A FIVE judge Supreme Court has unanimously cleared the way for what is believed to be an unprecedented fourth trial of a man on charges of indecent assault of a young girl more than 30 years ago.
The court said there was no rule of law here preventing a fourth trial per se and the man had failed to show a fourth trial was unfair or an abuse of process. It also stressed the need for applicants in judicial review proceedings to set out clearly the grounds on which they intend to rely.
The Chief Justice, Mr Justice John Murray, criticised the “lack of clarity and even confusion” about the precise issues to be decided in “a not insignificant number” of applications for leave for judicial review.
The man sought to prevent his trial on 14 counts of indecent assault of the complainant on dates between 1974 and 1977, when she was aged between eight and 11 years. She made a formal complaint in 1999 and the man was returned for trial in 2004.
Three trials on various dates in 2006 were abandoned following the evidence of the complainant, the first witness, by order of the trial judge after he upheld defence arguments that some of her evidence was inadmissible and prejudicial to the man, including evidence of physical abuse and offences which would now be classified as rape.
After the Director of Public Prosecutions directed a fourth trial, the man secured leave for judicial review on grounds a fourth trial amounted to an abuse of process and breached his constitutional right to a fair trial.
The High Court rejected those arguments and the Supreme Court yesterday dismissed the man’s appeal. The judges stressed their decision was based only on the grounds raised in the man’s judicial review and not on other matters he later sought to raise, including delay and a letter by the complainant seeking money to drop the charges.
Mrs Justice Susan Denham also noted the three previous trials were abandoned after not advancing beyond the first witness, the complainant, and no jury had heard both the prosecution and defence cases. This was not a case about jury disagreements and no issue of delay or other matters were before the court.
The net issue here was whether a fourth trial was per se prohibited and she was satisfied no rule of law exists limiting the number of prosecutions or retrials.
Mr Justice Nial Fennelly said he was satisfied the man should not be allowed to argue the matters of delay and the complainant’s letter in this appeal as, although the man was aware of these issues, they were not raised in his original grounding affidavit and statement of grounds for judicial review.
He also noted the primary function of deciding whether to bring a prosecution lies with the DPP and he had decided the charges against the man were serious and it was in the public interest the man should be tried for them.
Mr Justice Adrian Hardiman, while agreeing the trial should proceed, said he was gravely concerned by the length of time occupied by this case relating to offences alleged to have begun in 1974. He believed the delay and January 2002 letter of the complainant threatening to proceed to court unless the man paid her €5,000 might raise “substantial issues” but he could not say more because neither of those matters was raised in the man’s judicial review grounds. Nothing was done to bring these matters into the case in a proper way, he said.
“In too many judicial review cases, it will be found that little attention has been paid to the absolute necessity for a precise defining of the grounds on which relief is sought until the case is actually before the court. In my view, this case furnishes an extreme example of this unfortunate tendency,” he said.
It was also unrealistic, he said, to ignore the fact that gardaí had alleged the man had made “significant admissions” in video-recorded interviews. The alleged admissions were not irrelevant to the issue of fairness but the man had not engaged with them in any serious way. He would have “no regard” to the alleged admissions if they were not recorded, the judge stressed.
In this case, the man’s sole proposition was a fourth trial was in itself an abuse of process. There may be many circumstances, “perhaps extremely rare”, where a fourth trial may be justified and these should be fully established and explained by the DPP.
