The Supreme Court has ruled by a 3–2 majority that a trial judge was entitled to let a case involving historic allegations proceed, despite the death of a witness whose evidence the defence said could have helped its case.
In a statement dated 19 December 2019, the Court set out the approach trial judges should take when an accused asks for a trial to be halted because delay has made the process unfair. Judges should assess the prosecution case as it developed at trial, consider what missing evidence might have shown and how likely it was to have been available, and evaluate its significance against the prosecution evidence. They must then decide whether the trial remains fair, including whether the accused has lost a realistic opportunity to pursue an obviously useful line of defence.
The Court said the fairness decision is normally best made at trial, after a separate and conscientious assessment of everything that has occurred. It does not require the judge to assess guilt or innocence. Trial judges should explain the considerations behind their decision, which remains subject to appeal. The statement also said culpable conduct by investigating or prosecuting authorities can increase the level of prejudice that makes a trial unfair; it described that point as irrelevant to this case.
The disagreement concerned M.Cy., a witness who died before trial. The majority—O’Donnell, Charleton and O’Malley JJ.—concluded that the potential prejudice from the delay and her absence did not make the trial unfair. O’Malley J. considered there was a reasonable possibility that the witness could have assisted the defence, but said the prosecution case included evidence supporting aspects of the complainant’s account and clear, effectively unchallenged evidence of an admission by the accused. Charleton J. also considered the confession evidence highly reliable. O’Donnell J. said he could not accept there was a real possibility the witness could have given highly favourable evidence that would have withstood a credibility challenge.
Clarke C.J. and MacMenamin J. dissented. They considered that the witness’s absence, after she had potentially been available for about 36 years following the alleged offence, together with the passage of time, made the trial unfair. Clarke C.J. said she might have been able to give direct evidence about events surrounding the historic sexual abuse allegation.
The statement describes the Supreme Court’s decision on the fairness application. It does not report a verdict on the underlying allegations or state the ultimate outcome of the trial.