The Supreme Court has struck out the prosecution’s central written response and a psychologist’s affidavit in a judicial review brought by a man charged with two counts of indecent assault. The Court did not decide the judicial review itself or the criminal charges.
The applicant, identified in the judgment as JF, denies the charges, which were brought in 2001 and concern alleged incidents in January 1988. He sought judicial review to stop the prosecution, arguing that delay made a fair trial impossible. The Director of Public Prosecutions relied on the claim that the complainant’s delay in reporting was caused by the applicant’s alleged acts.
To support that response, the prosecution filed an affidavit from clinical psychologist Simon Wale, who had conducted six clinical interviews with the complainant over several months and prepared a report. The applicant’s solicitor sought the complainant’s agreement to an assessment by a psychologist chosen by the defence. The complainant declined. The applicant argued that his psychiatrist could not assess the cause of the delay without examining the complainant, leaving him unable to answer the prosecution’s expert evidence on equal terms.
The High Court refused to strike out the challenged material. It considered that the psychologist’s report could be tested through cross-examination. The applicant appealed that decision to the Supreme Court.
Delivering judgment on 26 April 2005, Mr Justice Hardiman said the prosecution had not disputed the applicant’s assertion that the cause of the delay could not be professionally assessed without an independent examination. In those circumstances, relying on a report based only on the papers would not provide an effective way to rebut the prosecution’s expert evidence, he said. The applicant also needed access to an expert assessment to prepare cross-examination.
The Court rejected the argument that a second assessment was unnecessary because the complainant had already been examined by a reputable expert. It said the prosecution’s expert should not receive superior treatment and held that refusing an equivalent assessment would give the prosecution an unfair advantage. It also found no factual basis for the prosecution’s concerns that the proposed examination would be excessive or unduly intrusive.
The Court ordered paragraph 3 of the Director’s Statement of Opposition struck out, along with Wale’s affidavit and its exhibits. It did not decide whether paragraphs 6 to 17 of the complainant’s affidavit should be struck out, instead directing that further submissions be heard because some of the material might be narrative. The judgment also commented that paragraph 7 of a separate affidavit filed for the Director appeared irrelevant and prejudicial; that observation was not part of the order on the motion.