THE trial of a man charged with raping and indecently assaulting three of his daughters between 1963 and 1973 will go ahead, the Supreme Court decided yesterday.
The man had claimed that the lapse of time between the alleged offences and any possible trial would prejudice him.
The man was arrested and questioned in 1992. In 1993 he was charged with sexual offences and in 1994 was returned for trial. In that year, he sought a High Court order to prohibit the prosecution continuing.
It was submitted that there was a lack of specificity in the dates on which the offences were alleged to have been committed. It was also claimed that because of the great lapse of time he could not locate witnesses as to his whereabouts in 1963-1973 so as to establish a defence by way of alibi or otherwise.
The man's wife had died and was therefore unavailable as a witness. It was also submitted that he had no documentary evidence available to him as to his activities in the years concerned and that the only defence available to him was a denial on oath of the charges, a denial which he could not now support or corroborate.
The High Court rejected the application in 1995 and the man appealed to the Supreme Court.
Giving the Supreme Court judgment, Mrs Justice Denham said that in the Central Criminal Court the indictment contained 69 charges alleging rape or indecent assault of the three daughters, members of a large family. The alleged acts of sexual abuse occurred when the daughters were young and living at home.
In 1982, the wife got a barring order and thereafter the man was not in the family home. He stated the reason for the barring order was his excessive drinking and that there was no question of sexual abuse.
His wife died in 1991.
The man denied the allegations of sexual abuse. He stated that he was unable to remember his movements in 1963-74 and did not keep a diary or record of his movements or actions.
Mrs Justice Denham said the High Court judge had found the evidence depicted the man as a "violent, dominant and menacing personality" and as a domineering husband and parent who subjugated the members of his family.
The High Court judge also found the evidence depicted that the man brought about an atmosphere in the home of such menacing threats and violence that any initiative or capacity to protest or complain was suppressed.
A consultant psychologist was of opinion that one daughter was the victim of systematic and severe emotional, physical and sexual abuse during childhood and much of her adolescence.
Mrs Justice Denham said the court had to look at the circumstances in each case, the issues and constitutional interests of the parties, to determine the matter.
There was no definitive timed limit. There was no exhaustive or exclusive list of factors. There were interests which must be protected in the constitutional scheme of things.
It was not only the man's interests which had to be considered. It was necessary to balance his right to reasonable expedition in the prosecution of the offences with the community's right to have criminal offences prosecuted.
The community's right was not absolute but it had to be exercised constitutionally, with due process. If there was a real risk that the man would not receive a fair trial on the balance of these constitutional rights, the man's right would prevail.
Mrs Justice Denham said the very nature of the present case placed it in a special category. It was alleged that sexual abuse by a parent in the privacy of the home head taken place with just the complainant and the accused present.
In these cases, the kernel of the trial was the credibility of the Prime witnesses, the complainants and the accused. The very nature of such cases was that an alibi was not generally a relevant defence.
The reason for delay in the present case was the dominion exercised by the man over the three daughters.
It was clear that the dominion existed until their mother died. Until her death, the complainants were unable to approach the authorities.
It was not a question of the sole reason for the delay being the complainants deciding to postpone the making of the complaint until, their mother's death, a compassionate and understandable reason, a factor for consideration; but it was not a sound sole reason constitutionally to delay the trial.
This explicit reason was not the only reason for the daughters' delay.
The daughters were psychologically incapable of approaching the authorities and making the complaint until after 1991. They inhabited a unique world fashioned by the man's actions. The dominance was the kernel reason for the delay and the factor carrying most weight.
Mrs Justice Denham said that in weighing up the community's right to proceed with the prosecution as against the other factors for consideration, it was clear the man had not discharged the onus of establishing that arising out of delay there was a real risk that he would not obtain a fair trial.
The trial judge would ensure all relevant issues arising from delay would be placed before the jury with appropriate directions.