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1. The Applicant is a married man with five children. He is charged that on a date unknown in the month of May 1987 he did indecently assault his eldest daughter contrary to common law. This charge arises out of two formal complaints by his daughter, one made on the 24th May, 1994 and the other on the 5th December, 1994. He was interviewed on foot of the first complaint on the 2nd June, 1994 and following the second complaint was arrested on the 7th December, 1994. A summons charging him with the said offence was applied for on the 11th September, 1995 and was returnable to the District Court for the 12th October, 1995. The matter was adjourned from time to time before the District Court. When the Book of Evidence was served on the 4th January, 1996 the next listing of the matter was for the 2nd February, 1996. On the 15th January, 1996 Carney J. gave the Applicant liberty to apply for an Order of Prohibition in respect of the said proceedings.

2. The facts giving rise to the Prosecution and these proceedings are as follows:

3. In May 1988 the Applicant made advances of a sexual nature towards his daughter as a result of which she complained to her school counsellor in or about the 18th May, 1988. At the same time she complained to him that the Applicant had sexually assaulted her the previous May. The school counsellor prepared a report of this interview and the complaints made and sent it to the local health board who immediately wrote to the Applicant and his wife suggesting that they attend a meeting. The meeting was arranged for the 31st May, 1988 but neither the Applicant nor his wife attended. A further letter was written on the 2nd June arranging a meeting for the 7th June. Again neither the Applicant nor his wife attended.

4. On the 8th June, 1988 the health board wrote to the local inspector of the Gardai enclosing the report from the school counsellor. Following that letter a member of the Gardai notified the Applicant that he should attend at the health board whenever a meeting was arranged. On the 17th June the Applicant's wife contacted the health board and said that they would be willing to attend whenever a meeting was arranged. On the 20th June the Gardai informed the health board that they had notified the Applicant and his wife of their need to attend any meeting which was arranged.

5. No meeting was arranged until the 12th September and this was arranged for the 27th September. Both the Applicant and his wife attended that meeting in the course of which the Applicant admitted what was alleged. It was decided that the matter should be referred to a clinical psychologist. This was done on the 16th November, 1988 and the Applicant and his wife attended the latter on the 1st February, 1989, 17th February, 1989, 1st March, 1989, 7th April, 1989, 12th May, 1989, and 14th June, 1989. One meeting arranged for mid-March was not attended. The reason that the attendances ceased was that the Applicant had obtained employment and was unable to attend. This was understood by the clinical psychologist who apparently was satisfied to see the wife on her own. In fact it appears that only one further appointment was arranged and that was for 14th February, 1990 when the wife attended. She explained that her husband was unable to attend because he was in employment. It does not appear that any further efforts were made to see the Applicant. A report had been prepared by the clinical psychologist on the 21st April, 1989 and sent presumably to the community care psychologist by whom the Applicant had been referred to her. This report is factual and makes no particular recommendations nor does it indicate that the treatment was terminating.

6. The daughter complainant was born on the 22nd January, 1974. Following these events she continued to remain at home and did so until the 31st December, 1992. In the meantime, a son was born to her on the 25th April, 1991. She moved to alternative accommodation on 1st January, 1993 and in June 1993 she moved into other accommodation with a male partner with whom she is still living.

7. The Applicant's Counsel submits that in the events which have occurred there has been a breach of the guarantee of fair procedures and that to continue with the prosecution at this stage would be contrary to natural justice. It is submitted that the Applicant was left with the belief that he would not be prosecuted and that it would in the circumstances be unjust to proceed further, having regard to his sessions with the clinical psychologist and admissions as to the truth of the allegations set out in the report of the school counsellor.

8. The Respondent's Counsel submits that no undertaking was given to the Applicant that if he attended at the health board and followed such directions that they gave him that he would not be prosecuted. No submission has been made on behalf of the Applicant that the delay in prosecuting him has been prejudicial to him.

9. While the history of events is as I have indicated there are a number of issues which have arisen which one side or the other has raised in order to support its basic submissions. It is submitted on behalf of the Applicant that there was no reason why a prosecution should not have been preferred earlier. It is undoubtedly true that the guards were fully aware of the allegations. However, the inspector, as he then was, has deposed to the fact that the Applicant's wife insisted at all times that they had sorted out the matter and in this way prevented him from taking a statement from her daughter.

10. On behalf of the Respondent it is submitted that the Applicant has in his Affidavit overstated the reality of what occurred between him and the clinical psychologist and the health board. There was also a divergence between what is said to have been reported to the school counsellor and what was said to have been reported to the Gardai and the manner in which such reports were made in or about the times of the alleged offences.

11. In the course of the Affidavits sworn on behalf of the Respondent by health board doctors and other staff there are specific averments that no undertaking was given to the Applicant that if he attended no further steps would be taken against him. This has never been his case, nor would any such undertaking, if given, have bound the State. The Applicant is accused of a serious offence to which he has admitted. He must face his trial on this charge unless as a matter of law it is the view of this Court that justice would not be served by allowing such a prosecution to proceed.

12. It is clear that the complainant's school counsellor took a serious view of what he was told. His report to the health board suggests that he viewed this body as being the only body capable of protecting the interests of the complainant. The attitude of the health board seemed to be the same. It involved the Gardai merely as a means to compel attendance of the Applicant for treatment.

13. Unfortunately, the health board allowed several months to elapse before fixing another appointment and then having heard an admission another four months before treatment began. The Gardai after an initial attempt to obtain a statement took no further steps. In the event seven years went by before a formal complaint was made. Even then the matter was treated as a fresh complaint and it was not until the second complaint six months later that the Gardai appear to have acted.

14. It is not surprising that in view of these matters that it is now submitted that justice would be better met by prohibiting any further steps by the prosecution on foot of the present charge.

15. The Applicant relies on a form of estoppel. He submits that the Gardai were aware that he was being compelled to attend counselling and that the State cannot now be heard to say that it is still entitled to mount a prosecution.

16. In my view, this submission must be rejected. Counselling and prosecution are two separate and distinct reactions to the matters complained of. They are not mutually exclusive. Nor do I see that there is anything basically unfair in the prosecution of the Applicant unless either there is a serious risk that he would not receive a fair trail or it would otherwise be unconscionable to put him on trial.

17. In my view, neither of these grounds exist in the present case. It is a matter for the District Judge whether to send the Applicant forward for trial. If this is done, then it is a matter for the Circuit Judge to ensure that he gets a fair trial.