THE HIGH COURT
			2000 No 44JR
			JUDICIAL REVIEW
BETWEEN 
V D AND J O F 
			APPLICANTS 
AND
DPP
			RESPONDENT
JUDGMENT of Mr. Justice Kearns delivered the 23rd November, 2001
	Each of the Applicants herein seeks to restrain the Respondent from further prosecuting alleged sexual offences complained of by A L who was born on the 8th December, 1969.  None of the parties are related to each other.
	The First Named Applicant, who was born on the 27th February, 1939, is alleged to have indecently assaulted the Complainant at different locations in the South of Ireland on divers dates between the 8th December, 1983 and the 5th January, 1986.  Four offences of this nature have been the subject matter of charges brought against the First Named Applicant under the Criminal Law (Rape) Act, 1981. 
	The Second Named Applicant was born on the 11th October, 1951.  He became friendly with the First Named Applicant because they had adjoining flats at the same address.  He is charged with one incident of indecent assault on a date unknown between the 8th December, 1983 and 7th December, 1984.
	The Complainant made a statement of complaint against the First Named Applicant on the 5th March, 1998.  Thereafter, the First Named Applicant was charged on the 5th July, 1999.  On the 22nd September, 1999 a Book of Evidence was served on the First Named Applicant, who was returned for trial on the 7th October, 1999.  Leave to bring these Judicial Review proceedings was granted by O’Neill J. on the 14th February, 2000.
	The statement of complaint against the Second Named Applicant was made on the 5th March, 1998 and he too was returned for trial on the 7th October, 1999.  
	Both Applicants seek relief on grounds that the delay since the time of commission of the alleged offence/s is excessive, that the delayed prosecution violates constitutional rights to a trial with reasonable expedition and that because of such delay the Applicants cannot now properly defend themselves against the allegations raised against them.
	The Complainant has sworn Affidavits in each of these cases, in which she refers to the reports of Ms. R M, Consulting Psychologist and Psychotherapist, which she says contain a true and accurate account of her experiences at the hands of the Applicants.
	The Complainant was the youngest of four children of a dysfunctional family.  She was placed in care, along with her sisters and brother, at 7 years and spent the ensuing 4 years in a convent in the South of Ireland.  While there she alleges she was sexually abused by an older girl. Her father never came to see her and her mother visited only occasionally.  When she was 11 she was moved to a home in the Southwest of Ireland where her mother and sisters could no longer visit her.  However, when she was 13 years of age she left this home and went to live with her mother, her sister and her sister’s boyfriend in a one-bedroomed flat.  She finished her education at 14 years.  She did not like being at home because her mother and sister and her sister’s boyfriend were always arguing.  	
	The First Named Applicant lived in a flat near to the flat where the Complainant lived.  He knew the Complainants sister and seems to have befriended the family.  He used to call to watch TV.  On some occasion in the summer of 1984, while the Complainant was in the flat of the First Named Applicant, he started kissing her and saying he loved her.  The Complainant was then aged 14 years.  He gave her an engagement ring at that time.
	One night in 1984, the Complainant, who by then had also become friendly with J O F, the Second Named Applicant, alleges she spent a night in his flat when J O F asked her into his bed and asked her to pull his penis and he came off.  The Second Named Applicant was about 34 years of age at that time.  In her statements to the Gardai, the Complainant stated that she did not think that he had sexual intercourse with her at that time.  The following morning, H O F, a brother of the Second Named Applicant, came into the flat after J O F went to work and, according to the Complainant, had sex with her on that occasion.
	In 1985, following a row with her sister the Complainant went to the flat of the First Named Applicant.  She alleges that on that evening an act of sexual intimacy occurred in the back of a car, although it is unclear whether a completed act of sexual intercourse is alleged on that occasion.  However, the Complainant does allege that, in the months that followed, she did have sexual intercourse with the First Named Applicant in various locations.
	In October, 1985 her mother and sister wished to move to England and wanted the Complainant to go with them, but she refused.  She elected to stay with the First Named Applicant in his flat.  Thereafter they lived together and found new accommodation together in January, 1986.  It seems that at this time she cooked, cleaned and did the washing for the First Named Applicant.  In 1986, she met S M, who was two years older than her and with whom she went to England for several months in 1986.  When this relationship failed, she returned to the First Named Applicant’s flat.  The Complainant alleges that thereafter she was sexually assaulted by the First Named Applicant’s landlord on an occasion when she was alone in the flat.
	The Second Named Applicant went to Australia in October, 1986 and remained there until August, 1987.  Following his return, he moved into the flat with V D and the Complainant.  The arrangements were that V D slept in the bed, while the Complainant slept on the floor with J O F.  She alleges that during days while J O F was at work, V D had sex with her.  At other times, she had sexual intercourse with the Second Named Applicant and this state of affairs continued for about 2 years.  When she was 19, she moved out into another flat with the Second Named Applicant. 
	During this period of her association with the Second Named Applicant, the Complainant consorted with a barman F C.  In her statement to the Gardai, she claimed she had sex with this barman although in evidence she denied that she had either sex with him or various other young men with whom she admitted she had short term relationships.
	On one particular night, when she was alone in the flat, the brother of the Second Named Applicant tried to break in through the window of the flat.  She went up stairs and obtained assistance from an occupant of another flat and together they called the police.  The Complainant believes that H O F wanted sex with her on that particular occasion.
	When she was 21 years old, the Complainant went to the UK where she met    P A with whom she formed a relationship.  He came back to Ireland with her.  Initially they moved into a flat with J O F, the Second Named Applicant, and remained there for a year before getting a place of their own.  However, both Applicants continued to call to her new place of residence.  Acts of abuse are not alleged against either Applicant from this time onwards, although the Complainant says that both Applicants expected the Complainant to continue washing and other domestic duties for them.
	The Complainant contends that she had no friends during those years, other than the Applicants and a succession of young males with whom she had short term relationships.  She further complains that in the early 1990’s she commenced to exhibit severe psychiatric problems, and, in particular an obsessional compulsive behaviour which took the form of washing her hands repeatedly and washing any object which had been touched by others.  From the papers placed before the Court, it appears she was referred to the Psychiatric Unit of a Cork Hospital in January, 1995 with a 4 year history of phobic symptoms.  She also appears to have been put on medication at that time.
	In the mid 1990’s, the Complainant spilt up with P A and formed a relationship with V O B, who is her current partner and with whom she presently resides. She contends that she did know that the acts of sexual intercourse she had previously been involved in were wrong because she believed the arrangements with the two Applicants were “normal”.  In particular, her mother appeared to condone the relationship with the First Named Applicant.
	However, in 1995, the Complainants current partner questioned her about the alleged abuse and prompted her to make a formal complaint.  At this time, the Complainant consulted her General Practitioner and in December, 1996 gave her a full account of her experiences at the hands of the Applicants.  She states that her General Practitioner explained to her that she had been sexually abused and that she could, in her own good time, make a complaint about it.
	In his Affidavit, the First Named Applicant draws heavily on the statement of the Complainant contained in the Book of Evidence.  He confirms that he became acquainted with the Complainant through her sister when she was approximately 14 years old.  She used to call to his flat at that time.  He does not contradict the Complainants account that she moved in to his flat following a fight with her sister when she was approximately 15 years old.  He confirms that when the Complainant reached the age of 16 years, her mother, sister and her sister’s boyfriend went to live in England.  He states that he gave the Complainant the money for her ticket to go to England with S M in or around 1986.  He also sent her the money for her ticket home some months later.  He then recites the various complaints made by the Complainant to which reference has already been made, but states that the Complainant was never in his power, but rather had numerous boyfriends and relationship from which he contends it is obvious that there was no dominion or control exercised by him, nor was she ever put in fear.  Through his Counsel, however, the First Named Applicant has effectively conceded that any delay in making a complaint prior  to the time when the Complainant left the flat she shared with the First Named Applicant could not be laid at the door of the Complainant.
	In his Affidavit, the Second Named Applicant accepts that he did have a sexual relationship with the Complainant following his return from Australia in 1987.  He accepts he spent a night with the Complainant which did not involve sexual intercourse on some date prior to his trip to Australia in 1986.  He was in Australia between October, 1986 and August, 1987.  He states that he shared a flat at one stage with the Complainant and a boyfriend of hers some years after his return from Australia.
	In addition to the Affidavits already referred to, Affidavits of R M, Psychologist, were placed before the Court in relation to the issue of Complainant delay.  Further Affidavits of Detective Garda D. L. and Garda B. M. were placed before the Court on the issue of Prosecutorial delay.
	In the hearing before this Court, Ms. R M was cross examined by Counsel for the Second Named Applicant.  The Complainant was also cross examined by Counsel for the Second Named Applicant.  Counsel for the First Named Applicant did not cross examine either of these witnesses.

Complainant Delay
	Evidence to explain Complainant delay in making a complaint to the Garda Siochána in this case consisted of Affidavits sworn by the Complainant and Ms. R. M. who is a Consultant Clinical Psychologist and Psychotherapist attached to an Institute in Glasnevin.
	For the purpose of compiling her report, Ms. M. reviewed the statements of evidence of the Complainant, Garda L and Garda M.  She also obtained from the Complainant a hand written account of her alleged experiences of sexual abuse, why it happened and the effect the abuse has had on her.  She also was in contact with the Complainants General Practitioner and obtained a letter from her.  
	In addition she had two interviews with the Complainant, which lasted about three hours. 
	Three questionnaires were administered to the Complainant to assess the range and severity of her difficulties. These were:-
  (a)	The Trauma Symptom Inventory (Briere, 1995) - an inventory used in the assessment of post-traumatic stress and other psychological sequelae of traumatic events including childhood abuse.
  (b)	Brief Symptom Inventory (Derogatis, 1993) - a self report symptom inventory designed to reflect the psychological symptom patterns of psychiatric, medical and community non patient respondents.
  (c)	Post Traumatic Stress Diagnostic Scale (Foa, 1995) - a self report instrument designed to aid in the diagnosis of post traumatic stress disorder based on DSM-IV criteria.

	As a result of the administration of these tests, Ms. M was able to report that the Complainant exhibited difficulties of phobic anxiety and met five of the six criteria for diagnosis of post traumatic stress disorder. She exhibited a total of ten symptoms out of a total of seventeen which were of a chronic nature and had a delayed onset.
	The Complainant attributed her psychological difficulties to her experience of sexual abuse.  She had difficulties associated with poor confidence and self-esteem which in the opinion of Ms. M originated in her early history of neglect, domestic violence and experience in care.  This was not to suggest that experiences of sexual abuse did not contribute significantly to the exacerbation of such difficulties which she considered to be the case with the Complainant.  Ms. M reports that the Complainant moved from the care of her family, albeit inadequate, to the care of a man, the First Named Applicant, who together with his friend the Second Named Applicant, systematically abused the Complainant on a regular basis presenting this as a “normal arrangement” to the extent that the Complainant believed it herself.  They were the only family the Complainant had after her mother and sister left for England.  As she got older, she felt ashamed and attempted to hide the nature of these relationships from her two subsequent boyfriends.  Her family appeared to condone the relationship with the First Named Applicant regarding him as a family friend.  Her emotional dependence on the First Named Applicant would appear to have been a significant factor in her inability to protect herself against sexual abuse as a young teenager and her subsequent inability to complain about the sexual abuse.
	After she moved out of the environment she shared with the Applicants, her sense of shame persisted and both men continued to call to visit her.  The Complainants distress, having told her doctor about the alleged abuse, was apparent immediately.  She was very depressed and felt like giving up.  She described how her current partner had questioned her about rumours concerning her relationship with the Second Named Applicant.  This led to arguments between the Complainant and her boyfriend.  She then confided in her doctor who advised her that this was abuse and asked if she had made a complaint.  The Complainant indicated she did no know that one could complain about such things.
	In Ms. M’s opinion, the Complainant was only able to make a formal complaint when, 
  (a)	her relationships with the Applicants were challenged by her boyfriend,
  (b)	she disclosed to her doctor and was apparently told that this was sexual abuse, 	and
  (c)	she had severed her relationships with both Applicants.

	In conclusion Ms. M stated it was not possible to separate the possible effects of sexual abuse from her early experience of domestic violence, neglect and subsequent separation from her family, but it is likely that her current difficulties, which include poor self-esteem, depression, obsessional/compulsive behaviour, trust and dependency issues were significantly exacerbated by the alleged abuse.  Ms. M felt the complainant lacked the personal resources and support to be able to make a complaint and concluded that the delay in reporting was reasonable.
	She was cross examined by Counsel for the Second Named Applicant, who suggested that a clear discrepancy existed in relation to accounts of the one incident involving the Second Named Applicant, in that it was reported by the Complainant to her as an episode of sexual intercourse, whereas in her statement the Complainant indicated that she did not think she had sexual intercourse with the Second Named Applicant on this occasion.  Ms. M indicated that she was aware of the inconsistency and had noted it, but did not feel it was part of her function to investigate something which, in her opinion, formed part of the investigation.  She had noted it and the distinction between different charges was not very much to the forefront of her mind.
	Apart from her landlord and the Second Named Applicants brother, the Complainant did not identify any other persons as persons with whom she had sexual relations up to 1990.  It was suggested to her that an examination of those relationships might have shown that she could confide in those other persons with whom she enjoyed close relationships. Ms. M maintained, however, that it was her impression that the Complainant led a very insular life.  The fact that she went out with a variety of males did not mean she had someone in whom she could confide.
	She was not aware that the Second Named Applicant had been in Australia between 1986 - 1987.  It was put to her that it was misleading to say there was continuous abuse of the Complainant until she was 21 years of age.  Ms. M explained that when she was referring to her relationship with the Second Named Applicant she was not simply referring to their sexual relationship, but was using the term in broad sense. 
	Asked about the episode involving the Second Named Applicants brother, it was put to the witness that a complaint made to the Gardai at that time clearly suggested she was well capable of making a complaint about sexual abuse also.  Ms. M, however, clarified that in her opinion an aggressive person breaking into her flat was to be seen in quite a different light from her ongoing sexual relationship with the Second Named Applicant with whom she was living at the time.  She believed the Complainant had difficulty distinguishing between what was criminal and what was normal in her relationship with the Second Named Applicant.  In her view the Complainant had a dependant relationship on the Second Named Applicant, she also felt ashamed, and did not understand the relationship was either abusive or criminal.
	The Complainant was then cross examined.  She presented as an extremely nervous and immature person. 
	Pressed about the incident where the Second Named Applicants brother broke into her flat, she stated that she went upstairs for help on that occasion.  The person upstairs offered to go across the road to the phone box to phone the Guards with her.  She was terrified of H O F as she believed he was breaking in to try and have sex with her on that night.
	She was 15 when her mother went to England.  Her mother knew that she stayed on in the flat with the First Named Applicant.  She hadn’t gone with her mother and her sister because she was afraid of her sister’s boyfriend because he used to hit her mother which reminded her of her childhood when her father used to hit her mother.
	When she was 17 or 18 she went to join S M in England. She later met P A in England when she was 20 or 21.  Her mother condoned the relationship with the First Named Applicant.
	She went out with P A for about five years from when she was 21.  She did not tell him about the abuse because she was ashamed.  She did tell her current partner in 1995.  She had had other boyfriends, but these relationships only lasted for a short period of time and she did not have sex with these partners.  She explained that she was trying to get away all the time by going out with these boys, but in the end she kept coming back to the flat. However, when she came back to Ireland with P A sometime around 1990, she moved to another location, but both Applicants continued to call and expected her to do their washing.  However, any abuse had ceased at that stage.
	She began to realise that what had happened to her was wrong around about 1990.  However, she was suffering from depression and had problems.  She had to wash all the time and wouldn’t touch things that other people had touched.  She would put on gloves and clean tables and other objects which had been touched by others.
	She told her General Practitioner around 1995 of the abuse.  Up to then she was too ashamed.  However, her phobia had reached such a stage in 1995 that she needed help and in fact was referred to a hospital at that stage.  But for her doctor and her companion she would not have been able to survive.  The person in whom she first confided was her present partner who explained to her that she had been abused. She hadn’t wanted to think about it.  In the end she went to her doctor and wrote out an account explaining everything to her.  Her doctor had said to her that when she was ready and in her own time she could make a complaint.  

Prosecutorial Delay
	An Affidavit has been sworn by Detective Garda D L detailing the course of the investigation from the date of the complaint to the Gardai to the ultimate charging of the Applicants.  The complaint was made on the 5th March, 1998 and thereafter the Gardai visited ten different premises where various witnesses were interviewed, statements obtained and relevant documentation examined.  Detective Garda L states that the investigation of the complaints made by the Complainant against the Applicant and others was a lengthy and detailed one. 
	On the 18th June, 1998, the First Named Applicant was interviewed and made a written statement after caution.  A further statement after caution was obtained in September, 1998.  The Garda file was forwarded to the office of the Respondent on the 1st February, 1999.  Directions were received in early May, 1999 and the Applicants were charged on the 5th July, 1999.  A Book of Evidence was served on the 22nd September, 1999 and the Applicants were returned for trial on the 7th October, 1999.  The application for Judicial Review was not made until the 14th February, 2000 in the case of the First Named Applicant and at the end of March, 2000 in the case of the Second Named Applicant. 

Legal position
	The relevant legal principles applicable in cases of this nature are set out in     P C -v- DPP (1999) 2 IR (at p. 67).
	In my Judgment in A W -v- DPP which I am also delivering today, I have set out a summary of those principles as I understand them to be.

Decision
(a)  Prosecutorial Delay
	Given that the Complainant made her statement of complaint on the 5th March, 1998 and the charges were brought on the 5th July, 1999, it may be seen that the total “delay” in this case is 16 months.
	I accept that the Garda investigation in this case was a prolonged one as there were a large number of incidents and locations mentioned in the statement of complaint and the inquiry ranged over a period of years.  There were a large number of witnesses to be located and interviewed.  While the Applicant made an initial statement, he required to make a further statement at the end of September, 1998, wherein he asserted he had had a nervous breakdown, had become impotent and had never been capable of having sexual intercourse with the Complainant.  The Garda file was forwarded to the office of the Respondent on the 1st February, 1999.
	I do not regard that period of time, on the facts of this case, as having been excessive or unreasonable.
	Nor was there any excessive delay in the office of the Respondent where all enquiries were completed and directions given on the 4th May, 1999.
	In my view the only culpable delay was that of the Applicants.  The First Named Applicant only made his application for Judicial Review in February, 2000.  The Second Named Applicant only made his application for Judicial Review towards the end of March, 2000.
	I therefore hold against the Applicants on the issue of Prosecutorial delay.

(b)  Complainant Delay
	As previously mentioned, Mr. O’C on behalf of the First Named Applicant accepted in his submissions that it would not be reasonable to attribute any delay to the Complainant for not coming forward during the continuance of her relationship with his client, the First Named Applicant.  In his submission, no question of dominance arose because in effect the Complainant and First Named Applicant were living as man and wife in the apartment.  He equally accepted that he had no particular case to make in terms of prejudice arising out of any delay, because he could not say that any witnesses that he might have hoped to have available to him were now unavailable.  His client had accepted a tremendous amount of the background material and the principle issue at any trial would be whether or not full penetrative sex had taken place as against other sexual contact.
	On behalf of the Second Named Applicant, Mr. D submitted that the Court must bear in mind that a single incident only was alleged and the consensual relationship between the Complainant and Second Named Applicant which existed in the period 1988 -1990 was not an issue in any way.  Any delay in complaining about an earlier incident was in no way attributable to his client.  Moreover, the Complainant had conceded she knew in 1989 that the activity she now complained of was wrong.  He further submitted that the evidence of the Complainant in relation to the break in attempt by his clients brother was not believable.  Rather it suggested that she was well capable of making a complaint to the Gardai where appropriate.  Furthermore, the Second Named Applicant must inevitably suffer prejudice as a result of the inordinate delay in coming forward with the complaint, although his client was unable to point to any specific prejudice.
	I will turn firstly to the psychological evidence given by Ms. R M.  I am satisfied that she approached her brief in this case in a full and comprehensive manner.  She conducted two interviews with the Complainant.  She obtained from the Complainant a written account to supplement the Complainants typed statements furnished to the Gardai.  She had statements of other Garda witnesses.  She had a letter from the Complainants General Practitioner.  She conducted an in depth psychological assessment of the Complainant.  She related the psychological sequelae of sexual abuse to the particular Complainant and to her particular makeup, taking into account, in particular, her dysfunctional family background, the unsatisfactory domestic arrangements involving the Complainant, her mother, sister and sister’s boyfriend.
	In addition, she provided a more than adequate explanation in respect of the break in incident upon which such reliance was placed by Counsel for the Second Named Applicant.  It is her view, which I accept, that a careful distinction must be drawn between a person who breaks into a flat, whether in pursuit of sexual contact or otherwise, and a person with whom the Complainant had a dependant relationship over a period of years, a relationship which involved far more than simply sexual contact.
	I found the evidence of Ms. M satisfactory to explain not only the failure of the Complainant to come forward during the years when she shared a flat with the Applicants (i.e. until she was 21 in 1990), but  also thereafter.
	It is quite clear that the Complainant was suffering a very significant disability which was superimposed on top of her poor educational, family and living circumstances.  This disability manifested itself in a distressing phobia which caused the Complainant to feel dirty and contaminated, so that she constantly washed not only herself, but all objects that others came in contact with.  This required a referral to a Psychiatric Unit in 1995 and a great deal of assistance from the Complainants General Practitioner, to whom in 1995 the Complainant, at the instigation of her boyfriend, confessed what had happened to her in the past.
	I also accept the Complainants evidence on all aspects of delay.  I accept her evidence that she had no close friends with whom she could confide.  I also accept that her multiple boyfriends, with whom she had very brief relationships, were most unlikely to have been suitable persons in whom to confide.  I further accept her evidence that, until she was about 21, she thought her relationships with the Applicants was “normal” and that she was incapable of forming any view that the sexual acts involved were wrong.
	While it did take the Complainant some time to come forward with her complaint to the Garda Siochána following her discussions with her General Practitioner, I am satisfied, taking the evidence as a whole, that the Complainants “limited personal resources” account for any delay which occurred.  As a witness she struck me as a person of whom such a description was very apt.  These resources were further weakened as a result of the psychological effects of the sexual abuse, which I am satisfied inhibited the Complainant in a very significant way and to a very significant degree.
	I therefore hold that the Respondent in each case has discharged the onus of proof on the balance of probabilities in respect of Complainant delay and I reject the claims of the Applicants in this respect.
	Finally, on the question of prejudice, no case has been made out by or on behalf of either Applicant that any specific prejudice has been suffered as a result of the lengthy interval of time which has occurred since the time of the alleged offences.  Indeed, Mr. O’C on behalf of his client did not pursue this line of argument at all.  I cannot also ignore that both Applicants made admissions when questioned which would support the prosecution’s case, which in B -v- DPP (1997) 3 IR 140 was identified by Denham J. as a relevant factor to the exercise of the Courts discretion to make its decision in a particular way.
	In these circumstances I will refuse all reliefs sought by the Applicants.