High Court dismisses judicial review allowing fresh Newton hearing after undisclosed witness statement error.

[2025] IEHC 529

THE HIGH COURT

JUDICIAL REVIEW

[2024/257JR]

BETWEEN:

JEAN NEVIN

Applicant

AND

THE CIRCUIT COURT OF THE MIDLANDS CIRCUIT

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 7th day of October, 2025

INTRODUCTION

1. This judgment concerns an application for relief by way of judicial review that has been brought in respect of criminal proceedings before the Midlands Circuit Criminal Court. Those proceedings have not concluded, but are effectively on hold pending the outcome of these proceedings.

2. The background to the application is that the applicant was charged with assault offences and pleaded guilty. There was a factual dispute between the applicant and the injured party about the underlying facts, and the resolution of that factual dispute was material to the question of sentencing. Hence, the trial judge directed that a hearing, a “Newton hearing”, should occur before him to resolve the factual dispute. The parties were agreed, and there is ample authority to support the proposition, that the decision to conduct a Newton hearing was correct and appropriate. Having heard the evidence, the trial judge determined that the factual dispute had to be resolved in favour of the applicant. The matter was then adjourned to a later date for sentencing.

3. It is now apparent that when the Newton hearing was conducted the lawyers for each side were unaware of the existence of a witness statement that was potentially relevant to the factual issues. That was so even though, in his evidence at the Newton hearing, the injured party identified the witness and contended that he ought to have been called. Despite some initial confusion, it eventually was communicated to the trial judge that there was in fact a further relevant witness statement which had not been disclosed. The matter came to light following an intervention by a solicitor for the injured party who raised the issue at the hearing scheduled to address sentencing.

4. The trial judge decided to vacate the earlier ruling and directed that there should be a fresh Newton hearing before a different judge. The applicant seeks to quash that direction, contending, among other arguments, that the decision of the trial judge impermissibly interfered with her right to a trial in accordance with law. In essence, the applicant argues that the prosecution had the opportunity to call whatever evidence was deemed appropriate and necessary at the Newton hearing and should be fixed with the outcome of that process.

5. The usual principle that the availability of alternative remedies may result in the High Court exercising its discretion to refuse relief by way of judicial review weighs heavier where judicial review is sought in the context of criminal proceedings and where the matters complained of are capable of being addressed by way of an appeal. In addition, and more significantly, where judicial review is sought in the context of extant criminal proceedings there is strong Supreme Court authority to the effect that save in exceptional situations a criminal trial should not be interrupted by applications for judicial review. Hence the court will first address the question of whether this application should be entertained. Before doing so, it may be helpful to outline the factual background to the case.

BACKGROUND

6. On the 8 April 2024 the High Court granted the applicant leave to apply for a judicial review for the following reliefs: “(i) An order of certiorari quashing the Order of His Honour Judge Keenan Johnson made on January 31st 2024, in Proceedings entitled People (DPP) v Jean Nevin bearing bill number LSDP0052/2022 before Portlaoise Circuit Court, vacating his Order of 27 October 2023 and recusing himself from further hearing the case.

(ii) An order pursuant to Order 84 Rule 20(8) of the Rules of the Superior Courts that the grant of leave act as a stay on the Order of [H]is Honour Judge Keenan Johnson made on January 31st 2024, in Proceedings entitled People (DPP) v Jean Nevin bearing bill number LSDP0052/2022 before Portlaoise Circuit Court, vacating his Order of 27 October 2023 and recusing himself from further hearing the case.”

7. As set out in the statement of grounds, the applicant was returned for trial to Portlaoise Circuit Court on two charges. The charges allege that on the 25 June 2017, the applicant assaulted one Christie Nevin (the injured party). The Book of Evidence served on the applicant indicated that there would be two prosecution witnesses: the injured party and the prosecuting garda, Garda Hunt.

8. The injured party’s statement described drinking in the house of the applicant (who was a relative) and her partner. He stated that when he left the house to go home in the early hours of the morning, the applicant came from behind him and stabbed him. In his statement, he said that his brother, Patrick Nevin, saw the applicant run into the house and that the applicant’s partner, Hughie Nevin, kicked him on the ground.

9. Garda Hunt’s statement sets out that the injured party attended in the garda station the following day and made a complaint of assault. At around the same time, the applicant herself made a complaint of assault against the injured party. The applicant’s version of events was that the injured party and his brother Patrick Nevin came to her home at 4pm. She asked them to leave but they went to a shed on the premises to drink. She then went to the home of her sister-in-law. On returning to her home, she saw the injured party urinating in her kitchen. She told him to get out. There was an altercation, and she struck him with a knife, which was the only thing she could grab. Her husband arrived and took the injured party off the applicant and carried him out.

10. Therefore, while it is clear that an incident of some sort occurred in which the applicant stabbed the injured party with a knife, the circumstances surrounding the event were heavily contested. The individuals involved and potential witnesses were the applicant and her partner (Hughie Nevin), the injured party (Christie Nevin), and his brother (Patrick Nevin).

11. The applicant was charged on the 18 August 2022 and remanded on bail from time to time with the case being sent forward for trial on the 3 November 2022. On the 24 January 2023, the applicant’s solicitor wrote to the state solicitor seeking “full disclosure of all material statements which came about in the course of the investigation, whether included in the Book of Evidence or not”.

12. The applicant pleaded guilty to the charge of assault causing harm. The case was adjourned to allow for a contested sentence hearing, known as a “Newton hearing” in light of the English case of R v. Newton [1983] 77 Cr. App. R13. Given the factual contest set out above, the hearing was required because the applicant accepted that she had committed the assault but there was factual dispute as to the circumstances of the assault, and that dispute needed to be resolved to allow the trial judge to reach a proper view on which to base the sentencing

decision.

THE NEWTON HEARING

13. The Newton hearing took place on the 27 October 2023. Counsel for the DPP indicated that there was only one witness as to fact, the injured party. The injured party gave evidence and was cross examined by counsel for the applicant. After cross examination, the learned judge asked the injured party a question and the injured party referred to the fact that matters were witnessed by his brother, Patrick Nevin. At that point, counsel for the applicant noted that Patrick Nevin was not a witness. When the prosecution case closed, the applicant gave evidence and was cross examined by counsel for the DPP.

14. At the close of the evidence, the trial judge queried whether there was evidence from the applicant’s husband. Counsel for the DPP stated to the court “there is no statement from Patrick Nevin [the injured party’s brother]. There is a statement from Hugh Nevin [the applicant’s husband]”. Hugh Nevin’s statement was then read to the court pursuant to s. 21 of the Criminal Justice Act, 1984. As explained later, counsel for the prosecution was not correct when it was stated to the trial judge that there was no statement from Patrick Nevin.

15. The trial judge then ruled that he did not accept the injured party’s version of events. This was on the basis that the trial judge was satisfied that the injured party’s recollection had been clouded significantly by his level of intoxication. The court therefore was not satisfied that the State had proved beyond a reasonable doubt that his version of events was accurate in relation to the matter being an unprovoked attack, and the court was satisfied there was a level of self-defence, albeit excessive self-defence, involved in the action.

16. The case was then adjourned for a sentence hearing scheduled for the 9 January 2024. At the outset of the hearing on the 9 January 2024, the applicant pleaded guilty to count 2 on the indictment, which charged her with producing in a manner “likely unlawfully to intimidate another person” an article capable of inflicting serious injury, a knife, while committing an offence, assault causing harm.

17. At that point, a solicitor acting on behalf of the injured party addressed the court indicating dissatisfaction with the manner in which the Newton hearing had been conducted and indicating that a witness had not been called. In response, counsel for the DPP stated that all witnesses had been called. There was some confusion as to the identity of the witness that had been tendered pursuant to s. 21 of the Criminal Justice Act, 1984 at the October 2023 hearing. Counsel for the DPP referred to the statement that had been read to the court – which was the statement by the applicant’s partner. Counsel for the applicant agreed and submitted that even if that had not been the case, the State in effect had their opportunity to put their case forward and that this had been done.

18. The trial judge sought the DAR transcript from the Newton hearing. The sentence hearing proceeded, evidence was heard, and the court reserved its judgment to the 23 January 2024.

19. On the 23 January 2024, the court informed the parties that he had an opportunity to read the contents of the transcript and noted an issue concerning the absence of the statement of Patrick Nevin. In those circumstances he indicated it would be appropriate for the Newton hearing to be heard ab initio in front of another judge. He adjourned the case to the 31 January 2024 to allow counsel for the applicant to be present.

20. On the 24 January 2024, the injured party’s solicitor wrote to the state solicitor expressing dissatisfaction and requesting a copy of the statement of Patrick Nevin. The letter was forwarded by the state solicitor to the applicant’s solicitor along with a copy of the statement of Patrick Nevin, which had not previously been disclosed to the applicant or her legal team.

21. The statement of Patrick Nevin was dated the 14 March 2018, and, put briefly, appears to be more consistent with the injured party’s version of events than with the account of the accused.

22. On the 29 January 2024, the applicant’s solicitor wrote to the state solicitor setting out the applicant’s position. In large part, the arguments made in that letter were repeated at a hearing on the 31 January 2024, and form part of the case made in this judicial review. On the

31 January 2024, counsel for the applicant made submissions objecting to the proposed order. The points made on behalf of the applicant were: (i) the injured party enjoyed no right of audience (ii) in any event it was inappropriate for a witness to seek to comment on the manner in which a case was prosecuted, and invite the court to change the outcome, (iii) it was not open to the DPP or any other party to seek to set aside the decision because an unfavourable outcome was reached and to relitigate the issue with different evidence.

23. Counsel for the applicant highlighted that the fact that the statement of Patrick Nevin was not in the book of evidence or disclosed occurred for reasons unknown and that reopening the issue at that point was unfair. It was submitted that the hearing was one to determine the length of sentence on the basis of competing evidence and accordingly was protected by Article

38 of the Constitution and Article 6 of the European Convention on Human Rights. In those circumstances, any decision to set aside the ruling would amount to a breach of the defendant’s right to a fair trial.

24. Having heard from both parties, the court indicated that he was satisfied there was a witness that had not been put forward in the Newton hearing and that fairness required a fresh Newton hearing to be conducted before another judge. The formal order made by the learned judge recites the following:- “It was adjudged that the said matter be adjourned to Portlaoise Circuit Court sitting at Portlaoise at 10.00 on the 22/02/2024 before His Honour Judge Kenneth Connolly for Newton hearing. Determination made in respect of the Newton hearing on the basis that, on the first day, no statement made by complainant brother, Patrick Nevin. Matter was adjourned for sentencing. Complainant not happy with the outcome as there was a statement from Patrick Nevin and that same was not read into the record. The statement of the complainant was read into the court. Counsel for both sides indicated that the statement of Patrick Nevin was read into the record, when however it was in fact the statement of Hugn [Sic] Nevin opened to the Court.”

THRESHOLD ISSUE

25. As noted above, the first issue to be addressed is the question of whether the court should entertain this application. As noted by Charleton J. at para. 19 in E.R. v. The Director of Public Prosecutions [2019] IESC 86 (“E.R.”), a trial in the Circuit Criminal Court commences with the accused pleading to the indictment and ends when the accused is either acquitted or is sentenced on foot of a finding of guilty. The overall process is intended to be treated as a unitary process.

26. Ó Dálaigh C.J. described the nature of a criminal trial in The People (Attorney General) v. McGlynn [1967] I.R. 232 at p. 239 as follows: “The nature of a criminal trial by jury is such that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”

27. In DPP v. Special Criminal Court [1999] 1 I.R. 60, the Supreme Court expressed the view that the statement in McGlynn was applicable to all criminal trials, subject to the jurisdiction of the court to state cases, and certain exceptional situations. The Supreme Court has been clear that one of the consequences of the nature of the criminal process is that, notwithstanding the full original jurisdiction of the High Court, the appropriate response to an adverse ruling in the course of a criminal trial is an appeal to an appellate court.

28. A further consequence of the unitary nature of the trial process is that the process should not be diverted by judicial review applications in the course of a criminal trial. That principle was described by the Supreme Court in DPP v Special Criminal Court, reiterated in E.R. v. DPP, and a similar approach was adopted by Kearns P. in Freeman v. DPP [2014] IEHC 68, where the then President found that judicial review was not an appropriate response to an exercise of discretion by the trial judge to accept or reject a change of plea.

29. DPP v Special Criminal Court illustrates the type of exceptional situation that can arise. What occurred involved a ruling that Charlton J. in E.R. described as a radical departure involving an issue of informer privilege that engaged, among other matters, the right to life of confidential communicants. The exceptionality of the point in issue was emphasised by the Supreme Court in that case, and the Court endorsed observations by Carney J. in the High Court when he stated at page 69-70: “It is unique in my experience that relief of this nature is being sought during the currency of a trial which remains at hearing. It cannot be emphasised strongly enough that an expedition to the judicial review court is not to be regarded as an option where an adverse ruling is encountered in the course of a criminal trial. I am undertaking this application for judicial review during the currency of the trial because a need has presented itself to urgently balance the hierarchy of constitutional rights including, in particular, the right to life. In the overwhelming majority of cases it would be appropriate that any question of judicial review be left over until after the conclusion of the trial.”

30. It should be noted that in the course of the hearing before this court, and in the written submissions prepared in advance of the hearing, the parties did not identify an authority involving analogous rulings in a criminal process and where judicial review relief was granted during the currency of those proceedings.

31. Hence, the overarching issue is whether the application in this case ought to be treated as falling into the category of case – which as described by Carney J. constitutes the overwhelming majority of cases – where a party encounters an adverse ruling, such that there is a need for the court to intervene before the conclusion of the criminal proceedings. In order to address that issue, it is necessary to consider whether the issues raised in argument by the applicant reach the necessary high threshold. In addressing those issues, it is important to bear in mind that if the court concludes that the underlying proceedings ought to continue without intervention it will be a matter for the trial judge and not the High Court exercising its jurisdiction in judicial review to ensure that the remainder of the criminal proceedings are conducted lawfully. In turn, the applicant will be entitled to appeal any outcome. With that in mind, I will set out the grounds upon which the applicant was granted leave to apply for judicial review.

THE LEGAL GROUNDS IN THE STATEMENT OF GROUNDS

32. In the statement of grounds, the following legal grounds are set out:

(a) The applicant enjoys rights under the Constitution and the European Convention to a fair trial in the conduct of a sentence hearing.

(b) The Newton hearing was an adversarial hearing conducted to criminal standard in order to determine sentence. Evidence is called by a prosecution which had been disclosed to the applicant, and which was tested by cross-examination. The statement by Patrick Nevin was not disclosed and did not form part of the DPP’s case.

(c) Where the court found in favour of the applicant, it is not open to the DPP to allow a situation where having received an unfavourable outcome the case could be heard again before another judge with different evidence that had never been previously disclosed to the applicant, this was contrary to basic fairness.

(d) The injured party had no right of audience before the court, and it was entirely inappropriate for the witness to seek to address the court on the manner in which the case had been prosecuted and to invite the court to change the outcome.

(e) If the DPP was not satisfied with the outcome of the hearing, her recourse was to explore avenues of appeal, if any. It was not open to the DPP to seek to have the hearing rerun with better evidence.

(f) The court’s decision to set aside his determination and recuse himself from further hearing the case was on the basis of the submissions made to him by a non-party who did not enjoy a right of audience. If the court had any concerns about the lack of evidence that should have been resolved in favour of the applicant, the DPP having closed her case.

(g) The court exhibited objective bias in seeking to set aside the decision based on submissions made by a non-party who had no standing.

33. The statement of grounds was verified by the applicant in an affidavit sworn on the 16 February 2024, and a further affidavit was sworn on the same date by a solicitor, Josephine Fitzpatrick, from the firm acting for her. Ms. Fitzpatrick’s affidavit exhibited the book of evidence and a transcript of the digital audio recording and the Newton hearing on the 27 October 2023, together with certain correspondence referred to in the affidavits and statement of grounds.

THE STATEMENT OF OPPOSITION

34. In their statement of opposition, which was filed on the 4 December 2024, the second named respondent largely set out the same factual matrix as the applicant. The DPP highlighted that following the Newton hearing on the 27 October, 2023 the Circuit judge simply “outlined his views that the applicant had used an excessive level of self defence in the acts that she perpetrated”. However, the DPP asserted that the Circuit judge did not make any order.

35. The DPP accepted that on the 9 January 2024, at the scheduled sentence hearing, a solicitor acting for the injured party addressed the court to indicate his client’s concerns about the Newton hearing. The DPP accepted that the trial judge ordered a transcript of the hearing and heard the evidence in respect of sentence and reserved judgment until the 23 January 2024.

36. The DPP noted that on the 23 January 2024, the trial judge observed that, having considered the transcript, the court came to appreciate that he had not heard all of the relevant evidence in the case and therefore in the interests of fairness it would be more appropriate for the background facts to be heard ab initio before another judge.

37. According to the DPP it was entirely reasonable for the trial judge to deal with the matter in such a manner, his decision was made in the interests of fairness and within jurisdiction and should not be the subject of judicial review.

38. The DPP accepted that the applicant enjoyed rights to a fair trial however there had been no breach of any such rights. The point made by the DPP was that “no decision has of yet been made in the applicant’s case and it is to be presumed that her rights will be respected and vindicated by the new trial judge”. As set out by the DPP, the interests of justice are paramount in any trial process and as all relevant evidence had not been adduced at the Newton hearing due to a human error, the judge correctly held that fairness required he should recuse himself from the proceedings and that a fresh sentencing process should be presided over by a different judge.

39. The DPP noted that the witness statement made by Patrick Nevin was disclosed immediately once its nondisclosure was adverted to. The DPP disputed the characterisation of what occurred as “an unfavourable outcome” from the perspective of the DPP. The DPP highlighted that the charges preferred had already been proven by the applicant’s plea and the only matter to be determined was the quantum of sentence. In that regard, the trial judge only heard part of the available evidence and had not yet determined the sentence appropriate to the applicant’s offending. The DPP noted that the applicant retained her full right to be heard on the question of culpability and sentencing, and can make her case at the new sentence hearing. As such the convening of a de novo hearing is not contrary to basic fairness.

40. In relation to the involvement of the complainant the DPP stated that “the injured party simply engaged an officer of the court to bring to the attention of the judge that not all the relevant facts had been adduced.” In that context the complainant had already testified to the existence of his brother’s statement.

41. The statement of opposition was grounded upon an affidavit sworn by Tristan Lymas the state solicitor for County Laois. Sworn on the 27 November 2024. In addition to verifying the statement of opposition the solicitor noted that the statement of Patrick Nevin “had not been disclosed due to a human error. It was promptly disclosed once its existence had been averted [sic] to. Full disclosure has now been made in the case.”

DISCUSSION

42. The essential facts that give rise to the dispute in this case are not contested. The question is how they are to be characterised. In relation to the facts, the difficulties agitated in this judicial review result from acts or omissions on the part of the prosecution. While those acts or omissions may be simply the result of human error, the reality is that when the Newton hearing commenced it appears to be the case that a number of relevant statements had been taken by An Garda Síochána but had not been furnished to the defence or to counsel for the prosecution. In the case of the statement from the applicant’s husband, Hugh Nevin, that omission was addressed at the hearing when his statement was read to the court pursuant to s.

21 of the Criminal Justice Act 1984 by agreement. Unfortunately, at that point, prosecution counsel, being unaware, stated to the court that there were no further statements. This was incorrect; there was a statement from Patrick Nevin, the injured party’s brother. Moreover, the injured party himself, while giving evidence, adverted to the fact that his brother had witnessed the events in question and expressly asserted that Mr. Nevin’s statement should have been in the book of evidence. Nonetheless, the hearing proceeded and was concluded insofar as the calling of evidence was concerned.

43. The written and oral submissions made observations on the nature of a Newton hearing, however as noted above there was no dispute from either side about the decision to hold such a hearing in the first place, and plainly that was a correct course for the trial judge to adopt.

44. I am satisfied having regard to the transcripts that the decision to convene a fresh hearing was made by the trial judge himself and was not on foot of any application to that effect by the DPP. Hence, this is different from cases such as the State (O’Callaghan) v. O hUadhaigh [1977] IR 42 where what was at issue was a decision by the DPP to institute fresh proceedings having entered an earlier nolle prosequi on identical charges. This case concerns a decision made by the trial judge when certain matters were brought to his attention that led the trial judge to consider that an unfairness had occurred.

45. I am likewise satisfied that the fact that this was brought to his attention by a solicitor acting for the injured party, in and of itself, is not something that ought to trigger a mid-trial judicial review. It is of course true that the injured party is not a party to the criminal proceedings, which are conducted as between the accused person and the State. While the DPP did not argue that the injured party’s solicitor had any particular right of audience in the context of the proceedings in question, she highlighted that just because victims are expressly afforded specific rights in certain cases did not mean that they are shorn of rights in other cases or that the public interest is diminished. In that regard the DPP referred to observations of Kearns J.

in McFarlane [2008] 4 I.R. 117, where the court stated:-

“Having regard to the public interest in seeing serious crime prosecuted, the onus on an applicant to engage in a specific way with the particular facts, particularly where prejudice is alleged, cannot be overstated. References to the community’s right to prosecute are not mere shibboleths to which nominal lip service only must be paid. That right is an essential element in a properly functioning criminal justice system…”.

46. Further, it is notable that in this case the injured party in his evidence at the Newton hearing had raised the issue of his brother’s evidence. If, at that stage, the parties had been apprised of the correct position and the prosecution had not inadvertently misled the trial judge, it seems reasonable to assume that steps would have been taken to have his evidence heard by the court, either there and then or at an adjourned hearing.

47. The question of whether the trial judge should have entertained the interjection from the solicitor who was conveying the concerns of the injured party is not, to my mind, of such a nature that it engages the type of concern that would lead to the High Court exercising its judicial review jurisdiction during the course of a criminal process. Once the issue was brought to the attention of the trial judge, it seems to me that it had to be addressed. The real issue, as I see it, was the appropriate response to that new information.

48. It was common case that the right to fair procedures applies as much at the sentencing stage as at the trial itself. The central and critical point made by the applicant is that it was unfair to the point of undermining her right to a fair trial for the outcome of the Newton hearing to be set aside. The applicant argued that there is no logical reason why the Newton hearing should be treated with less rigour than a hearing before a jury.

49. There can be no real doubt that the fact that a Newton hearing in the Circuit Criminal Court involves the trial judge, rather than a jury, acting as the arbiter of fact does not in any sense diminish the seriousness of the process. As noted by the applicant, in R v Underwood [2004] EWCA Crim 2256, Judge L.J. described the approach to be adopted by the court when conducting a Newton hearing; and I did not understand the DPP to dispute this description: “8. The judge must then make up his mind about the facts in dispute. He may, of course, reject evidence called by the prosecution. It is sometimes overlooked that he may equally reject assertions advanced by the defendant, or his witnesses, even if the Crown does not offer positive contradictory evidence.

9. The judge must, of course, direct himself in accordance with ordinary principles, such as, for example, the burden and standard of proof. In short, his self-directions should reflect the relevant directions he would have given to the jury. Having reached his conclusions, he should explain them in a judgment.”

50. The court also was directed towards observations made by Dixon J. in the Supreme Court of Cananda, where in R. v. Gardiner [1982] 2 SCR 368 the court noted:- “To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. ‘It would appear well established that the sentencing process is merely a phase of the trial process’ [Olah, ’Sentencing: The Last Frontier of the Criminal Law’(1980), 16 CR (3D) 97], at p.107. Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.”

51. I can see no reason why at a level of generality the observations quoted above are not applicable as a matter of law in this State.

52. The applicant argued that the Newton hearing and any determination made by the court on foot of a Newton hearing was to be treated as a separate step in the proceedings albeit a step taken in the continuum of the overall trial process. The applicant drew an analogy with a trial before a jury. Hence, according to the applicant, if a prosecutor in a criminal trial elected not to call a witness and got an unfavourable result, it could scarcely be asserted that the prosecutor could obtain a re-trial including the witness in the hope of a better result from the applicant’s perspective, the issue was whether there was a sufficiently significant difference to allow it to happen in a Newton hearing. The applicant characterised a Newton hearing as a “contested trial to determine facts on a dispute between parties leading to potential incarceration”.

53. For her part, the DPP did not differ significantly in relation to the general parameters of the Newton trial or hearing that had been identified by the applicant. The significant difference was that the DPP’s position was that the judge conducted the Newton hearing entirely in accordance with the normal accepted rules but that the sentence hearing had not been concluded to the point of determining or passing sentence. The DPP emphasised that, properly understood, the process is not concluded until sentence is passed, and that the trial judge must ensure that sentencing occurs on the basis of reliably established facts. In that regard, the DPP disputed the assertion of the applicant that the Newton hearing itself, and any determination by the judge as to the facts on which sentence will be passed could be severed or considered separately from, or considered concluded, until sentence had been passed.

54. Ultimately, the DPP argued that there was nothing that fettered the jurisdiction or discretion of a judge to conduct court proceedings as that judge sees fit subject to the parameters of constitutional justice and fair procedures. While that is true as a general statement, it does not address the concern raised by the applicant that what occurred went outside the parameters of a fair trial process.

DECISION

55. In my view the difficulty for the applicant presented by a fresh Newton hearing does not rise to the level of unfairness that could justify the High Court quashing a decision made by a trial judge – which, on one construction, effectively amounts to an order prohibiting the fresh Newton hearing - and therefore the court should not grant the relief sought. This means that the fresh Newton hearing should proceed. The applicant retains the right to appeal at the

conclusion of the trial process, and I do not wish to make observations that could be treated as in any sense suggesting how issues should be resolved in another forum. However, it is necessary that the applicant understands why I have reached that view, and I will explain my view in brief terms.

56. There is no doubt that a person in the position of the applicant is entitled to fair procedures at all stages of the trial process. I accept the general proposition that ordinarily the prosecution cannot seek to jettison a process following an adverse ruling and seek to recommence the process. However, that is not what occurred in this case. The DPP did not seek “a second bite at the cherry”. The reality is that the matters of which the applicant complains are matters that can be appealed.

57. The situation presented to the trial judge was very difficult and I fully accept that the efforts of the trial judge were directed to ensuring that the overall process was sound. It was quite clear that before the trial judge made any findings of fact on the Newton hearing he had raised queries about other witnesses, and he was given an incorrect answer to those queries by counsel for the prosecution. It seems to me if those queries had been answered accurately the trial judge likely would not have proceeded immediately to make findings, and at least would have canvassed with the parties how best to proceed at that stage. However, faced with the full facts at the later sentencing hearing, the trial judge had to make a decision as to how best to proceed. In my view, it was a matter for the trial judge to consider whether the new evidence ought to have been admitted and the question of whether he was correct to proceed in the way that he did is a matter properly for the appeal process. Having made a decision to direct a fresh Newton hearing, I do not consider that any issue can be taken with the decision to have another judge deal with the outstanding issues in the case. Even allowing for the fact that a judge is better able to compartmentalise matters than a jury and ignore matters that were, but should not have been, drawn to their attention, the court respects the decision here that the trial judge considered it prudent to have the fresh Newton hearing and sentencing dealt with by another judge.

58. Overall, I consider that this is a situation in which, if an appeal is brought in the ordinary way, the appeal court will be in a position to make a decision based on an overall consideration of the full criminal process, and where proceeding with the trial will not impact the rights of the applicant to the extent that relief by judicial review is warranted.

59. While the application for judicial review will be refused for the reasons explained, my preliminary view is that there should be no order for costs. Ordinarily the respondents would be entitled to costs, having successfully defended the application for relief. However, the unusual circumstances that gave rise to this application clearly are attributable to errors made on the prosecution side, and I consider that as a matter of discretion it would be unfair to fix the applicant with costs. I will list the matter for final orders at 10.30am on Thursday, the 16 October 2025, and the parties will have an opportunity to make arguments in relation to costs if there is any disagreement with my preliminary view.