THE SUPREME COURT

Record No. 83/99

Keane, C.J.
Denham, J.
Murphy, J.
Murray, J.
McGuinness, J.

BETWEEN

S.

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE MICHAEL CONNELLAN

RESPONDENTS

JUDGMENT of Mrs. Justice Catherine McGuinness delivered the 19th day December 2000 (nem. diss.)

This is an appeal by S., the applicant/appellant, against an order of the High Court
(Geoghegan J.,) of the 18th February 1999 refusing the application of the applicant/appellant for an order of prohibition and other reliefs directed towards prohibiting his trial in the District Court on a number of counts of indecent assault.

Factual Background

The appellant was at all material times a consultant surgeon residing in a provincial town. For many years he held a post in a local hospital and in addition he carried on a private practice in consulting rooms in the town. On the 23rd December 1996 a number of summonses were issued against him alleging offences of indecent assault contrary to Section [*2] 62 of the Offences Against the Person Act 1861 relating to eleven male youths who had been his patients. The majority of the charges relate to offences which are alleged to have occurred between 1971 and 1979; one charge, however, goes back to 1962 or 1963, while the final offence is alleged to have taken place in 1982. The majority of the youths concerned were in their later teenage years at the time of the alleged offences; one was 19 years of age, one was 18, four were 17, one 16 and two 15. One of the complainants was 14 at the time of the alleged offence; the youngest complainant was between 9 and 11 years of age at the time of the alleged offence.
	
	The appellant at all times and in particular during interviews with members of the Garda Siochana denied all the allegations made against him and he pleaded not guilty to the offences in the District Court.
	
	An inquiry was carried out by the judge of the District Court as to whether the offences alleged against the appellant were appropriate for summary disposal. Having heard submissions from counsel for the appellant and counsel for the Director of Public Prosecutions, together with an outline of the evidence which the Director of Public Prosecutions intended to adduce in the case, the learned judge of the District Court held that the allegations were fit to be tried summarily and accepted jurisdiction in the matter. At a subsequent hearing counsel for the appellant applied to the judge of the District Court to dismiss the summary criminal proceedings on the ground that the delay between the approximate dates when the offences were said to have occurred and the date upon which the proceedings were instituted was in itself an unconscionable period of delay and that such delay had seriously prejudiced the appellant in his ability to defend himself against the allegations. The judge of the District Court, who is named as the second named respondent in [*3] the present proceedings but who has taken no part in them, refused to dismiss the summary criminal proceedings.

	On 17th July 1997 the appellant issued proceedings for judicial review seeking the following reliefs:

1. 	A declaration that the delay in instituting the criminal proceedings the subject matter of the application for relief herein against S. constitutes an abuse of process of the criminal jurisdiction of the District Court.
2. 	A declaration that the delay in instituting the criminal proceedings the subject matter of the application for relief herein against S. has prejudiced him in his ability to properly defend himself in those proceedings.
3.	An order prohibiting the presiding District Judge sitting in the District Court at Drogheda in the County of Louth from further proceeding with the summary criminal trial of S. on the offences the subject matter of the application for relief herein.
	4.	An order in the nature of an injunction restraining the Director of Public Prosecutions from further proceeding with the summary criminal prosecution of S. on the criminal offences the subject matter of the relief herein.
5.	An order staying the summary criminal proceedings the subject matter of the application for relief herein, pursuant to Order 84, Rule 20(7)(a) and (b) of the Rules of the Superior Courts as amended, pending the determination of this application.
	6.	An order directing that the application for relief herein be heard pursuant to the provisions of Section 45 of the Courts (Supplemental Provisions) Act 1961 as amended, in camera. [*4]
7.	An order providing for all necessary and/or incidental directions in relation to this application for relief.

	The principal ground on which the appellant sought these reliefs was the lengthy delay between the alleged commission of the offences and any possible trial of the appellant. He claimed that the institution of the criminal proceedings violated his constitutional right to be tried on criminal charges in due course of law pursuant to Article 38.1 of the Constitution and also constituted a breach of Article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms 1950. He claimed that he could not reasonably recollect either the material circumstances surrounding the alleged offences or the identity of any material witnesses who might be relevant to the allegations made against him.
	
	The appellant also claimed that he did not exercise a position of dominance and/or exert control over any of the complainants in the criminal proceedings to the extent that they were prevented from making a prompt report of any allegation concerning him.
	
	Leave to apply for judicial review was granted by order of Laffoy J. in the High Court on the 21st July 1997.
	
	A Statement of Opposition was filed by the first named respondent on the 26th November 1997. This was supported by the affidavit of Detective Sergeant Patrick O’Donnell who was a member of the Garda Siochana who had been involved in the prosecution of the appellant in relation to the charges of indecent assault. In his affidavit Detective Sergeant O’Donnell sets out that the first complaint against the appellant was made in a statement to Sergeant Joseph Grennan on the 1st March 1994. The complainant alleged that he had been indecently assaulted a number of times in the course of a medical examination when he was about 14 or 15 years of age in or around 1975 to 1976. A second complaint of a similar nature was made by another complainant on the 16th June 1994.

	[*5] These complaints were investigated by Superintendent Patrick J. O’Boyle and a file was submitted to the first named respondent, the Director of Public Prosecutions, for directions. In or about the month of June 1995 the first named respondent directed that there be no prosecution in respect of these complaints and this was notified to the appellant personally by Superintendent O’Boyle on the 7th July 1995.

Meanwhile further complaints against the appellant came to light. Between 11th June 1995 and the 7th December 1995 nine separate complaints alleging episodes of indecent assault by the appellant against teenage youths were made. In each case it was alleged that the assault had taken place in the course of a medical examination, in some cases at the local hospital and in other cases at the appellant’s consulting rooms.
	
	On the directions of the first named respondent, copies of the statements of all the complainants together with such relevant hospital medical records as were available were given to Mr Harold J. Browne, consultant surgeon, on the 7th November 1996 for his opinion as to the propriety or otherwise of the conduct alleged against the appellant in each case having regard to the relevant circumstances. Mr Browne furnished his opinion in respect of the complaints by reports dated November and December 1996. These reports are exhibited with the affidavit of Detective Sergeant O’Donnell. On 16th December 1996 the first named respondent directed that proceedings in respect of all eleven complainants should be instituted. On 23rd December 1996 the relevant summonses were issued and on the same day were served personally on the appellant in the presence of his solicitor.

Between November 1994 and April 1996 the appellant was interviewed by the Gardai on a number of occasions. Notes were made of interviews with him and he also made statements. All of these are exhibited with the affidavit of Detective Sergeant O’Donnell. At all stages the appellant denied the allegations being made against him. In addition to this [*6] documentation Detective Sergeant O’Donnell also exhibits the medical records which had been obtained by the Gardai from the local hospital relating to the various complainants.

In addition to the affidavit of Detective Sergeant O’Donnell, affidavits were sworn by each of the complainants, in each case exhibiting a statement of that complainant’s allegations against the appellant, together with in each case a report of Alex Carroll, Psychologist. Mr Carroll had interviewed each complainant individually. He set out in these reports the details of each allegation, the alleged effects of the abuse on the life of the particular complainant and the reasons for the complainant’s delay in making any complaint. In each case Mr Carroll accepted that the position of power and authority of S. along with the embarrassment and shame experienced by the complainant and the known dynamics of sexual abuse adequately explained the failure to make a complaint at the time or in the intervening years.

The High Court Proceedings

At the trial of the judicial review proceedings before Geoghegan J. Mr Carroll was not cross examined on his affidavits; nor was any expert evidence called by the appellant to challenge or criticise the evidence of Mr Carroll.

In his judgment the learned High Court judge referred to the jurisprudence of the Supreme Court as contained in D v DPP [1997] 3 IR 140 and C v DPP, unreported judgments delivered the 28th day of May 1988.” He went on to say:

“The broad principles of law to be applied are fully described in the respective judgments of Denham J. in both of those cases. It is clear that dominance of an older person, particularly if that person has a special status, such as a parent, teacher, priest etc. can provide a perfectly reasonable excuse for delay in making a [*7] complaint of sexual abuse to the authorities. Since that reason emanates from the position of the accused himself, the delay is regarded as delay caused by him and therefore not a matter of legitimate complaint by him. But as Denham J. makes clear continuing dominance is not the only factor which may legitimately inhibit an early complaint. All factors must be taken into account, including ‘the relationship of the parties, the place of alleged abuse and the nature of the abuse’”

In regard to the allegations made by the complainants in the instant case Geoghegan J. found the evidence of Mr Carroll to be credible. At page 14 of the judgment he said:

“It is clear that in regard to each of the charges in this case, Mr Carroll, the psychologist, considered that if the complaints are true, there were psychological factors inhibiting early reporting. I find Mr Carroll’s expert evidence to be credible. A consultant surgeon, in a hospital is, at the best of times, a formidable and one could almost say, intimidating figure. Many of the alleged victims who claim that they did not know or at least did not know for certain that the handling of their genitals, in some instances allegedly to the point of masturbation, was not part of normal medical procedure. Some of them came from homes were sexual matters could not be discussed or where allegations of this kind against a distinguished surgeon or other person of status or authority would not be believed and in many instances there were alleged feelings of guilt at the taking of admitted pleasure.”

The learned High Court judge referred at some length to the judgment of Lynch J. in this court in the case of C v DPP and concluded that the circumstances in the instant case [*8] were similar in nature to those in the C. case. He concluded by refusing the application for judicial review.

The Notice of Appeal
The appellant has appealed to this court by notice of appeal dated the 19th April 1999. The grounds of his appeal are set out as follows:

1.	The learned trial judge erred in law, or in the alternative erred in the mixed question of law and fact, in holding that the appellant/applicant had failed to discharge the onus of proof that the delay in relation to the criminal charges herein was excessive.
2.	The learned trial judge misdirected himself in law and/or fact in failing to hold that the criminal charges should not proceed by reason of unconscionable delay and lapse of time since the alleged date of commission thereof.
3.	The learned trial judge erred in law, or in the alternative erred in the mixed question of law and fact, in holding that the appellant/applicant had failed to discharge the onus of proof that the delay in relation to the criminal charges herein had prejudiced the appellant/applicant.
4.	The learned trial judge erred in law, or in the alternative erred in the mixed question of law and fact in adopting the presumption of facts alleged as being true in explaining or excusing the delay complained of, against the presumption of innocence.
5.	The learned trial judge erred in law, or in the alternative erred in the mixed question of law and fact in determining that a position of dominance did exist and/or continued to exist at any material time. [*9]
6.	The learned trial judge erred in law, or in the alternative erred in the mixed question of law and fact in holding that there was no new question of law to be determined in these proceedings, having regard to the fact that the delay herein refers to alleged indictable offences being treated summarily.
7.	Such further or other grounds of appeal as the appellant/applicant may with leave of this honourable court seek to advance at the hearing of this appeal.

Submissions of Counsel
Senior Counsel for the appellant, Mr McMenamin, submitted that this case should be differentiated from earlier cases of alleged child sexual abuse where prohibition had been sought on grounds of delay.

Firstly, this was not a trial on indictment before a jury, but a summary proceeding in the District Court. The learned District Court judge, having considered the material before him, was of the opinion that the allegations made were summary in nature and were fit to be tried summarily. He accepted jurisdiction in the matter. No suggestion had been made by any party that the District Court judge had acted improperly in accepting jurisdiction. Questions of delay should therefore be considered within the normal parameters of District Court proceedings. This included both the question of statutory time limits and the question of unconscionable delay in the context of summary proceedings.

In this case complaints had been made to the Gardai between one and two and a half years prior to the application for the summonses on the 23rd December 1996. Mr McMenamim submitted that the normal time limit of six months between the time when the cause of the complaint arose and the issuing of the summonses applied in accordance with Section 10(4) of the Petty Sessions (Ireland) Act 1851 (“the 1851 Act”). He acknowledged [*10] that Section 7 of the Criminal Justice Act 1951 (“the 1951 Act”) provided that the six month limit did not apply to a complaint in respect of “an indictable offence” but he submitted that the section did not deal with indictable offences tried summarily and did not apply to them. He relied on the case of DPP v Logan [1994] 3 IR 254 where it was held by this court that a prosecution in the District Court for an assault contrary to common law under Section 42 of the Offences Against the Person Act 1861 and Section 11 of the Criminal Justice Act 1951 is not a complaint in respect of an indictable offence and therefore must be initiated within six months from the date of the alleged offence as required by Section 10 sub-section 4 of the Petty Sessions (Ireland) Act 1851. In his judgment Blayney J. (with whom Finlay C.J. and Egan J. had agreed) had held that Section 7 of the 1951 Act did not apply to the situation in that case.

Counsel for the appellant submitted that even if the 1851 Act limit did not apply, a delay of between eighteen and thirty seven years which had now elapsed from the commission of the alleged offences and any possible trial was unconsionable in the context of a summary trial. Summary proceedings implied the completion of a trial within a short time span. At the very least the parameters of delay established in ordinary civil proceedings should apply and he referred to the cases of O’Domhnaill v Merrick [1984] IR 151 and Toal v Duignan & Ors [1991]  ILRM 135.

In the alternative, Mr McMenamim submitted that in the context of the jurisprudence of this court concerning delay in cases of alleged child sexual abuse the instant case could be distinguished from earlier cases on a number of grounds. The victims were, with perhaps one exception, not young children but teenagers verging on young manhood, who would have been well able to complain of the alleged incidents at the time. The appellant was not a parent, a teacher or a neighbour, or indeed anyone having a close or continuing relationship [*11] with the complainants. He was a consultant surgeon who had only a brief and fleeting contact with the complainants. There was no question of continuous abuse over a period of years as there had been in earlier cases. There was no evidence of domination as described by Denham J. in B v DPP, or even at a lesser level as in P.C. v DPP. The time lapse itself was exceptionally long. Had the alleged offences been tried at an early date the appellant might well have been able to produce alibi evidence or other rebuttal evidence, particularly since many of the incidents were said to have taken place in a hospital, where nurses and other persons would have been present. In addition there would have been fuller medical records, especially from the appellant’s consulting rooms. The appellant’s own memory of the complainants as patients would have been fresh.

Senior counsel for the respondent Mr Gaffney, submitted that the appellant had been charged with indictable offences and that the question of delay should be considered in the light of the established jurisprudence concerning cases of child sexual abuse as set out in previous judgments of this court. This situation was not altered by the fact that the appellant was to be tried in a summary manner in the District Court. Section 7 of the Criminal Justice Act 1951 made it quite clear that the six month limit under the 1851 Act did not apply to indictable offences.

As far as the age of the complainants was concerned, he submitted that they were still minors at the time of the alleged offences. A Consultant Surgeon was a figure of very considerable authority, particularly in the surroundings of his own hospital or his own consulting rooms. These youths were confused about what was happening, they were ill and receiving treatment, they were vulnerable and afraid that they would not be believed if they complained. As time went by they were naturally inhibited about making complaints of this nature against a figure of authority in the community. [*12]

Mr Gaffney drew attention to the hospital records which were exhibited in the proceedings and submitted that they showed that many of the complainants were in fact patients at the hospital at the relevant time.

	Mr Gaffney submitted that the court should not at this point take the presumption of innocence into account. At the criminal trial the prosecution would have to prove to the standard beyond reasonable doubt that the applicant was guilty as charged. The present proceedings were civil, not criminal, and the court should consider on the balance of probabilities whether the applicant had committed these offences. If it was probable on the evidence now before the court that he had, then his criminal trial should not be prohibited. Mr Gaffney stressed that the applicant had not himself in his affidavit directly asserted his innocence or established any detailed defence.

Mr Gaffney also submitted that the concept of dominion as set out in such cases as B v DPP and C v DPP should not be interpreted narrowly. He also argued that this case was not just a matter of assertion by the complainants and denial by the applicant; there was the evidence of the hospital records, the possibility that the applicant might yet have appointment diaries from his private practice.

In reply Mr McMenamim submitted that the appellant was entitled to a fair and expeditious trial in due course of law; this included the application of the principle of the presumption of innocence at all stages. The right to a fair trial, which included the right to an expeditious trial, was an entrenched constitutional right. This was the paramount matter of consideration before the court. [*13] 

The Law and Conclusions

The first matter which falls to be considered is whether this case is to be treated differently from previous similar cases because the applicant is to be tried summarily in the District Court. Does the time limit of six months prescribed under Section 10 of the Petty Sessions (Ireland) Act 1851 apply here? Secondly, even if the 1851 Act time limit does not apply, should the court take a different and stricter approach to delay in the context of a summary trial in the District Court as opposed to a trial on indictment?

Section 10 sub-section 4 of the Petty Sessions (Ireland) Act 1851 provides inter alia a six month time limit within which a complaint must be made in cases of summary jurisdiction. Section 77 of the Courts of Justice Act 1924 provides:-

“The District Court shall have and exercise all powers, jurisdictions, and authorities
which immediately before the 6th day of December 1922 were vested by statute or
otherwise injustices or a justice of the peace sitting at petty sessions....”

Section 77 (B) of the Act of 1924 conferred on the District Court jurisdiction to try summarily certain indictable offences in particular circumstances.

The question of whether the six month time limit of the Act of 1851 applied to the summary trial of the indictable offences specified in Section 77 (B) of the Courts of Justice Act 1924 was considered by the former Supreme Court in The Attorney General v Conlon [1937] IR 762 and it was held that the time limit did apply to such prosecutions.

However the Oireachtas subsequently enacted the Criminal Justice Act 1951, Section 7 of which provides:- [*14]

“Paragraph 4 (which prescribes time limits for the making of complaints in cases of
summary jurisdiction) of Section 10 of the Petty Sessions (Ireland) Act 1851 shall
not apply to a complaint in respect of an indictable offence.”

Section 2(2) of that Act provides that the District Court may try summarily a person charged with a scheduled offence in particular circumstances. A scheduled offence is defined to include offences specified in the first schedule to the Act. These include the offence of indecent assault with which the applicant in the instant case is charged.

Counsel for the applicant has referred the court to the case of DPP v Logan [1994] 3 IR 254 in support of his contention that Section 7 of the 1951 Act does not refer to, and does not apply to, an indictable offence which is tried summarily.

In DPP v Logan the court was concerned with a charge of common assault under Section 42 of the Offences Against the Person Act 1861, and the ratio of the decision dealt with the distinction between the offence of common assault under Section 42 of the 1861 Act, which was an offence to be prosecuted summarily, and the offence of common assault under Section 47 of the same Act, which was an indictable offence.

During the course of his judgment in this court, with which Finlay C.J. and Egan J. agreed, Blayney J. outlined the history of the legislation from 1924 to 1951. In regard to Section 7 of the 1951 Act the learned judge stated (at page 262 of the report):

“I think it is quite clear in the first place that the phrase ‘complaint in respect of an indictable offence’ refers to a complaint in respect of an indictable offence which is a 'scheduled offence’ as defined by Section 2 of the Act of 1951 and may be tried summarily by the District Court under Section 2 sub-section 2 provided that the conditions set out in that sub-section are satisfied. Since Section 7 provides that [*15] Section 10 sub-section 4 of the Petty Sessions (Ireland) Act 1851, shall not apply, the section must be dealing with a situation in which Section 10 would otherwise apply, or otherwise might apply, and so can only be dealing with a complaint in respect of an indictable offence which the District Court has jurisdiction to try summarily under Section 2 sub-section 2. And the probability is that the draftsman of the section took the view that Section 10 sub-section 4 of the Act 1851 would apply by reason of the decision of the Supreme Court in Attorney General v Conlon [1937]  IR 762 and that the purpose of the section was to overrule that decision. That is certainly the effect of the section. But whether this was intended or not it is quite clear that the term ‘indictable offence’ in the section must mean an indictable offence which is a scheduled offence under Section 2 of the Act of 1951 and which the District Court has jurisdiction to try summarily under the same section.”

I respectfully accept the dictum of Blayney J. It seems to me perfectly clear that the effect of Section 7 of the 1951 Act is to exclude the prosecution of the appellant for these alleged offences from the time limit provisions of the 1851 Act. There is no suggestion in the 1951 Act or otherwise that Section 7 of that Act does not apply in the case of indictable offences prosecuted summarily.

As regards the second contention made by Senior Counsel for the appellant in regard to the delay in a summary trial, I appreciate that the use of phrases such as “summary prosecution”, “summary offence”, “summary trial” would tend to create an impression of a procedure allowing for very little delay. Indeed I would accept that the approach of the High Court and of this court has been critical of delay in District Court criminal proceedings in the past. However, this has in general been where unconscionable delay has arisen between the [*16] application for the summons, or the making of the complaint, and the trial of the accused person. In the instant case Mr McMenamin is critical of delay during the investigation of the complaint and the issue of the summons. However in a case where a considerable number of complaints were involved, where research into medical records had to be carried out, and where medical reports on each case had to be obtained, it appears to me that this lapse of time is adequately explained by the factors set out in the affidavit of Detective Sergeant Patrick O’Donnell.

A very much greater lapse of time has of course occurred between the dates on which the alleged offences are said to have been committed and the date of the issue of the summonses on the 23rd December 1976. The proper approach to questions of delay in this type of prosecution has been set out in a number of previous judgments of this court. Should this approach be different where the trial is to take place in the District Court rather than before a jury? I think not. The context is the same - a sexual offence or offences against a child or a young person, a long delay in making any complaint to the proper authorities, an explanation of the reasons for that delay, the obvious difficulty for the accused person in preparing and presenting his or her defence - all these and other relevant factors are present whether the trial is summary or on indictment. In my view, the special considerations which have been held to apply in this type of case in the Circuit Court or the Central Criminal Court also apply in the District Court.

In recent years both the High Court and this court have considered in detail the proper approach to cases where an accused person has sought to prohibit his trial on charges related to the sexual abuse of children where a lengthy delay has occurred between the date of the alleged offences and the date when complaint was made to the Gardai or other proper [*17] authorities. As was stated by Denham J. in her judgment in P.C. v Director of Public Prosecutions [1999] 2 IR 25 at page 60:-

“Fundamental principles at the heart of a constitutional society are at the kernel of this case. These principles and constitutional rights have to be weighed and balanced by the court. They include the community‘s right to legal issues being determined in the courts; to have criminal charges processed through the courts; the right and duty of the prosecutor to bring to the courts for adjudication allegations of serious child sexual abuse alleged to have taken place; the community’s right to have its society protected, especially its most vulnerable - children. Also at the core of this case is the rule of law; the right of the applicant to a fair trial; the right of the community to the rule of law for all, including the applicant.”

Certain principles have been established in these cases. Statute law puts no limitation in time on the prosecution of the alleged offences. Any such statutory limitation is a matter for the Oireachtas.

From the point of view of assuring a fair trial for the accused in these cases, however, a delay of twenty or thirty years between the alleged offences and their pending trial is prima facie an inordinate lapse of time. Article 38.1 of the Constitution provides that no person shall be tried on any criminal charge save in due course of law. In addition Article 40.3 imposes duties on the State, and thus on the courts as the judicial arm of Government, which include the protection of such rights as fair procedures. It has been accepted that one of these rights is a right to trial with reasonable expedition. In State (O’Connor) v Fawsitt [1986] IR 362 Finlay C.J. stated:- [*18]

“... a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition.”

Article 6 on the European Convention on Human Rights provides:-
“In the determination of his civil rights and obligations or of any criminal charge against him, every one is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The sixth amendment to the United States Constitution provides:-

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”

The right to reasonable expedition must be assessed in the context of the particular 
circumstances in each case. The test is whether there is a real risk that the applicant, by reason of the delay and as a consequence of the delay, would not obtain a fair trial.

	Cases involving allegations of sexual abuse of children and young people fall into a special category when dealing with questions of delay. In Hogan v President of the Circuit Court [1994] 2 IR 513 at page 521 Finlay C.J. stated:-

“Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds for charging any person with an offence, their failure to do so and lapse of time before they are in a position to do so cannot give to an accused a right to prohibit a trial on the basis of the defeat of his constitutional right to an expeditious trial. For example, cases consisting of charges by young children in regard to assaults on them at an early age which are not [*19] brought to the attention of the authorities by such children until very many years after they occurred involve wholly different considerations from those applicable to the present case.”

The type of matters to be considered in such cases was also referred to by Finlay C.J. in G. v Director of Public Prosecutions [1994] 1 IR 374 as follows:-
“The court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order.

The court, therefore, must balance the rights of the alleged victim or victims, and the right of the community to prosecute offences, against the right of the accused to a fair trial, bearing in mind that this includes the right to a trial with reasonable expedition. In doing this, the court must have regard to the question whether the delay of the complainant in making the complaint was in reality attributable to the alleged perpetrator. That delay may have arisen from the authority, undue influence, or what has been described by Denham J. as “dominion” exercised by the accused person over the complainant or complainants. Such “dominion” may arise from close relationship within the family (B v DPP) or from the fact that the accused holds the position of influence or authority (P. C. v DPP [1999] 2 IR 25).

In consideration of these factors, however, the court faces the difficulty that it may at least appear to be making an assumption that the accused person is guilty of the offences with which he is charged. The court must bear in mind that in facing criminal charges the accused [*20] person has the benefit of the presumption of innocence. Thus, even if on the evidence before the court it appears likely that the delay in making complaint is a result of the accused’s own actions, the court must still go on to decide whether in the circumstances of the case it will be possible for the accused to receive a fair trial. This is the paramount issue.

	The difficulty facing the court, and the balance which must be held, has been clearly set out by Keane J. (as he then was) in P.C. v DPP at page 67 of the report as follows:-
“The approach that must be adopted by a court asked to prohibit the trial of a person charged with such offences was dealt with comprehensively by Denham J. speaking for this court in B. v Director of Public Prosecutions [1997] 3 IR 140, and has been considered by her again to day. It is unnecessary to traverse that ground again in any detail. Clearly, the fact that the offence charged is of a sexual nature is not of itself a factor which would justify the court in disregarding the delay, however inordinate, and allowing the trial to proceed Moreover, even in cases of unlawful carnal knowledge or sexual assault where the complainant is a girl under the age of consent, it is to be borne in mind that the alleged perpetrator may himself be a child. There are cases, however, which this is one, where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour and feelings of guilt and shame experienced by the child because his or her participation, albeit unwillingly, in what he or she sees as wrongdoing. In addition, of course, in individual cases there may be threats, actual or implied, of punishment if the alleged offences are reported.

[*21] The delays may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her e.g. as parent, step-parent, teacher or religious. In such cases, dominion by the alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred. 

This is not to say that the court in dealing with applications of this nature must disregard the presumption of innocence to which the accused person is entitled But the issue is not whether the court is satisfied to any degree of proof that the accused person committed the crimes with which he is charged. The issue 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. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved.

Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial; that, after all, is what is meant by the guarantee of a trial ‘in due course of law’. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated [*22] that the capacity of the accused to defend himself or herself will be impaired. In other cases the first enquiry must be as to what are the reasons for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused’s own actions.

If that stage has been reached, the final issue to be determined will be whether the degree to which the accused’s ability to defend himself has been impaired is such that the trial should not be allowed to proceed. That is a necessary enquiry, in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded on an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial.”

These principles were again set out by Keane C.J. in his judgment in P. O’C v 
Director of Public Prosecutions (Supreme Court) unreported 6th July 2000 at pages 8 to 10. Referring to the principles as set out above and as again set out by the learned Chief Justice in the P.O’C case the Chief Justice concludes (at page 9):-

“These principles have been made clear by this court in the State (O’Connor) v
Fawsitt [1986] IR 362; Hogan v The President of the Circuit Court [1992] 2 IR
513; B. v The Director of Public Prosecutions [1997] 3 IR 140 and P.C v The [*23] Director of Public Prosecutions and Another [1999] 2 IR 25. They remain the law unless and until this court is invited to review the correctness of those decisions and to depart from the principle of stare decisis in accordance with the decision of the court in Attorney General v Ryan`s Car Limited [1965] IR 642 and further concludes that there are compelling reasons for not following the earlier decisions.”

Thus the principles of law which govern the present case have been clearly settled by this court. It remains to consider the facts of this case in the light of these principles.

Mr Gaffney, on behalf of the Respondent, has argued that the present hearing before this court amounts to a civil trial of the appellant and that the court should decide on the balance of probabilities whether the appellant is guilty of the offences with which he is charged. Mr Gaffney was also critical of the appellant in that he had not directly asserted his innocence in his own affidavit. Mr Gaffney submits that the presumption of innocence has no part to play in the present proceedings.

In my view this approach is contrary to the established principles of law as set out by this court and I would reject it. It seems to me also that it would fly in the face of the established principles of criminal law that an accused person should have to undergo a preliminary civil trial in which he would have to put forward his full defence and perhaps himself give evidence, and as a result of which he might be held to be guilty on the balance of probabilities. Even in the present proceedings, in the limited context of attributing reasons for delay in making complaint, it is quite wrong to criticise an accused person for failing to make a direct statement of his innocence or failing to give full details of his defence on affidavit. The undesirability of such requirements has been fully dealt with by Hardiman J. in his judgment in the P.O’C case (at pages 14 to 16) with which I respectfully agree.

[*24] Mr McMenamin, for the appellant, firstly distinguishes this case on the ground that the complainants were not children of tender years at the time of the alleged offences and that therefore they could readily have made a complaint at the time. This is closely related to Mr McMenamin’ s second submission that this is not a case of “dominion” or of continuous abuse over a period of time.

It is true that the appellant did not occupy a position of dominance in the complainant’s personal lives comparable to that of the father in the D. v DPP case. Nor did he have the continuing contact which occurred in P.C. v DPP and other similar cases. However, there was clearly a large disparity in age between the appellant and the complainants, who were still relatively young and immature. Also a consultant surgeon is a figure of very considerable power and authority, especially in the hospital in which he normally practices. This would be true even vis-à-vis adult hospital patients to day. That power and authority would be very much more marked in the case of teenagers some twenty to thirty years ago. The complainants have described their embarrassment, their feelings of guilt and their fear that they would not be believed to the psychologist, Mr Carroll. They also gave explanations as to why they failed to make any complaint in the years that have since elapsed.

In each case individually Mr Carroll has averred that he found the explanation adequate and understandable. It is clear from his reports that Mr Carroll has carefully gone into considerable detail with each complainant in his interviews with them.

I am, of course, aware of the criticisms that have been made in general of diagnosis and psychological assessment of sexual abuse which is alleged to have occurred many years ago. Hardiman J. has surveyed a number of these criticisms in his very full judgment in J.L [*25]  v DPP (unreported Supreme Court 6th July 2000). The main criticisms have been directed against the psychological phenomena of repression of memory and recovered memory.

In the instant case the expert evidence that is before the court is that of Mr Carroll. He has not been cross-examined or challenged on his evidence. Nor has any expert evidence been brought in rebuttal. In addition, the explanations for delay offered by the complainants and accepted by Mr Carroll do not, in this case, rely on the concepts of repression of memory or recovered memory. The explanations are, in my view, readily understandable to the ordinary lay person.

On balance I would accept that the delay of the complainants in reporting the alleged offences has been the result of the position of power and authority occupied by the appellant and by the continuing influence which this power and authority had over them. While this is not an exact parallel with the concept of “dominion” as described in B. v DPP and subsequent decisions, it is in my view sufficient to bring this case into the “special category” of cases of child sexual abuse as accepted by this court. The appellant’s trial on these charges ought not, therefore, be prohibited on grounds of delay alone.

The second issue to be considered is whether the appellant has established that there is a real danger of an unfair trial. In this context, the appellant has drawn attention to the paucity of medical records concerning some of the complainants, particularly those who were, or claim to have been, treated in his private consulting rooms. He has also stressed the undoubted fact that he will have difficulty in tracing witnesses who were nurses or administrators in the hospital at the times of the alleged offences. I accept that in this, as in all cases of long-delayed trials, the appellant will face difficulties in putting his defence before the court. I do not consider, however, that the appellant has put forward any specific and particular aspect of his defence which would establish a real and serious risk that his trial [*26] would be unfair. Thus the circumstances of this case seem to me to differ from those of P.O`C v DPP and J.L. v DPP. In the present case the appellant has, if anything, more detailed information available to him (by way of the medical records) than would normally be available to an accused person in a long delayed trial. The onus is on the appellant to establish affirmatively that there is a real and serious risk of an unfair trial. In this case the appellant has indicated a variety of difficulties and problems but in my view they fall short of establishing that a trial in these circumstances would not possess the character of a fair trial as required by the Constitution.

I would dismiss the appeal and affirm the order of the learned High Court judge.