Judge reverses stay in earlier Bush assault case

(CNS): The legal woes of McKeeva Bush MP may not be over. An acting Grand Court judge who presided over and stopped a trial in which he was facing indecent assault charges earlier this year has reversed part of his decision. In a ruling delivered to the court on Wednesday, Justice Stanley John said he was wrong to stay the entire case as the concern related to charges against only one of two alleged victims. But the ruling also reveals that the system was being misused and the cabinet secretary was pressured to give evidence against Bush.

Bush had been discharged by the court in February in relation to this case after Justice John stayed the trial following a successful application by the defence accusing the crown of an abuse of process. The ruling was delivered in April but had been the subject of a gag order because of the additional historic rape charges that the veteran politician was also facing.

After Bush was acquitted in that case on Monday, the gag order was lifted and Justice Marlene Carter read the ruling in open court. In it, Justice Jones spells out the reasons why he had stayed the proceedings and why he went on to partially reverse the stay.

Bush had been accused of indecently and commonly assaulting two female civil servants at a cocktail party at the Ritz hotel in September 2022, but the judge found that the “prosecutorial system was being misused by person/s with their own agenda” in relation to one of the two women.

“The manner in which the prosecution was conducted in relation to [one of the victims] caused the Court a great deal of disquiet, and the Court invoked its inherent jurisdiction to stay the proceedings to prevent any abuse of process,” he said. However, since only one victim was subject to this abuse of process, “the Court was wrong to stay the entire case,” he said as he rescinded the Order of Stay two of the counts.

As a result, if it chose to, the crown could re-try Bush in relation to one of the women who said she was assaulted by him.

The stay in relation to the second victim was imposed largely because she had not wanted to pursue the case. She described Bush’s behaviour towards her as “creepy and weird” but said she did not believe that what he did was actually a crime. She told the police that if she had thought it was, she would have reported the matter.

“I did not think it rose to the level of a crime. I did tell him that I did not think Mr Bush intended to do me harm,” the woman had told the detective on the case and had told a senior officer that she had no intention of making a formal report to the police.

But she was cajoled into making a video interview and believed she was “being ambushed by people who have an agenda” as she had never given any consent to anyone for anything. She said that as far as she was concerned, there was no indecent assault in relation to a hickey that Bush had caused when he sucked the woman’s hand while drunk.

However, when instructions came from the director of public prosecutions (DPP) to charge Bush, the lead detective in the case contacted the woman and told her that she was part of the charges. Surprised that charges were made involving her, she sent an email to the detective stating, “I have given the matter a great deal of thought… I am not interested in pursuing this matter.”

The woman was nevertheless told she must give evidence. But in court, there was a battle over the fact that the crown had failed to disclose how she was effectively cajoled against her will to testify. Bush’s defence attorney, Sallie Bennett-Jenkins KC, made the submission to stay the case on the grounds that for many months the office of the DPP had effectively deliberately hidden from the defence that one of the alleged victims was not interested in supporting the case against Bush.

The woman was not the only person to be pressured to testify against the former premier. Cabinet Secretary Sam Rose was not at the event but had received a written outline of the events from the woman, who had gone on to say she did not wish to support a prosecution. The document outlining what happened had been submitted to Rose because the incident happened during a work event, and the civil servant in question had been asked by her immediate boss to put the details in writing for internal purposes.

Rose revealed to the police that he had concerns about the investigation as he was being pressured into giving a statement on the matter, but he had decided not to do so.

“I have been concerned about confidentiality in this matter. I have been approached by three separate individuals who are not RCIPS officers about providing a statement on this matter, which only confirms my apprehensions/concerns,” Rose told the lead detective in an email which was disclosed at the eleventh hour. “As you are aware, I was not at the Ritz Carlton on the evening in question. I fail to see how the strength of this case rests on anything I say when I was not present.”

In light of that correspondence, Justice John said he had formed the view that the prosecutorial system was being misused by people with their own agenda.

“It is imperative that public confidence in the administration of justice must always be maintained, and the Court must never be seen to be abdicating that duty,” he wrote in his ruling. “The manner in which the Prosecution was conducted in relation to [one of the women] caused me a great deal of disquiet…” As a result, he had invoked the inherent jurisdiction a judge has “to prevent any abuse of process”.

But he accepted that he had fallen into error by granting a general stay since no submissions were made to the court relating to the other woman in the case, who had chosen to pursue the allegation. “The error is regretted, and the Court is satisfied that Counts One and Three ought not to have been stayed and should be tried if the Prosecution chooses to proceed. I, therefore, rescind the Order of Stay in respect of those Counts,” the judge added.

The ODPP has not indicated whether or not it intends to pursue these remaining charges, which would require a retrial and for the witness to be prepared to take the witness stand for a second time.

The full ruling is now available on the judicial website here IND 0031 of 2023

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