THE HIGH Court has prohibited the trial of an 84-year-old man accused of raping and sexually assaulting his niece at his home during the 1970s.
Yesterday in his judgment, Mr Justice John Hedigan held that there was “a real and substantive risk” that the man “would not receive a fair trial” if the matter was to go before a judge and jury.
The judge said this was due to factors including the unavailability of important witnesses who are now deceased and because of the delay in taking the proceedings.
The woman claimed she had been raped and sexually assaulted by her uncle between April 1973 and December 1978.
The woman was 12 years of age when it is claimed the abuse began.
The alleged abuse was said to have occurred in the attic or the bedroom of the house in Dublin where the man lived with his mother, and two of his sisters, when the complainant went to visit her grandmother.
In judicial review proceedings, the man, who cannot be named for legal reasons, sought an order prohibiting his trial on grounds that he was prejudiced by the lapse of time between the dates of the alleged abuse, and when the authorities were first informed of the claims.
Opposing the action, the DPP argued that the delay in this case was justified, and that any prejudice could be avoided by directions of the judge hearing his trial.
Following a complaint the man was arrested in late 2005, and in 2007 was charged with a total of 25 counts of indecent assault, four counts of rape and one count of attempted rape.
A trial date had been set for June of last year. That was put on hold after the man sought judicial review proceedings.
The woman did not make a formal complaint to the gardaí until 2005. She claimed that she was afraid to bring charges because her two aunts, who lived with her uncle at the time of the alleged assaults, would have denied the abuse and would have supported the man.
In his judgment yesterday, Mr Justice Hedigan said that the right to a fair trial is one of the most fundamental constitutional rights afforded to persons. The courts would not lightly interfere with decisions of the DPP.
However, in this case he noted that the man’s two sisters died between 1999 and 2005. Their evidence would have been of central importance of any prosecution.
Both parties in their submissions, the judge said, stated the those two women would have denied that any abuse occurred.
“The loss of this evidence in my view has irretrievably damaged the ability of the applicant to defend himself and must therefore give rise to a real and serious risk of an unfair trial,” said the judge.