary evidence which would assist the court in understanding, from its own commonsense and general experience of life, why, for example a child did not immediately report sexual abuse by an adult.  The case of B. v. D.P.P. [1997] 3 I.R. 140 is one example.  In such cases, it seems to me, any expert evidence could be limited to a general exposition of the reasons for delay in reporting in these cases.  The numbered list of factors set out by the expert witness in the case of K. v. Judge Groarke and the D.P.P. at pp. 3-4 of the judgment of Denham J. in that case was a good example.
It would then be for the court to form its own opinion of the influence of these factors within the parameters of the other evidence in the particular case.  

In some cases, however, the reasons for the delay are less clear and less readily ascertainable.  In such cases expert evidence in greater depth may be required and further evidence may be considered appropriate.

All such evidence is open to challenge and cross-examination.  It must, however, be borne in mind that it is not the task of the expert witness to assess the credibility of a complainant for the guilt or innocence of the applicant.  The truth or otherwise of the complaint is to be tested at the trial of the applicant. 

The evidence provided in the present case by (the psychologist) fell somewhere between the two types of expert evidence which I have outlined above.  As such, it had certain weaknesses.  This was noted by the learned trial judge, who spoke of ‘the limitations of the exercise carried out by her’ (at p. 29).  Nevertheless, I would agree with the learned trial judge that the main conclusion reached by her, that the complainant’s delay is to be categorised as reasonable, is correct.  I also consider that Ó Caoimh J. was correct in emphasising in this context the evidence of the complainant herself.  

The issue in this case, as 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’ (Keane J. at p. 67 in P.C. v. D.P.P.).  Taking into account all the factors discussed above, I would agree with the learned trial judge that the complainant’s delay is explicable.”

	It seems to me that such evidence was not available to the gardaí, given the claim of confidentiality.  Dr. Darmody didn’t consider it necessary for her report.  Its only relevance could be the date on which a first complaint was made.  This is of course, relevant to the Judicial Review proceedings.  Other matters which may be in those reports may, indeed, have a bearing on the trial itself.  In any event no attempt has been made by the applicant to seek these out nor even to identify this issue specifically in the grounds.  In relation to the obligation on the gardaí the duty to seek out relevant evidence should not be widely interpreted.  Indeed, Hardiman J. in Bradish at 135 said that such as duty “cannot be interpreted as requiring the gardaí to engage in a disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence”. 
13.7 There has been no breach of the applicant’s rights to a trial in the course of law and/or within reasonable expedition.  The complaints are not a party to these proceedings.  Accordingly, allegations that they failed to supply information is not relevant.  The respondent supplied relevant information to the psychologist to enable her to come to a decision on the reasonableness of the delay in the making of a complaint by the applicant’s niece and nephew.    In the circumstances the court cannot accede to the application for an injunction restraining the respondent from prosecuting Bill No. CC 0078/2001 in relation to charges 90 to 101 of 2001 at presently pending before the Central Criminal Court nor a similar order in relation to charges 88 and 89 of 2001 at present pending before the Circuit Court for the Eastern Circuit for the Co. Kildare