Supreme Court allows prohibition of trial due to excessive delay and grave prejudice from deceased witnesses.

THE SUPREME COURT

Denham J.

Hardiman J.

Fennelly J

Record No. 2000 No. 301

BETWEEN /

M.K.

APPLICANT/RESPONDENT

and

HIS HONOUR JUDGE RAYMOND GROARKE

RESPONDENT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

Judgment delivered on the 25th day of June, 2002 by Denham J.

1. Judicial Review

The applicant/respondent, M.K., hereinafter referred to as the applicant, sought an order in the High Court for judicial review

restraining the first named respondent from trying the applicant on the charges before him and an order prohibiting the second

named respondent, hereinafter referred to as the Director of Public Prosecutions, from further prosecuting the applicant on the

charges.

2. Charge

The applicant is charged as follows:-

“1. That you the said accused did between the 1st of March, 1981 and the 31st of December, 1983 at . . . commit

buggery with a male namely W.

Contrary to section 61 Offences Against the Person Act, 1861.

2. That you the said accused did between the 1st of March, 1981 and the 31st of December, 1983 at . . . assault one

W., a male person with intent to commit buggery or an indecent act.

Contrary to section 62 Offences Against the Person Act, 1861.”

3. Facts

The applicant deposed to facts on affidavit which, in summary, are as follows. The applicant resided with his family in an area

close to the home of W and he was friendly with W. In 1981 the applicant joined the army. He was married in 1985 and lost

contact with W whom he had not seen since 1985. Some time in 1998 he was informed by his brother that W was alleging he,

the applicant, had sexually molested W. On the 17th August, 1998 the applicant went to a Garda station by arrangement and

made a statement concerning the allegations of W. On the 5th April, 1999 the applicant was arrested and charged with the

offences as set out above. The applicant made a number of appearances in the District Court and on the 13th July, 1999 he

was served with a book of evidence. On the 27th July, 1999 he was returned for trial to the Circuit Court on the said charges.

The applicant deposed that the allegations in the book of evidence are untrue. He stated that he never sexually assaulted W

nor did he have any conversation with W’s mother concerning any such assault. He says that his mother was in good health at

the time and not ill as alleged. The applicant deposed that he has been gravely prejudiced in his ability to defend himself against

these charges by the long delay in bringing them.

4. Relief Sought

The applicant seeks a court order restraining the first named respondent from proceeding with the trial and prohibiting the

Director of Public Prosecutions from further prosecuting the applicant on the charges. The grounds upon which this relief is

sought are as follows:

(a) It was claimed that the lapse of time between the date of commission of the alleged offence and the date of trial is

now so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicant.

(b) In particular the applicant’s parents with whom he resided at the time are both since deceased and are unavailable to

him as witnesses.

(c) By reason of the said delay the applicant has been deprived of the chance to establish his movements at the time to

seek out prospective witnesses or to defend himself in any way other than a bare denial on oath of the said charges.

5. Report of Psychologist

There was a report from Mr. Alex Carroll, a senior clinical psychologist, before the court. Mr. Carroll had carried out a

psychological assessment of the complainant in February, 2000. He concluded:

“In my experience there are many reasons why victims of child sexual abuse may fail to make a complaint at the time the

abuse takes place or for a long period of time:

1. Child 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. The power and authority of adulthood and/or the position of authority occupied by the abuser conveys to

the child that the activity is acceptable and sanctioned.

2. It is not possible in my opinion to over emphasise the significance of the exploitation and misuse of accepted power

relationships in assessing the impact of sexual abuse on a child, including the failure or otherwise of the child to disclose

the fact of the abuse or to make a complaint at the time the abuse was taking place, in subsequent years, or indeed at

all.

3. Sexual abuse invariably gives rise to feelings of guilt and shame on the part of the victim.

4. The victim may feel that she/he will not be believed if they complain or alternatively may be daunted by what they see

as the difficulties of having their story accepted. The abuse may also give rise to confusion in the mind of the victim and

cause reluctance to complain.

5. Victims of sexual abuse may have kept out of their minds or driven out of their minds the incidents of abuse and may

not wish to recall them no matter what the circumstances.

6. The recall and disclosure of abuse may be unduly repugnant to the victim as something degrading and humiliating.

7. Victims of sexual abuse during their childhood will not, in most cases, be capable of seeing the abuse as an offence

against the criminal law or as something which they have a public duty to report.

8. It some times happens that the explanation for a victim complaining is the happening of some event long after the last

episode of abuse.

9. The sexual abuse suffered by a victim may have produced an unhealthy attitude to sexuality, so that the victim cannot

be objective or discuss with others the fact of the abuse.

If the events described by W are correct then they represent the exploitation of a legitimate position of power by MK in

order to engage him in sexual activity which he did not understand and was unable to give consent.

In my opinion the failure of W to make a complaint at the time, or in the intervening years is adequately explained, from a

psychological perspective, by that exercise of power and by the known dynamics of sexual abuse as outlined above, each

of which apply in whole or in part to this particular case.”

6. Oral Evidence

Oral evidence was given in the High Court. Mr. Carroll, the senior clinical psychologist, was cross-examined on his report, by

counsel for the applicant. The transcript of that examination, and the examination by counsel for the Director of Public

Prosecutions, was before the court.

7. High Court Order and Judgment

On the 13th September, 2000 the High Court (Kearns J.) ordered that the first named respondent be permanently restrained

from trying the applicant on the charges stated and that the second named respondent be permanently restrained from

prosecuting the applicant on the charges stated. The High Court referred to precedent. Special reference was made to J.O’C. v.

D.P.P. [2000] 3 I.R. 478 at page 504 where Hardiman J., stated:

“The effect of documentary, physical or forensic evidence, where they exist, is to provide some basis on which the part

of the case which depends on mere assertion can be assessed and tested. Inevitably there will be a certain number of

criminal cases, and far fewer civil ones, in which no such evidence exists. In such a case each side will naturally look to

the surrounding circumstances; the prosecution to see whether there is corroboration or at least evidence consistent

with allegations being true, and the defence to see if there is material with which the complainant story can be

contradicted, even on a collateral matter, or his credibility challenged. Apart from the effect of lapse of time on the

memories of those principally involved, an interval of twenty or more years makes it difficult if not impossible to clarify the

surrounding circumstances and to introduce any element at all of undoubted fact with which the statement of the parties

can be correlated and tested. The element of hazard or chance which this state of affairs introduces into a trial has been

recognised for centuries. The more nearly a serious trial consists of mere assertion countered by bare denial the less it

resembles a forensic inquiry at all.

Counsel for the respondent said that a case like this comes down to assertion and denial. This, he said, makes less grave

the effect of lapse of time, since the trial would have been of the same nature whenever it took place. . . If a defendant

who is innocent is exposed to a trial where the only evidence is unsupported assertion and the only defence is bare denial

his position is indeed perilous. Where these cases have been successfully defended, it has, in my experience, always been

because it has been possible to show that the complainant’s account is inconsistent with objectively probable facts

relevant to the allegations, or that the complainant has made other allegations against other people which are lacking in

credibility.”

Having quoted from the above judgment the High Court (Kearns J.) held:

“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 battleground 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.

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.”

8. Appeal

Against the order and judgment of the High Court the Director of Public Prosecutions has appealed. The notice of appeal stated

that the appeal is grounded upon the following matters:

1. The learned trial judge misdirected himself in fact insofar as either expressly or by necessary implication he found:

a) that the applicant’s father was living in 1983 which according to evidence was the year in which the sexual

abuse complained of occurred,

b) that “at twenty years of age the applicant can hardly be described as a mature adult”,

c) that the applicant would not have been residing at home from the time in June, 1981,

d) that if the complainant’s mother had come to the house of the applicant at the time of the alleged incident to

speak exclusively to the applicant it would be so unusual as to be unlikely to have escaped the recollection of the

applicant’s mother if she were still alive,

which findings were contrary to the evidence or the weight of the evidence.

2. The learned trial judge misdirected himself in law and on the facts insofar as:

a) he concluded that the ability of the applicant to defend himself against charges had been seriously impaired as a

result of the delay.

b) he rejected without giving any or any adequate reason therefore the evidence of the experienced psychologist

given on behalf of the respondent by way of explanation of the delay of the complainant in complaining to the

Gardai and insofar as he found that the said delay remained unexplained and further and insofar as he found that

the said delay could not have been laid at the door of the applicant.

c) he concluded that “the real battleground in this case had it proceeded would have been in the collateral areas

referred to in the factual narrative.”

d) he took into consideration for the purpose of reaching his decision what he found to be an unsatisfactory

motivation arising from feelings of envy and resentment in the complainant.

9. Submissions on behalf of the Director of Public Prosecutions

On the hearing of this appeal before the Supreme Court oral and written submissions were made on behalf of the Director of

Public Prosecutions. The written submissions included the following:

i) In such a case as the present the onus is on the applicant to satisfy the court that it would be unfair and contrary to

justice to allow his trial to proceed.

ii) Drawing to the attention of the court that a very long time will have elapsed between the date of the alleged offence

and the trial may in rare cases be enough to win for an accused an order for prohibition of his trial without his producing

any evidence that his defence has been prejudiced by the delay. Such a case is likely to be very rare. Where the delay

has not been contributed to by the law enforcement authorities it is to be expected that the court would give reasons for

its conclusion in such a case.

iii) Where a person fails to complain of an offence until a very long time has passed from the date of the alleged offence it

will be necessary for the delay to have an acceptable explanation if it is not to be looked on as a barrier to a fair trial.

iv) In principle a delay in complaining of an offence cannot be regarded as more or less acceptable merely because the

complaint is of one offence rather than of a number of offences whether similar or not.

v) In this case one expert witness gave evidence. That expert found the failure of the alleged victim to make a complaint

at the time or in the intervening years to be adequately explained from a psychological perspective. The “complaint” to

which he was referring was of course a complaint to the law enforcement authorities. The fact that he made a complaint

to his mother and that she was allegedly satisfied to do more than make a complaint to the accused was unknown to the

alleged victim until after he had made a complaint to the Gardai.

vi) It is respectfully submitted that in the absence of expert evidence to contradict the evidence of the expert who did

testify the latter evidence should have been accepted. (S.F. v. D.P.P. [1999] 3 I.R. 235).

vii) It is respectfully submitted that the learned trial judge erred in not regarding a man of twenty years of age as a

“mature adult” in relation to a boy of eleven years of age.

viii) It was submitted that the learned trial judge erred in not approaching his task in the way laid down by this

Honourable Court that is to say by first assuming that the story of the alleged victim was a true one and first deciding

whether the circumstances were such as to sufficiently explain the long delay in complaining. It is respectfully submitted

that all the evidence pointed towards accepting the delay was explained and reasonable in all the circumstances.

ix) It is also respectfully submitted that the finding of the learned judge that the delay had not been brought about (on

the alleged victim’s story) by the applicant was not supported by the evidence. There again the evidence of the

psychologist appears not to have been accepted.

x) It is further respectfully submitted that the learned trial judge erred in having regard to what he found to be the

reasons why the alleged victim did complain in 1998. Those reasons he found to be “feelings of envy and resentment”

towards the applicant. The learned trial judge appears to have overlooked the fact that it was after a period of

counselling when he “decided then to get this matter sorted once and for all” that he complained.

xi) It is respectfully submitted that the learned trial judge appears to have concluded that the ability of the applicant to

defend himself on the charges had been seriously impaired as a result of the delay because as he said:

“Leaving to one side the allegation and denial the real battleground in this case had it proceeded would have been

in the collateral areas referred to in the factual narrative. Clearly the passage of time had greatly disadvantaged

the applicant in those particular respects.”

It is respectfully submitted that the applicant’s mother was described by the alleged victim’s mother as not being present

when she spoke to the applicant so that the applicant’s mother would have had no evidence to offer on that score. The

applicant’s mother had she been living might have been able to corroborate her son’s evidence as to his periods of duty in

the army, but on the other hand that evidence was presumably available also from army records and there was no

suggestion made by the applicant to the contrary. Those same records would have offered evidence as to the movements

of the applicant around the relevant periods; and there was no suggestion that witnesses who might or might not be able

to corroborate the applicant when he said that at the relevant time he had not a motor bicycle, were unavailable. The

applicant did not controvert the evidence that the complainant had been in the habit of spending some nights in the

applicant’s house and did not allege that the complainant had never slept in his bedroom.

xii) It is respectfully submitted that the trial judge failed to give any or any adequate consideration to the question

whether any prejudice that he might have found to affect the capacity of the applicant to defend himself at the trial was

of such a degree particularly having regard to the circumstances of the alleged victim as to render any trial unfair.

10. Written Submissions on behalf of the Applicant.

Written and oral submissions were made on behalf of the applicant. It was submitted:

i) In dealing with the first leg of the test to be applied in cases of this nature, that is the determination of whether or not

the delay is an excusable one, reliance is generally placed on the psychological effects on a complainant which may lead

to the delay.

ii) Reference was made to the factors deemed relevant as summarised by Hardiman J. in J.L. v. Director of Public

Prosecutions [2000] 3 I.R. 122 at p.146.

iii) The psychological evidence in this case and on which it is sought to excuse the delay is based on a contention of

dominion and the application of well known and an often repeated series of principles concerning sexual abuse.

iv) Reliance was placed on the conclusions from the report of the psychologist.

v) On behalf of the applicant it was submitted that there was no dominion. The applicant had complained to his mother at

the first available opportunity - this was evidence of lack of dominion. It was submitted that the trial judge was correct in

concluding that there was a lack of dominion. The matter was not suppressed in the applicant’s household.

vi) It was submitted that neither dominance, repression nor suppression were factors in this case.

vii) Additionally, there was no credible evidence that the applicant contributed to the delay.

viii) It was submitted that this case falls within the category of cases that should be halted by reason of the inordinate,

unexplained and inexcusable delay alone.

ix) It is the applicant’s case that he is not required to establish prejudice either general or specific. If it is the case that

the applicant is required to establish prejudice, then it is his contention that this does exist. The very reference by the

Director of Public Prosecutions in his submissions to this court as to the relevance of the applicant’s army services is of

interest. The charges as laid cover the period from the 1st of March, 1981 to the 31st December, 1983, while there are

two charges, they appear to be alternative charges relating to one incident. They cover a period of two years and ten

months. The complainant was born on a named date in June, 1969 and would have celebrated his 11th birthday in June,

1980.

x) The complainant states that the incident happened a few months after he moved to the named estate, which was

when he was around eleven years old.

xi) The witness from the Council stated that both families started to pay rent to the Council at the beginning of March,

1981.

xii) The complainant’s mother says that he was “about ten years old” when they moved to the estate.

xiii) The applicant states that he joined the army on the 18th day of June, 1981 and was in training for eight months up

to February, 1982. The applicant is left in the position that he may be able to call evidence to assist his defence for

those eight months, but because of the time scale covered by the charges, this may not be good enough to convince a

jury. This time scale arises solely by reason of the effluxion of time created by fading and uncertain memory on the part

of the complainant and his mother There is no medical evidence that could pinpoint the time with accuracy.

xiv) These factors, allied to the death of the applicant’s mother and father, particularly the applicant’s mother who could

have given accurate evidence as to any bouts of illness she suffered during the two year ten month period, and the

seriousness of these bouts, of the general relationship between her family and that of the applicant, and any contact

between herself and the applicant’s family lead to both a general and specific prejudice against the applicant in this case.

11. Statutory Offence

The applicant is charged with statutory offences of buggery and assault with intent to commit buggery. These offences relate

to events on a single night approximately twenty years ago. It is alleged that the offences took place when the applicant was

about twenty years old and the alleged victim was about eleven years old. The statute sets no time limits within which such

offences may be prosecuted.

12. Prosecution

The decision as to whether or not to prosecute the applicant is a matter for the Director of Public Prosecutions. The Director of

Public Prosecutions is independent in the performance of his functions: s. 2(5) Prosecution of Offences Act, 1974. The decision

to prosecute may be a complex decision involving the balancing of many factors. As was stated in the Annual Report of the

Director of Public Prosecutions 2000, the office of the Director of Public Prosecutions seeks to provide on behalf of the people of

Ireland a prosecution service which is independent, fair and effective. It is not for this or any court to assume the burden of

that office.

13. Constitutional Rights

The applicant seeks an order to stop his trial. Such an order does not derive from the statutory scheme of the offence, nor

does it emanate from the office of the Director of Public Prosecutions. The jurisprudence underlying such an order is judge

made. This law is grounded on concepts of fairness and justice. Such an order of prohibition may be required to protect the

constitutional right of an accused to a fair trial. This limitation on the prosecution of offences by the courts is a matter to be

entered upon with great care, and only to protect constitutional rights. The power of making law is in the Oireachtas: Article

15, Constitution of Ireland. A limitation on the applicability of a statutory law is a matter only applied by the court when it is

exercising its duty to protect and guard constitutional rights.

In making such a determination there are a variety of constitutional rights to be weighed in the balance. On the one hand is the

community’s right to prosecute offences. This is a matter for the common good. On the other hand is an accused’s right to due

process, fair procedures, including the right to a trial with reasonable expedition. In addition, a victim has rights. These rights

may include constitutional rights. Ultimately a balance has to be achieved as these rights may be in conflict. Not all rights can

be protected or pursued. In the balance that should be achieved the applicant’s right to a fair trial is superior to the

community’s right to prosecute a person for an alleged offence: D. v. Director of Public Prosecutions [1994] 2 I.R. 465.

14. Onus

In seeking to prohibit a trial the onus is on the applicant. The burden is on him to establish his case for prohibition of the trial on

the balance of probability.

15. Test

The test to be applied by a court, in determining whether or not a trial should proceed, is whether there is a real or serious risk

of an unfair trial. This test may be applied in other circumstances, seeking to protect the same constitutional rights. Thus it

may be applied in a case where there has been delay in prosecuting the case and it may also be applied if there has been

extensive pre-trial publicity. See D. v. Director of Public Prosecutions [1994] 2 I.R. 465; Z. v. Director of Public Prosecutions

[1994] 2 I.R. 476. In D. v. Director of Public Prosecutions [1994] 2 I.R. at p. 474, I stated:

“If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s

right to a fair trial being balanced detrimentally against the community’s right to have the alleged crimes prosecuted.”

16. Delay

With that constitutional protection for due process in mind, however, the courts do not give institutional protection to persons

who commit crimes which by their nature may not be detected for years. It is not the function of the courts to establish a

policy that a prosecution delayed by, say, five, ten, fifteen, or twenty years may not proceed. Such policy matters are for the

Oireachtas. It is not a matter for the courts to give institutional protection to crimes which, for one reason or another, may not

be prosecuted for many years. It is for the courts to protect due process, to protect fair procedures. Article 38.1 of the

Constitution of Ireland states that:

“No person shall be tried on any criminal charge save in due course of law.”

The ‘due course of law’ encompasses the right of an accused to a trial with reasonable expedition: In Re Singer 97 I.L.T.R. 131.

The fact that the right to trial with reasonable expedition is not specifically mentioned in the Constitution does not diminish its

importance: D.P.P. v. Byrne [1994] 2 I.R. 236. In criminal cases the right to a trial with reasonable expedition has long been

recognised: The State (Healy) v. Donoghue [1976] I.R. 325.

17. A Single Offence or Incident

The length of delay when a single offence is, or offences relating to a single incident are, in issue may be subject to more

factors detrimental to an accused than a situation where there is a long delay prior to a prosecution for a pattern or series of

offences. Factors such as the absence of witnesses may be more relevant to a single incident than, for example, to

prosecutions where a pattern of offences is alleged by a number of complainants.

18. Nature of Offence

When the offence or offences in issue are sexual offences they are by their nature complex cases to prosecute. By their nature

sexual offences occur in private, in secret, often described as ‘our little secret’. They are not offences, such as street violence,

occurring in sight of many witnesses. By the nature of the offence there would hardly ever be a witness. Unless it is a crime

such as rape where the victim gets medical attention immediately afterwards, there may be little or no medical evidence. As has

been found in many cases, complaints of child sexual abuse may not be made by a child for a considerable time after the abuse.

With the passage of time there is very little likelihood of forensic evidence being available to support either side in such a case.

Any possible evidence of sexual acts or injury may not be available. The presence or absence of such evidence is a factor

which exists and is a negative factor for both the prosecution and defence. Thus evidence additional to the oral evidence of

the complainant and accused may exist only as to surrounding circumstances. However, in essence, if an event is alleged to

have taken place in private, in a secret ambience, the ultimate balance in a trial may be as to the credibility of the primary

witnesses. That may be the case whether the offence allegedly took place last year or a decade ago. That said, such evidence

in support of an accused or complainant in a trial may be critical. The presence or absence of such evidence in the

circumstances of a case is a matter for consideration in a review such as this. If a trial of a sexual assault case were to take

place immediately after the alleged event occurred, let us say six months after the event, but within that time a witness who

could give evidence in support of the accused died, the trial would not be prohibited on the grounds of the absence by death of

the witness. The event in such a case is still fresh. The situation may be different if the trial is listed a decade or decades after

such alleged sexual assault and such witness has died in later years. If in addition to the delay there is a factor of the absence

of an important defence witness then the prejudice arising from the delay and the absence of a specific witness is cumulative

and may be such as to give rise to a prohibition of a trial.

19. Prejudice

Where a trial of a person charged with an indictable offence has been excessively delayed so as to prejudice his chance of

obtaining a fair trial the appropriate remedy to defend his constitutional rights is an order of prohibition: State (O’Connell) v.

Fawsitt [1986] I.R. 362. In G. v. Director of Public Prosecutions [1994] 1 I.R. 374 at p. 379, Finlay C.J., having referred to State

(O’Connell) v. Fawsitt and acknowledged the appropriateness of judicial review, said that if a person’s trial had been excessively

delayed so as to prejudice his chance of obtaining a fair trial that the appropriate remedy was a judicial review. He pointed out

that the trial court also has jurisdiction to stop such a trial in such circumstances. This case does not turn on factors specific

to child abuse cases. At issue is a fundamental principle.

20. Decision

In essence the issue in this case is whether there is a real or serious risk of an unfair trial of the applicant. The issue is whether

there is a real or serious risk of an unfair trial in light of the circumstances. The applicant has submitted that he is prejudiced by

the passage of time which has resulted in the absence by death of an important witness on his behalf. If an accused was

prosecuted within months of an offence such as is alleged here and yet within those few months his parents died (whom he

anticipated would be witnesses in his favour) there is no jurisprudence that such a trial would be prohibited. This is because the

trial being nearer to the alleged crime it is more probable that the accused will be able to find other corroborative or

circumstantial evidence in his support. Time has not passed so as to prejudice his search for corroborative evidence. However,

as time passes the difficulty of prosecuting and defending an offence may increase. It may be more difficult to prosecute an

offence ten years after the alleged crime than if the prosecution occurs within months. Equally it may become more difficult to

defend an alleged crime after a decade. The onus is on the prosecution to prove the offence beyond reasonable doubt, thus

casting a heavy burden on the prosecutor. The defendant is entitled to a fair trial and this includes a trial with reasonable

expedition. If there is delay arising from the nature of the crime (such as a child not being in a position to prosecute an

offence) this does not of itself stop a trial. However, if the delay causes prejudice so as to raise a real or serious risk that the

trial would be unfair then prohibition may lie. This fundamental principle was described by Finlay C.J. in The State O’Connell v

Fawsitt [1986] I.R. 362 where he stated at p. 379:

“The determining feature, in my view, is the non-availability of one of the witnesses who would have been a material

witness for the defence. It is not disputed on the facts which were before the High Court that such a witness was

available and apparently willing to give evidence at earlier stages but, with the passage of time, has become unavailable

and cannot now be made available as a witness. That fact alone, having regard to the extreme length of the delay,

makes this a case in which, in all the circumstances, I am satisfied that the delay can be considered as both excessive

and prejudicial and that, accordingly, the prosecutor was entitled to his order of prohibition.”

When the delay in issue arises due to the fault of the State different considerations and factors may be relevant to the

determination. The special factors which may arise when sexual offences of children are alleged may not arise. However, in both

situations the combination of factors - delay and prejudice by reason of the absence of witnesses - may arise. In this case the

learned trial judge found as a fact that very grave prejudice arises. He held:

“. . . 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.”

Thus the circumstances of this case include:

(a) a long delay prior to prosecution;

(b) alleged sexual offences arising on a single occasion not a series or pattern of offences;

(c) alleged sexual offences against a child; (d) an accused who was then twenty years of age (while he was over

eighteen and an adult his age relative to the complainant is a relevant factor);

(e) prejudice to the applicant because in the time that has elapsed a witness important to the applicant has died which

has caused significant prejudice to the defence.

There was evidence upon which the learned trial judge could find very grave prejudice. In all the circumstances I am satisfied

that there is a real risk that the trial will be unfair. I would dismiss the appeal and affirm the order of the High Court.

21. Conclusion

For the reasons stated I would dismiss the appeal and affirm the order of the High Court.