The High Court has refused an application to prohibit a retrial on a sexual assault count after a jury acquitted the anonymised applicant on five counts but could not reach agreement on the sixth.
In a judgment delivered on 14 January 2025, Mr Justice Rory Mulcahy held that the applicant had not established that a retrial would inevitably be unfair. The Director of Public Prosecutions had directed a retrial on the remaining count.
The six counts arose from allegations concerning a sequence of events on a date in 2020. The judgment says the parties agreed that the main trial issues were consent and whether the applicant had the required mens rea. The applicant’s case included that evidence of the other alleged acts could lead a new jury to convict on an improper basis. He also argued that excluding that evidence would leave a partial and misleading account of the events.
The DPP had stated in the judicial review proceedings that she would not refer to the earlier trial in direct examination. She argued that any retrial could be conducted fairly, and that the trial judge would be able to address fairness as the evidence and issues arose.
Justice Mulcahy said the judicial review court was being asked to predict what evidence might be led and what directions might be needed. A trial judge, he said, would be better placed to assess the actual evidence and use appropriate rulings or directions. He accepted that the applicant and his advisers would face difficult choices in preparing the defence, but found that this did not make a retrial unfair.
The judge also rejected the argument that a retrial would contradict the first jury’s verdicts. The jury had acquitted on five counts but had not acquitted on the remaining count; it had been unable to agree. The judge said a conclusion about consent in relation to some alleged activity did not determine the question of consent in relation to other activity, even where the allegations formed part of one sequence.
The court held that the applicant could raise any fairness issue with the trial judge if it arose during the retrial, including through an application under the principles in PO’C v DPP. Justice Mulcahy clarified that no pre-trial fairness application had actually been made or refused. He refused the judicial review application, leaving the retrial directed by the DPP to proceed.