The Supreme Court has allowed the Director of Public Prosecutions’ appeal and dismissed an application for judicial review that had stopped a prosecution from proceeding. The court concluded that the accused had not established a real or serious risk of an unfair trial that could not be addressed by the trial judge.
The case concerns an allegation that P. O’C. assaulted a female complainant, identified as E, at a named primary school on an unknown date between 1 April and 9 July 1982. The accused was charged in July 1998. In 2003, the High Court granted an order prohibiting the prosecution from proceeding, finding that the long delay had prejudiced the defence and created a serious risk of an unfair trial.
The DPP appealed. The Supreme Court said that under its prior decision in S.H. v Director of Public Prosecutions, the central question was the effect of delay on the fairness of the trial, rather than why the complainant had waited to make a complaint. It held that the High Court’s finding of culpable complainant delay was no longer relevant to that assessment.
The accused relied on missing school keys and the deaths of people said to have knowledge of them, as well as the loss of his and another athlete’s training diaries. The Supreme Court agreed with the High Court that the evidence did not establish prejudice arising from the unavailable key holders. On the diaries, it said the accused’s account did not establish when or for how long he had trained on the relevant Saturdays, and he had disclosed inquiries of only one fellow athlete. The court said any effect on the trial’s fairness was a matter for the trial judge to assess in the context of all the evidence.
The judgment also considered the accused’s argument that delays across several trials could affect any sentence if he were convicted. It held that this might be relevant to sentencing, but not to whether the outstanding trial would be fair.
The Supreme Court found it could not determine in advance that the trial would be fair or unfair, and held that the accused had not shown an unavoidable unfairness that could not be addressed through rulings or directions by the trial judge. It therefore allowed the DPP’s appeal and dismissed the judicial review application. Because of that conclusion, it did not consider the DPP’s separate ground that the application for leave to seek judicial review had been made too late.