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1. On the 5th of April, 1999, the Applicant was arrested and charged with the offences set out on Athy charge sheet No.77 of 1999.

2. The offences charged were that the Applicant did between the 1st of June, 1981 and the 31st of December, 1983 at C, Co. Kildare, within the Court area of Athy, did commit buggery with a male, namely D W, contrary to Section 61 of the Offences Against The Person Act 1861. The Applicant was further charged that between the same dates and at the same location he did assault the said D W with intent to commit buggery or an indecent act, contrary to Section 62 of the Offences Against The Person Act 1861. In reply to the charges after caution, the Applicant had nothing to say and was released on bail to appear at the District Court on the 27th April, 1999.

3. He was subsequently returned for trial in the Circuit Court on the 27th of July, 1999. The trial was initially fixed for hearing on the 2nd of November, 1999 before the first named Respondent, but has been adjourned because of this judicial review application.

4. The judicial review proceedings were brought on the 19th of October 1999, wherein both interim and final orders were sought restraining the first named Respondent from proceeding further with the trial of the Applicant on the charges before him. The judicial review proceedings further sought an Order prohibiting the second named Respondent from further prosecuting the Applicant on these charges or proceeding further with the said charges.

5. The grounds upon which relief was sought were as follows:-

6. By Order dated 26th October 1999, Mr. Justice Geoghegan gave leave to the Applicant to apply for the relief's hereinbefore mentioned on the grounds recited above and further directed that the proceedings before the Circuit Court be stayed until the determination of the application for judicial review.

7. A Statement of Opposition was delivered on the 3rd of March 2000, in which the application for judicial review was opposed on grounds which, inter alia, included the following:-

8. Turning to the factual background, both the W family and the K family moved into a housing estate, at the beginning of March, 1981. The K family were resident at No 11 and the W family were resident at No 39. An employee of the local Urban District Council has confirmed that both families commenced to pay rent for their houses at the beginning of March 1981.

9. The Applicant was born on the 13th of November 1960 and was thus 20 years of age in March 1981. The Complainant was born on the 21st of June 1969 and was some three months short of his 12th birthday in March 1981.

10. The two boys became friendly, notwithstanding the age difference between them. According to the Complainant, the Applicant used to have motorbikes and both he and the Complainant were very interested in them. The Applicant was in the Army and used to travel over and back to the Curragh on his motorbike, according to the Complainant. He alleges that on one particular evening they arranged to go the the Curragh on his bike on the following day. He alleges that the Applicant invited him to stay at his home that night as it would save him calling over for him the following morning. Both mothers knew that he was staying in the house and this caused no problem. He stayed in the same room on the night in question with the Applicant. He alleges that he was in bed and asleep when the Applicant got into bed and sexually assaulted him. He alleges that the Applicant tried to put his finger up his rear passage but was not able to. He then pulled his underpants down as far as his knees and he felt something hard rubbing up between his legs. He then felt his hand going down and putting his private part into his rear passage. The alleged assault went on for about 10 minutes, following which it is alleged the Applicant rolled over and went to sleep. The Complainant lay awake all night crying and went home to his own house the following day. Later that evening he alleges that he told his mother what had happened. His mother thereupon left the house and went over to the Applicants house where she allegedly spoke only to the Applicant. The Complainant does not know what went on there and that was the last thing that was said about the whole affair. Thereafter, according to the Complainant, he was teased and “slagged” by lads in the estate, apparently because the Complainants sister was aware of the allegation and had told other people.

11. The Complainant states that about a year later he met the Applicant and told him he was being slagged. According to the Complainant, the Applicant told him not to say anything about what had happened and not to mind them slagging. The matter was never discussed again between them.

12. Sometime in 1991, the Complainant went to England and met up with a girl in London who had his child. This relationship did not work out and the Complainant left her to return home.

13. The Complainant blames the breakdown of this relationship on the incident which occurred between him and the Applicant, as he does other failed relationships with girls. He also commenced to drink heavily and was guilty of a number of Public

14. Order Offences. Again he lays responsibility for all of these life experiences at the Applicants door. He started to beg for money for drink on the streets of Derry in 1997 at which stage he sought help at Cuan Mhuire where he stayed for two weeks. He was then referred to Cuan Mhuire in Athenry in Galway where he got counselling. He left there in April 1998 and made a complaint to the Gardai on the 31st of May 1998.

15. The Book of Evidence incorporates a statement of proposed evidence to be given by his mother, M W who says she recalls an occasion shortly after moving into the housing estate that her son stayed overnight in Ks’ house. She says that her son stayed on and off in K’s. He used to run errands and help out with things in K’s. After staying one night, she states that he called her the following evening and informed her that the Applicant had interfered with him. She examined her son as best she could and found that his back passage was red and tender. She then went over to K’s and spoke to the Applicant. She asked him about what her son had said and the Applicant’s answer to her was that he had been drunk and that it could have happened. She says that he told her it would never happen again. According to M W, she decided to leave things at that as the Applicants mother Mrs. K was ill at the time. This hardly seems a credible reason for doing nothing or for not speaking at least to the parent who was not ill.

16. The Book of Evidence also incorporates a Statement from the Applicant in which he states that in 1981 his father was extremely ill and in fact died on the 27th of March 1981. Three months after his fathers death he joined the Army and was based in the Curragh. He joined on the 18th of June 1981. He drove a mini car at the time and used to travel back and forth in it. He says he was friendly with a few of the lads in the estate and used to hang about with the Complainant who was one of his best friends. He says that at no stage did he ever ask the Complainant to come to the Curragh with him. Quite simply it was not possible to bring anybody into the Curragh because of security. Two years after joining the Army, he commenced to date his present wife. It was only after he started dating the girl he subsequently married that he bought the motorbike. This would have been in 1983. This was the first and only motorbike he ever had.

17. He asserts that he has no knowledge of the incident alleged by the Complainant and states that he never touched the Complainant. His first knowledge of his accusations were when the Applicants brother telephoned him in 1998 and said that the Complainant was accusing him of molesting him. He asserts he had no knowledge of the rumours or slagging referred to by the Complainant, nor did he have any conversation with the Complainant’s mother about molesting her son. When he joined the Army he had to do recruit training. During that time he was only allowed home on various weekends. He then had three star training which lasted for a further four months, again with only a few weekends off. He was in training for a total period of eight months from June 1981 to February 1982. His mother died in 1994.

18. By way of additional information, the report of Alex Carroll, Senior Clinical Psychologist attached to the Midland Health Board, was placed before the Court. He made a phsyochological assessment of the Complainant on a single occasion on the 22nd of February 2000.

19. The Complainant told Mr. Carroll that for many years he felt guilty, dirty and ashamed because of the sexual assault he had suffered and felt he had done something wrong. He had recurrent nightmares of the abuse happening again. He stated that he was afraid of the Applicant as a child following the abuse and subsequently became afraid of men in general. He stated he found sex to be disgusting and degrading and had ended two relationships because of it. Following sexual activity he would scrub himself with a brush until it hurt.

20. He also told Mr. Carroll that when he went to England at 16 years of age, he was running away from what had happened and for many years he tried to block his memory of the abuse. He became an alcoholic and drug abuser and attempted suicide on a number of occasions. In addition he had been in prison on a number of occasions on charges relating to drunkenness and Public Order Offences. He had also become alienated from his family because of his lifestyle.

21. Significantly, when asked about his motivation for making a complaint at this time, the Complainant stated that the Applicant now had his own house and job, while all he had were memories of that night. According to the Complainant, he has been punished for his crimes and the Applicant should be punished for his. In addition he informed Mr. Carroll that he would hate to think that anyone else would have to go through what he had been going through for the past 20 years. He also identified an incident which occurred at the Complainant’s fathers funeral several years ago in which the Applicant had symphatised with him, saying “Sorry for your troubles”. He recalled thinking “What would you know about my troubles” and regarded that incident as a determining factor in his decision to pursue a complaint against Mr. K.

22. It is Mr. Carroll’s opinion that the failure of D W to make a complaint at the time, or in the intervening years is adequately explained, from a psychological perspective, by the exercise of power by the Applicant over the Complainant and by the known dynamics of sexual abuse, each of which apply in whole or in part to this particular case.

23. Both in his report and in his oral testimony to the Court, Mr. Carroll explained how sexual abuse often involves a known adult who is in a legitimate position of power over a child and who exploits accepted societal patterns of dominance and authority to engage in sexual activity which the child does not comprehend or understand. This explains in many cases the failure of the child to disclose the fact of abuse or to make a complaint at the time the abuse was taking place, in subsequent years or indeed at all. He further outlined how the victim may feel that he/she will not be believed if they complain or alternatively may be daunted by what they see as the difficulties of having their story accepted.

24. It was put to Mr. Carroll in cross examination that, apart from the obvious age difference between the boys, this was not a position of dominance such as might arise in the case of family abuse, or abuse by a teacher or member of a religious order. It is further put to Mr. Carroll that in fact the Complainant had disclosed the assault on the very next day to his mother who had elected not to involve the Gardai either then or later or to have the Complainant examined by a Medical Practitioner. It was further suggested to Mr. Carroll that it was quite unreal, though perhaps convenient for the Complainant, to attribute all his life's woes to this alleged incident and that such wide ranging claims were quite incapable of being established in any sort of credible way. Mr. Carroll while accepting that this case clearly had features which removed it from the usual type of sexual abuse situation, non the less felt happy to stand over the contents of his report.

25. I am compelled to say I had great difficulty with both Mr. Carrolls report and oral testimony. The fact that the Complainant was able to disclose the assault in question, on his own version of events, on the following day is the clearest possible refutation of a suggested dominant power relationship. It is hard to imagine a situation more different from that of a mature adult in a position of responsibility over a child than that described in the instant case. At 20 years of age, the Applicant can hardly be described as a “mature adult”. Both he and the Applicant were friends for a relatively short duration. There is nothing before the Court to suggest that the Complainant could not remove himself from the influence of the Applicant whenever he chose to do so. In fact, that is precisely what did occur in the aftermath of the alleged incident. The alleged instruction not to disclose the incident appears, again on the Complainants version of events, to have occurred more than a year later.

26. The Complainant is now 31 years of age. He was 29 years of age when he complained to the Gardai. Despite what is stated by Mr. Carroll, I find it impossible to accept or believe that he could not at some stage between going to England at age 16 and the date of the complaint in 1998 have come forward to make the complaint which he did make in May 1998. There is no suggestion that this was a repressed memory of which he was not consciously aware, nor was there any fetter on his capacity or ability to do so in the sense of any other authoritarian or dominant power situation which might have precluded him from doing so.

27. His reasons for coming forward with the complaint in May 1998 are even of greater concern, prompted as appears to be the case by feelings of envy and resentment because the Applicant has his own house and family and career, whereas the Complainant has none of these things. It is hard to imagine a more unsatisfactory backdrop for a complaint of this nature than one thus motivated.

28. I have no hesitation therefore in concluding that any delay in this case, and there has been gross and substantial delay, has not been brought about either by the prosecuting authorities or by the Applicant. The Complainant must have been aware for many years, at least from the time he went to England, that the Gardai had not been involved in this matter, yet elected not to do anything about it until May, 1998.

29. No convincing explanation has been offered to the Court as to why the Gardai were not involved, either at the time or later by the Complainant’s mother, so that this case seems on all fours with the situation considered by Barr J in N.O.C. -v- Director of Public Prosecutions and his Honour Judge Dermot P Sheridan (1992) ILRM 14, where the learned Judge restrained the Respondent from proceeding with a proposed trial against a backdrop where there had been an unexplained failure by the Applicants father to complain to the police about the Applicants sexual abuse of his sister within the period of the alleged crimes, combined with a delay of upwards of 9 years in making a complaint and gave rise to a delay which was unreasonably long in all the circumstances and thereby prejudice the Applicant in the preparation of his defence.

30. As pointed out by Denham J in B -v- Director of Public Prosecutions (1997) 3IR (at p202), the very nature of such cases is that an alibi is generally not a relevant defence. Allegations of sexual abuse which occur in the privacy of the home, as in that case, are invariable alleged to have taken place with only the Complainant and the accused present.

31. Mr. Gaffney on behalf of the Respondents argues that similar considerations apply in the instant case. No other person is alleged to have been present when the alleged assault took place.

32. However, it seems to me a very grave prejudice arises in this case because two witnesses who might have been available to the Applicant are now deceased namely his mother and father, both or either of whom could have given evidence in relation to any alleged visits or stays in their home by the Complainant, and as to the rooming arrangements if and when such “sleep-overs” occurred. Furthermore, one or other may have been available to the Applicant to say whether or not Mrs. W had ever come to their home at the time of the alleged incident even if in so doing she spoke exclusively to their son, something of itself which would be so unusual as to be unlikely to escape recollection.

33. In a case such as this, I would agree and accept that want of specificity as to the date of an alleged assault should not be regarded as unduly significant. As Mr. Gaffney points out a Complainant may not recall the day, the month or the year but yet have a sufficiently graphic recall of the circumstances and setting to provide a totally credible account of such and assault. From this proposition I would not demur.

34. The difficulty in the instant case is that the want of specificity puts the Applicant at a severe disadvantage because he may have a complete defence based on his having joined the defence forces in June 1981 in respect of that period onwards. Quite simply he would not have been residing at home from that time onwards.

35. A large number of authorities were opened to the Court in well argued presentations by both sides, including:-

36. These cases have set out principles applicable to cases of this nature which are constantly being refined in the light of increasing knowledge and understanding about offences of this nature.

37. As McGuinness J stated in her judgment in JL -v- DPP (delivered on the 6th of July 2000) at p5:-

38. She also cites the following passage from the Judgment of Keane J ( as he then was) in PC -v- DPP (1999) 2IR (p67):-

39. McGuinness J cited the aforementioned passage as the most clear expression of the approach the Court should adopt and I respectfully concur. I also share the view of McGuinness J in relation to the observations of Hardiman J in JOC -v- DPP (19th May 2000 ) in relation to the practical effects of a lengthy lapse of time on the ability to mount a defence in a criminal trial. At page 21 of his Judgment Hardiman J states:-

40. Again, this quoted passage makes obvious good sense and is particularly apt to the facts of the instant case. Leaving to one side the allegation and denial, the real battle ground in this case, had it proceeded, would have been in the collateral areas referred to in the factual narrative. Clearly the passage of time has gravely disadvantaged the Applicant in those particular respects.

41. Because I do not believe the delay in this case can be laid at the door of the Applicant and because I conclude that his ability to defend himself against the charges has been seriously impaired as a result of the delay, I propose making the Orders sought herein.