The High Court has dismissed a judicial review application by an anonymised man seeking to stop his retrial on three sexual assault counts involving his granddaughter. The court also discharged the stay that had prevented the criminal proceedings from continuing.
The man, born in 1940, was first tried on seven counts concerning alleged incidents between 1 July 2015 and 9 February 2016. The jury acquitted him on four general counts but disagreed on three counts referring to specific incidents. The Director of Public Prosecutions sought a retrial on those three counts, with no additional counts.
A trial judge refused an application to stop the retrial in December 2018. The applicant then obtained leave to bring judicial review and a stay of the criminal proceedings. In the High Court, he sought an injunction to prevent the retrial. His request for an order requiring the DPP to give reasons for proceeding on the three counts was abandoned. He also sought a declaration, which the judge said would add nothing to the case.
The applicant argued that the prosecution would have to reshape its case after the partial acquittal, and that the defence faced a difficult choice over whether to refer to the earlier acquittals. The DPP said it would not lead evidence about matters on which the applicant had been acquitted. The judge accepted that the choice could be agonising, but held that such difficulty did not, by itself, make the retrial unconstitutionally unfair. The court also said that reconfiguring the prosecution case was an inevitable consequence of a retrial after partial acquittal.
The judgment said the test for stopping a criminal trial through judicial review was whether it had been shown that the trial would be inevitably or unavoidably unfair. Potential unfairness that could be addressed through the ordinary trial process was generally for the trial judge and, if necessary, an appeal. The judge dismissed the application on its merits and said he would also have refused relief because an alternative remedy was available within the criminal process.
The judgment does not decide the applicant’s guilt or whether the three allegations are true. It records that the retrial should take place in early course, but makes no finding on the charges. The court ordered that reporting be restricted to protect the applicant’s identity because disclosure would tend to identify the complainant.