The Supreme Court dismissed A.P.’s appeal against a decision allowing a fourth trial on 14 alleged indecent-assault charges. In a separate judgment, Justice Hardiman said the appeal’s formal grounds argued only that a fourth trial would, by itself, breach the applicant’s right to a fair trial or amount to an abuse of process.
The charges relate to alleged offences between early 1974 and early 1978. A complaint was made to gardaí in 1999, and A.P. was returned for trial on 28 April 2004. Juries were sworn on three occasions in 2006, but each was discharged by the trial judge because of evidence he considered inadmissible and prejudicial. A fourth trial was fixed for 19 December 2006, then adjourned after a medical certificate concerning the complainant was produced. A.P. sought judicial review to prevent that trial.
Hardiman J. said the applicant’s replying affidavit raised delay and exhibited a letter dated 29 November 2002, in which the complainant demanded €5,000 and threatened to proceed with the case. The letter claimed that gardaí knew of the demand and would arrest A.P. if he did not pay. The judge said there was no reason to believe those claims about gardaí were true, while noting that it was undisputed the complainant had written the letter.
The judge considered that delay and the letter might raise substantial issues, including whether the letter could affect the prosecution’s ability to proceed. But neither issue appeared in the grounds for leave to seek judicial review, and the grounds were not amended after the affidavit raised them. The Director of Public Prosecutions’ counsel said the prosecution had not been put on notice that these matters would be relied on.
Hardiman J. described the prospect of a fourth trial on the same charges as a grave concern. He said circumstances capable of justifying a fourth trial, whether after a jury discharge or disagreement, must be extremely rare and fully established and explained by the Director. He would not, however, accept the applicant’s pleaded proposition that a fourth trial was necessarily an abuse of process in all circumstances.
He also referred to alleged admissions that gardaí said A.P. made during interviews and which, the court was told, had been recorded on video. He said they were relevant to the fairness question in the judicial review, while noting they had not yet been proved at a trial. The appeal was dismissed; Hardiman J.’s judgment did not determine the criminal charges or decide the unpleaded delay and letter issues.