The Court of Appeal has allowed F.M.’s appeal and restored the effect of a Circuit Court decision directing a jury to find him not guilty on four counts of indecent assault. The court held that the trial judge acted within jurisdiction when refusing a prosecution request to adjourn the trial after the complainant did not attend.
The charges alleged assaults on F.M.’s niece between April 1968 and December 1970, when she was aged seven to nine. F.M. denied the allegations, according to submissions recorded in the judgment. The Court of Appeal did not determine the allegations; it considered the lawfulness of the Circuit Court’s procedural decisions and the High Court’s judicial review ruling.
On 27 March 2019, the prosecution sought an adjournment because the complainant’s sister was unavailable and counselling notes remained outstanding. The defence opposed it, and the trial judge refused. A jury was empanelled and put in charge. The next morning, the prosecution sought another adjournment, this time citing the complainant’s health and producing a GP certificate. The judge refused the request, citing the case’s history of delay, the late notice of the new ground and gaps in the medical information, including the absence of a prognosis.
The prosecution then told the court it had no evidence to offer. The judge directed the jury to find F.M. not guilty on all counts. In 2021, the High Court quashed the Circuit Court orders and remitted the matter, finding that the trial judge had materially engaged with a preliminary application based on delay and alleged unfairness before evidence had been heard.
The Court of Appeal disagreed. It accepted that defence counsel had made a P. O’C-type application, but concluded that the trial judge refused the adjournment on the basis of the case’s history and the right to an expeditious trial, not because he had found F.M. irredeemably prejudiced. The judge’s reasons were relevant and cogent, the appeal court said, and the decision was a lawful exercise of discretion. Because the prosecution then offered no evidence, the direction to acquit was also lawful. The court allowed the appeal.
The judgment also addressed, provisionally and obiter, whether the High Court could have disregarded the delay in the judicial review application because it had not been pleaded in the Statement of Opposition. The application had been made about a month outside the three-month limit, and the record contained no evidence explaining the delay. The Court of Appeal said the High Court could not ignore the time-limit requirements merely because the objection had not been formally pleaded. It did not decide that issue as necessary to the outcome; it stated that the appeal was allowed on the substantive issue.