By Maeve Rowan
The High Court has refused to dismiss a woman's civil claim against the State over the alleged handling of a Garda investigation in Kilkenny more than four decades earlier.
The plaintiff, identified as M. O'S., otherwise M. G., alleges that she was sexually abused by a neighbour, W. O'S., from early childhood until she was about 15. Her claim against the State defendants concerns what happened after an anonymous complaint led to a Garda investigation in Kilkenny in 1961 or 1962.
According to the judgment, the neighbour's home was searched and photographs and film involving children, including the plaintiff, were found. The plaintiff alleges that she was brought to Kilkenny Garda station, shown photographs and questioned. She further alleges that no prosecution followed and that the abuse then continued for about another ten years.
The State defendants asked the High Court to dismiss her civil proceedings because of the passage of time and, separately, for want of prosecution. They argued that a fair defence was no longer possible. Detective Sergeant Nolan, who appears to have led the original investigation, died in 1990 and no Garda records of the inquiry could be found.
Ms Justice Dunne accepted that those matters caused real prejudice. She also found that the delay in commencing proceedings was plainly inordinate.
However, the judge said delay was itself central to the plaintiff's case. The plaintiff contends that the authorities' failure to prosecute allowed the alleged abuse to continue and impaired her ability to bring proceedings earlier. Dunne J considered that position difficult to distinguish from an earlier Supreme Court case involving similar allegations of Garda inaction.
The court also criticised the State defendants for waiting about seven years after the proceedings began before seeking dismissal on delay grounds.
On the separate claim of want of prosecution, Dunne J accepted there had been delay by the plaintiff but was reluctant to call it inexcusable. She held that, in any event, the balance of justice favoured allowing the action to continue. The ruling did not determine the underlying allegations or liability.