The Supreme Court yesterday unanimously upheld an appeal by the Director of Public Prosecutions against an order prohibiting the trial of a man on charges of indecent assault and unlawful carnal knowledge against a 12-yearold girl almost 16 years ago.
Mrs Justice Denham held that the delay in bringing a complaint was because of the effect of the alleged abuse on the victim. The fault therefore lay with the alleged perpetrator.
"It is the very nature of childhood sexual abuse which prevents early complaint," she said. "It is the mental effect of that abuse which causes delay."
The decision may have implications for other cases where alleged offenders are seeking prohibition of their trials on grounds of delay. The charges relate to a period from September 1982 to December 1984. Five allege indecent assault and three allege unlawful carnal knowledge. All are representative charges.
The man secured a High Court order in May 1997 prohibiting his prosecution. He argued that the lapse of time severely handicapped his ability to prepare and present a defence. The High Court concluded there was a risk that the accused would not obtain a fair trial. The decision was appealed by the DPP.
Yesterday, Mrs Justice Denham said the circumstances related to the alleged sexual abuse of a girl when she was between 12 and 15. The accused was a bus driver who drove children to a swimming pool. There were detailed allegations by the girl of sexual abuse on the bus, in the pool and elsewhere.
Although the girl spoke in 1988 of the abuse to her parents, teachers, friends and a Garda sergeant, the matter was let lie. In 1995 she went to the gardai to make a formal complaint but was unable to proceed until she had received several months' counselling. Overturning the High Court order and directing that the DPP should serve a revised book of evidence on the man, Mrs Justice Denham said there had been no explicit delay by any party. Although the man's position was not one of status, he had authority over the children in his care.
The delay was caused by the girl's inability to make a formal complaint until 1995. This was a consequence of the alleged sexual abuse. The fault therefore lay with the alleged perpetrator.
The judge said the alleged victim should not be turned away from the courts, and the prosecution of the man should not be stayed, because of delay resulting from the effect on the girl of the wrong alleged.
The accused had not proved there was a real risk of his not getting a fair trial. Neither had he distinguished his case from the growing body of case law which permitted delayed prosecutions for child sexual abuse.
Mr Justice Keane, in his judgement, noted that according to the book of evidence when gardai spoke to the man in 1995 and asked him if he knew the complainant, he replied that he took her swimming to a neighbouring town and then said: "I am not going to run away from this, lads, but what is my best way out of this?"
The judge said that while the applicant had shown that he always protested his innocence, that statement was capable of being construed as an admission of guilt.