A retired garda yesterday secured a High Court order preventing further steps in prosecuting him on 16 charges of indecent assault against a young girl more than 20 years ago.
The first offence is alleged to have taken place when the woman, now in her 30s, was aged nine or 10 - and to have continued about once a month until she was 14 or 15. Then, the woman alleges, she knew what was happening was wrong and had avoided the man.
The ex-garda, now in his 60s, was charged with the offences in September 1997 and took a judicial review challenge to his prosecution.
He argued that he had been deprived of his right to a trial with due expedition because of delay in bringing the prosecution and prejudiced in his defence by the delay and lack of specificity in the charges.
Giving judgment on the application yesterday, the President of the High Court, Mr Justice Morris, said he was left in no doubt that the effect of the delay, "however it may have been caused" would result in the man being deprived of a fair trial.
"I now accept that he is a man in delicate health, limited in his capacity to defend himself, deprived of what might well have been one of his best witnesses - the man's wife who died some years ago - and I believe that a trial of the applicant in these circumstances will not constitute an observance of his constitutional right to a fair trial."
The judge noted that the woman had said she became disruptive at home and started to drink when she was 17. She spent some years abroad and returned home and got a job. She told her mother about the alleged abuse when she was 21 but her mother did nothing about it. She then told her family and sister.
He said it appeared the woman was asked why she didn't report the abuse earlier and had said the man was a friend of her parents for many years and she felt to blame and filled with shame and anguish.
She said through counselling she had realised the abuse was not her fault. She had said there was a child living beside the man and when the child turned 10 or 11 she felt she had to protect the child and had reported the matter.
The woman had said she now felt a much stronger person and realised she should have reported it but "unfortunately the effects that the abuser holds on the `child within', even after all this time, still sends a shiver down my spine".
Mr Justice Morris said a clinical psychologist who interviewed the woman had said it was more than reasonable that the alleged victim's disclosure was delayed. The psychologist had referred to the woman's guilt accompanying the alleged abuse, fear of not being believed, fear of family disruption and long-term effects including alcohol consumption, sexual difficulties and nightmares.
Applying the law as established in similar cases, Mr Justice Morris said he was satisfied there were difficulties imposed on the applicant because of the delay in bringing the prosecution. He must then consider, assuming what the alleged victim said was true, to what extent the added difficulties were the responsibility of the ex-garda. He was satisfied that the delay was brought about because of the effect her association with the man had upon the woman at the relevant time. He was also satisfied that her capacity to speak about the incident arose only as a result of counselling and her view that she must speak to save the child living next door to the accused.
In considering the man's right to be tried in due course of law, the court had to establish a real and serious risk of an unfair trial.
The judge said neither the accused nor his doctor was cross-examined on their affidavits. He agreed to put a stay on the order, in the event of an appeal.
