A man charged with indecently assaulting two sisters and raping one of them in the early 1980s has won a High Court order prohibiting his trial on the charges. It was stated that the girls, and at least one other sister, were constantly sexually abused and raped by their elder brother, their father and an uncle. Their uncle and father are now dead.
Mr Justice McCracken said the sisters made some complaints at the time of the alleged offences, including to the nuns of an institution where they were in care, but were not believed and no action was taken.
The case related to a neighbour of the girls who was charged earlier this year with indecently assaulting them and raping one of them.
In a reserved judgment on the application to prohibit the trial, the judge said he was satisfied there was a serious risk that the man would not get a fair trial because of the delay. The judge said the man was accused of two one-off incidents which allegedly occurred several years apart. The girls, then aged 12 and 10, were in the care of an institution. The incidents were alleged to have taken place during brief intervals when they were allowed home.
Mr Justice McCracken said he did not think the circumstances would lead to the conclusion that the man was in such a position of trust or dominion over the girls that they were influenced not to report the alleged abuse. It was also relevant that neither of them did, in fact, report it.
If one assumed the innocence of the man, who had at all times maintained he was innocent, the absence of vital witnesses constituted a serious risk of an unfair trial and a miscarriage of justice. The case had a very sad background, he added. The girls were part of a large family largely brought up in care, due to the inability of their parents to look after them. Their mother was an alcoholic and the father appeared to have been unable to cope. During visits home the girls and at least one other sister were consistently sexually abused by their father, elder brother and uncle, Mr Justice McCracken said. They made some complaints but were not believed. No action was taken and the abuse continued.
In June 1995, a sister of the girls made a complaint to an RUC member. The RUC contacted gardai, who instigated an investigation. By this stage their father had died and the uncle was living in England. The girls and several of their sisters made statements to gardai which largely dealt with the abuse by members of their family but also alleged abuse by the neighbour. The neighbour was first arrested for questioning early last year.
Affidavits were sworn, including one from a clinical psychologist. The purpose of the psychologist's affidavit was to give expert evidence to explain why such a long period had elapsed between the alleged abuses and the complaints.
The psychologist made no mention of the continual rape and abuse by members of their family and the psychological effect this might have had on them, the judge said.
In cross-examination, the psychologist had said he was not told specifically about their uncle and did not know of the allegations against their father and brother. He did not see why the fact that the sisters had been abused by somebody else should form part of his report.
Mr Justice McCracken said that where a witness purported to give evidence in a professional capacity as an expert, he had a duty to ascertain all the surrounding facts and give evidence in the context of these, whether or not they supported the proposition which he was being asked to put forward.
Dealing with the question of witnesses, the judge said that according to a statement from one of the sisters, an indecent assault had taken place in the presence of a member of the travelling community. That person had not been found and, as it was 16 years since the alleged incident, it was unlikely that he would.