The Supreme Court has prohibited the trial of an appellant on charges of indecent assault concerning two complainants, after finding that the long delay in reporting the allegations had not been sufficiently explained.
In a judgment delivered on 22 June 2005, Mr Justice McCracken said the appeal would be allowed in relation to all charges concerning MD and IG. The court’s order prevents those charges from going to trial; the judgment did not determine whether the alleged offences occurred.
The appellant faced 34 charges concerning MD, alleged to have occurred on unknown dates between 1958 and 1963, and one charge concerning IG, alleged to have occurred in 1962. The High Court had already prohibited 36 charges concerning a third complainant, BH. The Supreme Court judgment records that all three complainants made formal complaints to gardaí in February and March 1999, more than 35 years after the last alleged offence.
The judgment said a dispute between BH and the appellant, following his return to the area and purchase of a neighbouring property, led to an assault in January 1999. The appellant was later convicted of that assault and fined £500. The judgment described that dispute as the trigger for the complaints about the alleged offences from decades earlier.
MD said shame had prevented her from reporting what she alleged had happened when she was young. IG described fear of the appellant and said she had not considered reporting the matter until the 1999 assault. A clinical psychologist, Rosaleen McElvaney, gave evidence about both women’s reasons for delay and concluded that the delays were reasonable. Under cross-examination, she accepted that neither woman had experienced serious psychological or psychiatric problems.
Justice McCracken said that whether a delay was understandable or reasonable was not the legal test. He said the evidence did not show the kind of inhibition arising directly from the alleged offences that could explain such a long delay. He also noted that the complaints followed a physical assault arising from a neighbours’ dispute, and that both women had returned to live near the appellant after pursuing careers elsewhere.
The judge rejected the argument that delay alone could automatically bar a trial, saying the circumstances must establish a real and serious risk of an unfair trial. Having found the complainants’ delay insufficiently explained, he did not consider prosecutorial delay. The judgment identifies the case as Supreme Court proceedings numbered 215/04.