The Supreme Court has dismissed an appeal by an 84-year-old man seeking to stop his prosecution on 19 charges of sexual offences allegedly committed against three relatives. The court held that he had not shown a real or serious risk of an unfair trial caused by delay, and that the concerns raised could be addressed by the trial judge.
The charges concern alleged offences against his nephew, niece and grand-niece, spanning dates between 1970 and 1993. The man denied the allegations. The charges had been sent forward for trial in November 2001. He brought judicial review proceedings seeking an injunction against further prosecution; the High Court refused that relief in July 2004.
The Supreme Court considered the appeal in light of its July 2006 decision in *H. v Director of Public Prosecutions*. It applied the test of whether delay created a real or serious risk that the applicant would not receive a fair trial. The court said the applicant retained the presumption of innocence and that the earlier approach requiring an inquiry into reasons for complainant delay no longer applied.
The applicant argued that the passage of time had impaired his defence, including through lost work records and the death of a potential witness. The witness was said to have been present at a family christening where two charges relating to the grand-niece were alleged to have occurred. The court said other family members were likely to have been present and rejected the claim that these specific losses established that a fair trial was not possible. It said difficulties from the missing work records and the general lapse of time could be mitigated by directions and rulings from the trial judge.
The court also considered the applicant’s claim that prosecutorial delay had breached his right to an expeditious trial. It accepted that the period between his arrest for questioning in May 2000 and the charges in April 2001 was somewhat prolonged, but found no other excessive or blameworthy periods of prosecution delay. It said adjournments connected with the applicant’s judicial review and his request to take depositions had contributed to delay. The delays did not amount to a denial of his right to a fair and expeditious trial.
Before the appeal hearing, the Supreme Court declined to admit proposed new medical evidence about the applicant’s condition, holding that fitness to stand trial was for the presiding trial judge to decide. It also rejected the claim that his age and health amounted to wholly exceptional circumstances. The appeal was dismissed; the court did not determine the criminal charges or the applicant’s fitness to stand trial.