The Supreme Court has dismissed the Director of Public Prosecutions’ appeal and affirmed a High Court order prohibiting the trial and further prosecution of M.K. on two charges relating to an alleged incident in 1981–83.
The judgment, delivered by Denham J. on 25 June 2002, concerned charges of buggery and assault with intent to commit buggery against W., who was about 11 at the time of the alleged offences. The allegations were denied by M.K. The Supreme Court did not decide whether they were true; it considered whether proceeding to trial would create a real or serious risk of an unfair trial.
M.K. sought judicial review after being returned for trial in July 1999. He argued that the long delay had impaired his defence, including because his parents, who had since died, might have given evidence about visits or stays at the family home and the household’s arrangements. The High Court granted prohibition in September 2000, finding that the delay had seriously impaired his ability to defend himself. The Director appealed, challenging that assessment and the treatment of evidence explaining the delay in the complaint.
The Supreme Court said the applicant had the burden of establishing, on the balance of probabilities, that the trial should be prohibited. Delay alone did not automatically bar a prosecution, and the court’s role was to protect the right to a fair trial rather than set a time limit for prosecuting offences. It said that, in a case involving alleged offences on a single occasion, the loss of an important defence witness could combine with the passage of time to cause significant prejudice.
The court concluded there was evidence on which the High Court could find very grave prejudice. It identified the long delay, the single-occasion allegations, the complainant’s age, and the death of a witness important to the defence. In all the circumstances, it found a real risk that the trial would be unfair.
The appeal was dismissed and the High Court’s order affirmed. The result prohibited the trial and further prosecution on the stated charges; the Supreme Court made no determination of guilt or innocence.