The High Court has refused an application by O’D to quash a Circuit Court order allowing evidence to be given by video link in a criminal prosecution involving allegations of sexual abuse.
The order, made on 23 July 2010 by Judge Patricia Ryan, concerned two complainants in proceedings against O’D under section 5 of the Criminal Law (Sexual Offences) Act 1993. The allegations were not determined in this judicial review judgment.
O’D argued that the video-link order breached the right to a fair trial because it predetermined a central issue and disproportionately interfered with the trial. He also argued that the Circuit Court judge had relied on section 13(1)(b) of the Evidence Act, although he said the complainants’ alleged mental handicap meant the application should instead have been considered under section 13(1)(a).
President of the High Court Kearns said the second argument had already been raised in an earlier judicial review involving the same parties and the same issue. Leave in that earlier case had been granted in March 2009 on a pleading that the judge had used the wrong subsection. During those proceedings, however, O’D informed the court that the ground was not being pursued.
Kearns held that the rule in Henderson v Henderson applied. A party must bring forward the points that could reasonably have been argued in earlier proceedings and cannot generally reopen the same subject of litigation later after omitting an available argument. The judgment cited Carroll v Ryan and A.A. v The Medical Council in applying that principle.
The court said repeated judicial reviews in a criminal case can delay trials and damage the criminal justice system, while making clear it was not suggesting that O’D had deliberately sought to stall the trial. It refused the application. The judgment did not decide the fair-trial argument on its merits or determine the underlying criminal allegations.