The Supreme Court has dismissed A.P.’s appeal against a High Court refusal to prevent a possible fourth trial on 14 charges of indecent assault. It ruled that no general rule bars a fourth trial, while leaving any future trial judge responsible for ensuring a fair trial.
A.P. pleaded not guilty to the charges, which concern alleged offences against L. between 20 February 1974 and 19 November 1977. Three trial attempts began in Waterford Circuit Court in 2006. Each stopped after L.’s evidence, before the jury heard the prosecution and defence cases.
The first jury was discharged after the trial judge ruled that evidence given by L. was inadmissible and prejudicial to A.P. In the second trial, the judge discharged the jury after L. gave evidence in cross-examination of a serious offence that the judgment said would now be classified as rape. In the third, the jury was discharged after L. gave evidence that included physical assaults. The Supreme Court said the details of those decisions were not relevant to the question before it.
A.P. sought judicial review on the ground that a fourth trial would, in itself, be an abuse of process and breach his constitutional right to a fair trial. The High Court refused the application. On appeal, the Supreme Court said the High Court had addressed issues outside the grounds allowed for review, which had not been amended. The Supreme Court confined its consideration to whether a fourth trial was automatically prohibited.
Delivering judgment, Denham J. said the law does not set a fixed numerical limit on prosecutions or retrials. Courts must consider the circumstances of each case when deciding whether a further prosecution would be constitutional. The judgment noted that matters such as the seriousness of the alleged offences, prejudicial prosecutorial delay, the time proceedings have been in the legal system, and stress or anxiety may be relevant in an appropriate case. Those matters were not determined here because they fell outside the narrow issue raised.
The court noted that L. had reportedly said she did not wish to give evidence at another trial, but later withdrew that position. The Director of Public Prosecutions hoped she would give evidence if another trial proceeded. The Supreme Court said the judgment did not decide whether a further trial in this case would be fair in all the circumstances. It dismissed the appeal and refused the relief sought, while confirming that any trial judge would retain the duty to ensure a fair trial.