The Court of Appeal refused the Director of Public Prosecutions’ application for a retrial of JG (No. 2), whose convictions for 14 sexual offences had been quashed on appeal in February 2018.
The judgment, delivered by Mr Justice Mahon on 8 June 2018, concerned the prosecution’s request to try the appellant again. He had been convicted after a jury trial at the Central Criminal Court in July 2015, following an earlier trial in November 2013 that ended with a jury disagreement. A retrial would have been his third trial for the same offences.
The convictions comprised one count of indecent assault, eight of sexual assault and five of rape. The offences were said to have occurred between September 1990 and July 1994, when the complainant was aged between four and eight. The first complaint to gardaí was made in July 2010. The appellant was sentenced to 13 years’ imprisonment, with the final five years suspended on conditions. By the time of this judgment, he had served a period equivalent to about three years and six months in custody, taking normal remission into account.
The prosecution argued that a retrial was in the public interest, citing the seriousness of the offences, the complainant’s interest in seeing justice done, and its submissions that there was no material prejudice or risk of an unfair trial. It also submitted that there had been no unreasonable delay in the complaint being made.
For the appellant, counsel emphasised the passage of time, his age and serious health problems, the prospect that a retrial would take place when he was about 76, and the portion of the original sentence already served. Counsel also said the appellant had been publicly named after his conviction and shamed in his community.
The appeal had been allowed because evidence about the appellant’s admitted sexual abuse of the complainant’s sisters had been introduced at the second trial. The Court of Appeal said a retrial without that evidence would significantly weaken the prosecution case, although it would not necessarily make the case fatally weaker or rule out a fair retrial.
The court said it had discretion to order a retrial and had to weigh all the circumstances. It identified the appellant’s age and poor health, the long time since the offences, the fact that a retrial would be his third trial, and the period already served in prison as factors against ordering one. It therefore refused the application. The judgment did not determine the underlying charges at a new trial; it decided only whether a retrial should be ordered.