The High Court has refused an application to prevent a retrial of Rory Eccles, ruling that he had not established that a further trial would be unfair or oppressive.
Eccles faces outstanding charges of assault causing harm and possession of an article. He pleaded guilty to criminal damage. The charges arose from an incident in which he was alleged to have damaged a man’s car and struck him with a baseball bat. Eccles accepted damaging the car but denied striking the man, saying he had hit him with an elbow after the man attacked him with a knife.
A jury was discharged during the first trial in April 2016, after the trial judge was told that the complainant and his partner had spoken during a lunch break. The judge had directed the partner not to contact the complainant and said the trial would be stopped if they did. After hearing evidence from Eccles’s solicitor, the judge concluded that the contact meant Eccles could not receive a fair trial at that sitting. The judge refused a defence application for a directed verdict of not guilty, saying a transcript would be available at a retrial and that the events were not fatal to the defence.
The Director of Public Prosecutions confirmed that the State would seek a retrial. Eccles then sought judicial review, arguing that the first trial had exposed weaknesses in the prosecution witnesses’ accounts and that the witnesses could prepare for his cross-examination. He also argued that the jury’s discharge had deprived him of advantages gained during the trial.
The High Court considered whether there was a real risk that a retrial would be unfair in a way that could not be addressed by the trial judge. It accepted that the element of surprise in cross-examination had been reduced, but found that the transcript recorded the complainant’s concessions, the questions asked and the breach of the trial judge’s direction. The defence could use that record in cross-examining both witnesses at a retrial, including if either gave a different account.
The court said the original jury had not, on the available record, been shown to know of the contact or the judge’s concerns about the partner’s conduct before the jury was discharged. It also rejected the argument that the witnesses’ cohabitation, by itself, established that a fair retrial was impossible. Concerns arising during a retrial could be addressed by appropriate rulings and directions from its trial judge.
Justice Faherty refused the relief sought. The decision leaves the DPP free to pursue a retrial; it does not determine the outstanding criminal charges. The court said Eccles remained entitled to scrupulous fairness at any retrial.