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Trial of 80-year-old man to proceed on 358 counts of indecent assault

By: James Cross BL

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High Court refuses judicial review seeking prohibition of the trial of an 80 year old man on 358 counts of indecent assault, on the grounds that no exceptional circumstances were established which would justify a departure from the default position that issues canvassed in the present application could be ventilated before the trial court, where the Court was not satisfied that there has been no prosecutorial delay and certainly no culpable delay, that the applicant’s physical ailments did not prevent him from defending his prosecution, and the unavailability of witnesses did not prejudice the applicant.

Criminal law – judicial review – 80 year old man seeking to prohibit trial - 358 allegations of indecent assault - four individual complainants - claims that there has been inordinate and inexcusable delay in the commencement of criminal proceedings against him and he asserts that the delay in the proceedings has given rise to the accumulation of prejudicial circumstances leading to a real danger of an unfair trial taking place - relevant facts – progress of investigation and criminal proceedings - present proceedings - reliefs sought - grounds upon which the relief is claimed – book of evidence - applicant’s age and ill health - unavailability of witnesses - relevant principles – report of consultant forensic psychiatrist – applicant’s account of the offences - applicant’s cognitive state - no evidence that any of the physical conditions referred to by his doctors would prevent him from giving evidence at a future trial - court is entitled to hold that, as a matter of fact, the applicant is not suffering from any cognitive decline - inordinate and inexcusable delay – no inordinate delay - entirely satisfied that the delay was excusable - court cannot hold that delay on the part of the complainants in making formal complaints was “unjustifiable” – the delay does not result in prejudice rendering a fair trial impossible - death of the applicant’s parents - none of the four complainants suggest that anything untoward was known to the applicant’s parents - there is no suggestion that any untoward behaviour was witnessed – prejudice does not arise from their unavailability – unavailability of other witnesses - none of the four complainants suggest that anything untoward was known to the applicant’s parents. There is no suggestion that any untoward behaviour was witnessed – what evidence they might have given, had they been available, involves an exercise in pure speculation - applicant’s employment history - absence of islands of fact and presence of inconsistencies - islands of fact / inconsistencies - no evidence that any of his physical ailments prevent him from defending his prosecution - there has been no prosecutorial delay and certainly no culpable delay whatsoever on the part of the respondent – Statement from the Supreme Court on the appropriate approach to be taken in respect of an application to halt a trial on the grounds of delay and alleged unfairness arising from same - judicial review is “rarely appropriate” - assessment by the trial judge - this is not one of those rare cases where the court should depart from what might be called the “default position” – no exceptional circumstances - issues canvassed in the present application could be ventilated before the trial court which would be in a far better position to make an assessment.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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