The Supreme Court is to consider whether alleged victims of sexual violence have any right to be protected from enquiry into prior alleged incidents of a similar kind.
This issue, along with others concerning whether there is any privacy exception or psychotherapeutic privilege for alleged victims asked for information, will be aired before the top court next April in an appeal by a man accused of sexually abusing a girl decades ago.
He wants to prevent his trial on eight counts of indecent assault, contrary to section 6 of the Criminal Law Amendment Act 1935, and 10 counts of indecent assault, contrary to section 10 of the Criminal Law (Rape) Act 1981.
It is alleged the incidents occurred in the 1970s and 1980s, when the man was minding the girl and her siblings when she was aged between four and 14, and he was an adult. He denies all of the allegations and maintains his innocence.
The man, who is now in his late 60s, claims in judicial review proceedings that his trial would be unfair, and that he requires access to a wide range of information regarding every incident the complainant alleges she has suffered from abusers.
A Supreme Court determination notes the claim for documents “trawls very widely and purports to include psychological and medical records”.
The High Court directed 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 ordered.
Overruled
These 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 substantial proof required to show that an upcoming trial would be unfair was lacking in this case, the three-judge court held.
A Supreme Court panel of three judges said serious issues arise in the case that should be clarified because they affect rights that may inure by statute or under the Constitution in favour of the alleged victim of sexual violence.
The judges intend to consider whether judicial review through the High Court is ever an appropriate vehicle for seeking information for criminal trials such as this.
The court will also examine whether there is a privacy exception or psychotherapeutic privilege to an application for discovery and, if there is, when this protects the alleged victim of sexual violence.
The man’s appeal is scheduled for April 25th.
