The Supreme Court has refused to block a man’s trial for alleged indecent assault of his young cousin while he was minding her in the 1970s and 1980s.
The five-judge court said the accused failed to establish there has been such a fundamental denial of justice that no trial should take place.
It ruled that it is for the criminal trial judge, not the High Court through judicial review, to determine whether the accused needs further information about the complainant’s past experience of alleged sexual violence. If the accused has a complaint about a potential unfair trial, this should be directed to the trial judge, the court said.
The man is alleged to have committed 18 counts of indecent assaults when he was minding the complainant and her siblings when she was aged between four and 14. He was an adult at the time. He denies all of the allegations and maintains his innocence.
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The man, who is now in his late 60s, brought High Court judicial review proceedings alleging he could not get a fair trial because he needs access to a wide range of information on every past sexual abuse incident the complainant alleges she has suffered.
The High Court directed that the man should be furnished with the names and addresses of young people who allegedly assaulted the girl, details of a separate allegation of rape, full documents concerning a relation who was prosecuted and any allegations she made against two others. The trial was not to proceed without these matters being disclosed, the judge held.
Those orders were overruled in the Court of Appeal, which held that issues as to discovery and information should be dealt with by the criminal court overseeing the trial.
The man appealed to the Supreme Court, which on Thursday refused to halt his trial or order increased disclosure.
In the Supreme Court’s ruling, Mr Justice Peter Charleton noted the complainant had already given extensive background information and documents but refused to further co-operate when the accused asked for “yet more information”.
He said alleged victims of sexual violence are entitled to be protected from inquiries before and during a trial into their past sexual experience, including alleged sexual offences against them.
A trial judge cannot order disclosure of prior sexual experiences of the alleged victim unless this line of inquiry is shown to have a “material impact on the trial of the central issue” in the case, he said.
If an accused wants disclosure of such information, including in relation to a complainant’s previous experience of sexual violence, they must show it to “impact reasonably on the possibility that a false allegation of sexual violence is being made”, the judge said.
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