The Supreme Court restrained the Director of Public Prosecutions from prosecuting S.B. on 30 indecent assault charges involving J.R., finding that missing records and deceased witnesses created a real risk of an unfair trial. It declined to bar prosecution on two separate charges involving B. and sent the question of severing the order returning S.B. for trial back for further argument.
The charges involving J.R. concerned alleged assaults in a hospital between 1975 and 1979. J.R. said S.B., a nurse, took him from a ward at night and assaulted him in an office. S.B. denied the charges. The Court noted that the charges were framed around periods when J.R. was in hospital and that the prosecution did not dispute that they had been divided into selected periods.
The Court said records of the nurses’ actual working hours had been destroyed under the hospital’s usual practice after ten years. A surviving sick leave register showed 16 days of leave ending on 3 July 1979, covering the full period alleged in one charge and some or all of another. The Court considered that such records could have helped establish whether S.B. was on night duty when the alleged assaults could have occurred. It rejected the prosecution’s suggestion that possible shift-swapping made the missing records immaterial, noting there was no evidence that S.B. had exchanged duties.
Three people whom J.R. said he had told about the alleged abuse—a doctor and two nurses—were deceased. The Court said their absence removed a potentially useful line of defence: they might have confirmed or denied receiving a complaint. It also noted that J.R. had attributed a suicide attempt to abuse at a time before the dates covered by the charges, and that he later made and withdrew similar complaints against another nurse. These were matters the Court considered in assessing the fairness risk, not findings that the allegations were false.
The Court found that the combined effects of delay, missing work records and unavailable witnesses created a real risk of an unfair trial on charges 1 to 30. It declined an injunction on charges 31 and 32, which alleged gross indecency involving B. at S.B.’s home in 1988, finding no demonstrated unfairness beyond the passage of time.
The Court also held that the District Judge had wrongly refused to let S.B. call hospital employee Mr. K. for a sworn deposition under section 7 of the Criminal Procedure Act 1967. Mr. K.’s proposed evidence about S.B.’s presence on the ward relied on records, and the Court said the defence was entitled to question him and examine the basis for that evidence. The Court indicated S.B. was entitled to certiorari concerning the order returning him for trial, but deferred a final decision on whether that order could be severed to exclude only charges 1 to 30.